ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
CITATION: Gibbons v. Mulock, 2017 ONSC 744
DATE: 20170130
FILE NO. DC-16-00129242-00ML
BETWEEN:
Nathan Edward Gibbons
Applicant (Moving Party)
- and -
Lindsay Cawthra Mulock
Respondent (Responding Party)
Gary Joseph, for the applicant
George Karahotzitis, for the respondent
Heard: January 26, 2017
Motion to stay the order of Justice Heather McGee dated December 7, 2016, pending the hearing of the applicant’s motion for leave to appeal, and motion for leave to appeal.
ENDORSEMENT
Bale J:–
[1] The applicant moves for an order staying an order for exclusive possession, pending the hearing of his motion for leave to appeal that order. The motion papers were brought into court and presented to me as an urgent motion. The urgency arises from the fact that the order under appeal grants exclusive possession of the parties’ matrimonial home to the respondent, and requires the applicant, who has had sole possession of the home since August 17, 2013, to vacate the home on January 31, 2017.
[2] Motions for leave to appeal are heard in writing, and prior to the commencement of argument, counsel invited me, rather than hearing oral argument on the stay motion, to proceed in chambers with the motion for leave. At that time, as I was not sure that I could give the necessary priority to the leave motion, we proceeded with oral argument on the motion for a stay.
[3] However, counsel advised that the record before me is at least as complete as the record filed in support of the motion for leave, and now having had the benefit of both oral argument on the stay motion, and a full review of the written record, I have determined that I am in a position to dispose of the motion for leave.
[4] The grounds upon which leave to appeal may be granted are set out in rule 62.02(4). The moving party must show either (a) that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal, and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (b) that there is good reason to doubt the correctness of the order in question, and the proposed appeal involves matters of such importance that, in the opinion of the judge hearing the motion, leave to appeal should be granted.
[5] The applicant argues that he is entitled to leave under both clauses (a) and (b) of subrule 62.02(4). I disagree. In my view, neither of the tests is met.
[6] The matrimonial home, in this case, is owned by the respondent. The applicant’s primary argument is that the motion judge ignored section 19 of the Family Law Act which provides that both spouses have an equal right to possession of a matrimonial home, and that in doing so, she treated the applicant as having no more right to possession than a trespasser. He also argues that the motion judge failed to consider the criteria for exclusive possession under section 24(3) of the Act.
[7] The applicant’s argument under rule 62.02(4)(a) that there are conflicting decisions on a matter involved in the proposed appeal is flawed. His argument is that the motion judge ignored sections 19 and 24(3) of the Act, and that her decision is therefore in conflict with decisions of other courts made in accordance with those sections. However, even if the motion judge did ignore those sections of the Act (I don’t agree that she did), in order for there to be conflicting decisions, there would have to be conflicting interpretations of those sections. A decision which ignores the provisions of an act, and a decision made in accordance with those provisions, are not “conflicting decisions” in the required sense. They do not result in a conflict requiring resolution by an appellate court.
[8] In any event, the motion judge says in her reasons that she was relying on section 24 of the Act, and her order was stated to be pursuant to section 24. According to the applicant, the relevant clauses of subsection 24(3) are (c) the financial position of both spouses, and (e) the availability of other suitable and affordable accommodations. The financial position of the respondent was clear because she had complied with all disclosure requirements of the Family Law Rules. The financial position of the respondent was not clear, but only because he had failed to comply with those requirements, and the motion judge made an adverse finding of credibility. With respect to the availability of other accommodations, it was clear that other accommodations were available to the respondent, because she had been living in other accommodations for more than three years. There was no evidence before the court as to the availability of other accommodations for the applicant, because he failed to file any such evidence. The motion judge’s decision to grant exclusive possession to the respondent, based upon the evidence that was before her, involved an exercise of discretion, which is not reviewable by this court. The applicant included a further affidavit in his motion record, on the motion for leave to appeal, which purports to deal with his financial position, and the availability to him of other suitable accommodation. However, the affidavit does not meet the test for the admission of fresh evidence, and it is unlikely that it would be admitted on appeal. In addition, it lacks particulars, and does nothing to answer the questions arising from his failure to disclose his financial position in accordance with the Family Court Rules.
[9] The applicant’s argument under rule 62.02(4)(b) that the proposed appeal involves a matter of such importance that leave to appeal should be granted is also flawed. A “matter of such importance” under the rule is a matter of general importance to the development of the law, or the administration of justice. The applicant argues that the issue of general importance is whether “a titled spouse’s right to sale trumps” the equal right to possession of a matrimonial home provided for in section 19 of the Act. This is not, however, an issue arising from the motion judge’s decision. A titled spouse’s right to sell her home does not trump her non-titled spouse’s rights under the Act, and the motion judge didn’t say it does. In her affidavit, the respondent said that she wanted “to move back into [her] home, and depending upon its condition, consider selling it.” The motion judge simply observed that it would be difficult for the respondent to sell the home, with the applicant in possession.
[10] The applicant has been in sole possession of the home since August 17, 2013, but only because the respondent moved out alleging violence, and because she has been financially able to live outside of the home on her own, and at the same time, pay all expenses related to the home. The applicant commenced this application in early 2014, but has done little or nothing to move it forward. He based his opposition to the respondent’s motion for exclusive possession on what he refers to as his “dire financial situation”, but has failed to provide financial disclosure, and has never moved for an order awarding him spousal support, or exclusive possession. He has failed to comply with both the Family Law Rules, and with court orders. A consent order severing the divorce has been made, so his equal right to possession under section 19 of the Act is, in any event, nearing an end. The motion judge was aware of these facts in making her decision.
[11] For the reasons given, both motions are dismissed.
[12] With respect to the motion for a stay, the parties agreed that the appropriate quantum of costs was $5,000. However, I am unsure whether this amount would cover the respondent’s costs of the motion for leave to appeal.
[13] Accordingly, if the respondent requests costs in excess of $5,000, I will consider brief written argument provided that it is delivered to my assistant at Judges’ Reception, Durham Region Courthouse, Sixth Floor, no later than February 20, 2017. Alternatively, if the respondent is content with costs fixed at $5,000, an order dismissing both motions may be issued, with costs payable in that amount.
“Bale J.”
Released: January 30, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
CITATION: Gibbons v. Mulock, 2017 ONSC 744
DATE: 20170130
FILE NO. DC-16-00129242-00ML
BETWEEN:
Nathan Edward Gibbons
Applicant (Moving Party)
- and -
Lindsay Cawthra Mulock
Respondent (Responding Party)
REASONS FOR DECISION
Bale J.
Released: January 30, 2017