CITATION: Nifco v. Nifco, 2017 ONSC 7475
DIVISIONAL COURT FILE NO.: 317/17 DATE: 2017/12/13
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
NATHAN NIFCO
Steven Benmor, for the Applicant
Appellant/Respondent on Motion
– and –
DANIELA NIFCO
Sharon R. Shore, for the Respondent
Respondent/Moving Party
HEARD at Toronto: December 13, 2017
SACHS J. (Orally)
[1] On June 6, 2017 Stewart J. dismissed the husband’s motion for partition and sale of the matrimonial home and on August 1, 2017 she ordered the husband to pay the costs of the motion fixed in the amount of $7,500.00.
[2] The husband appealed the motion judge’s order to the Divisional Court. He did not seek leave to do so. In his factum, he also sought leave to appeal the motion judge’s order as to costs.
[3] The wife moves before me for an order quashing the husband’s appeal on the basis that the husband failed to seek leave to appeal the motion judge’s order. Both parties agree that the determination of this motion turns on two questions; (1) Was the motion judge’s dismissal of the husband’s request for partition and sale a final or interlocutory order? (2) If the order was interlocutory does the Partition Act, RSO 1990, c. P4 provide the husband with a right to appeal to the Divisional Court without the need to seek leave?
Was the Motion Judge’s Order Final or Interlocutory?
[4] The husband’s motion was for an order seeking, among other things, the partition and sale of the jointly owned matrimonial home before trial. This is clear from the following statement that appears in the endorsement of the motion judge:
While it is true that in general an order for partition and sale of jointly owned property is the right of the joint owner, an order directing the sale of a matrimonial home before trial should only be made in cases where in all of the circumstances, such an order is appropriate. (emphasis added).
[5] Further, as the motion judge points out in her endorsement of June 30, 2017 the husband still intends to seek an order for the partition and sale of the matrimonial home at trial.
[6] It is clear that the order dismissing the husband’s request pending trial was an interim or interlocutory order. It did not finally dispose of the issue between the parties. That will be determined at trial. If the motion judge had order the sale of the matrimonial home, that would have been a final order.
Does the Partition Act Remove the Requirement for Leave?
[7] Section 7 of the Partition Act provides that “an appeal lies to the Divisional Court from any order made under this Act.” The husband submits that the words “any order” include an interlocutory order and that this section gives him an absolute right of appeal without the need to seek leave.
[8] While there are a number of cases where leave was sought when an order for partition and sale of a property pending trial was dismissed, none of these cases address directly the point that the husband makes on this motion. However, the same question was addressed in a number of cases concerning the provision of the Ontario Business Corporations Act, that also contains a section that any order made by the Court under that Act can be appealed to the Divisional Court.
[9] In Watkin v. Open Window Bakery, 1996 11788 (ON SC), [1996] 28 O.R. (3d) 441 (Div. Ct.) Rosenberg J. considered whether this meant that it was necessary to seek leave from an interim order under the OBCA. He found that it did and in doing so stated at para. 17 “All interlocutory orders made under an Ontario statute and all other interlocutory orders (except those made under a federal statute which provides a clear right of appeal of all orders) would require leave to appeal. I am of the view that this is the law and that the obiter of Justice Galligan referred to was correct and applies in this case. Accordingly leave to appeal was required and accordingly the motion to quash succeeds.”
[10] Watkin has since been followed in a number of cases, including McCormick Estate (Trustee of) v. Murphy, [2005] O.J. No. 1204 (Div. Ct.). In that case, Lane J. found that by failing to stipulate any procedure s. 225 of the OBCA (the section providing for a right of appeal of any order to the Divisional Court) “is best read as intending to conform to the existing procedures in place for appeal to the Divisional Court, which call for leave to appeal on interlocutory orders.” (para. 20).
[11] The Partition Act is a piece of Ontario legislation and the reasoning applied in the cases under the OBCA also applies to it. Thus, if an order is an interlocutory one, leave to appeal is required before the order can be appealed.
Conclusion
[12] For these reasons the motion to quash is allowed and the husband’s appeal is quashed. This order is without prejudice to the husband’s right to bring a motion seeking an extension of time to file his motion for leave to appeal. In making this statement I am taking no view as to the merits of such a motion.
[13] I have endorsed the Motion Record of the Respondent in Appeal/Moving Party, Daniela Nifco (Re: Motion to Quash the Appellant’s Appeal) as follows: “For reasons given orally this motion is allowed and the husband’s appeal is quashed, without prejudice to his right to bring a motion seeking leave to extend the time for filing his motion for leave to appeal. The wife (moving party) is entitled to her costs of this motion and her costs thrown away on the appeal, which I fix in the amount of $8,000.00, all inclusive. This amount takes into account the offer to settle made by correspondence to the husband on September 6, 2017 and thus I have fixed the costs at a higher rate than partial indemnity.”
___________________________ SACHS J.
Date of Reasons for Judgment: December 13, 2017
Date of Release: December 14, 2017
CITATION: Nifco v. Nifco, 2017 ONSC 7475
DIVISIONAL COURT FILE NO.: 317/17 DATE: 2017/12/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
NATHAN NIFCO
Appellant/Respondent on Motion
– and –
DANIELA NIFCO
Respondent/Moving Party
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: December 13, 2017
Date of Release: December 14, 2017