CITATION: Bozak v. Ndur, 2020 ONSC 5780

DIVISIONAL COURT FILE NO.: FC-18-254

DATE: 2020/09/25

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

NADIA ELIZABETH BOZAK

Applicant

(Respondent on the Motion)

– and –

ITYODOO UDUAK NDUR

Respondent

(Moving Party on the Motion)

Marta Siemiarczuk, for the Applicant

Self-represented

HEARD: September 24, 2020 via Zoom

DOYLE J.

1The Respondent is requesting an extension of time to file his motion for leave to appeal Justice Audet’s October 7, 2019 costs order which granted $3,500 costs to the Applicant (“costs order”).

2The Respondent submits that Justice Audet failed to give sufficient reasons for rejecting his arguments set out in his costs’ submissions, namely the issue of the Applicant’s bad faith and unreasonable behaviour.

3He wrote to Justice Audet to request further clarification of her reasons but did not receive a reply.

4The Applicant moves for an Order dismissing the Respondent’s request on the basis that the appeal has no merit, he is unlikely to obtain leave as required under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), and he has not explained his delay.

Background

5The Applicant was predominantly successful in a motion heard in March 2019, before Justice Audet dealing with shared parenting of the parties’ two children.

6On May 29, 2019, Justice Audet granted costs to the Applicant in the amount of $7,500 payable forthwith. He made payments in the spring of 2020 and made his final payment in August 2020 but has not paid the 3% interest on that sum.

7After the March 2019 motion, the Applicant brought a further motion for an order permitting her to register on of their daughters in a particular school for the 2019-2020 school year. The child lived with the mother, but the father was suggesting that the child attend the school located in his neighbourhood.

8The Applicant was successful on that motion and on October 7, 2019, Justice Audet ordered that he pay $3,500 in costs to the Applicant.

9On November 5, 2019, the Respondent wrote to Justice Audet indicating that in her reasons for costs she did not discuss why she did not consider his bad faith allegation made in his costs submissions. He also questioned why Her Honour did not explain why she did not accept his allegation that the mother was unreasonable. For example, he argued that the Applicant failed to discuss the issue of schooling with him as she was required by the order of March 28, 2019,

10At the end of November 2019, he canvassed dates with the Applicant’s counsel. Since he had not heard back from Justice Audet he wanted to proceed with the appeal.

11He brought a motion returnable March 13, 2020 in the Civil Branch for an extension of time to file his notice of appeal.

12In her endorsement from the settlement conference on February 21, 2020, Justice Summers indicated that he must bring his motion for an extension of time for the leave motion in Family Court. The Court vacated the date of March 13, 2020.

Respondent’s Position

13The Respondent filed numerous documents in support of this motion.

14They include a reply affidavit, various correspondence dealing with the school issue including pick up of the children, attempts to mediate the matter, various materials which he says support his allegation that the Applicant acted in bad faith and behaved unreasonably.

15He alleges that:

• The Applicant blocked one of the children’s registration to Broadview Public School which was the school he was suggesting. She did this without discussing it with him which was required by the court order of Justice Audet dated March 28, 2019 which stated that Nyla’s school was to be made by joint agreement by the parents;

• The Applicant’s counsel indicated that the school should be in the vicinity of the primary residence parent, i.e. the Applicant;

• The Applicant went ahead to register Nyla in her choice of school pending the outcome of the motion;

• Her lawyer wrote to him on July 8, 2019, that if he could not readjust his schedule to ensure that the children were picked up and taken care of after school, he would have to forego access on those days;

• He responded that he had to forego his access on Tuesdays and Thursdays due to his work schedule and commitments and his long hours dealing with the litigation. Also the Applicant would not provide the name of the after-school caregiver,

• Janet Claridge, the mediator told the Applicant that this was a high conflict relationship and they would not be good candidates for mediation. She told the mother to retain a more experienced lawyer. He felt that Ms. Claridge as a mediator had lost her impartiality;

• The Applicant included privileged information in her sworn affidavit violating the settlement privilege; he relies on the principal that settlement negotiations are protected by the common law rule that “without prejudice” communications made in the course of such negotiations are inadmissible. He states that the before and after care program due to work commitments was part of the discussion and he felt he had no choice given his limited resources and unwillingness to return to court. The Applicant denies this. She said that her affidavit dated July 30, 2019 in which she included several email exchanges dealing with the children’s weekday access arrangement did not deal with the furtherance of settlement of any issue; and

• The Applicant included false information in her affidavit in support of her motion to determine Nyla’s school choice;

16He submitted in his costs submission that the Applicant, although successful in the motion, should not be awarded costs as she had acted in bad faith and she behaved unreasonably.

17The Respondent indicated that he wanted Nyla to attend a school at the closest elementary school to where she was enrolled at the time. She had been attending school at the boundary of the father’s catchment area at Westboro Montessori School for 2 years before the motion. They would then be attending school with their school friends.

18Previously both children had substantial time in the father’s neighbourhood on a weekly basis.

19He believed that McKellar Park was a better environment as the children could walk or bike to school and that is why he relocated there. In contrast, the Applicant’s residence abuts Parkdale Avenue, which is a busy area.

Applicant’s Position

20In essence, the Applicant submits that the Respondent’s request for time to file his leave to appeal should be dismissed as:

• His appeal has no merit and he is unlikely to be granted leave;

• Costs are discretionary;

• Appellate courts give great deference to courts in their award of costs;

• There were no materials of settlement negotiations before Justice Audet;

• He has delayed;

• He has been unreasonable in his behavior in the litigation in that:

• Did not participate in OCL investigation after it was Court ordered;

• Walked out of Settlement conference without being excused by the Court;

• He did not pay the first costs award of $7,500 until several months later;

• He has not paid the interest on the aforementioned costs award; and

• Did not cooperate in the completion of the Trial Scheduling Endorsement.

21His request should be dismissed with costs.

Legal Principles

Introduction

22Rule 61.03(1) of the Rules provides that a notice of motion for leave to appeal to the Divisional Court is to be served within 15 days after the date of the decision or order from which an appeal is being sought. Rule 3.02(1) of the Rules provides that "the court may by order extend or abridge any time prescribed by these rules … on such terms as are just."

23The Court of Appeal in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15 said the following:

The test on a motion to extend time is well settled. The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

24On a motion to extend the deadline to file a motion for leave to appeal, the same test applies. At para. 16, the Court of Appeal for Ontario in Enbridge, stated: "lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension to a notice of leave to appeal…"

25These principles were again reiterated by the Ontario Court of Appeal in Reid v. College of Chiropractors of Ontario 2016 ONCA 779 at para. 14.

26The Court must consider all of the factors set out in Enbridge and the overarching consideration is what the justice of the case requires.

27The test as summarized above is to be applied in the context of family law as stated in Heydari v. Ahmadi 2018 ONCA 958 and Issai v. Rosenzweig 2011 ONCA 112.

28For reasons that follow, I find that after considering the above factors, the justice of the case does not favour extending the deadline for bringing a motion for leave to appeal.

Did the Respondent have a bona fide intention to seek leave to appeal?

29On the record before me, there is no evidence that the Respondent formed the intention to seek leave to appeal within the 15 days provided by the Rules.

30The Respondent states that, right after the release of the costs order, he did correspond with the Applicant’s counsel and advised her that he intended to appeal.

31Yet, he took no concrete steps to file the appropriate documentation. He states that he had no lawyer after the motion as he had dismissed his lawyer and relied on court services, duty counsel and the Lawyer Referral Service of the Law Society of Ontario.

32I am not persuaded that he had a bona fide intention to seek leave. Instead of filing the appropriate documentation, he wrote to Justice Audet almost one month later for a clarification on her decision on costs.

33He was requesting a clarification from the Court as to why the Applicant was not found to have acted in bad faith or unreasonably. The letter was sent one month after the costs’ decision was rendered.

34It was only after he did not receive a response from the Court that he inquired as to what dates were available for the appeal and canvassed dates with the Applicant’s counsel.

35In summary, there is no evidence before the Court that he had indicated his intention to appeal within 15 days.

36However, even if he did send a note to counsel within the time period, he did not take any concrete steps until mid-December 2019, two months after the release of the costs’ decision and hence did not show a bona fide intention to file a leave to appeal.

Delay

37I do not find that the Respondent has adequately explained his delay in not moving forward with his leave to appeal.

38The costs order was released on October 5, 2019 and it was only on November 27, 2019 that he seeks dates. No materials were served or filed.

39He set his matter down in mid-December 2019, which is over 2 months after the release of the costs’ decision. This is far later than stipulated by the rules of 15 days.

40After the March 13, 2020 date was vacated, he did not take steps to move his matter along and did nothing for the next 15 days.

41He states that he was concerned with the children’s health and the growing concerns of the pandemic. Yet, he does not show any vigilance to comply with the Rules that require a notice for leave to appeal to be filed within 15 days.

42He was given another opportunity to do so.

43The Court system did not send out its practice direction regarding the closure of some of the court facilities until March 16, 2020.

44Certainly, after March 2020, the pandemic and its effect on the administration of justice provides some reason for a lack of movement on the part of the Respondent to bring his motion to extend time for filing of leave. Yet, from October 2019 to March 2020 is 5 months of very little action.

45As reviewed below, prejudice and lack of merit clearly weigh against granting the requested extension.

Prejudice

46In my view, the prejudice to the Application weighs heavily against granting the motion to extend.

47Under the circumstances, I find that, if the time for seeking leave to appeal is extended, the prejudice to the Respondent will be significant.

48She will be required to file further materials and deal with a leave motion, that in my view as explained below, will unlikely be granted.

Merits of the proposed motion for leave to appeal

49In addition to prejudice to the Respondent, I see no merit to the motion for leave to appeal.

50Firstly, with respect to an order of costs, an appellate court rarely intervenes, as costs are

in the discretion of the motion judge. An appellate court may intervene if there has been an

error in principle or the costs order is clearly wrong (see Hamilton v. Open Window Bakery

Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27).

51Secondly, he is unlikely to be granted leave.

52The test on a motion for leave to appeal set out in r. 62.02(4) of the Rules is as follows:

(4) Leave to appeal from an interlocutory order shall not be granted unless,

(a) 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 panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel's opinion, leave to appeal should be granted.

53Rule 62.02(4)(b) involves a two-part test, and, in order for leave to be granted, both parts must be met on at least one branch of the test.

54In this case, the moving party relies on the second branch of r. 62.02(4), arguing that there is serious reason to doubt the correctness of the motion judge’s decision. Under r. 62.02(4)(b), the moving party does not have to convince the Court that the decision was wrong, but that the decision is open to “very serious debate”. In addition, the moving party must demonstrate “matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice”.

55The Respondent submits that the Court failed to explain her reasons for the costs order as required by the Family Law Rules. In his materials he refers to R. v. Shepherd 2002 SCC 26. He submits this is a matter of public importance in that litigants should believe that when they enter into settlement negotiations that their discussions will not be made known to the presiding Judge.

56However, I note that the costs endorsement indicates that the Court had carefully considered the father’s submission “to the effect that the mother would have behaved unreasonably and in bad faith by misstating some facts and by relying on privileged documents. I do not accept the father’s position on this.”

57In the task of discernment, the appellate court reads the reasons “as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”. R. v. R.E.M. 2008 SCC 51 para. 35.

58In addition, I have reviewed the emails that the Respondent submits should not have been included in the materials. I do not find that these are of a settlement negotiation nature but rather a discussion of whether the Respondent was able to meet his commitment to pick up the children on a timely basis from school. His response is that he would have to forgo his mid-week access as he could not commit to pick up due to his work commitments and other reasons.

59Regarding his allegation that the Applicant submitted false documentation, she had merely filed an email from the Montessori school confirming that the Respondent would not be able to pick up the children from the daycare if he did not pay his late fees.

60Furthermore, as stated by the Ontario Court of Appeal in Hobbs v. Hobbs [2008] ONCA 598, leave to appeal a costs order will not be granted except in obvious cases where a party seeking leave convinces the court there are strong grounds upon which the appellate court found that the judge erred in exercising her discretion. Costs awards should only be set aside if the costs award is plainly wrong or the judge made an error in principle.

61I do not see how this proposed motion for leave to appeal raises issues of general importance beyond the interests of the parties.

The overall justice of the case

62This is a high conflict case involving various third parties and hard-fought motions dealing with the children of the relationship.

63There are sometimes winners and losers in family litigation and the Court is required to assess costs at various steps along the way.

64Clearly, the Applicant was the winner regarding the choice of schools and the order of costs was within the discretion of the Court.

65The motion was a year and half ago and clearly the parties have ongoing litigation as set out in their respective affidavits including the completion of forms so that the matter could be listed for trial.

66It is not in the interests of the overall justice of this case that the parties deal with a leave motion on a costs issue when they continue to deal with the parenting issues what are significant issues. In addition, there remains financial disclosure issues that need to be addressed.

67In all of these circumstances, I find that the justice of the case does not favour extending the time for seeking leave to appeal.

68Therefore, the Respondent’s motion to extend time for filing of his motion for leave to appeal is dismissed.

Costs

69I invited parties to address the issue of costs at the end of the motion in the event that they were successful on the motion.

70The Applicant seeks costs in the amount of $2500 plus HST which represents 6 hours of work in preparation and responding to materials. Ms. Siemarczuk’s call to the Bar was 2003 and her hourly rate is $425 per hour. This is a reasonable rate given her experience.

71The Applicant was successful and pursuant to Rule 24 of the Family Law Rules is presumptively entitled to costs.

72In determining the quantum of costs I have considered the reasonableness of the costs incurred by the Applicant, the time spent by her experienced counsel and the fact that an offer to settle was sent offering that the Respondent’s motion be dismissed without costs.

73I find that a fair reasonable and proportionate award of costs is the amount of $1500 (inclusive of HST) payable by the Respondent to the Applicant forthwith.

Justice A. Doyle

Released: September 25, 2020

CITATION: Bozak v. Ndur, 2020 ONSC 5780

DIVISIONAL COURT FILE NO.: FC-18-254