Citation and Court Information
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Afoakwa-Yeboah v. Wiafe
COUNSEL: Gabriella Deokaran, for the Appellant
BEFORE: D.L. Corbett J.
In Chambers, In Writing
ENDORSEMENT
1By decision dated October 7, 2020, Zisman J. of the Ontario Court of Justice granted the father’s motion and made an interim order changing primary custody of the parties’ three-year-old daughter from the mother to the father pending a hearing to be held on November 12, 2020.
2The appellant wife tried to commence appeal proceedings in the Superior Court in Brampton but was directed to follow the Notice to Profession respecting proceedings in the Divisional Court. The applicant followed these instructions from the Brampton Superior Court and the case then came to this court’s attention around October 14th. As was the case with the appellant’s materials before the Brampton court, the appellant was taking the position that the appeal is urgent and that a stay motion had to be heard immediately, presumably on the theory that irreparable harm would befall the child if the mother was forced to comply with the order of Zisman J. and transfer the child to the primary care of the father.
3In reviewing the materials provided to this court by the appellant, it appeared that the underlying order was interlocutory and that the proper route of appeal was to a single judge of the Superior Court of Justice in Toronto (the jurisdiction in which Zisman J. made the order under appeal). Favreau J. of this court directed the appellant on October 14, 2020 to contact the Family Team Leads in Toronto to arrange for the appeal. Apparently, this was done, and the appeal was heard by Nakonechny J. on an expedited basis and was dismissed on October 21, 2020.
4The appellant then contacted this court again, seeking an urgent motion for a stay of the decisions below pending further appeal. This court responded to this request with the following directions:
Justice Corbett directs me to advise you as follows:
The proposed appeal is from the decision of a Superior Court Justice affirming the decision of a Justice of the Ontario Court of Justice. Please provide the basis on which the appellant says that jurisdiction for this appeal lies in Divisional Court rather than the Court of Appeal.
If jurisdiction for the appeal lies in the Divisional Court, please advise why the provisions of R.38(3) of the Family Law Rules do not apply such that the motion for leave and the appeal shall be heard together.
Counsel for the proposed appellant indicates that the appeal is urgent because of police enforcement to take place on or after October 30, 2020. The order of Justice Zisman was upheld by Justice Nakonechny and so is in full force and effect. An appeal from Justice Nakonechny's decision cannot be heard in Divisional Court by October 30, 2020. If Divisional Court has jurisdiction over this appeal, and if the appellant seeks relief urgently, it is for the appellant to obtain a stay of the orders below on motion to this court. In the absence of a stay order being granted, the appellant is obliged to comply with the order of Justice Zisman. Further and to be clear, the order of Justice Zisman is not stayed by reason of the appellant indicating that she wishes to move for a stay, or by the appellant moving for a stay. The order is in effect and must be followed pending any appeal unless and until a stay has been granted.
If the appellant wishes to move for a stay, then she shall serve her motion materials and provide a copy of the materials to the court by email, after which the court will provide directions about that motion. If she has not done so beforehand, the appellant should address the court's jurisdictional and procedural questions set out in items 1 and 2 in her motion materials.
5The next this court heard of the matter, a motion for a stay had been dismissed in the Court of Appeal. The appellant emailed this court and sought an immediate urgent motion for a stay. Her email of November 2, 2020 stated as follows:
We went before the Court of Appeal on Friday. They stated that they did not have jurisdiction to hear the matter. As such, the stay Motion must be heard at this Court. All the materials are already prepared, as we started to litigate a portion of the Motion before the Court of Appeal before the Court decided it had no jurisdiction. I am requesting an emergency hearing of this matter today.
6The court responded as follows on November 2, 2020:
The court has given directions respecting this matter already.
If the appellant is seeking a stay then she shall comply with paragraph 4 of the court's email directions of October 28, 2020. Given the circumstances described in counsel's email today, it would be helpful for counsel to also provide a copy of the endorsement from the Court of Appeal in which that court determined that jurisdiction lies in the Divisional Court, so that this court may properly apply the Court of Appeal's decision.
The court cannot accommodate a stay motion today and will consider when it will schedule a stay motion once it receives materials from the moving party.
7In response, counsel for the appellant immediately sent the court the motion materials that had been before the Court of Appeal and a copy of the Court of Appeal’s endorsement. That endorsement, of Juriansz J.A., states as follows (at paras. 5-8):
At the outset of this hearing I raised the issue of this Court’s jurisdiction and the mother’s counsel assured me that she intended to argue that in the unique family law situation here, this Court had jurisdiction. I proceeded to hear argument.
During the argument, I raised the question of the court’s jurisdiction again. This Court is a creature of statute and does not have inherent jurisdiction.
Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an appeal lies to this Court from a final order of a judge of the Superior Court of Justice. The fact that the temporary order of the Ontario Court of Justice was appealed to the Superior Court of Justice does not make the order under appeal a final order. It is still a temporary/interlocutory matter, and this Court does not have jurisdiction to hear it. Section 19(4) of the Courts of Justice Act makes that clear.
As this Court does not have jurisdiction, I decline to issue the stay sought.
8Counsel for the appellant also provided this court with a summary of her argument, and additional argument as to why, in her view, Juriansz J.A. was wrong in concluding that the decision of Nakonechny J. is interlocutory.
9In light of these materials, this court gave further directions as follows on November 3, 2020:
Justice Corbett has directed me to respond to your recent emails as follows:
Juriansz J.A. found that the order of Nakonechny J., dismissing an interlocutory appeal from Zisman J., is interlocutory. That decision is binding on the Divisional Court. In the face of the decision of Juriansz J.A., to now argue that the order of Nakonechny J. is final is itself an abuse of process.
Section 19(4) of the Courts of Justice Act provides that "No appeal lies from an interlocutory order of a judge of the Superior Court of Justice made on an appeal from an interlocutory order of the Ontario Court of Justice."
The Registrar is directed to give the appellant notice pursuant to R.2.1.01 that the court is considering dismissing the appeal as frivolous, vexatious and an abuse of process on the ground that the order appealed from is interlocutory and no appeal lies from it pursuant to s.19(4) of the Courts of Justice Act. The court asks the Registrar to provide this notice to the appellant as soon as reasonably possible, given her position that the matter is urgent. The court will dispose of the R.2.1.01 issue promptly on receipt of a response from the appellant.
The appellant is once again cautioned that the order of Zisman J. is in full force and effect, she is obliged to comply with it, and the request to bring a stay motion and the purported appeal from Nakonechny J. do not have the effect of relieving her from complying with the order of Zisman J. in the meantime.
10The appellant responded almost immediately by email, asking why the order was final. The email response stated: “Can we please be provided with some reasons as to why the decision is interlocutory? As none were contained in the Ontario Court of Appeal’s decision.”
11On November 5, 2020, the Registrar sent the appellant the court’s formal notice pursuant to R.2.1.01. The appellant provided her response in the form of a factum on November 18, 2020.
12For the reasons that follow the appeal is dismissed as frivolous, vexatious and an abuse of process pursuant to R.2.1.01.
13In her response to the R.2.1.01 notice, the appellant makes four principal arguments, the first of which I address in the first section of my reasons and the last of which I address in the second section of my reasons. The second and third arguments are addressed summarily in the third section of my reasons.
(a) The order of the Court of Appeal finding the appeal to be from an interlocutory order is wrong, which will be borne out by a transcript of the hearing of the stay motion before the Court of Appeal;
(b) The underlying appeal has merit;
(c) The appeal is not frivolous, vexatious and/or an abuse of process simply because the appellant may have made errors respecting jurisdiction – a simple dismissal rather than a finding of vexatiousness should be the result;
(d) In the alternative, s.19(4) of the Courts of Justice Act is unconstitutional because it results in two potential appeals being available from an interlocutory decision of a Superior Court or Unified Family Court Judge, and only one potential appeal being available from an interlocutory decision of an Ontario Court Justice in a family law matter.
No Issue in the Divisional Court that the Impugned Order Is Interlocutory
14The Court of Appeal has decided that the impugned order is interlocutory. That decision is a matter of stare decisis in this case and is binding precedent in the Divisional Court. It is not proper for the appellant to argue in this court that the Court of Appeal is wrong and ought not be followed. This is a frivolous and vexatious argument and an abuse of process: to urge a lower court to defy a binding ruling from a higher appellate court.
15Further, in making this argument, the appellant mis-states the reasons from the Court of Appeal. The Court of Appeal found that the order of Zisman J. is interlocutory. The appellant does not criticize this finding and it is obviously correct. The Court of Appeal found that the order of Nakonechny J., dismissing the appeal of the interlocutory order, leaves that order unchanged: it remains interlocutory. That finding is obviously true and the conclusion that this leaves the underlying order interlocutory is unassailable.
16The appellant argues that the order of Nakonechny J. is final because it finally disposes of the issue before Nakonechny J. The defect in this argument is apparent: otherwise the final disposition of every interlocutory appeal would render the next appeal an appeal from a final order disposing of the appeal, rather than a second appeal of an interlocutory order. There is no jurisprudence to support such an argument and it would have the effect of undermining the well-understood appeal paths for interlocutory and final orders and render s.19(4) of the CJA nugatory.
17The appellant argued that the Court of Appeal found that every decision on appeal from an interlocutory order is an interlocutory order, a proposition that she argues is wrong. The appellant’s legal argument on this point is correct, but her characterization of the Court of Appeal’s finding is not. The nature of the order is determined by examining the substantive effect of the order. The Court of Appeal did not find otherwise.
18The appellant goes further and argues that her position will be borne out by a transcript from the hearing of the motion before the Court of Appeal. This argument is, itself, vexatious. The Court of Appeal’s reasons are set out in writing, and they say what they say. It does not matter what the motions judge may have said in exchanges with counsel on this point: exchanges between the court and counsel do not change, modify, or explain the decision taken by the court or the written reasons issued in support of the decision. Counsel is expected to know this. The court does not measure its words during oral argument in the way that it measures them in a written decision and, indeed, the court may well put forward propositions in argument with which it does not agree to obtain counsel’s response. Suggesting that a probing analysis of a transcript of oral argument on a motion is necessary to understand the court’s reasoning is the hallmark of a vexatious litigant who does not understand the nature of judicial process. It is disappointing to see such an argument advanced by a party represented by counsel.
19In summary, the decision of Nakonechny J. is an interlocutory order dismissing an appeal from an interlocutory order of the Ontario Court of Justice. This conclusion has been found by the Court of Appeal, in this case, and is both stare decisis and binding precedent in this court. The appellant’s arguments to the contrary are frivolous, vexatious and an abuse of process, and are so untenable that they should not have been advanced in this court by a lawyer.
Constitutionality of s.19(4) of the Courts of Justice Act
20It is clear that s.19(4) of the Courts of Justice Act precludes a further appeal of the interlocutory order of Zisman J.
21The court declines, at this time, to address the process by which the appellant could, theoretically, raise the proposed constitutional question and then seek leave to appeal. No legal theory has been advanced as to how the appellant could possibly succeed in that process in a way in which she could obtain meaningful relief. No notice has been given to the Attorneys General. No interim stay could be obtained in such circumstances, given the strong presumption of constitutionality applied on motions for interim relief. As matters currently appear, further litigation on these points would produce no benefit for the appellant, would put the parties and the justice system to substantial pointless expense. If the appellant does pursue such a process in this court, then the court may address these questions during case management of that process.
The Merits of the Appeal and the Test Pursuant to R.2.1.01
22The merits of the appeal were not raised by the court as a basis for possible dismissal pursuant to R.2.1.01. I decline to review them.
23The appellant argues that routes of appeal are complicated in family law and that she should not be labelled as having advanced an argument that is frivolous, vexatious and an abuse of process just because she had difficulty with those routes. I agree that routes of appeal in family law cases are complex. R.2.1.01 is the basis on which the court gave notice that it is considering dismissing this proceeding. The jurisprudence is clear that an order under R.2.1.01 is only to be made in clear cases, and following a fair process as prescribed in the Rule. This process includes applying the test prescribed in R.2.1.01.
24Further, the appellant persisted in her appeal in this court, after the court’s jurisdictional concerns were raised with her informally. The result – a finding couched in the language of the test in R.2.1.01 – follows from the appellant’s pursuit of an appeal that was doomed to fail for jurisdictional reasons – that is – an appeal that is frivolous, vexatious and an abuse of process.
25This appeal is dismissed pursuant to R.2.1.01, without costs.
D.L. Corbett J.
Date: November 30, 2020
