Citation and Court Information
DIVISIONAL COURT FILE NO.: 459/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: BORSCHEL v. BORSCHEL
BEFORE: D.L. Corbett J.
HEARD: November 17, 2021 by teleconference
COUNSEL: Harold Niman and Jen Liew for the Respondent Jeffrey Behrendt for the Appellant
ENDORSEMENT
[1]
Background
On October 8, 2021, a panel of the Divisional Court granted leave to appeal in this case (2021 ONSC 6617) from the temporary support order of Kiteley J. (2021 ONSC 4942). In the leave decision, the court directed as follows:
The parties are directed to provide an agreed appeal schedule to the court forthwith or to arrange a case management teleconference for that purpose with an administrative judge of the Divisional Court.
2On October 19, 2021, the court received the Appellant’s Notice of Appeal pursuant to the court’s decision granting leave to appeal. In the covering email sent by Appellant’s counsel pursuant to the court’s Notice to Profession dated February 18, 2021 (available on the court’s web site), counsel provided the court with the following information required during intake in this court:
- “There are no urgent factors in this matter”
- “The parties have agreed to work out an agreed appeal schedule but have not yet had the opportunity to do so”
3In response, the court gave the following direction on October 19, 2021:
The parties are to confer to agree upon a schedule for exchange of appeal materials and to provide their agreed schedule to the court by November 12, 2021. If a schedule cannot be agreed, then the parties shall schedule a case management teleconference with the court.
4On November 15, 2021, counsel for the Respondent wrote to the court as follows:
The Applicant has not provided a timetable for the exchange of appeal materials as directed by Justice Corbett on October 19, 2021.
There is a Trial scheduled to start on January 24, 2022.
The Applicant is also in breach of Court Orders including:
(a) The Order of Justice Kiteley dated June 3, 2021 by failing to pay ongoing child support and there are arrears of at least $27,496 for the period July 1, 2021 to date. This is the Order that the Applicant is seeking to appeal; and
(b) The Order of Justice Kiteley dated August 5, 2021 for failing to produce any of the disclosure due September 4, 2021.
We would like to arrange a motion to have the Applicant’s appeal struck.
5On November 15, 2021, I directed that a case management teleconference be scheduled as soon as possible. It took place two days later, on November 17, 2021.
6At the end of the case management teleconference I advised the parties that the appeal would be stayed pending commencement of the trial on January 24, 2022. Following the teleconference, I issued the following direction:
The court confirms the case management teleconference held November 17, 2021.
Justice Corbett directs me to advise you as follows:
This appeal is stayed pending commencement of the trial in this case or other order of this court.
The interim order of Kiteley J. that is the subject-matter of this appeal is not binding on the trial judge, who will make her own decision on all of the contested legal issues respecting support on a final basis. Any appeal from the final disposition of the trial judge will then be available in accordance with the Courts of Justice Act and the Rules.
The interim order of Kiteley J. remains in full force and effect pending the trial or other order of the Superior Court of Justice.
The trial should not be adjourned so that the appeal from the interim order of Kiteley J. can be heard before the trial.
If there should be a material delay in commencement of the trial from its currently scheduled date (January 24, 2022), then either of the parties may ask this court to lift the stay of this appeal and to schedule the appeal for hearing in this court.
If the trial does proceed as scheduled then this appeal will be dismissed as moot once the trial judgment is rendered.
Reasons for these directions will be provided in due course.
[7]
Reasons for Stay
These reasons explain why I have stayed an appeal in respect to which leave to appeal was granted a little more than a month ago.
8As it happens, I was a member of the panel that granted leave to appeal in this case. None of the materials provided by the parties on the motion for leave to appeal indicated that the trial was scheduled for two weeks starting on January 24, 2022. During the case management teleconference, counsel explained that this trial date was not set until after the motion materials had been exchanged for the motion for leave to appeal. The trial date was set, however, before the motion for leave to appeal was heard.
9In most circumstances, an interlocutory ruling merges in the final disposition of the case. The interlocutory ruling is not binding on the trial judge. The ruling either addresses issues necessary to prepare the case for trial (such as orders for disclosure) or seeks to secure a reasonable state of affairs pending final disposition of the case (such as an interlocutory injunction or, in this case, an order for temporary support).
10This court has commented frequently that leave to appeal is seldom granted in respect to temporary support orders. As stated by the leave panel in Lokhandwala v. Khan, 2019 ONSC 6346 (Div. Ct.), para. 5:
In family law, temporary support orders are designed to establish or maintain a reasonable state of affairs pending trial. Unless expressly stated otherwise, these orders are without prejudice to adjustment by the trial judge. Interlocutory appeals in family law matters are costly, time-consuming, and tend to impair the reasonable and efficient course of those proceedings. Errors in temporary support orders – even ones that are straightforward – are almost always better addressed at trial rather than by way of interlocutory appeal. As argued by the responding party in her factum, “instead of expending their scarce resources on a potential appeal from a [temporary] Order, the parties should focus their attention on resolving the case on a final basis.”
11One aspect of the test for leave to appeal is an assessment of whether it is “desirable” that leave be granted. Where an interlocutory appeal will disrupt the orderly process of the case in the trial court and possibly delay the trial, that tends to undermine the “desirability” of granting leave to appeal. Where leave is granted, it is often important that the appeal proceed with alacrity (a) so that the appeal is not rendered moot by the time it can be heard and decided; and (b) so that the appeal does not interfere with the ongoing process in the trial court.
12The leave motion was commenced in June. No indication was provided to the court that the leave motion was time sensitive. It was disposed of by this court in slightly over three months, in the ordinary course. When this court granted leave, it saw a need for expedition and gave scheduling directions accordingly. The Appellant stated in his intake materials that there was no urgency to the appeal. Then the Appellant did not make a timely scheduling proposal. Then, in the teleconference, counsel for the Appellant argued that it would be desirable for the trial court to have this court’s decision on the issue for appeal, implying that the trial ought to be adjourned pending disposition of the appeal – or that the appeal be heard and decided before the trial commences in January.
13At this point, to have this court hear and decide the appeal would require that a special panel be struck for this purpose. I am not prepared to do that. Court resources are scarce. The extreme time sensitivity now arises because things moved in the ordinary course until this court released its leave decision on October 8th, and even after that, by November 17th, the appellant had not served his appeal materials.
14Further, it is not likely that this court would have granted leave to appeal and expedited the appeal if it had known that a trial date was imminent. The purpose of the temporary order of Kiteley J. was to secure a reasonable state of affairs in respect to support pending trial. Revisiting that order on the eve of trial would accomplish very little or nothing in terms of the support paid pending the trial. The trial judge is not bound by the analysis and conclusions of Kiteley J. on legal issues or by her factual findings. The issue for appeal in this court is not evasive of appellate review after final disposition at trial and, depending on the outcome of the trial, the appeal may lie directly to the Court of Appeal and not this court. It is far better for the parties that they have a trial and one appeal, rather than an appeal in this court, possible further appeal proceedings in the Court of Appeal arising from this court’s decision, and then go back to do their trial, possibly several years from now, with a further appeal possible after the trial decision.
[15]
Conclusion
This court recognizes that, until the trial has commenced, it could be adjourned. I have stayed this appeal rather than dismissing it because the issue on appeal is not yet moot and if there is unexpected material delay in commencement of trial for which the Appellant is not responsible, it could be appropriate to proceed with this appeal. The respondent raised issues about alleged non-compliance by the Appellant with the order of Kiteley J. I did not call upon the Appellant on this issue during the teleconference. I have stayed this appeal for reasons unconnected with alleged non-compliance with the temporary support order. Issues respecting alleged non-compliance may be addressed in the court below.
“D.L. Corbett J.”
November 29, 2021