CITATION: Desai v. Desai, 2022 ONSC 2809

DIVISIONAL COURT FILE NO.: 343/21

DATE: 2022/05/13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JIGNA DHAVAL DESAI, Appellant

AND:

DAHAVAL JAYANTILAL DESAI, Respondent

BEFORE: Lederer, McCarthy and Davies JJ.

COUNSEL: Jigna Dhaval Desai, personally

Tahir Majeed, for the Respondent

HEARD at Toronto by video: May 9, 2022

ENDORSEMENT

Lederer, J.

1This is a motion brought to this panel pursuant to the s. 21(5) of the Courts of Justice Act R.S.O. 1990, c. C.43:

21 (5) A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

2It comes to this panel in respect of an order made by Justice Corbett sitting as a single judge of the Divisional Court. The Reasons supporting the Order are reported at Desai v. Desai 2021 ONSC 6923. Part way through her submissions, without any prior notice, the Appellant asked for an adjournment until three motions that she says are ongoing in her dispute with her ex-husband have been determined. There is nothing in the Record that refers to these motions. Counsel for the Respondent advised that they relate to efforts to have the Appellant declared a vexatious litigant. In the absence of any record, and, thus any ability to appreciate the circumstances, this Court says only that there was nothing placed before it that would demonstrate the need for an adjournment.

3The matter has a history.

4The parties were married on July 13, 1997. They separated and, in time, divorced. Over time the Appellant consistently relied on September 12, 2008 as the date of their separation. She did this:

• on an application for support, the Final Order having been made on December 17, 2009
• on an application to change that Order during 2012, and
• on a further application to change the Order, an application which she filed on September13, 2018.

5As part of the third of these proceedings, Justice Edward of the Ontario Court of Justice conducted a hearing directed to determining the date of separation. On November 13, 2019 he released reasons declaring September 12, 2008 to be the date the parties separated. As demonstrated by these reasons and subsequently reported by Justice Harper, when the matter came before the Superior Court of Ontario, Justice Edward had “fully canvassed the issues relative to the date of separation” and “made findings of facts that the date of separation…was September 12, 2008”.

On December 17, 2018 the Appellant applied, among other things, for a divorce. On this occasion she alleged the date of separation to be November 4, 2017. The issue of the proper date of separation was raised by the Respondent (the husband). More than six years had passed since September 12, 2008 (but not since November 4, 2017). With September 12, 2018 established, the claims being made by the Appellant, within the divorce, would be barred as a result of s. 7(3)(b) of the Family Law Act R.S.O. 1990 c. F.3:

7(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death.

[Emphasis added]

6In a ruling made on October 14, 2020, Justice Harper found that the issue was res judicata. It had been decided by the order of Justice Edward. This being so, he considered the application of s. 7 (3) of the Family Law Act. It had been submitted that the applicable limitation is the later of the three events the section mentions. The words “after the earliest of” as appears in the section, demonstrate that the submission could not stand.

7The Appellant sought to appeal this finding and, despite advice of counsel for the Respondent and staff of the Court of Appeal that this was a matter that was within the jurisdiction of the Divisional Court, insisted on proceeding to the Court of Appeal. Not surprisingly that Court dismissed the appeal.

8The Appellant then moved to extend the time for an appeal to the Divisional Court. This is the matter that came before Justice Corbett. He did not penalize the Appellant for her failure to act on the advice of counsel for the Respondent or staff of the Court of Appeal. She was self-represented; the route to appeal can be complicated. She had, by proceeding to the Court of Appeal, indicated her earlier intention to appeal.

9However, Justice Corbett went on to conclude that there was no merit to the appeal. The date of separation was fixed through the decision of Justice Edward and the interpretation of s. 7(3) as determined by Justice Harper was correct. The motion to extend time was dismissed.

10It is from this history that the matter proceeds to this panel. The nature of a proceeding brought pursuant to s. 21 (5) of the Courts of Justice Act is not clear. It is said, by the statute, to be a motion which is to say it is not an appeal. It is more in the nature of a reconsideration of the decision presumably moving through the same rationale and logic utilized by the judge to see if it withstands this additional scrutiny. However, this is understood, the question that remains is the determination of the standard of review to be applied. This has not been settled:

The standard of review on a hearing under s. 21(5) is not well settled. In Marsden v. The Queen, (Div. Ct.) para. 2 the motion panel held that “a panel will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact”. On the other hand, it is arguable that no standard of review analysis is required under s. 21(5) of the Courts of Justice Act because it is not an appeal from the decision of the motions judge, but simply a reconsideration. The language of s. 21(5) suggests the panel is hearing the matter de novo. If that is so, no deference would be required.

(CAS Ottawa v. L.F. (1) and (2), 2016 ONSC 4044 at para. 9)

11The submissions made do not touch on this question. It does not matter. The question of the date of separation is, at this point, purely a question of law. Does the principle of res judicata apply? The same can be said for the meaning placed on s. 7(3) of the Family Law Act. The interpretation of a statute is a question of law. This being so the applicable standard of review is correctness.

12There can be no question as to these matters. The question of the date of separation was stipulated by the Appellant and “fully canvassed” by Justice Edward who confirmed it to be September 12, 2008. As for the meaning of s. 7(3) of the Family Law Act, the words “after the earliest of” are clear and without ambiguity. The Appellant argues that there was no separation; this was a “desertion”. Even if it was possible to look behind the Order of Justice Edward and declare, as the Appellant submits we should, that there was no separation from which to measure the limitation imposed by s. 7(3)(b), the law does not recognize any legal distinction as between separation and desertion.

13There is no reason to vary and no basis to set aside the order of Justice Corbett.

14The motion is dismissed.

15Submissions were made as to costs. The Respondent seeks $3,500. The Appellant submitted that there should be no costs. The Respondent, as the successful party, should be awarded some costs. Given the nature of what was requested and the substance of the submissions made, $3,500 is too high. Costs are awarded to the Respondent to be paid by the Appellant in the amount of $2,500.

Lederer, J.

I agree _______________________________

McCarthy, J.

I agree _______________________________

Davies, J.