CITATION: Van De Kerckhove v. Wagner, 2022 ONSC 5780
DIVISIONAL COURT FILE NO.: 450/122
DATE: 20221012
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Brigitte Van De Kerckhove, Moving Party/Appellant
AND:
Christopher Wagner, Responding Party/Respondent
BEFORE: Nishikawa J.
COUNSEL: Brigitte Van De Kerckhove, in person
Brian Ludmer and Kyle Ludmer, for the Responding Party
HEARD at Toronto: October 12, 2022, by videoconference
ENDORSEMENT
Overview and Background
[1] The Moving Party, Brigitte Van De Kerckhove, brings a motion for an extension of time to seek leave to appeal the temporary order of Kershman J. dated June 30, 2022 (the “Order”). The Order, among other things, required that the parties’ child, L, remain in the sole care of the Responding Party, Christopher Wagner, in Ottawa, pending other agreement or further Court Order.
[2] The parties had previously consented to a final order, made by Audet J. on December 6, 2021 (the “Final Order”) that specified the terms of their parenting arrangement. The Final Order gave Mr. Wagner final decision-making authority, ordered L’s primary residence in Ottawa, therapy for L, and a police enforcement clause. Under the Final Order, L is to reside with Ms. Van de Kerckhove in Manitoba during the summer, from June 30 until seven days prior to the start of the school year.
[3] In the spring of 2022, in the course of making arrangements for the summer, Ms. Van de Kerckhove made statements suggesting that L remain in Ottawa for the summer. As a result, Mr. Wagner sought leave to bring an urgent motion seeking an interim order for L to remain in Ottawa pending suitable arrangements or other agreement or court order. On June 23, 2022, MacEachern J. granted leave to bring the motion.
[4] On June 30, 2022, Kershman J. granted the relief sought by Mr. Wagner. Ms. Van de Kerckhove did not appear at the hearing on June 23 or 30, 2022. Ms. Van de Kerckhove did not receive notice of the hearing on June 23, 2022 until after it took place, on June 27, 2022. On that date, Ms. Van de Kerckhove left a voicemail message with Respondent’s counsel stating, “I’m done with this litigation, I’m done with it, you have sole custody” and “In four days, we don’t need to go through court.” Ms. Van de Kerckhove did not receive the motion material until June 30, 2022 at approximately 9 a.m. CST. She states that she did not have videoconference information to be able to log into the hearing. The motion material was sent to Ms. Van de Kerckhove by courier, as required by MacEachern J.’s order. However, after arriving in Winnipeg, the material took longer than expected to reach the final destination.
[5] Ms. Van de Kerckhove had advised Respondent’s counsel by fax in November 2021 that she no longer had an email address because of harassment by Mr. Wagner and that communication should take place by mail, fax or the home telephone.
[6] The Order was signed on July 6, 2022 and sent by courier the next day. It did not reach Ms. Van de Kerckhove until July 11, 2022.
[7] On August 10, 2022, Ms. Van De Kerckhove sent an email to the Divisional Court indicating her intent to seek leave to appeal the Order.
[8] For the reasons that follow, the motion for an extension of time to seek leave to appeal is dismissed.
Analysis
[9] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to r. 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.
[10] In granting an extension of time, the court considers the following four factors identified by Swinton J. in Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554:
• Whether the moving party formed an intention to appeal within relevant period;
• The length of the delay and the explanation for it;
• The prejudice to the responding party; and
• The merits of the appeal.
[11] The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.
[12] On the first factor, I am not satisfied that Mr. Van de Kerckhove formed an intention to appeal within the appeal period, or by July 15, 2022. The Order was not signed until July 6, 2022. Once she received the motion material on June 30, she could have contacted Respondent’s counsel or the court to indicate that she had been unable to participate in the hearing. She could have contacted counsel to request the Order. There is no evidence that Ms. Van de Kerckhove attempted to do so. In addition, on July 11, 2022, during the appeal period, Ms. Van de Kerckhove paid the Respondent $3,000 in costs of the motion, despite the fact that it did not have to be paid for 90 days. Ms. Van de Kerckhove did not communicate her intention to appeal the Order at that time. If she had formed an intention to appeal before July 15, 2022, she would be expected to have served a notice of appeal or communicated with Respondent’s counsel. As the Court of Appeal noted in Teitler v. Dale, 2021 ONCA 577, at para. 12 “the absence of this kind of evidence is telling.”
[13] On July 14, 2022, rather than contact Respondent’s counsel or the court, Ms. Van de Kerckhove sent email messages to the Attorney General and Law Society Tribunal regarding the late service of the Respondent’s material. Despite stating that she had deactivated her email account, Ms. Van de Kerckhove had an active email account which she used on that date and on June 29, 2022 to communicate with third parties. She chose not to provide this email address to Respondent’s counsel or to the court, which would have enabled her to receive the material in a timely manner, to participate in the motion, and to receive the court order.
[14] On the second factor, the delay is not lengthy and I am prepared to accept Ms. Van de Kerckhove’s explanation that she did not know how to appeal until August 10, when she drove from her home in Manitoba to the Ottawa courthouse and found out that she needed to file a notice of motion for leave to appeal to the Divisional Court. However, while Ms. Van de Kerckhove states that she tried for three weeks to find out how to appeal the Order, she has not provided any correspondence with lawyers or other documentation to support this.
[15] On the issue of prejudice, Mr. Wagner submits that the proposed appeal would consume unnecessary time, energy and resources, given that the Order is temporary, and the motion to change is pending before the Superior Court.
[16] This leads to the fourth factor, the merits of the proposed appeal. In order to obtain leave to appeal, Ms. Van De Kerckhove would have to meet the test under Rule 62.02(4), which states that “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.
[17] This Court held that “the threshold for obtaining leave to appeal interlocutory orders in family law cases and costs orders is a high one.” Dale v. Teitler, 2018 ONSC 6861, at para. 9.
[18] Ms. Van De Kerckhove’s proposed appeal is unlikely to satisfy the test for leave. She has not identified a conflicting decision on the matter. In addition, the Order relates very specifically to the parties’ particular circumstances. While the proposed appeal is important to Ms. Van De Kerckhove, it is unlikely that it would be found to be of general importance, beyond the interests of the parties, such that leave to appeal would be granted.
[19] The main reason that Ms. Van de Kerckhove puts forward for doubting the correctness of the order is the fact that the Order was made despite her absence from the hearing. While she feels significantly aggrieved by this, by insisting on receiving communication by mail or telephone, she made it difficult for material to reach her in a timely manner. Moreover, she did not communicate that she wanted to participate but was unable to, either to Respondent’s counsel or to the court. Instead, Ms. Van de Kerckhove sent email to unrelated third parties.
[20] Moreover, an appeal is unnecessary. The Order is temporary. Based on the context, including MacEachern J.’s endorsement scheduling the urgent motion, the motion was intended to address the summer of 2022, which has now passed. The wording makes clear that the terms of the Order are in force “pending other agreement or further Court Order.” The proper course is to bring a motion for relief or to engage in discussions toward amending the Order pending final disposition of the motion to change. Nothing in the Order precludes Ms. Van de Kerckhove from taking these steps.
[21] Ms. Van de Kerckhove submits that because of the Order, she is unlikely to be able to have parenting time with L over the Christmas holidays, as contemplated in the Final Order. Even if her motion to extend the time were granted, it is unlikely that her motion for leave to appeal, let alone the appeal, would be decided before then. It would be in both parties’ interests, and L’s interests, for the parties to address this matter, among others, at the case conference scheduled for November 2022.
[22] In short, the Order that Ms. Van De Kerckhove seeks to appeal was temporary and subject to variation on consent or by further court order. The issues raised on appeal are matters that she is not foreclosed from pursuing in the context of the motion to change.
[23] In this case, the justice of the case does not weigh in favour of an extension of time. This is clearly an extremely high conflict case. It is not in the interests of the case that the parties devote further time and expense to an appeal of a temporary order, when the Order can be varied by their agreement or by further order of the court. Most importantly, it is not in L’s interest for the parties to be consumed by a duplicative proceeding when they should be discussing the parenting arrangement on a forward-looking basis within the motion to change proceeding.
Conclusion
[24] Accordingly, the motion for an extension of time is dismissed.
[25] The Responding party seeks costs on a substantial indemnity basis of $18,642.74, including HST and disbursements, on the basis that Ms. Van de Kerckhove has made baseless allegations of misconduct, including that counsel made misleading statements about service. The motion should not have been necessary, and unsupported allegations of misconduct are unacceptable. However, based on the financial circumstances of the Moving Party, I decline to exercise my discretion to award substantial indemnity costs.
[26] The Moving Party shall pay costs of the motion on a partial indemnity basis, fixed at $8,000.
“Nishikawa J.”
Date: October 12, 2022