Court File and Parties

Court of Appeal for Ontario Date: 2020-02-04 Docket: C67696 (M51076 and M51234)

Between: Jana Wardlaw, Respondent (Appellant) And: David Shaw Wardlaw, Applicant (Respondent)

Before: Roberts J.A. (Motions Judge)

Counsel: Jana Wardlaw, appearing in person Joshua Goldberg, amicus curiae Eva Iacobelli, for the respondent

Heard: January 30, 2020

Reasons for Decision

[1] The appellant and respondent were married for about 17 years and separated in July 2017. She appeals from two orders of Lemay J. who determined issues of divorce, possession of the matrimonial home, equalization of property, spousal support, and costs.

[2] While the appellant commenced her appeal in a timely manner from Lemay J.’s November 28, 2019 order, she was some 43 days’ late in starting her appeal from the trial judge’s October 8, 2019 order. She therefore moves for an extension of time to appeal from the October 8, 2019 order.

[3] The appellant clearly had the requisite intention to appeal during the relevant period and has adequately explained her delay. There is no evidence of prejudice to the respondent from the delay. However, the appellant’s proposed appeal does not appear to have any merit.

[4] The merits of an appeal can be determinative of the extension request. A lack of merit alone can justify refusing the request. See: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 16; Nguyen v. Economical Mutual Insurance Co., 2015 ONCA 828, at para. 13.

[5] For the most part, her notice of appeal repeats the various factual and procedural issues that were fully addressed and determined by the trial judge in his careful and thorough reasons. The appellant has not raised any arguable issues of reversible error.

[6] The following review of the appellant’s main grounds of appeal is illustrative. The appellant has not provided any basis for finding error in the trial judge’s determination that the duplication of documents and clearance certificates highlighted by the appellant were at best procedural irregularities that had no effect on any of the substantive issues at trial. Further, the appellant again submits, without arguable grounds, that a divorce should not be granted until all issues are disposed of. Without articulating any arguable error in the trial judge’s determination, she reiterates her very serious allegations of misconduct against the respondent’s counsel that the trial judge held were entirely unfounded. She raises new allegations of judicial bias that have no evidentiary support in the record simply because the trial judge, as was open to him, found her lacking in credibility and reliability. She takes issue with various interlocutory orders that she did not appeal and case conference briefs that were not before the trial judge. She complains about court staff and other lawyers with whom she interacted. She argues, without putting forward any basis for appellate intervention, that the trial judge erred in his determination that no one was hiding any assets from her, his equalization of property, his granting exclusive possession of the matrimonial home to the respondent, his calculation of spousal support, and his costs award to the respondent based on his successful offers to settle.

[7] None of these issues have any apparent merit.

[8] For these reasons, I am not persuaded that the justice of the case requires that the requested extension be granted. I therefore dismiss the appellant’s motion for an extension of time to appeal from the October 8, 2019 order of Lemay J.

[9] While respondent’s counsel urged me to dismiss the virtually identical appeal for the November 28, 2019 order of Lemay J., I have no jurisdiction as a single judge to do so.

[10] The respondent brings a cross-motion to serve the appellant by email transmission. Although the appellant is required to apprise the court office and counsel for the respondent of her current address, she has not done so. Since December 2019, she has no longer resided at the matrimonial home but is still using that address as her address for service on court documents. The appellant objects to service by email transmission because she does not have regular internet access. During the cross-motion, she provided a post office box address.

[11] I allow the cross-motion and permit the respondent to serve the appellant by email transmission provided that the material so served is also sent to the appellant at her post office box address.

[12] Accordingly, order to go dismissing the appellant’s motion and allowing the respondent’s cross-motion.

[13] The respondent was successful on these motions and is entitled to payment of his partial indemnity costs by the appellant in the amount of $4,000.00, inclusive of all disbursements and applicable taxes.

“L.B. Roberts J.A.”