Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240603 DOCKET: M55117, M55126 & COA-24-OM-0146 (COA-24-CV-0418)

Before: Paciocco J.A. (Motion Judge)

BETWEEN

Amber Crystal Tiveron Applicant (Responding Party/Moving Party)

and

Eric Richard Collins Respondent (Moving Party/Responding Party)

Counsel: Eric Richard Collins, acting in person Katherine Robinson, as agent for Amber Crystal Tiveron

Heard: May 28, 2024

Reasons for Decision

Overview

[1] In October 2014, a final order was made in the Ontario Court of Justice granting sole custody of the children of Eric Collins and Crystal Tiveron to Ms. Tiveron and providing access to Mr. Collins. The order included a child support award.

[2] It was not contested before me that in 2023, Mr. Collins initiated a Motion to Change, seeking a reduction in his child support obligations in response to the reduced parenting time he was enjoying with their 15-year-old child. Ms. Tiveron brought her own Motion to Change to address changes to Mr. Collins’ parenting time and increased child support based on material changes alleged in Mr. Collins’ income. This Motion to Change is still outstanding but, on June 8, 2023, Ms. Tiveron was successful before Baker J. in obtaining an interim order for increased child support. Mr. Collins appealed that decision unsuccessfully before Smith J. of the Ontario Superior Court, with his appeal being denied on February 21, 2024 (the “Interim Child Support Appeal Decision”).

[3] In the meantime, Ms. Tiveron initiated another motion for a new final parenting order based on an agreement prepared by Mr. Collins that Ms. Tiveron had accepted. Despite Mr. Collins’ attempt to repudiate that agreement because of a change in circumstances that he perceived that application was granted by Baker J. on March 22, 2024, and a new parenting order was issued (the “Final Parenting Decision”).

[4] While this decision was pending, Mr. Collins prepared and filed a Notice of Appeal dated March 21, 2024, of Smith J.’s Interim Child Support Appeal Decision. The file number COA-24-CV-0418 has been assigned to that appeal by this court.

[5] On March 28, 2024, Mr. Collins filed a Supplementary Notice of Appeal (Notice of Combined Appeal) dated March 25, 2024, from the Final Parenting Decision, requesting that this appeal be combined with his appeal of the Interim Child Support Appeal Decision, described in the above paragraph. He has also prepared a “Proposed” Notice of Appeal dated May 13, 2024, relating to his proposed Final Parenting Decision appeal.

[6] Mr. Collins has now initiated two motions.

[7] In his first motion, M55117, dated May 6, 2024, Mr. Collins seeks to stay orders made by Baker J. and Smith J. relating to the Interim Child Support Appeal Decision.

[8] In his second motion, COA-24-OM-0146, dated May 14, 2024, Mr. Collins’ request includes: (1) an order extending the time to appeal the Final Parenting Decision made by Baker J.; (2) an order combining the two appeals; and (3) an order granting a stay pending appeal of the Final Parenting Decision. He has not pursued other relief he had requested in the motion, so I will not mention it further.

[9] Ms. Tiveron opposes both of Mr. Collins’ motions in their entirety, and has initiated her own motion, M55126, for security for costs.

[10] For the reasons that follow, I would not grant any of the motions.

Analysis

[11] I will begin with Mr. Collins’ motions, which encounter significant procedural obstacles, commencing with his second motion, COA-24-OM-0146, relating to the Final Parenting Decision.

[12] I deny Mr. Collins’ request for an extension of time to file a Notice of Appeal of the Final Parenting Decision in this court.

[13] In civil litigation, the test for granting motions for extension of time requires a determination of whether an extension of time is in the interests of justice, bearing in mind (1) whether the moving party formed the requisite intention to appeal within the relevant time period, (2) the length of and explanation for the delay, (3) any prejudice to the responding party, and (4) the merits of the proposed appeal: Enbridge Gas Distributions Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. In family law cases affecting the rights of children, the overarching inquiry into whether the extension is in the interests of justice is whether the extension would be in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 7; D.G. v. A.F., 2014 ONCA 436, at paras. 16, 33-34; Teitler v. Dale, 2021 ONCA 577, at para. 7; and Leybourne v. Powell, 2023 ONCA 421, at para. 7.

[14] Ms. Tiveron does not take issue with elements (1) and (2) and I will say no more about them. I deny this motion for extension of time because of concerns I have arising from the other grounds, beginning with the merits of the proposed appeal. Whatever the merits of the underlying legal arguments may be, this appeal from a final family law order made in the Ontario Court of Justice would ordinarily be brought not to this court, but to the Superior Court of Justice, pursuant to s. 73(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Mr. Collins seeks to overcome this problem by asking that this appeal be joined with his appeal of the Interim Child Support Appeal Decision, COA-24-CV-0418, pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[15] The primary problem with this joinder request is that there are jurisdictional problems with bringing an appeal of the Interim Child Support Appeal Decision to this court as well. In my view, the appeal of that decision is an attempt by Mr. Collins to appeal “an interlocutory order of a judge of the Superior Court of Justice made on an an appeal from an interlocutory order of the Ontario Court of Justice”, which is prohibited by s. 19(4) of the Courts of Justice Act. Simply put, Mr. Collins is attempting to overcome the jurisdictional challenges in his appeal of the Final Parenting Decision, by bootstrapping it with his appeal of the Interim Child Support Appeal Decision, which has jurisdictional problems of its own.

[16] There is therefore no procedural avenue that should result in this appeal being heard in this court, and an appeal is meritless where the appeal court has no jurisdiction to hear it: see Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at paras. 22-24. Although a single judge cannot determine jurisdiction on a final basis and quash an appeal, a single judge can consider the court’s lack of jurisdiction when refusing an extension: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 8, citing Courts of Justice Act, s. 7(3); Jadhav v. Jadhav, 2020 ONCA 19; Henderson v. Henderson, 2014 ONCA 571, 324 O.A.C. 138, at para. 8. In my view, the fact that the appeal of the Final Parenting Decision should not be in this court undercuts its merits and the interests of justice in granting the extension being sought.

[17] I am also concerned about the prejudice to Ms. Tiveron, the responding party, should the extension of time to file be granted. The litigation between these parties has been acrimonious and expensive, taxing Ms. Tiveron’s mental energy and financial wherewithal.

[18] Relatedly, and more importantly, granting this extension of time to appeal is not in the best interests of the children, who would benefit from finality. It is also relevant, in my view, that the Final Parenting Order does not impose an externally crafted arrangement on Mr. Collins. It reflects the agreement he proposed and serves the rights of the children, who are now adolescents, to participate fully in decisions about their access.

[19] With respect to his request for a stay of the Final Parenting Order, since I have decided not to extend the time to file an appeal of the Final Parenting Order or combine it with his jurisdictionally questionable appeal of the Interim Child Support Appeal Decision, it is not in the interests of justice to stay the final parenting orders made by Baker J. on March 22, 2024.

[20] I therefore deny the motion for a stay made in Mr. Collins’ second motion, COA-24-OM-0146, dated May 14, 2024.

[21] I also deny Mr. Collins’ other motion, M55117, requesting a stay of the orders made by Baker J. and Smith J. relating to the Interim Child Support Appeal Decision. The test that governs motions to stay pending appeal is well-established: see e.g., BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16. I must consider and balance the three-part test developed in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, for interlocutory injunctions:

(1) Whether the appeal raises a serious question to be tried. (2) Whether the moving party will suffer irreparable harm if the stay is refused. (3) Whether the balance of convenience favours granting or refusing the stay.

[22] The first factor weighs strongly against Mr. Collins, given that the jurisdiction of this court to hear the appeal is doubtful. His appeal of the Interim Child Support Appeal Decision also faces the prospect of being quashed because of his child support arrears: Abu-Saud v. Abu-Saud, 2020 ONCA 824.

[23] The second factor also weighs against the requested stay. If his appeal proceeds, and it is successful, Mr. Collins will be entitled to get back any excess money he has paid. The harm he will suffer, if any, by being denied the stay will be purely monetary and entirely reparable.

[24] Finally, he has not satisfied me that the third factor, the balance of convenience, favours him. I appreciate that Mr. Collins is experiencing financial challenges, but if I were to stay the order and Ms. Tiveron were to ultimately prevail in the appeal, it is evident that she would have difficulty obtaining an accumulated sum from Mr. Collins because of those financial challenges. I also note that this is child support money. I must proceed on the basis that the children will benefit from the ordered increase in payment. The balance of convenience does not advance Mr. Collins’ case for a stay.

[25] The motion for the stay of the orders arising from the Interim Child Support Appeal Decision is denied.

[26] I also deny Ms. Tiveron’s motion for security for costs in connection with the appeals.

[27] Mr. Collins’ appeal of the Final Parenting Decision has not been filed as required by the rules of this court and I have not granted an extension. As things now stand, the appeal cannot move forward. It would make no sense for me to make an order for security for costs relating to that appeal in these circumstances.

[28] In my view, Mr. Collins’ appeal of the Interim Child Support Appeal Decision is itself vulnerable to a panel motion to quash the appeal. If the appeal is quashed on this basis, there is no sense in having a security for costs order in place relating to this appeal either.

[29] In terms of the merits of the motion, assuming that the appeal of the Interim Child Support Appeal Decision is not quashed, I am not persuaded that a security for costs order should be made pursuant to rr. 61.06(1) or 56.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[30] Although I have made my concerns about the merits of the appeal of the Child Support Appeal Decision plain because of the jurisdictional problems I have expressed, I am not persuaded that the underlying grounds of appeal are “frivolous”. For example, there may well be merit in Mr. Collins’ concerns as to whether an income attributed by the parties should be treated as an imputed income, and about the proper quantification of his income.

[31] Nor am I persuaded that the appeal of the Interim Child Support Appeal Decision is “vexatious” as those rules require. I do not question whether Mr. Collins has misconducted himself in related litigation in the past. He clearly has. And I do not doubt that he tends to take a needlessly oppositional, accusatory approach to the litigation that has not served him well. That much is also clear. However, I have no reason to believe that the arguments he is making in this appeal are anything other than a genuine attempt by him to ensure that a fair determination is made according to law.

[32] In coming to this conclusion, I have considered the messages Mr. Collins sent threatening appeals in order to discourage opposition, but those messages pledged to appeal erroneous decisions, as he is entitled to do. His lack of success in prior appeals is not a dependable measure of whether this appeal is frivolous and vexatious.

[33] I am also not persuaded that an order for security for costs should be made under the remaining rule Ms. Tiveron relies upon, r. 56.01(1), based on the unpaid costs awards that she identifies in her motion. The entire $25,000 in unpaid costs referred to by Ms. Tiveron are attributable to the two matters that Mr. Collins is attempting to appeal to this court. Given that he is taking active steps to have those cost orders set aside, I cannot take the non-payment of those cost orders as an indication that he refuses to pay them. I am also mindful that if he overcomes the jurisdictional concerns I have expressed, an order to post security for costs will likely prevent him from having his day in court.

[34] In all of these circumstances I do not find it to be in the interests of justice to make a security for costs order relating to either of Mr. Collins appeals and I exercise my discretion not to do so. The request for security for costs is denied.

Conclusion

[35] All of the motions are dismissed.

[36] Given the predominant success achieved by Ms. Tiveron, costs in these motions are payable by Mr. Collins to Ms. Tiveron in the amount of $6,500 inclusive of applicable taxes and disbursements.

“David M. Paciocco J.A.”