Court File and Parties
COURT FILE NO.: 695/18 DATE: 20181116 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lawrence Mark Dale, Moving Party AND: Elise Teitler, Reponding Party
BEFORE: H. Sachs J.
COUNSEL: Mr. Dale appeared on his own behalf Martha McCarthy and Faria Marlatt, for the Responding Party
HEARD: November 15, 2018
Endorsement
[1]
Overview
Mr. Dale seeks leave to extend the time for appealing three interlocutory orders that were made by Faieta J. He also seeks relief in the form of a stay of those orders, directions regarding how the case should proceed from here and an order appointing a lawyer for his children.
2For the reasons that follow, I am dismissing Mr. Dale’s motion. Simply put, he has not satisfied the test for granting an extension of time to appeal the orders in question. Given this there is no basis to stay the orders. With respect to the other relief he seeks, it is inappropriate to seek this relief as part of a motion to extend the time for filing an appeal.
[3]
Background
All of the orders at issue arise in the context of a high conflict family law dispute. The first order is an order dated June 1, 2018, in which Faieta J. ordered Mr. Dale to “execute an irrevocable direction to his present (as well as any future) counsel that any proceeds resulting from a settlement or judgment in Dale v. Toronto Real Estate Board (CV-09-374829) payable to the Respondent or to any corporations in which he has an interest… shall be paid into court as security for any financial obligations owed by the Respondent to the Applicant.” The second is an order made by Faieta J. on August 31, 2018 in which he granted temporary, sole custody of the three children of the marriage to Ms. Teitler until December 10, 2018; he ordered that any telephone calls between Mr. Dale and his children be recorded and he ordered that the parties do what is necessary with respect to their participation in the Family Bridges Program and that each of them pay for one half the costs of this program. The third is an order dated October 29, 2018 in which Faieta J. ordered Mr. Dale to pay to Ms. Tietler her costs of a number of motions, fixed in the amount of $69,419.86, and he ordered Mr. Dale to pay the costs associated with the attendance of Linda Popielarczyk (a worker with the Families Moving Forward program).
4At the outset it is worth noting that Mr. Dale chose not to attend the hearings that resulted in the orders of June 1, 2018 and August 31, 2018 and chose not to make any written submissions respecting the issue of costs.
[5]
The Legal Test
The test on a motion for leave to extend the time for bringing a motion for leave to appeal an interlocutory order is set out by Kitely J. in Cronier v. Cusack, 2017 ONSC 5532 at para. 3:
[t]he applicant must establish that she had an intention to appeal within the 15 days; she must explain the reasons for the delay; she must address whether the respondent would be prejudiced by the extension of time; and she must make submissions on the merits of the appeal and the “justice of the case.”
[6]
Analysis
Mr. Dale’s explanation for not appealing the order of June 1, 2018 within the appropriate time period was that he could not appeal that order because there were no reasons given for that order. There is no merit to this explanation. The endorsement of Faieta J. in which he granted the order at issue makes it clear that the reason he is granting the order is because Mr. Dale has failed to comply with previous court orders, including orders for child support.
7Mr. Dale’s explanation for not appealing the order of August 31, 2018 within the appropriate time period is that the order has not been issued and entered. According to Mr. Dale, the time for appeal should not run until the formal order is issued and entered. This argument is also without merit. The wording of Rule 61.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is clear. The notice of motion for leave “shall be served within 15 days after the making of the order or decision from which leave to appeal is sought.” In this case Faieta J. made his order on August 31, 2018.
8With respect to the costs order, the time for filing a motion for leave to appeal that order expired on the day that Mr. Dale argued the motion I am dealing with. Mr. Dale did not file a motion for leave to appeal the costs order. Instead he has chosen to seek an indulgence from the court granting him an extension of time to file that motion.
9One key aspect of the test for the extension Mr. Dale seeks is to satisfy me as to the merits of his proposed motion for leave to appeal. He has not done so with respect to any of the orders in question. There is no good reason to doubt the correctness of any of the orders in question and the appeals proposed do not involve matters that extend beyond the interests of the parties. Nor has Mr. Dale produced a decision that conflicts in principle with the decisions at issue such that it is desirable that the matter be addressed by the Divisional Court. It is worth noting that the threshold for obtaining leave to appeal interlocutory orders in family law cases and costs orders is a high one.
10With respect to the “justice of the case”, Mr. Dale is someone who has wilfully breached a number of court orders. In AA v. ZG, 2016 ONCA 660 and Consentino v. Consentino, 2017 ONCA 593 the Ontario Court of Appeal confirmed that a court will normally not hear from a party or entertain an appeal where a party is in breach of court orders.
[11]
Disposition and Costs
For these reasons Mr. Dale’s motion is dismissed. The parties may address me in writing on the question of costs. Ms. Teitler’s submissions shall be made within 10 days of the release of this endorsement and Mr. Dale’s response shall be delivered within 10 days of receiving Ms. Teitler’s submissions.
H. Sachs J.
Date: November 16, 2018
