COURT OF APPEAL FOR ONTARIO
DATE: 20000602
DOCKET: C33033
M25819
RE: KAREN GAIL RADCLIFF (Plaintiff/Appellant) and
JAMES RICHARD RADCLIFF (Defendant/Respondent)
BEFORE: AUSTIN, MOLDAVER AND BORINS JJ.A.
COUNSEL: Robert E. Somerleigh
for the appellant
Joyce Elder
for the respondent
HEARD: May 17, 2000
On appeal from the judgment of Platana J. dated November 25, 1994
made at Thunder Bay, Ontario.
E N D O R S E M E N T
[1] Mrs. Radcliff appeals from the decision of Platana J. made
November 25, 1994 in a proceeding under the Family Law Act,
R.S.O. 1990, c. F.3. The original grounds of appeal were with
respect to the denial of any spousal support and with respect to
the pension aspect of the equalization payment calculation. Mr.
Radcliff cross-appealed.
[2] Apparently through error, these notices of appeal and the
documents which followed, were filed in Thunder Bay commencing
December 22, 1994. This error was not discovered until October
- The appeal material was not received in the Court of
Appeal office until October 25, 1999.
[3] In the meantime, in October 1996, Mrs. Radcliff lost her
job, a position which in 1994 had looked relatively secure.
According to counsel, Mrs. Radcliff’s economic condition did not
come to his attention until December 1999.
[4] On February 3, 2000 the wife commenced a petition under the
Divorce Act, claiming a divorce and both interim and permanent
spousal support and health plan coverage.
[5] From that point on, it is fair to say that procedural steps
were taken at an ever quickening pace.
[6] The appeal came on for hearing on May 17, 2000. In the
meantime:
(a) Mrs. Radcliff abandoned the pension
ground of her appeal.
(b) Mr. Radcliff abandoned his cross-appeal.
(c) Mr. Radcliff moved to stay the wife’s
appeal, taking the position that s.36(1)
of the Family Law Act automatically stayed
the proceeding upon the launching of the
petition.
(d) Mrs. Radcliff moved for the admission
of fresh evidence consisting largely, if
not entirely, of material respecting her
economic circumstances since October 1996
and asked leave to amend her notice of
appeal to have this court “revisit” the
issue of spousal support on the basis of
the fresh evidence.
(e) Mr. Radcliff delivered an answer to
the petition, denying any right to spousal
support.
(f) A motion for interim spousal support
was brought by Mrs. Radcliff in the divorce
proceedings. It was heard by Wright J. who
suggested that either the appeal or the
divorce should be stayed.
(g) Mrs. Radcliff abandoned the motion
for interim spousal support in the divorce
proceedings.
(h) Mr. Radcliff moved in the Superior
Court for “an order determining the wife’s
entitlement to interim spousal support or
prohibiting the wife from bringing any
further motions for interim support”.
Wright J. dismissed this motion.
(i) Mr. Radcliff delivered an amended
answer and counter-petition. The counter-
petition asks for a determination that his
wife is not entitled to spousal support.
(j) Mrs. Radcliff moved for leave to
discontinue her petition for divorce and
corollary relief. The motion was heard on
May 15, 2000 by Zelinski J., who denied
leave.
[7] Mr. Radcliff’s motion to stay his wife’s appeal and her
motion for the admission for fresh evidence and ancillary relief
were heard together with the appeal by this court on May 17,
[8] Mr. Radcliff’s motion to stay the appeal is dismissed. The
motion is based upon s. 36(1) of the Family Law Act. That
section reads as follows:
Effect of divorce proceeding – When a divorce
proceeding is commenced under the Divorce Act
(Canada), an application for support under
this Part that has not been adjudicated is
stayed, unless the court orders otherwise.
[9] His wife’s claim for spousal support was adjudicated by
Platana J. in his order of November 25, 1994. To construe
s.36(1) as arresting the appeal upon the issuance of a petition
would mean that the engagement of s.36(1) takes away a right of
appeal granted by the Courts of Justice Act R.S.O. 1990 c. C43
s.6(1)(b). We do not agree that s.36(1) has that effect.
[10] Mrs. Radcliff’s motion for the reception of fresh evidence
and ancillary relief is dismissed. The evidence is not “fresh”,
it is “new”. It relates not to pre-November 1994 circumstances,
but in large measure to what occurred post-October 1996. It is
not evidence which could have influenced the trial judge because
it did not exist at the time of the trial. It is not for this
court to retry the issue of spousal support.
[11] Considering the appeal on its merits, Mrs. Radcliff’s
position was that insufficient weight had been given by the trial
judge to the evidence, expert and otherwise, of her economic
disadvantage by reason of being out of the labour market while
raising her family. Counsel were thorough in reviewing with us
the evidence on this subject. After considering that evidence,
which was extensive, and the very full and careful reasons of the
trial judge, we are not persuaded that he erred in reaching the
conclusions he did or in denying any spousal support. The appeal
must therefore be dismissed.
[12] We did not invite counsel to address the matter of costs and
we are of the view that in the unusual circumstances no order for
costs should be made.
“Austin J.A.”
“Moldaver J.A.”
“S. Borins J.A.”