Pathan v. Qureshi, 2009 ONCA 575

CITATION: Pathan v. Qureshi, 2009 ONCA 575

DATE: 20090720

DOCKET: M37621/ M37656/M37736 (C50393/C50394/C50395)

COURT OF APPEAL FOR ONTARIO

Weiler J.A. (in chambers)

BETWEEN

Zakeria Pathan

Applicant (Respondent/Responding Party (M37621 & M37656)/Moving Party (M37736))

and

Fazila Qureshi and 1733308 Ontario Ltd. c.o.b. India Paan House

Respondents (Appellant/Moving Party (M37621 & M37656)/Responding Party (M37736))

Jesuorobo Kingsley, for the appellant

Sarah Zakir, for the respondent

Heard: July 14, 2009

On appeal from the order Justice Victor Paisley of the Superior Court of Justice dated April 14, 2009, the order of Justice Lee K. Ferrier of the Superior Court of Justice dated April 9, 2009 and the order of Justice Nancy Backhouse of the Superior Court of Justice dated April 2, 2009, and on motions for stay, security for costs and directions.

Weiler J.A. (in chambers)

[1] The underlying application in this case involves a dispute between the parties as to the proper division of assets following the breakdown of their marriage over two years ago. The appellant appeals the order of Paisley J., dated April 14, 2009, in which he ordered the division of assets, as well as two related orders of Backhouse J., dated April 2, 2009 and Ferrier J., dated April 9, 2009.

[2] The appellant brings two motions related to these three appeals. On the first motion, the appellant seeks a stay of the order of Paisley J. pending appeal. On the second motion, she seeks an extension of time to perfect her appeal of Paisley J.’s order, and an order consolidating the hearing of that appeal with her appeals from the orders of Backhouse J. and Ferrier J.

Facts

[3] The parties were married in India in 1990 and have three children. In addition to the matrimonial home, they own a second residence in Ontario, as well as a restaurant known as India Paan House.

[4] The parties’ marriage broke down over two years ago, and the respondent brought an application to have the assets properly divided. A preservation order was made by Perkins J. on July 8, 2008.

[5] The appellant failed to file an answer or financial statement in response to the application. As a result, an uncontested trial in the matter was initially scheduled to proceed on February 17, 2009. Shortly before the date set for trial, the appellant appointed new counsel to represent her. As a result, Harvison Young J. granted an adjournment of the trial until April 6, 2009. She ordered that the appellant be allowed to file her answer by March 17, 2009, provided that the appellant pay all outstanding costs orders against her. On March 17, 2009, Allen J. adjourned the appellant’s motion to have Harvison Young J.’s order set aside until April 9, 2009, three days after the trial was scheduled to proceed.

[6] On April 2, 2009, Backhouse J. set aside the order of Allen J. and ordered that, if the appellant complied with the costs order of Harvison Young J., her answer and financial statement could still be filed. On April 9, 2009, the appellant moved before Ferrier J. to have Harvison Young J.’s order set aside in its entirety. Ferrier J. ruled that the motion was res judicata by virtue of the order made by Backhouse J.

[7] The appellant drafted a Notice of Appeal to the Divisional Court, seeking to appeal the orders of Backhouse J. and Ferrier J., but was unable to file it prior to the date set for trial.[^1] At this point, there remained outstanding costs orders against the appellant and she was not able to file her answer or financial statement. The uncontested trial proceeded before Paisley J. on April 14, 2009. He made the following order:

• Judgment in favour of the respondent in the amount of $207,445.35 for his share of the net family property;

• Title to the matrimonial home to vest in the appellant once payment to the respondent for his share of the property is paid. Failing payment to the respondent, the matrimonial home be sold and the proceeds be payable to the respondent to the extent necessary to satisfy the equalization order;

• Title to the second property, located at 113 Hiawatha Rd., to vest in the respondent, including the sole exclusive right to collect all rents therefrom, subject to any rights of mortgages; and

• The respondent to take sole ownership and exclusive possession of the parties’ business known as India Paan House.

[8] On April 16, 2009, Paisley J. also made a non-harassment order, prohibiting the appellant from approaching the respondent, India Paan House, and the Hiawatha Rd. property within 50 meters. The order was to expire on April 30, 2009 unless extended by the judge presiding at the hearing on that date. That hearing was adjourned and the order remains in effect until the new hearing date.

[9] On May 1, 2009, the appellant filed three appeals in the Court of Appeal: (1) from the order of Paisley J., dated April 14, 2009; (2) from the order of Backhouse J.; and (3) from the order of Ferrier J. None of the appeals have been perfected, and the appeals from the orders of Backhouse J. and Ferrier J. are on the list to be purged pending the outcome of this motion.

[10] On June 12, 2009, the appellant moved before Gillese J.A. for a stay of Paisley J.’s order, the consolidation of the three appeals and an extension of time to perfect them. Gillese J.A. granted an adjournment of the motion to allow the respondent to file responding materials. On June 24, 2009, Goudge J.A. adjourned the motions because the respondent had filed his materials too late for them to be properly considered by the appellant. The terms of the adjournment granted by Goudge J.A. were, pending the motion to stay, that no further steps be taken by the respondent to implement Paisley J.’s order; that the respondent continue to pay, on consent, child support in the amount of $600.00 per month; and that no action be taken to dismiss the underlying appeal. Goudge J.A. also ordered that the closing of the Hiawatha property be allowed to proceed and that no further material be filed in the motions without leave of the court.

Analysis

Motion to stay Paisley J.’s order

[11] In order to succeed on this motion, the appellant must show that: (1) there is a serious question to be determined on the appeal; (2) she will suffer irreparable harm if the stay is not granted; and (3) on a balance of convenience analysis, the appellant would suffer greater harm if the stay is not granted than the respondent will suffer if the stay is granted. This is the same as the test for an interlocutory injunction: see Circuit World Corp. v. Lesperance et al. (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.) at 676-677.

[12] The appellant has not met this burden. Even if I assume that her appeal of Paisley J.’s order raises a serious question to be determined, I cannot conclude that she will suffer irreparable harm if a stay is not granted. I am also unable to conclude that the balance of convenience weighs in her favour.

[13] The appellant submits that she is receiving social assistance and that her only source of income to support herself and her children flows from her work at India Paan House. She claims that she is now in dire financial circumstances and will be further burdened if Paisley J.’s order is not stayed. I have no doubt that Paisley J.’s order has placed the appellant in a difficult financial situation. However, there is some affidavit evidence to suggest that the appellant has opened a competing restaurant across the street from India Paan House in her sister’s name, and that she has paid the first and last month’s rent on these premises. Further, I note that pursuant to Goudge J.A.’s order and on consent, the respondent has been paying the appellant $600.00 per month in child support.

[14] The appellant has not presented any evidence in her motion record to convince me that any harm flowing to her from Paisley J.’s order cannot be quantified in monetary terms or cured by an award of damages. On this basis, I cannot conclude that the appellant will suffer irreparable harm if the stay is not granted.

[15] The respondent also claims to be in dire financial circumstances. I recognize that the evidence with respect to the appellant’s alleged new restaurant operation has not been tested on cross-examination and is contested. Nevertheless, I accepted it for purposes of the respondent’s cross-motion for security for costs and dismissed that motion. On the evidence presented, therefore, I cannot conclude that the balance of convenience weighs in favour of the appellant.

[16] The motion to stay the order of Paisley J., dated April 14, 2009, is dismissed. The respondent shall continue, on consent, to pay child support in the amount of $600.00 per month to the appellant pending determination of the appeal.

Motion for Extension of Time and Consolidation of Appeals

[17] The appellant seeks an order consolidating her appeal from the order of Paisley J. with the appeals from the orders of Backhouse J. and Ferrier J. She also seeks an extension of time to perfect all three appeals.

[18] The orders of Backhouse J. and Ferrier J. are clearly interlocutory. Pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal from an interlocutory order of a judge of the Superior Court of Justice lies to the Divisional Court with leave. The appellant has not obtained leave to appeal with respect to these two orders.

[19] Because the appellant has not been granted leave to appeal these orders in the Divisional Court, s. 6(2) of the Courts of Justice Act, which confers jurisdiction on this court to hear and determine an appeal that lies to the Divisional Court if an appeal in the same proceeding is also commenced in the Court of Appeal, is inapplicable. The notice of motion for leave to the Divisional Court should have been served by the appellant within seven days of the orders being made: see rule 62.02(2) of the Rules of Civil Procedure. The appellant can no longer appeal those orders. This court cannot short circuit the leave process by joining these appeals to the appeal of Paisley J.’s final order in this court.

[20] With respect to the extension of time to perfect the appeal from Paisley J.’s order, the appellant has indicated that transcripts from the trial will be available by August 28, 2009. I therefore grant the motion and extend the time to perfect the appeal from Paisley J.’s order until September 28, 2009.

Conclusion

[21] The motions to stay the order of Paisley J. and to consolidate the three appeals are dismissed. The motion for an extension of time to perfect the appeal of Paisley J.’s order is granted to September 28, 2009. The respondent shall, on consent, continue to pay child support to the appellant in the amount of $600.00 per month, pending the outcome of the appeal.

[22] I note that the respondent brought a motion for security for costs, which was dismissed with the following endorsement given orally:

Rule 61.06(1)(a) of the Rules of Civil Procedure provides that an order for security for costs may be made against an appellant where there is good reason to believe that the appeal is frivolous and vexatious and the appellant has insufficient assets in Ontario to pay the costs of the appeal. I am not satisfied that the appeal appears to be frivolous and vexatious. The trial judge refused to grant the appellant an adjournment until her appeals were heard by the Divisional Court. This raises an issue as to whether the appellant’s right to a fair trial was breached. Additionally, the trial judge made no award for child support for the three children who are living with the appellant wife. There are costs awards outstanding. I am not satisfied, however, that the wife has insufficient assets in Ontario to pay a costs award as it is conceded that she spent over $30,000 on improvements related to a property she has leased. Accordingly, the motion is dismissed.

[23] As the respondent was unsuccessful on his cross-motion also heard this day, the costs of the motions offset each other. No costs are ordered in favour of either party.

“Karen M. Weiler J.A.”

[^1]: The appellant indicates that she served the Notice of Appeal on the respondent immediately upon receiving Ferrier J.’s order on Thursday, April 9, 2009. However, as the Divisional Court office was closed on Friday April 10th and Monday April 13th for the Easter holiday, the appellant was not able to file the notice before the trial proceeded on April 14, 2009.