COURT OF APPEAL FOR ONTARIO

CITATION: Timleck v. Beltrano, 2014 ONCA 585

DATE: 20140814

DOCKET: M44028

Pardu J.A. (In Chambers)

BETWEEN

April Timleck

Appellant/Moving Party

and

Robert Beltrano and Kally Beltrano

Respondents/Responding Parties

Susan W. Garfin, for the moving party

Robert Beltrano, appearing in person

Kally Beltrano, appearing in person

Heard: August 5, 2014

On motion for directions and on motions for extending time for the appeal.

ENDORSEMENT

[1] The appellant mother moves for directions regarding the conduct of this appeal, as well as for a third order extending the time for this appeal, and an order extending the time to appeal from two other orders made between the parties, one in the Superior Court of Justice on December 5, 2013, and the other in the Divisional Court on September 20, 2013.

[2] There is a lengthy history to this matter. The parties were married in 1986 and separated in 1991. There were two children of the marriage, born in 1987 and 1988.

[3] A consent order in the Ontario Court (Provincial Division) in 1993 fixed the terms of access to the two children, and required the father to pay child support of $125 per month per child. There was no provision for spousal support.

[4] Some twelve years later, the mother claimed spousal support and arrears of child support, alleging that the father had concealed his income and ought to have paid more child support. The father responded with a claim for child support for his son Andrew from the mother for the time that Andrew lived with him.

[5] On April 27, 2012, the trial judge dismissed the mother’s claim and found in favour of the father. After a nine day trial, he found that the father’s income was as stated, and that no income had been concealed. He found that the father had for many years been unable to work due to illness, and had not had the ability to pay spousal support. The trial judge also rejected the mother’s contention that the father had misappropriated the son’s own earnings during the time Andrew lived with him. The mother had argued that the amount misappropriated should be set off against her obligation to pay support for her son. The trial judge ordered the mother to pay child support for the time Andrew lived with his father in the sum of $12,488 and ordered the mother to reimburse the father for overpayment of child support in the sum of $15,930. He granted costs to the father in the sum of $45,000.

[6] The mother filed a Notice of Appeal on May 30, 2012.

[7] The mother alleges that the father deliberately tricked her when he served her with the Respondent’s Certificate Respecting Evidence on June 8, 2012. In preparation for the appeal, the mother had ordered partial transcripts of the trial. She claims that when the father served her with the Respondent’s Certificate –wherein he requested the entire trial transcript – he faxed her the reverse side of the document so that she only received blank pages, and that consequently she did not receive notice of his request for the complete transcripts. She alleges that she had no reason to believe that partial transcripts of the trial she had ordered would not suffice, and that she has been unable to perfect her appeal because she did not know that the complete transcripts were required. The father denies engaging in any such deceptive practice.

[8] On October 17, 2012 the mother’s appeal was dismissed for delay by the Registrar, with costs to the father fixed at $750.

[9] On November 15, 2012 the appeal was restored pursuant to the order of Weiler J.A. The time to perfect the appeal was extended to January 30, 2013. During the course of her motion to set aside the dismissal of the appeal, the mother indicated that she wished to bring a motion before the trial judge to set aside the trial judgment. She alleged that the father had failed to make full disclosure at trial and had committed a fraud on the court. The appeal court endorsement notes, “The applicant advises that she wishes to bring a motion before Paisley J. to set aside the trial judgment and the earliest such a motion could be heard is December 11, 2012. If she is successful at that time she would not need to pursue this appeal.”

[10] The mother moved to have the trial judgment set aside on the grounds of fraud, based on rule 59.06 of the Rules of Civil Procedure. On January 8, 2013 the parties appeared on the motion before the trial judge who gave them procedural directions and adjourned the matter to January 15, 2013.

[11] On January 8, 2013, the father’s counsel wrote to counsel for the mother, confirming that the entire transcript was required for both the motion to set aside the trial judgment and the appeal. This letter specifically notes that the Respondent’s Certificate Respecting Evidence had requested the complete transcript. Whatever the origin of the miscommunication regarding the Respondent’s Certificate Respecting Evidence, this letter makes the father’s position clear.

[12] On February 5, 2013, the trial judge ordered the mother to file the complete transcripts of the trial, including the submissions of counsel, for use on the motion, factums as previously directed, and to ensure that the endorsement record was complete. He indicated that “the motion could not be heard on its merits as it was apparent that relevant portions of the transcripts of the trial have not been ordered.” As a result he adjourned the mother’s motion and ordered costs of $5000 payable by the mother in favour of the father.

[13] On February 21, 2013 Sharpe J.A. made an order on consent extending the time to appeal from the original judgment of April 27, 2012 to “50 days following the determination of the rule 59.06 motion” before the trial judge.

[14] On September 20, 2013, Aston J. of the Divisional Court dismissed the mother’s motion for leave to appeal from the order of February 5, 2013. He indicated that the trial judge’s reasons for making the order were compelling. He ordered the mother to pay further costs fixed at $5000.00.

[15] On December 5, 2013, the parties appeared again before the trial judge on the rule 59.06 motion. The mother had still not obtained the transcripts she had been ordered to obtain. She asked the motion judge to stay her own motion to set aside the trial judgment. In the result, the trial judge refused her request for a stay, and instead dismissed the motion to set aside the trial judgment for want of prosecution. He ordered the costs of February 5, 2013, payable forthwith, and a further sum of $500 for the costs of December 5, 2013.

[16] The appellant took no steps to appeal either the order of the Divisional Court or the trial judge’s order of December 5, 2013.

[17] On July 3, 2014 the Registrar of the Court of Appeal notified the mother that her appeal would be dismissed for delay if not perfected by July 17, 2014.

[18] This motion for an extension of time to perfect the appeal from the original trial judgment; to extend the time to appeal from the Divisional Court order, and the order of December 5, 2013; and for directions as to the conduct of the appeal was served on July 14, 2014.

[19] According to the order of this court of February 21, 2013 the appeal from the original trial judgment ought to have been perfected within 50 days of the December 5, 2013 order, or by January 25, 2014. The mother has not adequately explained why she failed to perfect her appeal by that time. She has known, at the very least since January 8, 2013, that the father required transcripts of the entire trial for the purposes of the appeal. She still has not ordered the transcripts of the trial for use on the appeal.

[20] She did nothing until prompted by the Registrar’s notice of pending dismissal for delay. Given that this appeal was already dismissed once for delay, and that two further extensions of time to perfect have previously been given, it was incumbent upon the mother to make all reasonable efforts to comply with the last deadline, but she did nothing for about five months.

[21] The mother initially delayed perfecting this appeal on the ground that she was pursuing a motion to set aside the trial judgment, but then asked that her own motion for that relief be stayed. (See paragraph 15 of respondent’s affidavit, and exhibit at page 43 of respondent’s record)

[22] Prior to bringing this motion, the mother has not indicated any intention to appeal the orders of September 20, 2013 or December 5, 2013. Aston J. heard the motion for leave to appeal the procedural order made by the trial judge as a single judge sitting in the Divisional Court. Rather than proceeding to the Court of Appeal with leave, the “appeal” of such an order lies to a full panel of the Divisional Court by way of motion to set aside or vary. Sections 21(3) and (5) of the Courts of Justice Act (“CJA”) state:

21(3) A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of the court.

(5) A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[23] Rule 61.16 (6) provides that motions to set aside or vary made under s. 21(5) of the CJA shall be made by notice of motion served within four days after the order is made.

[24] The order of December 5, 2013 was a final order. It appears that the proposed appeal from that order relates only to the costs ordered. Leave to bring such an appeal is required by s. 133(b) of the CJA. Rule 61.03.1(3) requires that notice of a motion for leave to appeal be served within 15 days of the making of the order from which leave to appeal is sought.

[25] The mother has not adequately explained why she has not perfected this appeal within the time allowed by the last extension. She has not explained why she has not taken timely steps to pursue her proposed appeals from the orders of December 5, 2013 or September 20, 2013. There is no evidence that any document initiating an appeal has ever been delivered in respect of either of the last two orders.

[26] The father has now accumulated numerous costs orders in his favour, with little prospect of recovery. I am not satisfied that the justice of the case requires a further extension of time to appeal. The trial judge’s original conclusions were based on findings of credibility. I am not satisfied that the entire WSIB file upon which the mother now wishes to rely could not have been obtained at trial with the exercise of reasonable diligence, and I am not satisfied that it would make any difference to the result. The evidence submitted to me on this motion, though voluminous, does not establish with precision an arguable case that the conclusions drawn by the trial judge were unwarranted or would be altered by new evidence.

[27] Weighing in the balance the delays, the previous extensions, the failures to indicate an intention to appeal, the absence of any explanation for the delays, and the justice of the case, I am not persuaded that any further extension of time should be granted, and the motion is dismissed.

[28] Following argument of this motion, counsel for the mother twice delivered a letter to me making further submissions. This was improper. Rule 1.09 provides that when a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, directly or indirectly unless all the parties consent in advance to the out of court communication or the court directs otherwise. I have disregarded the further submissions in coming to my decision in this matter.

[29] Costs should follow the result. Costs to the respondent on the motion fixed at $1000.00.

“G. Pardu J.A.”