Court of Appeal for Ontario

Citation: Elmgreen v. Evans, 2016 ONCA 124
Date: 2016-02-11
Docket: M45231 (C59831) and M45237 (C59879)

Before: Hoy A.C.J.O., Pardu and Roberts JJ.A.

Between:

Jens Peter Elmgreen
Appellant (Moving Party)

and

J. William Evans
Respondent (Responding Party)

And Between:

M45237 (C59879)

Constance Marie Georgette Larouche Elmgreen
Appellant (Moving Party)

and

Jens Peter Elmgreen
Respondent (Responding Party in Cross-Appeal)

Counsel:
Jens Peter Elmgreen, appearing via teleconference
Richard W. Greene, for J. William Evans
James R. Webster, for Constance Marie Georgette Larouche Elmgreen

Heard and released orally: February 5, 2016

Endorsement

[1] On June 11, 2015, Watt J.A. dismissed the motions of Mr. Elmgreen seeking an order:

1. permitting him to expand the records in two pending appeals –C59831 and C59879 – by including on each appeal the materials relating to the other appeal as well as material that Watt J.A. characterized as not material or relevant to either; and

2. providing that the two appeals should be heard together.

[2] C59831 is an appeal from an order striking Mr. Elmgreen’s action against his former matrimonial lawyer, J. William Evans, because it did not disclose a cause of action and is an abuse of process.

[3] C59879 is an appeal by Mr. Elmgreen’s former spouse, Ms. Larouche Elmgreen, from an order providing for a step-down of the spousal support to which she is entitled. Mr. Elmgreen has cross-appealed on the ground that the judge below erred in not setting aside a court order incorporating a settlement agreement between the parties.

[4] Justice Watt also ordered Mr. Elmgreen to perfect both appeals within 45 days.

[5] Mr. Elmgreen has brought these motions to review the orders of Watt J.A. However, he now seeks an adjournment of his motions. Mr. Elmgreen says that he should be granted an adjournment because he believes that he may obtain information on a not-yet-scheduled long motion in the Superior Court that will show that his former spouse committed perjury in an affidavit at a time when he was represented by Mr. Evans. Counsel for Ms. Larouche Elmgreen advises that the motion Mr. Elmgreen refers to is to address the issue of whether Ms. Larouche Elmgreen’s obligation to refund overpayments of spousal support is stayed pending appeal.

[6] Ms. Larouche Elmgreen, the respondent in C59879 and the related M45237, does not oppose the adjournment. Mr. Evans, the respondent in C59831 and the related M45231, opposes the adjournment. He notes that the matter has already been adjourned once.

[7] We decline to grant the adjournment. On these motions, it is the material that was before Watt J.A. that is relevant. The material Mr. Elmgreen seeks on the not-yet-scheduled long motion was not before Watt J.A.

[8] In response to these motions, Mr. Evans argues that this court should dismiss Mr. Elmgreen’s motion to review the order of Watt J.A. and should require Mr. Elmgreen to perfect his appeal within 15 days failing which it will be automatically dismissed with costs.

[9] In our view, Watt J.A. was correct in declining to permit Mr. Elmgreen to amplify the records below on appeal. Nor do we see any reason why the two appeals should be heard together.

[10] Mr. Elmgreen also argues that Watt J.A. erred in ordering him to perfect C59879. In C59879, he advances a cross-appeal and not an appeal and Ms. Larouche Elmgreen has not yet perfected her appeal. Counsel for Ms. Larouche Elmgreen consents to Mr. Elmgreen having 45 days after Ms. Larouche Elmgreen perfects her appeal in C59879 to perfect his cross-appeal. He advises that Ms. Larouche Elmgreen will perfect her appeal by April 30, 2016 and we extend the time for perfection of her appeal to that date. We accordingly clarify the order of Watt J.A. to require Mr. Elmgreen to perfect his cross-appeal in C59879 by June 15, 2016.

[11] C59831, however, is not a cross-appeal and Mr. Elmgreen has still not perfected his appeal in C59831. Mr. Elmgreen shall perfect C59831 within 45 days failing which his appeal shall be dismissed.

[12] Within 30 days, Mr. Elmgreen shall pay Mr. Evans his costs of this motion, fixed in the amount of $1,924.48, inclusive of HST and disbursements.

“Alexandra Hoy A.C.J.O.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”