COURT OF APPEAL FOR ONTARIO

CITATION: Robertson v. Robertson, 2016 ONCA 356

DATE: 20160509

DOCKET: M46373

MacPherson J.A. (In Chambers)

BETWEEN

Amy Florence Robertson

Applicant (Moving Party)

and

Stephen James Robertson

Respondent (Responding Party)

William H. Fysh, for the moving party

Philip Viater, for the responding party

Heard: May 6, 2016

MacPherson J.A.:

[1] The applicant Amy Robertson brings this motion seeking an order extending the time for commencement of an appeal from the Order of Jarvis J. of the Superior Court of Justice dated April 24, 2015. In that order, the application judge dealt with several matters in the matrimonial proceedings involving the appellant and her former husband, the respondent Stephen Robertson. The application judge ordered the sale of the matrimonial home at 116 Willow Park Lane in Aurora. It is this component of the application judge’s Order that the applicant seeks leave to appeal. If leave is granted, the applicant also seeks an order staying Jarvis J.’s Order and related orders by Rogers J. dated March 31, 2016 and Jarvis J. dated April 19, 2016, pending the disposition of the appeal by this court.

[2] Justice Jarvis held a Case Conference in the matrimonial proceedings. The parties and their counsel were present; all spoke at various times throughout the case conference.

[3] At the conclusion of the Case Conference, the application judge delivered an endorsement. He said: “Both parties are agreed that the matrimonial and commercial property be sold.” The applicant says that she did not consent to the sale of the matrimonial home. She wants to appeal this component of the Order.

[4] The date of the Order the applicant seeks to appeal is April 24, 2015. The appeal should have been commenced within 30 days of that date. The applicant filed this motion on April 15, 2016. Accordingly, she is about 11 months late in taking an appropriate step in this court.

[5] In Rizzi v. Mavros (2007), 85 O.R. (3d) 40 (C.A.), at para. 16, Gillese J.A. set out the factors to consider on a motion for leave to extend time to file an appeal:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of the delay and explanation for the delay;

(3) any prejudice to the respondent;

(4) the merits of the appeal; and

(5) whether the “justice of the case requires it”.

[6] I will consider these factors in turn.

[7] On the first factor, the applicant retained counsel to appeal Jarvis J.’s Order on May 7, 2015. A motion for leave to appeal to the Divisional Court was delivered on May 8, 2015. Accordingly, the appellant formed an intention to appeal and acted on it within two weeks of the Order, well within the relevant 30 day period.

[8] With respect to the second factor, the applicant’s original leave motion was filed in the wrong court. She only filed materials in the right court (this court) on April 15, 2016. The applicant has an 11 month delay to explain. Her explanation is a simple one – I thought that I was in the right court for almost all of this period.

[9] I do not accept this explanation for two reasons. First, the applicant was warned by opposing counsel and by one superior court judge (on October 15, 2015) that she might be in the wrong court. Yet she did not resolve this issue until, at a motion before Bale J. of the Superior Court on February 16, 2016, she concluded that she was in the wrong court. Second, during the 10 months that the appeal was lodged in the Divisional Court, the applicant took virtually no steps to move it forward. She was constantly faced with motions to dismiss for delay. My conclusion on the second factor is, therefore, this: the applicant’s delay in commencing an appeal in this court is very long (11 months) and her explanation for the delay is unpersuasive.

[10] On the third factor, there will be prejudice to the respondent if leave to appeal is granted. If a stay were granted pending the appeal, the bona fide sale of the matrimonial home scheduled to close on July 5, 2016 would be placed in jeopardy with the risk of more legal proceedings by the purchaser and by a bank under power of sale proceedings. As well, the respondent incurred considerable legal expenses in the applicant’s misconceived and lengthy appeal proceedings in the Divisional Court. Accordingly, this factor favours the respondent.

[11] The fourth factor – the merits of the proposed appeal – tells overwhelmingly in favour of the respondent. There is in the record a transcript of the entire hearing before the application judge on April 24, 2015. From start to finish, it is obvious that both parties agreed that the matrimonial home must be sold. Indeed, that is the principal topic of discussion throughout the hearing. I set out merely a few examples:

• p. 4 THE COURT: …I note as well that there seems to be some issue with respect to both parties wishing to have the matrimonial home sold.

• P. 9 MS. BRUCE [the applicant’s counsel]: Well, the difficulty we have, Your Honour, is my client has been cashing in RRSPs to try to get the home in the best possible sale position… She’ll be doing the cleaning and maintenance to show the home.

• P. 14 MR. VIATUR [the respondent’s counsel]: I can also advise you of my discussions with Ms. Bruce prior to appearing before Your Honour, when the parties were agreeing to list both properties for sale the agreement was Mom would select the agent for the matrimonial home, which she did, and Dad cooperated. In effect there is a listing agreement in place for the matrimonial home.

• P. 16 MS. BRUCE:… my client is working hard to try to maximize the value of the home….

• pp. 41-42 MS. ROBERTSON: Well there was an agent that I involved, Susan Cowan.

• THE COURT: So you have your choice of agent for the home.

[12] After an afternoon recess, the application judge returned and said:

This is the endorsement that I have made and I’m going to add to that after discussing its contents with counsel. I’ll give each party an opportunity to discuss this with your respective clients. We’ll do it all in the courtroom right now.

Parties appearing with counsel. Both parties are agreed that matrimonial home, which I’ve just said ‘MH’, and commercial property be sold. Applicant wife shall be entitled to choose the agent to sell the matrimonial home. Respondent husband shall be entitled to choose agent to sell the commercial property. Both parties shall instruct the agent chosen by them to cooperate fully with the other party. Each party shall be guided by the advice/recommendation of the agent involved with the sale of that property. Listing agreements to be signed by 1 May 2015. The net proceeds of the sale of each property shall be held in trust and not disbursed except by written agreement of the parties or further order of the court. Parties are cautioned that failure to cooperate in the expeditious listing and steps needed to effect a timely sale of either property may result in the court ordering that the parties consent to the sale be dispensed with.

[13] The applicant’s counsel’s response to this draft was:

MS. BRUCE: I have no difficulty with what Your Honour has done so far today. My concern is that we didn’t get an opportunity to discuss support but I don’t know that we have time now.

[14] In my view, the import of these passages is clear. The parties agreed that the matrimonial home needed to be sold. At the hearing, the discussion then focused on the mechanics of the sale.

[15] I make a final point on this factor. My conclusion about the applicant’s consent at the hearing to the sale of the matrimonial home is supported by the applicant’s actions both before and after the hearing.

[16] Before the hearing, the parties had listed the matrimonial home for sale as early as January 22, 2015. As well, in January and February, the applicant sent several emails to the respondent setting out what she was doing to prepare the home for sale.

[17] Two weeks after the hearing, on May 8, 2015, acting pursuant to the component of the application judge’s order stating that the applicant could choose the real estate agent for the sale of the matrimonial home, the applicant sent a letter to the respondent’s counsel:

Dear Sir:

For many reasons I have decided to retain the services of a new listing agreement with regards to the sale of 116 Willow Farm Lane.

The new agent is Daniel Lehmkuhl.

I intend to cooperate with Mr. Lehmkuhl with regards to the sale of the property and expect to be able to show the home to prospective buyers commencing Wednesday, May 13, 2015.

[18] My conclusion on the fourth factor is that the applicant’s position about the sale of the matrimonial home before, during and after the hearing amply justifies the application judge’s statement that “[b]oth parties are agreed that matrimonial home … be sold.” Accordingly, the proposed appeal contesting this finding is devoid of merit.

[19] The fifth and final factor is whether the “justice of the case” requires granting an extension of time to file an appeal. Obviously, given what I have said about the second, third and, especially, fourth factors, the justice of the case requires that, at this juncture in long, acrimonious and expensive matrimonial proceedings, a meritless appeal not be permitted to proceed.

[20] In light of this conclusion, it is not necessary to consider the three other orders challenged by the applicant on this motion.

[21] The motion is dismissed. The respondent is entitled to his costs of the motion fixed at $4,700, inclusive of disbursements and HST.

Released: May 9, 2016 (“J.C.M.”)

“J.C. MacPherson J.A.”