COURT OF APPEAL FOR ONTARIO

CITATION: Estrada v. Estrada, 2016 ONCA 697

DATE: 20160922

DOCKET: C60152

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Julia Estrada

Applicant (Appellant)

and

Pedro Estrada

Respondent (Respondent in Appeal)

Julia Estrada, acting in person

Mathew Fordjour, for the respondent

Heard and released orally: September 19, 2016

On appeal from the judgment of Justice Gordon D. Lemon of the Superior Court of Justice, dated January 5, 2015.

ENDORSEMENT

[1] The only issue in this appeal is whether the trial judge erred in refusing an adjournment of a trial that resulted in a final judgment in family law proceedings.

[2] Whether or not to grant an adjournment is a matter for judicial discretion. The scope for appellate review is limited to whether the discretion is exercised judicially on proper principles, after considering all relevant factors: Khimji v. Dhanani, 2004 CanLII 12037 (ON CA), [2004] 69 O.R. (3d) 790 (C.A.), at para. 20, per Laskin J.A. in dissent, but not on this point.

[3] We see no error in principle in the judge’s exercise of discretion in this case. The appellant’s motion for an adjournment before the trial was dismissed by Baltman J., who noted that the trial would proceed, subject to the discretion of the trial judge.

[4] On appeal, the appellant submits that she suffered prejudice from her inability to prepare when the trial judge refused her request for an adjournment at the outset of trial. It is clear that the trial judge turned his mind to this very issue when he asked whether the appellant was ready for trial. In his reasons for judgment, at para. 5, supported by the transcript, the trial judge confirmed with the appellant that she was prepared to proceed. Further, he found that, after the trial got under way, she was articulate and well-prepared.

[5] During her cross-examination by the respondent’s counsel, a second request for an adjournment was made. The conditions under which the request was made led the trial judge to reject the request. The trial judge referred, again at para. 5 of his reasons, to the appellant citing medical reasons for her adjournment request. Absent medical documentation, the trial judge did not accept that the appellant had an illness that prevented her from continuing the trial. The trial judge’s decision not to grant an adjournment is entitled to deference.

[6] We reach this decision having been referred to the fresh evidence of the appellant.

[7] The appeal is therefore dismissed.

[8] Costs of the appeal allowed to the respondent fixed in the amount of $3,000, all inclusive.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“K. van Rensburg J.A.”