Court of Appeal for Ontario

Date: 2018-10-18

Docket: M49377 (M49216)

Panel: Strathy C.J.O., Nordheimer J.A. and McKinnon J. (ad hoc)

Between

Catherine Weaver Respondent (Respondent)

and

Phillip Joseph Weaver Moving Party (Appellant)

Counsel

Allan Rouben, for the moving party

Gary S. Joseph and Meghann P. Melito, for the respondent

Heard and released orally: October 18, 2018

Reasons for Decision

[1] The motion judge dismissed the moving party's motion for an extension of time to seek leave to appeal a costs order in a family law matter.

[2] She found there was "no merit" to the proposed motion for leave to appeal. The trial judge had applied Rule 24 of the Family Law Rules "in a thorough and thoughtful manner exactly as they are supposed to be applied". We agree. The trial judge made findings of bad faith against the moving party – findings that, in our view, are fully supported by the record.

[3] Counsel for the moving party suggests that there is a legal issue here. He submits that the trial judge failed to take into account offers to settle made by the moving party that were allegedly more favourable than the outcome. We disagree. The trial judge took into account the offers to settle and found that the respondent to this motion had made more serious attempts to settle the matters than the respondent. This finding was open to him. Moreover, the trial judge's disposition was fully supported by the mandatory language of Rule 24(8) of the Family Law Rules.

[4] The motion judge's order was discretionary and attracts deference, as does the underlying costs order. The moving party has not demonstrated any error in the exercise of that discretion. Unlike Derakhshan v. Narula, 2018 ONCA 658, referred to by counsel for the moving party, this is not a case in which the "justice of the case" required an extension.

[5] The motion to set aside the order of the motion judge is therefore dismissed. Costs payable to the responding party in the agreed amount of $6,000, inclusive of disbursements and all applicable taxes.

"G.R. Strathy C.J.O."

"I.V.B. Nordheimer J.A."

"Colin McKinnon J. (ad hoc)"