COURT OF APPEAL FOR ONTARIO

CITATION: Hodgson v. Cheng, 2020 ONCA 689

DATE: 2020-10-29

DOCKET: M51829 (C68483)

Roberts, Trotter and Thorburn JJ.A.

BETWEEN

Lee Christian Hodgson

Appellant (Responding Party)

and

Jaeden Cheng

Respondent (Moving Party)

Counsel:

Aaron Franks and Hilary Ingle, for the moving party

Meghann Melito, for the responding party

Heard: October 26, 2020 by video conference

On a motion to quash the appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice dated March 13, 2020.

REASONS FOR DECISION

[1] The moving party, Jaeden Cheng, seeks to quash the appeal brought by the responding party, Lee Christian Hodgson, from the dismissal of his motion in which he requested that the motion judge entertain further submissions and reconsider or set aside her costs order dated September 20, 2019. Alternatively, she seeks security for costs.

[2] At the conclusion of the motion, we advised the parties that the appeal was quashed with reasons to follow. These are those reasons.

Brief factual and procedural background

[3] Some brief context is necessary to understand the nature of the order under appeal and the parties’ submissions. These proceedings arise out of the parties’ acrimonious custody dispute concerning their young daughter. Ms. Cheng moved with their daughter to Ontario from Hong Kong where the parties had been residing. Mr. Hodgson commenced proceedings in Hong Kong and in Ontario to seek their daughter’s return to Hong Kong. In the Hong Kong proceedings, an order was granted on August 1, 2019 requiring the daughter’s return.

[4] Prior to the release of the August 1, 2019 Hong Kong order, Mr. Hodgson adjourned his motion for the same relief in Ontario. The parties made oral and written submissions concerning the disposition of costs. Ms. Cheng requested her costs of the adjourned motion and the application. Mr. Hodgson submitted that the costs should be reserved. The motion judge granted Ms. Cheng her costs in relation to the adjourned motion and the application commenced by Mr. Hodgson in the amount of $37,245. Mr. Hodgson launched an appeal from this costs order to the Divisional Court which, on January 6, 2020, was dismissed as abandoned with costs to Ms. Cheng in the amount of $750.

[5] Mr. Hodgson then brought a 14B motion before the motion judge to request that she reconsider or set aside her September 20, 2019 costs order and that she entertain further costs submissions. The main thrust of his motion was that since the parties were able to use the materials from the Ontario proceedings in the Hong Kong proceedings, Ms. Cheng’s costs had not been thrown away, and that his success in obtaining an order requiring the return of his daughter to Hong Kong entitled him to costs of the application in Ontario. Other than agreeing that the adjourned motion should be vacated, Ms. Cheng opposed this motion. On March 13, 2020, the motion judge dismissed Mr. Hodgson’s motion. This is the order under appeal.

[6] On October 5, 2020, Mr. Hodgson paid the Divisional Court costs order with interest. On the same day, he paid into his Hong Kong solicitors’ trust account the amount of the September 20, 2019 costs order, with interest, to be paid to Ms. Cheng if his appeal is quashed.

Parties’ positions

[7] Ms. Cheng’s main submission on her motion to quash is that the order appealed from was interlocutory and that the correct appeal route was to the Divisional Court with leave.

[8] Mr. Hodgson argues that the motion judge’s March 13, 2020 order was final and that his appeal is properly before this court because the order foreclosed his right to seek costs of his Ontario application.

Analysis

[9] We agree that Mr. Hodgson’s appeal should be quashed on the basis that it is interlocutory in nature. It is therefore unnecessary to consider Ms. Cheng’s alternative submissions or motion for security for costs.

[10] The motion judge’s order refusing Mr. Hodgson’s request that she reconsider her costs order and entertain further submissions was clearly interlocutory. By the time she dealt with the issue of costs in her September 20, 2019 order, the Hong Kong court had ordered that the parties’ daughter be returned to Hong Kong. It was common ground that Mr. Hodgson’s Ontario application would not likely proceed. In consequence, as the motion judge indicated in para. 27 of her September 20, 2019 reasons and explained further in her March 13, 2020 endorsement, she disposed of Ms. Cheng’s costs related not only to the abandoned motion but also to the entire application.

[11] In our view, the motion judge’s March 13, 2020 order was nothing more than a procedural order made to manage the proceedings before her and dispose of Mr. Hodgson’s request to re-open the costs disposition and make further costs submissions. It did not finally dispose of any substantive right of the parties or issue in the application but related to the motion judge’s previous final costs order, the appeal of which Mr. Hodgson had abandoned. See: Wachsberg v. Wachsberg, 2018 ONCA 508, at paras. 6-7; Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, at para. 3. As such, an appeal does not lie to this court and this court does not have jurisdiction to entertain it.

[12] There can be no question that the motion judge’s September 20, 2019 order is immediately payable to Ms. Cheng with interest at the rate provided for in the order from the date of the order. Indeed, the order became payable in accordance with its terms following Mr. Hodgson’s abandonment of his appeal from the September 20, 2019 order and the automatic stay was consequently lifted. At that point, the September 20, 2019 order was no longer under appeal and therefore not automatically stayed. Mr. Hodgson has not obtained a stay of this order. His appeal from the motion judge’s March 13, 2020 order did not stay her September 20, 2019 order. It is beyond well-established that parties must obey court orders unless they are stayed or until they are set aside or varied.

Disposition

[13] The appeal is therefore quashed.

[14] Ms. Cheng is entitled to her partial indemnity costs in the amount of $3,500, inclusive of disbursements and applicable taxes.

[15] Mr. Hodgson shall pay these costs prior to November 4, 2020.

“L.B. Roberts J.A.”

“Gary Trotter J.A.”

“J.A. Thorburn J.A.”