Court of Appeal for Ontario

DATE: 20221212 DOCKET: M53695 (C70668)

Simmons, Huscroft and Coroza JJ.A.

Parties

BETWEEN

Robert Weidenfeld Applicant (Appellant/Moving Party)

and

Nathalie Weidenfeld, Joel Weidenfeld Respondents (Respondents/Responding Parties)

Counsel: Robert Weidenfeld, acting in person Allen C. Gerstl, for the respondents

Heard: November 28, 2022

Reasons for Decision

[1] The appellant moves under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to review an order dated August 9, 2022 made by a single judge of this court (the "motion judge") declining the appellant's request for an extension of time to perfect his appeal.

Background

I. The appellant’s appeal

[2] The appellant's appeal relates to the decision of a Superior Court judge (the “SCJ judge”) dated April 25, 2022. The SCJ judge refused the appellant's request for an extension of time to file a notice of appeal from the order of an Ontario Court judge (the “OCJ judge”) dated February 27, 2019 (the “OCJ order”).

[3] The OCJ judge dismissed the appellant's application under s. 32 of the Family Law Act, R.S.O. 1990, c. F.3 (the “s. 32 application”), in which the appellant claimed support from his adult children, the responding parties to this motion. In dismissing the appellant’s application, the OCJ judge relied on rule 1(8) of the Family Law Rules, O/Reg. 114/99, and a finding that the appellant had failed to obey an order in a related case, namely a 1995 New Brunswick divorce judgment (the “1995 judgment”) requiring the appellant to pay $35,000 lump sum child and spousal support in relation to his two children, who were four and six years old at the time of the 1995 judgment.

[4] The SCJ judge recognized that, because the appellant lives in Alberta, his s. 32 application was made under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, and that the appeal period was therefore 90 days after the OCJ order was entered (August 13, 2019).

[5] Although the SCJ judge accepted that the appellant formed an intention to appeal within the appeal period, she did not accept the appellant's explanation for the appellant's inordinate delay in delivering his notice of appeal. Further, the SCJ judge found the responding parties are suffering prejudice from the appellant's delay, that the appellant's proposed appeal was devoid of merit and that the justice of the case did not warrant granting an extension.

[6] On the issue of merit, the SCJ judge rejected the appellant's argument that because, according to the appellant, the 1995 judgment had expired in 2015, it was an error in law for the OCJ judge to rely on the appellant’s failure to pay the judgment. The SCJ judge noted that the appellant “failed to pay the support when the children were small, when they needed the support and in the face of a court order finding they were entitled to support.” Further, in relation to rule 1(8), the SCJ judge said, “there is not … a requirement that the court order was still capable of enforcement: that would act as a lure for parties to evade payment at the time the child support was due and when it was needed”.

[7] The SCJ judge also rejected the appellant's claim of procedural unfairness in the court below, holding that the appellant had an opportunity to respond to respondent's counsel's submissions made in person and that nothing in the appellant's response undermined the findings of the OCJ judge.

II. The motion judge’s reasons

[8] In declining to extend the time to perfect the appellant's appeal to this court, the motion judge did not accept as reasonable the appellant's explanation for the delay in perfecting his appeal that he thought a transcript of the proceeding before the SCJ judge was necessary. The motion judge noted that, although self‑represented, the appellant is an experienced litigator and that his explanation was contradicted by other evidence.

[9] Further, as the appellant failed to file any evidence contradicting the finding below that he failed to pay the child support as ordered under the 1995 judgment, the motion judge concluded that the appellant's appeal lacks merit.

[10] Finally, also taking account of the SCJ judge's finding of prejudice to the responding parties, the motion judge concluded that the justice of the case did not warrant an extension.

Discussion

[11] On a review motion of this kind, a panel may interfere with the order under review if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Oliveira v. Oliveira, 2022 ONCA 218, at para. 5.

[12] Here, we are not satisfied the appellant has identified any such error.

[13] We reject the appellant's argument that he was somehow prejudiced by the advice he received that it was unnecessary to file a factum on the motion for an extension in this court and the fact that the responding parties filed a factum. As the motion judge noted, although self-represented, the appellant is an experienced litigant. It was his choice whether to file a factum. We see nothing in the record to indicate his position before the motion judge was not properly considered.

[14] Further, we reject the appellant's submissions that the motion judge erred in failing to address his arguments about lack of due process in the OCJ proceeding or about the expiry of, or failure to register in Ontario, the 1995 judgment.

[15] The SCJ judge considered and rejected for valid reasons the appellant's arguments about lack of due process and the expiry of the 1995 judgment. Concerning the latter argument, we note, in addition, that it is misconceived.

[16] The New Brunswick Enforcement of Money Judgments Act, SNB, 2013, c. 23, on which the appellant relies, “does not apply to the enforcement of support under the Support Enforcement Act [1] or the Interjurisdictional Support Orders Act [2] unless a certificate referred to in section 34 of the Support Enforcement Act has been entered and recorded under that section”: Enforcement of Money Judgments Act, s. 2(3). There is no evidence that a s. 34 certificate was obtained in relation to the 1995 judgment. Even if there was, s. 22 of the Enforcement of Money Judgments Act addresses expiry of the registration of an order, not expiry of the order itself.

[17] As for the appellant's argument that the 1995 judgment was not registered in Ontario, we observe simply that registration is an enforcement mechanism. It was unnecessary that the 1995 judgment be registered in Ontario for enforcement purposes for the OCJ judge to consider the appellant's failure to pay it under rule 1(8) of the Family Law Rules.

[18] It was unnecessary that the motion judge address arguments that are patently without merit to dispose of the appellant's motion.

[19] The same conclusion applies to the appellant's constitutional questions. As they were not raised in the courts below it was unnecessary that the motion judge address them. In any event, we see no merit in the appellant's claim that the failure of the Family Law Rules to define “order” as meaning an active order registered with an Ontario court somehow infringes s. 7 of the Charter. Nor do we see any merit in the appellant's argument that the failure of any level of government to enact Parental Support Guidelines similar to the Child Support Guidelines and Spousal Support Guidelines somehow engages s. 15 of the Charter.

[20] The motion for review is dismissed. The responding parties may file submissions on costs not to exceed five pages within seven days of the release of this decision; the appellant may file responding submissions not to exceed five pages within seven days of receipt of the responding parties’ submissions.

“Janet Simmons J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”

[1] Support Enforcement Act, S.N.B. 2005, c. S-15.5.

[2] Interjurisdictional Support Orders Act, R.S.N.B. 2016, c. 102.