Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240611 DOCKET: M55035 (COA-23-CV-1307)

Miller, Zarnett and Thorburn JJ.A.

BETWEEN:

Douglas Leonard Applicant (Responding Party/Respondent)

and

Lori Ann Leonard Respondent (Responding Party/Respondent)

and

Maryanne Carmela Bogdan and Clinton DesJarlais Third Party Claimants (Moving Parties/Appellants)

Counsel:

Maryanne Carmela Bogdan and Clinton DesJarlais, acting in person Douglas Leonard, acting in person No one appearing for the responding party Lori Ann Leonard

Heard: June 5, 2024

Reasons for Decision

[1] The moving parties, Maryanne Carmela Bogdan and Clinton DesJarlais, seek to set aside the order of a single judge of this court (the “Motion Judge”) who denied their motion to extend the time to appeal to this court from the order of the Ontario Superior Court of Justice.

[2] The moving parties brought several motions before the Superior Court of Justice in a historical proceeding between Douglas Leonard and Lori Ann Leonard claiming, among other things, they were the actual parents of the child in issue, born in 2017. They also asserted that United States court orders granting Douglas Leonard parenting rights were obtained based on fraudulent documentation and asked for leave to intervene in the historical proceeding between Douglas Leonard and Lori Ann Leonard. In addition, they claimed that the respondent Douglas Leonard’s second marriage to Maryanne Bogdan was a nullity because he had a subsisting Ontario marriage to Lori Ann Leonard.

[3] The Superior Court motion judge noted, “At the heart of the moving parties’ claim is the assertion that the certificate of live birth, birth certificate, and DNA profile relating to the child are all fraudulent.” The Superior Court motion judge noted that the certificate of live birth and birth certificate list Douglas Leonard as the father.

[4] The Superior Court motion judge dismissed the motions because the Ontario court did not have jurisdiction, among other reasons. He noted that the child was living in Michigan, the child was the subject of Michigan court orders, and the moving parties had attorned to the jurisdiction of that court. He also held that it would not be in the child’s best interests for the parties’ claims to proceed on an uncontested basis and that even if the court had jurisdiction, it would not be appropriate to resolve the matter by summary judgment.

[5] The parties appealed to this court asking to set aside the order of the Superior Court motion judge, to set aside the dismissal of their Answer and Claims, and to grant a declaration that the marriage of Douglas Leonard and Lori-Ann Leonard is subsisting.

[6] On the motion for extension of time to appeal, the Motion Judge outlined the test for a motion for an extension of time to appeal and noted that the overarching principle is that an extension should be granted as required by the “justice of the case”: Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.). The Motion Judge dismissed the motion as the obvious lack of merit of the appeal overwhelmed the analysis such that the justice of the case warranted no extension.

[7] It is well established that discretionary decisions of a single judge, absent legal error or misapprehension of material evidence, are entitled to deference: SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913, at para. 6; Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9.

[8] We see no error with the Motion Judge’s decision to refuse an extension of time. The Motion Judge considered s. 22(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, and concluded that:

• The child is not habitually resident in Ontario;
• The child is not currently physically present in Ontario;
• There is already a Michigan court order granting Mr. Leonard sole custody of the child, and that order must be recognized by this court; and
• The Michigan court order provides that if Ms. Bogdan seeks parenting time, she is to apply to the Michigan court.

[9] As for the request for a declaration that the marriage of Douglas Leonard and Lori Ann Leonard is subsisting, there is no merit to the appeal on this issue either. Leaving aside the question of the standing of the moving parties to request that relief, the court could not make such a declaration based on the evidence produced.

[10] For these reasons, the motion to set aside the order of the Motion Judge is dismissed.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“Thorburn J.A.”