Court of Appeal for Ontario

Date: 2025-03-13
Docket: M55720 (COA-24-CV-0983)
Panel: J.C. MacPherson, Grant Huscroft, J. Dawe JJ.A.

Between

Ying Huang
Applicant (Respondent/Responding Party)

and

Aliamisse O. Mundulai
Respondent (Appellant/Moving Party)

Appearances:
Aliamisse O. Mundulai, acting in person
Tahir Majeed, for the responding party

Heard: March 12, 2025

Reasons for Decision

Background

[1] The parties are involved in a family law dispute. The moving party, Aliamisse Mundulai, appealed the final order of Daurio J. of the Superior Court of Justice dated September 3, 2024, that dealt with various contested issues, including decision-making authority, child support, equalization, and the sale of a commercial property.

[2] Paragraph 27 of Daurio J.’s Order directed that the sale proceeds of the matrimonial home, held by the court, be released to the parties.

[3] By virtue of r. 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, this component of the Order was stayed until the disposition of the appeal brought by the moving party.

Motions Before Roberts J.A.

[4] The moving party brought a motion before Roberts J.A. seeking release of the sale proceeds of the matrimonial home on the basis that Rule 63.01(1) was inapplicable because he had not appealed para. 27 of the Order.

[5] Roberts J.A. dismissed the motion. She reasoned:

Mr. Mundulai’s argument is not supported by his notice of appeal that expressly asks that “the Decisions and Order of the Trial Judge made on September 3, 2024 be set aside” in their entirety and substituted with an order that does not include paragraph 27 of the September 3, 2024 order.

[6] The moving party’s second argument before Roberts J.A. was that the stay should be lifted under r. 63.01(5), so that he could complete a house purchase and pay legal and other expenses. Roberts J.A. rejected this argument:

Mr. Mundulai has not met his burden. His affidavit evidence falls well short of supporting demonstrable and unusual hardship. Moreover, should the funds be released before the appeal is disposed of, there would be little protection or recourse for the responding party for the payment of significant lump sum child support and costs owing by Mr. Mundulai.

Motion Before George J.A.

[7] The moving party then brought a motion before George J.A. seeking an extension of time to bring a panel review of Roberts J.A.’s Order and a stay of paragraphs 15-24 of Daurio J.’s Order, which dealt with the sale of the commercial property.

[8] George J.A. rejected the moving party’s extension of time request. He applied the test from the leading case, Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.), which sets out four relevant factors – the timing of an intention to seek a review, the length and explanation for the delay, prejudice, and the merits of the moving party’s decision – and concluded:

After considering all of these factors, I conclude that the overall justice of the case demands that the request for an extension of time be denied.

Panel Decision

[9] The moving party seeks an order setting aside George J.A.’s decision refusing an extension of time to bring a motion for a panel review of Roberts J.A.’s Order and staying enforcement of paras. 15-24 of Daurio J.’s Order. In our view, neither the moving party’s material nor his argument persuades us that we should make such an order. As both Roberts J.A. and George J.A. recognized, r. 63.01(1) clearly applies in this case. Accordingly, the family’s money should stay right where it is until the moving party’s appeal is heard and resolved. Moreover, the moving party has also not demonstrated that he would suffer any irremediable hardship if paras. 15-24 of Daurio J.’s Order are not stayed and the office property is sold. We note that the appeal is scheduled to be heard on April 29, 2025.

[10] The motion is dismissed. The responding party is entitled to her costs of the motion fixed at $3,000, inclusive of disbursements and HST.

J.C. MacPherson
Grant Huscroft
J. Dawe