Court File and Parties
Divisional Court File No.: 147/03 Court File No.: 02-FP-274895FIS Date: 2003-04-08
ONTARIO SUPERIOR COURT OF JUSTICE (Divisional Court)
BETWEEN:
MIRILYN RACHEL SELZNICK (Petitioner (Wife))
- and -
STEPHEN SELZNICK (Respondent (Husband))
Counsel: Stephen M. Grant, for the Petitioner Diane E. Klukach, for the Respondent
Heard: April 4, 2003
REASONS FOR DECISION
C. CAMPBELL J.:
[1] This is a motion for leave to appeal from the Order of Madam Justice Greer dated October 4, 2002 (incorrectly stated to be 2003), as revised by Order dated March 3, 2003.
[2] The Orders deal with interim support as ordered to be paid by the Respondent (Husband) to the Petitioner (Wife.)
[3] The basis of the request for leave is that according to the Husband, the result of the Order of Greer J. in granting child and spousal support leaves the husband with less than 26% of joint family income such that it is "so far off the radar screen" as compared to other orders for interim support that no only is it clearly wrong but because of the magnitude of the error, raises an issue of public importance.
[4] Having heard submissions on behalf of both the Husband and Wife, I conclude that the test for leave to appeal has not been made out. In view of the position taken on behalf of the Husband, further elaboration of this conclusion is warranted.
[5] There are three supposed errors relied on in support of the proposition that leave should be granted.
[6] The first is that the learned judged failed to take into account and properly account to the credit of the husband some $117,000 paid in by him during 2002 into a joint bank account with the wife. It is submitted that Greer J. did not take this into account because it was not specifically mentioned in her reasons.
[7] The second ground submits that Greer J. failed to take into account and mention that at least a portion of the $117,000 would be subject to income tax.
[8] The third ground of alleged error is that while mentioning the child support obligation of the husband from a prior marriage, credit for it was NOT given in the award?
[9] Finally, it is urged that Greer J. did not take into account in considering spousal support the "add on" amounts to the child support award that had been made.
[10] There are several bases on which I conclude that the test for leave to appeal has not been made out.
Notwithstanding the submissions of counsel, I am not satisfied that there is any error in principle in the decision of Justice Greer. There was no error in the consideration of the income of the parties. While the net after-tax cash flow position of each might have been considered differently by another judge, it is not enough to say there was no reasonable basis for the exercise of her discretion. I am not persuaded the complained-of factors were not taken into account.
Rule 59.06 is available to a party who believes that a judge did not take into account a matter or factor that reasonably would be considered a clerical error. This was not utilized by the Husband, particularly when a re-attendance for clarification was made and granted on the motion of the Wife.
This is an interim order. Assuming the correctness of submissions on behalf of the Husband, a motion to vary interim support in light of changed circumstances (namely, the effect on the Husband of what he says is the result of the judge's order) is a more expedient and preferable route to a motion for leave.
A concern that even if leave were granted, the entire trial, assuming it were necessary, could be held and concluded before the appeal could be heard.
[11] It is not necessary to detail the concern that I have about seeking leave to appeal an interim support order. This has already been elaborated at length in a case to which I was not referred.
[12] In Jessome v. Jessome, [1998] O.J. No. 5565, Quinn J. set out the problems with a party seeking leave from an interim interim support order.
[13] Rule 62.02(4) provides
62.02(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that , in his or her opinion, leave to appeal should be granted.
Under (a) there must be a conflicting decision AND it is desirable that leave be granted.
[14] While Justice Quinn was speaking of an interim interim order, very much the same approach applies to an interim order.
[15] In Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 at 113 (Div.Ct.)"importance" as referred to in Rule 62.02(4)(b) refers to:
"matters of great importance, not matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice."
[16] In the context of the availability of an early trial on all issues in dispute between these parties, I find that the words of Quinn J. as applied to "interim interim" support are apt to "interim" support.
"Bearing in mind that interim interim orders are, by their nature, intended to be temporary (judicial band-aids, so to speak) I have difficulty imagining any situation where an interim interim spousal support order would satisfy the test of "importance" contained in rule 62.02(4)(b). However, I need only concern myself with the case at bar; and it fails the test."
[17] Orders of this nature are discretionary and reasonably so. In a contentious proceeding, one can anticipate disagreement between the parties until the finality of a judgment.
[18] Even if leave were granted, an appeal would be subject to the stricture as set out by Zuber J.A. in Sypher v. Sypher, 2 R.F.L. (3rd) 413:
"an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding.
[19] Even on this basis alone I am not persuaded that leave should be granted.
[20] The motion for leave is dismissed. The parties will have 7 days within which to make written submissions on the issue of costs.
C. CAMPBELL J.
Released:
Divisional Court File No. 147/03 Court File No. 02-FP-274895FIS Date: 20030408
ONTARIO SUPERIOR COURT OF JUSTICE (Divisional Court)
BETWEEN:
MIRILYN RACHEL SELZNICK (Petitioner (Wife))
- and -
STEPHEN SELZNICK (Respondent (Husband))
REASONS FOR DECISION
C. CAMPBELL J.
Released: April 8, 2003