Toronto Divisional Court Registry No. 249/03

Newmarket Family Court Registry No. 12171/01

DATE: 2003·V·08

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

LAURA MAGUIRE,

Applicant,

— AND —

KEVIN MAGUIRE,

Respondent (moving party).

Before Justice G. Dennis Lane

Heard on 29-30 April 2003

Endorsement inscribed on 8 May 2003

CIVIL PROCEDURE — Costs — Procedure — Summary process — Need for evidence — Dealing with costs summarily is quite different from deciding costs on flimsy evidence and minimal analysis — Latter might readily constitute appealable error.

CIVIL PROCEDURE — General — Primary objective of Family Law Rules (Just dealing) — Saving time and expense — Propriety of motions judge’s initiative to examine all endorsements in continuing record — By going beyond material that parties had filed with motions court, motions court judge may have committed appealable error in depriving parties of knowledge and opportunity to respond to material on which judge would decide motion — Motion judge may also have violated subrule 14(20) of Family Law Rules by exposing routine motions to risk of increased length, complexity, expense and drain on court’s resources if lawyers were now compelled to examine entirety of continuing record at motion.

CIVIL PROCEDURE — Motions — Evidence at motion — Restrictions on evidence — Propriety of motion judge’s initiative to examine all endorsements in continuing record — By going be-yond material that parties had filed with motion court, motion judge may have committed appealable error in depriving parties of knowledge and opportunity to respond to material on which judge would decide motion — Motion judge may also have violated subrule 14(20) of Family Law Rules by exposing routine motions to risk of increased length, complexity, expense and drain on court’s resources if lawyers were now compelled to examine entirety of continuing record at motion.

COURTS AND JUDGES —Duties of judge — To decide according to evidence — Propriety of motion judge’s initiative to examine all endorsements in continuing record — By going beyond material that parties had filed with motion court, motion judge may have committed appealable error in depriving parties of knowledge and opportunity to respond to material on which judge would decide motion — Motion judge may also have violated subrule 14(20) of Family Law Rules by exposing routine motions to risk of increased length, complexity, expense and drain on court’s resources if lawyers were now compelled to examine entirety of continuing record at motion.

JUDGMENTS AND ORDERS — Enforcement — Final orders — Denial of right of audience — Prohibition of statutory remedy — Motion judge had forbidden support payor right to seek variation of child support until he first paid up all arrears of support — Review court suggested that imposition by motions court judge of procedural preconditions on payor’s right to clear statutory remedy might constitute appealable error for purpose seeking permission to appeal.

STATUTES AND REGULATIONS CITED

Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended], subsection 20(1).

Family Law Rules, O. Reg. 114/99 [as amended], paragraph 38(13)¶4.

Rules of Civil Procedure, R.R.O. 1990. Reg. 194 [as amended], subrule 62.02(1.1), clause 62.02(4)(a) and clause 62.02(4)(b).

CASES CITED

Canadian Egg Marketing Agency v. Sunnylea Foods Ltd. (1977), 3 C.P.C. 348, [1977] O.J. No. 686, 1977 Cars­well­Ont 238 (Ont. H.C.).

Dempster v. Mutual Life (2001), 2001 38743 (ON SCDC), 55 O.R. (3d) 409, 150 O.A.C. 73, 33 C.C.L.I. (3d) 317, 14 C.P.C. (5th) 274, [2001] O.J. No. 3336, 2001 Cars­well­Ont 2924 (Ont. Div. Ct.).

Franklin T. Richmond .................................................. counsel for the applicant (responding party)

Tracey Foster ................................................................. counsel for the respondent (moving party)

[1] JUSTICE G.D. LANE (endorsement):— This is a motion for leave to appeal to the Divisional Court from the order of Justice Thomas M. Wood, dated 2 April 2003 and to stay part of that order. This is a matrimonial litigation with issues as to children, property and support. It is being conducted in Newmarket under the Family Law Rules, O. Reg. 114/99, as amended. For the sake of clarity, I will refer to the parties as the husband and the wife although they are in fact already divorced.

1: PRELIMINARY ISSUE — VENUE OF THIS MOTION

[2] It was submitted by the wife that there was no jurisdiction to hear this motion in Toronto. The appeal must be heard in the region where the hearing that led to the decision took place[^1] and the motion for leave should also be heard there. The provision in the Family Law Rules[^2] that the continuing record should be sent to the judge hearing such a motion is consistent with that position. Therefore the motion should be adjourned to Newmarket.

[3] In my view there is jurisdiction. If the motion is regarded as being in the Divisional Court, subsection 20(2) of the Courts of Justice Act provides that any proceeding other than an appeal may be brought in any region. “Proceeding” is not defined in the Act and must be given its ordinary meaning and not the narrower meaning derived from the definition in the rules. However, the better view, I think, is that the motion is not in the Divisional Court, but in the Superior Court and this motion has been properly brought in Toronto under the Rules since the wife’s solicitor practices here. In Toronto, unlike elsewhere in the Province, motions for leave are heard by a judge assigned to Divisional Court, but “sitting as a Superior Court of Justice judge.”[^3]

2: THE ORDER

[4] The order in question was made on the opening day of the sittings at which the trial of this action was scheduled to take place. The husband sought an adjournment on several grounds, including the recent removal of his solicitor from the record. Justice Wood:

adjourned the trial to the fall, peremptory to the husband;

prohibited the husband from making any further requests for disclosure from the wife without leave;

required the husband to pay all outstanding arrears of child support under an order of 26 March 2002 by 30 April 2003, on pain of his pleadings being struck;

prohibited the husband from moving to vary the amount of child support until those arrears were paid;

ordered the husband to pay the wife’s ‘costs thrown away’ fixed at $15,000 by 30 April 2003, on pain of having his pleadings struck out;

severed the divorce from the rest of the action and granted the divorce on the wife’s motion.

3: CRITERIA FOR LEAVE

[5] In order to grant leave, I must be satisfied that there is “good reason to doubt the correctness of the order”, and that the proposed appeal involves matters of such importance that leave should be granted.[^4] “Good reason to doubt” does not mean that I must think that the order is actually wrong or probably so.[^5] While numerous submissions were made, the central issues were the apparent use made by the motion judge of material from the continuing record, said to be contrary to the rule governing evidence on motions; the prohibition of continuing a motion already launched to reduce the amount of child support due to change of circumstances unless the payment of those very amounts was first made; the effective disqualification of the husband’s expert advisor without any evidence that he and his associates were not qualified; and the awarding of substantial indemnity costs without any evidence that there were any costs actually thrown away nor any basis for substantial indemnity costs.

4: USE OF THE CONTINUING RECORD

[6] The reasons of the motion judge state on page 2:[^6]

I have reviewed the affidavits filed by each party on this motion. I have also reviewed the endorsements on this file since it began in July 2001. I make the following findings.

[7] The underlined passage indicates beyond doubt that the motion judge resorted to material outside of that filed specifically for the motion in order to make his findings of fact. Subrule 14(20) of the Family Law Rules restricts the evidence for use on a motion to the evidence filed by the parties for that motion, expressly stating that no other evidence may be used. The court may order otherwise, but no such order was sought or made on the motion in question. The endorsements made in the file from the beginning were not in the material filed on the motion; they were however, in the continuing record maintained by the court and available at every court appearance to the judges of the court.

[8] Counsel for the wife submitted that there was ample evidence in the motion material on which the motion judge could have come to the impugned order.

[9] That is a matter of opinion, but it is not relevant. The point is that the judge himself said that he resorted to evidence that the parties had not placed before him on the motion. The continuing record contains endorsements made following conferences at which statements are made in unsworn form and on a second-hand basis, often by counsel, and unsworn supporting material. That is the way such conferences proceed. The continuing record in this case is some 500 pages. The endorsements section alone, as contained in exhibit A to the affidavit of the husband filed before me[^7], occupies over 70 pages. The endorsements include references to allegations against the husband which led to an order, made ex parte, but in the continuing record, barring him from approaching the matrimonial home nearer than 500 metres based on charges which were dismissed at a criminal trial; as well as references in detail to settlements and proposed settlements.

[10] The parties had no way to anticipate to what portions of the continuing record the judge might refer. While there are forms to indicate to the motion judge which parts of the continuing record, if any, each party wishes the judge to read, it is all available and there is no way for the parties to be satisfied that the decision was reached only upon the material properly before the court.

[11] In these circumstances, there is good reason to doubt the correctness of the order. It is also a matter where appellate level clarification of the uses that are legitimately made of the unsworn material in the continuing record is desirable. If the whole continuing record can be reviewed by a motion judge, the length and complexity of even routine motions will inevitably increase as counsel seek to explain what is apparently bad for their client and exploit what is apparently bad for the opponent, totally undermining subrule 14(20) and leading to increased expense and inappropriate use of court time. It is fundamental to our system that the parties know and have the chance to respond to the material on which the court will decide the case.

5: PROHIBITION OF MOVING TO REDUCE CHILD SUPPORT UNLESS ALL ARREARS ARE PAID

[12] This order was attacked on several grounds. The most important fact is that there had been a catastrophic drop in the husband’s income and a motion had already been launched in October 2002 to alter the child support in accordance with the guidelines based on the new income. The husband’s income had dropped from about $130,000 as a working person, to some $59,000 as a disabled person. There had been discussions as to this development but the motion was still outstanding when the case came to trial. But the facts as to his income alleged by the husband, and they are supported by evidence from his former employer in the motion record, were before the judge on the motion. The prohibition of proceeding with the motion unless the arrears, in large measure accrued in excess of the guideline amount for the husband’s actual income, are first paid, places the husband in an impossible position: he must at once pay a lump sum amounting to 35% or so of his actual annual income to pay arrears which would very likely be significantly reduced were he able to bring on the prohibited motion.

[13] Further, counsel for the husband submitted that such an order was directly contrary to the legislation that gives him the right to apply to vary the support order on the grounds of material change in circumstances. In my view, there is much force in this submission. The husband has a statutory right to bring this motion. Although the court has scheduling powers and can require a case conference before the motion is heard, apart from proceedings under vexatious litigant legislation, there is no power in a judge to prohibit in advance that which Parliament has expressly permitted. The judge hearing the motion has all the necessary powers to deal with the motion as seems appropriate, but to prohibit the bringing of it at all, whether by an order as here, or by a local practice of not allowing motion documents to be filed without a judge’s consent, is to close the doors to justice without any hearing. Such a position is contrary to fundamental principle.

[14] Taken together with the costs order, to be addressed later, this order has a punitive look about it, which heightened the concern expressed by the husband’s counsel as to the use of material outside of the motion record to obtain a false impression of the husband.

[15] The motion judge certainly possessed the power to impose terms upon the husband as a condition of the adjournment, but such terms should be related to the impact of the adjournment on the opposite party.[^8] This aspect of the order appears to go well beyond any impact of the adjournment on the wife, who is relatively well off.

[16] These serious issues are good reason to doubt the correctness of this aspect of the order and it is desirable that appellate level review take place to clarify the position on prohibitions such as this one.

6: COSTS THROWN AWAY

[17] There is undoubted jurisdiction in a judge to order that a party pay the costs of the other party that are wasted by reason of some act of the payor party. Here, it was clearly within the power of the judge to make such an order. However, like every order of the court, it must be made upon evidence. There was no bill of costs presented, nor any evidence. Counsel for the wife made an off-the-cuff oral submission estimating that she had spent some 34 hours. The award of $15,000 would represent $440 per hour. This is at the very top level of the substantial indemnity costs portion of the costs grid. Such a rate would be reserved for the most experienced counsel doing the most important and difficult case. This is certainly not that case and there is no evidence that Ms. Metzler, trial counsel for the wife, is that lawyer. There would not likely be any disbursements thrown away. Such things as photocopies and legal research and print-outs would continue to be useful. As well, some unknown proportion of the time spent would not have been thrown away. Time spent reviewing discovery transcripts to select passages for cross-examination or for reading in, is but one example of time spent but not ‘thrown away’. Counsel called no evidence and so there could be no inquiry into these matters. Fifteen thousand dollars in costs thrown away for this case because of a six-month adjournment is an astonishing figure. Although judges are intended to deal with costs issues in a summary fashion, nevertheless, there is good reason to doubt the correctness of such an order made without evidence.

[18] In these early days of the costs grid, it is important to have appellate review to establish the appropriate handling of costs issues such as this one. As well, there is, as noted above, an apparently punitive aspect to this part of the order which links it to the possible use of the continuing record. It should be included in the leave so that it can be dealt with as may appear necessary

7: REFUSAL OF FURTHER DISCLOSURE

[19] Finally, the judge ordered that the husband could not request further disclosure from the wife without leave. This relates to the valuation of the wife’s business. There is an issue as to its value and the wife produced a report from Cole and Partners giving an opinion. The managing judge, who is not the judge appealed from, made a notation at a conference on 23 January 2003, that the wife was to co-operate with Core-Comp [the husband’s expert advisor] in providing the information necessary to enable it to critique the Cole report. Mr. Maksymiuk is a principal of Core-Comp and his associate is a C.A. There was no evidence before the judge to enable him to judge the competence of Mr. Maksymiuk or of his associate. Yet the judge refused to allow requests for additional information on the basis that the husband’s advisor was incompetent to critique the Cole Report and was making unreasonable requests. There is good reason to doubt the correctness of an order based on disqualifying an expert witness in this fashion and the matter is of such importance that appellate review should take place. As well, because this part of the order may have been affected by the resort to the continuing record, this aspect should also be before the reviewing court.

8: DISPOSITION

[20] For these reasons, the motion for leave to appeal is granted. Costs of this motion reserved to the panel hearing the appeal. The order appealed from is stayed pending the appeal except for paragraphs 1 and 5. Because the trial is scheduled to take place in the fall at Newmarket, this appeal should be expedited. There is, at present, time available before the panel in July or August in Toronto if the parties are willing to consent to the change in venue, or if the Chief Justice so directs. Otherwise the appeal should be placed on the list for the next sittings at Newmarket.

[^1]: Subsection 20(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.

[^2]: Paragraph 38(13)¶4.

[^3]: Subrule 62.02(1.1) of the Rules of Civil Procedure, R.R.O. 1990. Reg. 194, as amended.

[^4]: Clause 62.02(4)(b); no submissions were made as to clause (a).

[^5]: Canadian Egg Marketing Agency v. Sunnylea Foods Ltd. (1977), 3 C.P.C. 348, [1977] O.J. No. 686, 1977 Cars­well­Ont 238 (Ont. H.C.).

[^6]: Underlining added by me.

[^7]: This affidavit was filed in a companion motion for a stay of Justice Wood’s order. I ruled that those exhibits that were parts of the continuing record (all but exhibits B and H) could be used on the leave motion because the continuing record was before the motion judge.

[^8]: Dempster v. Mutual Life (2001), 2001 38743 (ON SCDC), 55 O.R. (3d) 409, 150 O.A.C. 73, 33 C.C.L.I. (3d) 317, 14 C.P.C. (5th) 274, [2001] O.J. No. 3336, 2001 Cars­well­Ont 2924 (Ont. Div. Ct.).