COURT FILE NO.: 88/07 and 102/07
DATE: 20070522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND KITELEY JJ.
B E T W E E N:
ROBERT WEIDENFELD
Applicant
(Appellant)
- and -
HANA WEIDENFELD
Respondent
(Respondent in Appeal)
In Person
J. Edward White, for the Respondent
Elizabeth Smyth, for the Office of the Children’s Lawyer
HEARD at Toronto: May 22, 2007
JENNINGS J.: (Orally)
[1] Two issues arise in the argument that we have heard this morning. The first has to do with that part of the order of Bryant J. which stays Mr. Weidenfeld’s application for child support until Mr. Weidenfeld has complied with the terms of an order of Boyko J. with regard to disclosure or satisfies a judge of the Family Court that he has made reasonable efforts to comply with the disclosure order.
[2] We are all of the opinion that the order of Bryant J. is temporary and that leave to appeal pursuant to the provisions of rule 62.02(4) is required. Although material was not filed by Mr. Weidenfeld with respect to an application for leave, with the consent of Mr. Weidenfeld and Ms. Smyth we dealt with the application this morning. We are of the opinion that neither of the tests provided for in rule 62.02(4) have been met. The motion for leave to appeal from that order is therefore dismissed.
[3] The second issue is that part of the order of Timms J. which struck from the record the 268 paragraph affidavit of Joel. That order was not requested, so we are told, by any of the parties but was made on the motion of the case conference judge without apparently hearing submissions. He purported to make the order in an exercise of his parens patriae jurisdiction.
[4] In our opinion, that order was not final notwithstanding the concession that it was, made by the Children’s Lawyer. In our opinion, that order raises an issue of public importance, one on which judges have disagreed. That is, whether it is appropriate without more to refuse to hear the evidence of a teenager in a family law proceeding.
[5] Accordingly, we grant leave to appeal that order.
KITELEY J.
[6] We agree that Timms J. erred in ordering the removal of the affidavit for these reasons.
[7] He did so on his own initiative in the absence of any challenge by an interested party. He did not give Mr. Weidenfeld or the Office of the Children’s Lawyer an opportunity to make submissions on the issue. He made an order contrary to Family Law rule 17(8) which articulates orders that may be made at case conferences. He did not refer to Family Law rule 14(22) which prescribes the procedure for a motion to strike all or part of a document and which enumerates the grounds upon which all or part of a document might be struck out. He invoked his parens patriae jurisdiction but did not indicate the basis upon which it was exercised. He did not give reasons that allow for appropriate assessment by an appellate court. Finally, to the extent any reason can be deciphered, he erred by making a generalization about the court receiving affidavits of children without being case specific.
[8] The appeal is allowed with respect to the order directing the removal of the affidavit of Joel Weidenfeld. The affidavit is to be restored to the continuing record without prejudice to any motion brought by any party to attack the affidavit pursuant to rule 14(22).
JENNINGS J.
[9] The Children’s Lawyer not asking for or making any submissions on costs, it is the order of this Court that the order of Timms J. with respect to costs be set aside and that there be no costs in this Court, success being divided.
JENNINGS J.
LEDERMAN J.
KITELEY J.
Date of Reasons for Judgment: May 22, 2007
Date of Release:
COURT FILE NO.: 88/07 and 102/07
DATE: 20070522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND KITELEY JJ.
B E T W E E N:
ROBERT WEIDENFELD
Applicant
(Appellant)
- and -
HANA WEIDENFELD
Respondent
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: May 22, 2007
Date of Release: