Court File and Parties
CITATION: Zhang v. Guo, 2019 ONSC 4882
DIVISIONAL COURT FILE NO.: DC-19-2497
DATE: 2019/08/21
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Ye Zhang, Applicant (Moving Party)
AND
Zhiwei Guo, Respondent (Responding Party)
BEFORE: Justice R. Ryan Bell
COUNSEL: Beverley A. Johnston for the Applicant
Evan Corey for the Respondent
HEARD: August 1, 2019
AMENDED ENDORSEMENT
The text of the original Endorsement was amended on August 21, 2019 and the description of the amendment is appended.
The Motion before the Court
[1] The applicant mother moved for the following relief:
i. an order extending the time to serve and file her notice of motion for leave to appeal to the Divisional Court from the interim order of Maranger J. dated May 22, 2019;
ii. an order permitting the motion for leave to be heard orally, by a single judge of the Divisional Court, on the basis of urgency;
iii. an order granting a stay of the interim order of the motion judge;
iv. an order for leave to permit her to submit fresh evidence; and
v. an order granting leave to appeal to the Divisional Court from the interim order of the motion judge.
[2] On August 1, 2019, after hearing counsel’s submissions, I granted the mother’s motion to extend the time for service and filing of her notice of motion for leave to appeal, but dismissed her request that the motion for leave to appeal be heard orally, by a single judge of the Divisional Court. I provided brief oral reasons and endorsed the record that I would provide more comprehensive written reasons for my rulings. These are my written reasons.
Extension of Time
[3] Pursuant to Rule 3.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 the court may order an extension or abridgment of time on such terms as are just.
[4] The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
i. whether the moving party formed a bona fide intention to appeal within the relevant time period;
ii. the length of, and explanation for, the delay in filing;
iii. any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and
iv. the merits of the proposed appeal (Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15; Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, at para. 12).
[5] The father moved before the motion judge for interim access. The parties’ daughter is now four years of age. The parties separated in March 2016. As summarized by the motion judge, on July 31, 2017, all access by the father to the daughter was terminated by the mother; the mother has made very serious allegations of violence against the father in support of denying access. The motion judge released his endorsement on May 22, 2019.
[6] In her affidavit in support of her motion to extend time, the mother states that immediately after the father’s motion was heard on May 16, 2019, she realized she needed to retain new counsel as she had lost confidence in her previous lawyer. She details her efforts to find a new lawyer. On June 7, 2019, the mother met with and retained her current counsel; the same day, counsel for the mother wrote to counsel for the father confirming the mother’s intention to seek leave to appeal the order of the motion judge. The mother’s notice of motion for leave to appeal was served on June 14, 2019.
[7] The notice of motion for leave to appeal is required to be served within 15 days after the making of the order from which leave to appeal is sought (Rules 61.03.1(3) and 62.02(3) of the Rules of Civil Procedure). The deadline in this case was June 6, 2019.
[8] I am satisfied, based on the evidence, that the mother formed a bona fide intention to appeal within the relevant time period.
[9] I am also satisfied that the mother has provided a reasonable explanation for the delay in serving and filing her notice of motion for leave to appeal. The delay in serving her notice of motion was a handful of days. The father was made aware of the mother’s intention to seek leave to appeal only one day after the deadline.
[10] The father claims significant and ongoing prejudice and points to the fact that the mother’s motion materials were not filed until July 15, 2019. He alleges that the mother has continued to deny him access despite the order of the motion judge. With respect, if that is the case, the father’s recourse is to take the appropriate steps to enforce the order. It is not prejudice caused by the mother’s delay in seeking leave to appeal.
[11] On a motion to extend time, the court is to consider the merits of the proposed appeal, “not with a view to determining whether the appeal will succeed, but only with a view to determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal” (Nguyen, at para. 13). Even if the other factors militate against extending the time for filing, the merits may justify an extension of time being granted. Conversely, even if other factors militate in favour of granting an extension, where the appeal is “clearly without merit” the motion for an extension of time will be denied (Nguyen, at para. 13).
[12] In this case, the other factors militate in favour of granting an extension. The question then is whether the proposed appeal is so lacking in merit that the important right of appeal should be denied. The mother submits that the motion judge erred by failing to consider the status quo in determining a custody and access arrangement on an interim basis, erred in his analysis of the best interests of the child, and erred in admitting hearsay evidence on the motion. The threshold on a motion to extend time is very low. I am unable to say that the proposed appeal is so devoid of merit that the mother should be denied her right to seek leave to appeal.
[13] In all of these circumstances, the justice of the case requires an extension of time. On August 1, I ordered that the time be extended to August 8. On consent of the parties, I granted further extensions of time, most recently to August 19, 2019.
Leave to Appeal to the Divisional Court: Rule 62.02
[14] Rule 62.02 of the Rules of Civil Procedure governs the granting of leave to appeal to the Divisional Court from an interlocutory order of a judge. As of July 1, 2017, Rule 62.02(1) and (2) require that:
(1) Leave to appeal to the Divisional Court under clause 19(1)(b) of the Courts of Justice Act shall be obtained from a panel of that court in accordance with this rule.
(2) The motion for leave to appeal shall be heard in writing, without the attendance of parties or lawyers.
[15] The Rules of Civil Procedure are to be “liberally construed to secure the just, most expeditious and least expensive determination” of every proceeding on its merits: Rule 1.04(1). The primary objective of the Family Law Rules, O Reg 114/99 is “to enable the court to deal with cases justly”: Rule 2(2).
[16] In support of her position, the mother relies on the court’s “broad inherent powers to regulate and control its own process and proceedings…to fulfill the court’s core functions in the administration of justice” (Liptay v. Liptay, 2016 ONSC 3638, at para. 19). With respect, the issue in Liptay was different than that before me: Penny J. had to determine whether the moving party, having set the matter down for trial, was foreclosed from bringing his motion. Where a party has set an action down for trial, Rule 48.04(1) of the Rules of Civil Procedure requires that party to obtain leave of the court before initiating or continuing a motion or form of discovery. There is no reference in Rule 62.02 to the possibility of a party obtaining leave of the court.
[17] Gibbons v. Mulock, 2017 ONSC 744, does not assist the mother as it was decided prior to the amendments to Rule 62.02.
[18] In Loiselle v. Violette, 2018 ONSC 6688, the Divisional Court described Rule 61.03.1(10) – which deals with when the respondent’s factum and motion record on a motion for leave to appeal must be filed – as “clear, precise, and mandatory.” Rule 62.02 is also clear, precise and mandatory. I recognize that “the court” has inherent jurisdiction to regulate and control its own process and proceedings; however, based on the mandatory wording of Rule 62.02, the court is a panel of the Divisional Court, not a single judge of the same court.
[19] For these reasons, the mother’s request to proceed in a manner other than as set out in Rule 62.02(1) and (2) is denied.
Costs
[20] Both parties were to provide me with their submissions on costs within seven days of August 1, 2019. Responding submissions were due seven days thereafter. The father’s costs submissions were filed on August 8. The mother’s costs submissions were not filed until August 13 and were not brought to my attention until subsequent to the release of my original endorsement on August 19, 2019. I have reviewed both parties’ submissions.
[21] The father seeks his substantial indemnity costs in the amount of $14,597.95. The father submits that he was substantially successful on the motion. He relies on his offer to consent to the extension of time on certain conditions, including the joint retainer of a professional to supervise the access ordered by the motion judge. The mother seeks partial indemnity costs in the amount of $2,500; in the alternative, she requests that no costs be ordered.
[22] There will be no order as to costs with respect to the portion of the mother’s motion seeking to extend time. The mother required an indulgence from the court and is not entitled to her costs (Shekhdar v. K&M Engineering, 2012 ONSC 4413).
[23] On the other hand, in the circumstances, the father took an unreasonable position in resisting the request for an extension of time. The father’s offer was conditional and tied to other aspects of the motion. The father’s position is that he resisted the extension of time only when it became “inextricably enmeshed” with the “improper relief” sought by the mother. The father’s position ignores the reality that it was always open to him to consent to the extension of time and to resist other aspects of the mother’s motion.
[24] While it is impossible to identify from the father’s bill of costs the time spent on the extension of time request, submissions on the issue took most of one day of court time. It is appropriate in all of the circumstances that each side should bear their own costs in relation to the request for an extension of time.
[25] I have reached a different conclusion with respect to the mother’s request that the motion for leave to appeal be heard orally by a single judge of the Divisional Court. The father was successful and is entitled to his reasonable costs, but only in relation to this issue. My assessment as to what is fair and reasonable is hampered by the fact that the father’s bill of costs does not isolate the time spent on the procedural issue. Given the quantum claimed, I can only conclude that the costs claimed by the father include those associated with the motions I did not hear: the motion for leave to appeal, the motion to introduce fresh evidence, and the motion for a stay. I note that the mother’s substantial indemnity costs as reflected in her bill of costs are almost identical to those claimed on behalf of the father. Certainly, the costs claimed by the father are in no way proportionate to a procedural motion of this nature. The father’s bill of costs does refer to research regarding interim appeals and practice directions. There were also communications between counsel regarding the procedural issue, and both parties canvassed the issue in their written arguments and oral submissions.
[26] In all the circumstances, and taking into account the Rule 57.01 factors, I find that it is fair and reasonable for the mother to be ordered to pay the father’s costs on a partial indemnity basis, fixed in the amount of $1,000, inclusive of disbursements and HST. These costs are only in relation to the mother’s request that the motion for leave to appeal be heard orally by a single judge of the Divisional Court.
The Motion to Stay
[27] The mother’s motion for a stay of the interim order of the motion judge is to proceed before me on a date to be fixed by the trial coordinator.
Madam Justice R. Ryan Bell
Date: August 21, 2019
APPENDIX
On page 4, paragraph 20 has been amended to delete the sentence “As of the date of this endorsement, I have received only costs submissions on behalf of the father” and to add: “The father’s costs submissions were filed on August 8. The mother’s costs submissions were not filed until August 13, and were not brought to my attention until subsequent to the release of my original endorsement on August 19, 2019. I have reviewed both parties’ submissions.”
On page 4, paragraph 21 has been amended to add: “The mother seeks partial indemnity costs in the amount of $2,500; in the alternative, she requests that no costs be ordered.”
On page 5, paragraph 25 has been amended to add in the seventh line: “I note that the mother’s substantial indemnity costs as reflected in her bill of costs are almost identical to those claimed on behalf of the father.”
CITATION: Zhang v. Guo, 2019 ONSC 4882
DIVISIONAL COURT FILE NO.: DC-19-2497
DATE: 2019/08/21
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Ye Zhang, Applicant (Moving Party)
AND
Zhiwei Guo, Respondent (Responding Party)
BEFORE: Justice R. Ryan Bell
COUNSEL: Beverley A. Johnston for the Applicant
Evan Corey for the Respondent
HEARD: August 1, 2019
Amended ENDORSEMENT
RYAN BELL J.
Released: August 21, 2019