CITATION: Kim v. McIntosh, 2020 ONSC 1447

DIVISIONAL COURT FILE NO.: 056/20

SUPERIOR COURT FILE NO.: FS-19-12193

DATE: 2020-03-06

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ANITA KIM, Responding party

AND: ADAN MCINTOSH, Moving party

BEFORE: FAVREAU J.

COUNSEL: Adan McIntosh, representing himself Oriana Politt, for the responding party

HEARD at Toronto: February 14, 2020

ENDORSEMENT

Introduction

[1] The moving party, Adan McIntosh, seeks to extend the time to bring a motion for leave to appeal an interlocutory order.

[2] For the reasons below, the motion is dismissed.

Background facts

[3] Anita Kim and Mr. McIntosh are separated. They have four children. Ms. Kim currently lives in Toronto with the four children. Mr. McIntosh lives in Australia.

[4] On August 30, 2019, Myers J. granted an ex parte order to Ms. Kim restraining Mr. McIntosh from communicating with or coming within 100 metres of her or the children. The motion was granted in part on the basis of Ms. Kim's evidence that Mr. McIntosh had forged her signature on an Australian passport application for one of the children. The motion was adjourned to September 5, 2019, to be brought back on notice to Mr. McIntosh.

[5] On September 5, 2019, the parties appeared before Paisley J. In an endorsement of that date, the motion judge noted that Mr. McIntosh had not filed responding materials and that he intended to bring a Hague Convention application. The motion judge adjourned the matter to himself to September 12, 2019.

[6] On September 12, 2019, Mr. McIntosh again did not file any evidence and indicated that he intended to bring a Hague Convention application. Paisley J. made the following endorsement:

The Respondent father has not filed responding materials. He submitted a letter dated September 1, 2019, he intends to file a Hague application. The Applicant wishes to continue the orders of Myers J. So ordered. The Respondent is also restrained from applying for passports for the children…

[7] Mr. McIntosh commenced an appeal of Paisley J.'s September 12, 2019 order in the Court of Appeal. The notice of appeal was served on Ms. Kim's lawyer on October 11, 2019 via email. However, the Court of Appeal did not accept the notice of appeal for filing because the Court received it more than ten days after it was served. Mr. McIntosh brought a motion to the Court of Appeal on December 18, 2019, to extend the time for filing the notice of appeal. In an endorsement dated December 18, 2019, Miller J.A. dismissed the motion on the basis that Paisley J.'s order was interlocutory, and the appeal could therefore only proceed in the Divisional Court, with leave of the Court. Miller J.A. awarded costs of $1,500 to Ms. Kim.

[8] On December 19, 2019, Mr. McIntosh brought a motion to stay the proceedings commenced by Ms. Kim pending his application under the Hague Convention. In a decision dated January 7, 2020, Nakonechny J. dismissed the motion. In her reasons, the motion judge found that the children have resided in Ontario since 2013. She also found that there was no evidence regarding the status of the Hague Convention application, and that, under the circumstances, it would not be in the best interests of the children to stay Ms. Kim's application pending the commencement and determination of a Hague Convention application in Australia. While Nakonechny J. dismissed the stay motion, she granted Mr. McIntosh an extension of time to file responding materials in the proceeding. Finally, the motion judge awarded costs to Ms. Kim in the amount of $1,500.

[9] Mr. McIntosh now brings this motion for an extension of time to appeal Paisley J.'s September 12, 2019 order. The motion materials were served on Ms. Kim's lawyer on February 5, 2020.

Applicable legal test

[10] The test on a motion to extend the time to bring a motion for leave to appeal is as follows:

a. Whether the moving party intended to appeal within the prescribed timelines;

b. The length and explanation for the delay;

c. Whether the respondent will be prejudiced by the time extension;

d. The merits of the motion for leave to appeal; and

e. The justice of the case.

See: Dale v. Teitler, 2018 ONSC 6861, at para. 5.

[11] As held by the Court of Appeal in Ahmadi v. Heydari, 2018 ONCA 958, at para. 13, each case is to be assessed on its own facts, and a court must ultimately be guided by whether the justice of the case requires granting the extension.

[12] As noted by Sach J. noted in Dale, at para. 9, “the threshold for obtaining leave to appeal interlocutory orders in family law cases and costs orders is a high one”.

Intention to appeal within the relevant period

[13] I am satisfied that that Mr. McIntosh has shown that he intended to appeal Paisley J.'s September 12, 2019 order within the relevant time period.

[14] Mr. McIntosh served his notice of appeal on Ms. Kim's lawyer on October 11, 2019, which is within the 30 day appeal period for an appeal from a final order to the Court of Appeal. While a motion for leave to appeal an interlocutory order to the Divisional Court must be served within 15 days of the date when the order was made, I accept that, at the time Mr. McIntosh commenced his appeal, he believed that the proper route of appeal was to the Court of Appeal and that he therefore commenced his appeal within what he believed was the relevant time period.

Length of the delay and explanation for the delay

[15] The length of the delay has been several months. As reviewed above, Mr. McIntosh's explanation for the delay is that he believed that the appeal was to be brought in the Court of Appeal.

[16] While Ms. Kim's lawyer did alert Mr. McIntosh that, in her view, the appeal was interlocutory, I accept that, while there has been a delay of a few months, Mr. McIntosh, who is representing himself, has provided an explanation for the delay. In addition, he brought this motion relatively soon after the Court of Appeal dismissed his appeal.

Prejudice to the respondent

[17] Ms. Kim's lawyer argues that the prejudice to her client in allowing the appeal to proceed is that there are now a number of unpaid costs orders, including the $1500 that Mr. McIntosh was ordered to pay by the Court of Appeal. If this appeal is allowed to proceed and the appeal is dismissed, Ms. Kim is concerned that she will continue to incur legal costs that she may not be able to recover. This financial challenge is compounded by the fact that Mr. McIntosh currently does not pay any child support.

[18] When asked about the outstanding legal costs ordered by the Court of Appeal, Mr. McIntosh indicated that he still does not accept the Court of Appeal's decision that it does not have jurisdiction over the appeal, suggesting that he has no intention of paying the outstanding costs.

[19] I accept that the issue of unpaid outstanding costs does prejudice Ms. Kim if this matter is allowed to proceed. While the amount at issue is relatively small, Mr. McIntosh's attitude suggests that he is not prepared to pay costs if he disagrees with the outcome.

[20] Besides the prejudice identified by Ms. Kim, given that this is an acrimonious family law dispute involving four young children, the obvious prejudice to Ms. Kim and the children in allowing this appeal to proceed is that it will further delay the much needed long-term resolution of these important issues.

Merits of the motion for leave to appeal

[21] In order to proceed with his proposed appeal, Mr. McIntosh must first be granted leave to appeal. Therefore, the merits assessment must focus on the merits of the proposed motion for leave to appeal.

[22] Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal an interlocutory order will only be granted in the following two circumstances:

(4) Leave to appeal from an interlocutory order 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 panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel 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 the panel's opinion, leave to appeal should be granted.

[23] While the threshold for assessing the merits on a motion to extend the time for an appeal is low, I am satisfied that the proposed appeal could not meet either branch of the leave to appeal test.

[24] Mr. McIntosh does not meet the first branch of the Rule 62.02(4) test. He has not put forward any cases that conflict with the September 12, 2019 endorsement.

[25] In addition, Mr. McIntosh has not made any arguments or put forward any authorities that give me reason to doubt the correctness of the endorsement. Paisley J.'s endorsement continued Myers J.'s order granting sole custody to Ms. Kim and preventing Mr. McIntosh from having contact with Ms. Kim or his children. This was an interim order and Mr. McIntosh had an opportunity to put forward his own evidence for the purpose of challenging or varying the order. Rather than doing so, he filed no evidence and indicated that he intends to bring a Hague Convention application. His explanation for not filing any evidence is that he is concerned about attorning to the jurisdiction of the Court in Ontario. While he may have a valid explanation for not filing responding evidence, this nevertheless left Paisley J. without any evidentiary record on which he could vary Myers J.'s order.

[26] Finally, and most importantly, on either branch of the test under Rule 62.02(4), Mr. McIntosh would have to demonstrate that the case raises issues of general importance beyond the interests of these parties. There are no issues general importance at issue in this case. The issues in the family law dispute may be very important to the parties, but the proposed appeal has no broader application.

[27] Accordingly, Mr. McIntosh has not shown that his proposed motion for leave to appeal has merit.

Justice of the case

[28] Considering the factors above, the justice of the case does not favour extending the time for a motion for leave to appeal.

[29] The justice of the case clearly favours ensuring that the issues between Mr. McIntosh and Ms. Kim are adjudicated on their merits as soon as possible. The September 12, 2019 endorsement does not preclude this. Mr. McIntosh can either proceed with his Hague convention application or he can respond to Ms. Kim’s application as provided for in Nakonechny J.’s decision. Allowing the motion for leave to appeal to go forward would do nothing to further advance this matter.

[30] In her endorsement on the motion for a stay, Nakonechny J. expressed a similar view about the need for this matter to move forward. I wholeheartedly agree.

Costs

[31] Given Ms. Kim's success on the motion, she is entitled to costs. She seeks $2000. I find that this amount is reasonable given the issues on the motion and the time required to respond.

Conclusion

[32] For the reasons above, the motion is dismissed. Mr. McIntosh is to pay costs of $2,000 to Ms. Kim within 30 days of today's date.

FAVREAU J.

Date: March 6, 2020