Court File and Parties
CITATION: Foley v. Foley, 2020 ONSC 5195
DIVISIONAL COURT FILE NO.: TBA
(Brampton)
DATE: 2020-08-28
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Foley v. Foley
BEFORE: D.L. Corbett J.
COUNSEL: Paul Robson, for the appellant Adrienne Lee, for the respondent
HEARD: In Chambers, In Writing
CASE MANAGEMENT ENDORSEMENT
[1] By Notice of Appeal dated July 22, 2020, Mr Foley appealed the order of Doi J. made July 7, 2020.
[2] On August 7, 2020, the court received a request from Ms Foley’s solicitor to schedule a motion to quash the appeal on the basis that the order of Doi J. is interlocutory and Mr Foley had not obtained leave to appeal.
[3] On August 7, 2020, by my direction, a notice was sent to appellant’s counsel pursuant to R.2.1.01, giving the appellant an opportunity to show cause why the appeal ought not be dismissed as frivolous, vexatious or an abuse of process. The appellant was given 15 days to respond to the notice. The email accompanying the notice stated as follows:
The Administrative Judge of the Divisional Court, D.L. Corbett J., has directed me to give you notice pursuant to R.2.1.01 respecting the appeal of the order of Doi J. In response to the R.2.1.01 notice, please explain:
Why the appeal may be brought without leave to appeal, since the order of Doi J. is interlocutory; and
If the appellant argues that the order is final, not interlocutory, why jurisdiction over appeal is not with the Court of Appeal rather than the Divisional Court.
The respondent on appeal is not to respond to the appellant's R.2.1.01 submissions unless subsequently requested to do so by the court.
[4] No response was received within the 15 day period provided by the court, and on August 27, 2020, respondent’s counsel wrote to the court asking that the appeal be dismissed.
[5] On August 28, 2020, appellant’s counsel wrote to the court as follows:
I have been attempting to reach my client for the past two (2) weeks but have not been able to receive instructions. Upon my last connection with Mr. Foley, he had advised that the Applicant and Ms. Lee’s client, Linda Foley, had moved into the matrimonial home without notice or consent. Further, my client had advised that the reason that Linda Foley had moved out of her parents’ home and into my client’s property was because she had contracted the COVID-19 virus. Subsequently, Mr. Foley has now contracted the virus and has been laid low the past few weeks.
I am seeking a triage call with counsel and the Divisional Court in order to schedule an urgent hearing date for a motion for leave to appeal the Order of Justice Doi, dated July 7, 2020.
[6] The letter is a tacit (and correct) acknowledgment that the order of Doi J. is interlocutory and that leave to appeal is required before the order may be appealed. The appeal is dismissed pursuant to R.2.1.01 accordingly, without costs. This order is without prejudice to the appellant bringing a motion for leave to appeal. The order of Doi J. is, however, in full force and effect, and it is not stayed by a stated intention to move for leave to appeal, or by bringing a motion for leave to appeal.
[7] The deadline for commencing a motion for leave to appeal an interlocutory order is fifteen days: R.63.03(1). Deadlines have been suspended because of COVID-19, but that does not preclude the court from fixing a deadline: the appellant must move promptly if he wishes to pursue the motion for leave to appeal. He shall serve his notice of motion by September 8, 2020, and the rest of his motion materials by September 22, 2020. If the appellant considers the matter urgent, as is suggested, he is, of course, free to serve his materials earlier than these deadlines. The court will give further directions, and may schedule a triage call, after the appellant has served his motion materials.
“D.L. Corbett J.”