Court File and Parties

CITATION: Moreton v. Inthavixay, 2020 ONSC 5699

DIVISIONAL COURT FILE NO.: 201/20

DATE: 20200922

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Douangta Inthavixay, Moving Party AND: christian moreton, Responding Party

BEFORE: D.L. Corbett, Penny and Favreau JJ.

COUNSEL: Douangta Inthavixay, representing herself Lisa Eisen, for the Responding Party Jean Hyndman, OCL counsel representing the children

HEARD at Toronto in writing

Endorsement

[1] Ms. Inthavixay brings a motion for leave to appeal from decisions of Shore J. dated September 1, and September 11, 2020, directing that a trial of the issues of mobility and the children’s residential schedule commence on September 28, 2020 for three days.

[2] By endorsement dated September 14, 2020, Favreau J. scheduled this urgent motion for leave to appeal to be considered on September 18, 2020. Ms. Inthavixay was required to serve and file her motion materials by no later than September 17, 2020. The endorsement stated that the respondents were not required to serve and file responding materials unless directed to do so by the panel considering the motion for leave to appeal.

[3] On September 17, 2020, Ms. Inthavixay wrote to the Court asking for an extension of time to file her materials due to unspecified medical issues. The Court granted an extension to September 21, 2020 at 1:00 pm.

[4] On September 21, 2020, Ms. Inthavixay wrote to the Court requesting a further extension of time. She also included the notice of motion for leave to appeal she had prepared up to that point. The notice of motion for leave to appeal is lengthy and sets out in detail the grounds on which Ms. Inthavixay seeks leave to appeal from Shore J.’s decisions.

[5] As mentioned above, a trial in this matter is scheduled to start on September 28, 2020. Shore J.’s decisions and prior decisions document the history of delay in this case and the urgent need for finality on the issues between the parties.

[6] The unusual and abbreviated process for this motion for leave to appeal was directed to address the claimed urgency of the matter given the upcoming trial date. The process directed by the court enabled Ms. Inthavixay to put her motion before this court in time for the court to assess whether it should require responding materials on an expedited basis so that a decision could be rendered on the motion before the scheduled start of the trial next week.

[7] In these unique circumstances, having regard to the upcoming trial date and history in this matter, there is no need for the respondent to serve and file responding materials. In addition, this panel has determined that no further time extensions should be granted to Ms. Inthavixay to complete her materials on the motion for leave to appeal. She has not provided evidence of a need for a further extension and the trial date is imminent.

[8] The decisions of Shore J. are clear, thoughtful and well-reasoned. They fall well within the discretion available to the court in trial scheduling and other procedural matters. Her decisions are the only reasonable outcome in the particular circumstances of this case. The lengthy and detailed notice of motion for leave to appeal is sufficient for the panel to determine that Ms. Inthavixay’s proposed appeal does not meet the test for the Divisional Court to grant leave to appeal under Rule 62.02 of the Rules of Civil Procedure. Ms. Inthavixay’s motion for leave to appeal is therefore dismissed.

[9] Given that the respondents were not required to file responding materials, no order as to costs is made.

D.L. Corbett J.

Penny J.

Favreau J.

Date: September 22, 2020