CITATION: Gayle v. Gayle, 2020 ONSC 5810

DIVISIONAL COURT FILE NO.: 19/74 DATE: 20200930

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Pattillo, Penny and Kristjanson JJ.

BETWEEN:

MRS. JEAN MAUREEN GAYLE Applicant (Respondent in Appeal)

– and –

MR. GARTH ANTHONY GAYLE Respondent/Appellant

Self-represented Self-represented

HEARD (by videoconference): September 24, 2020

Kristjanson J.

Overview

[1] Mr. Gayle appeals from the Orders of Justice G. Miller dated July 17, 2019 and September 9, 2019. In October 2013, Justice Seppi issued a temporary order for child support and spousal support in Mrs. Gayle’s family law application for divorce and corollary relief. The application was issued in 2011. In April 2019 Mr. Gayle brought a Rule 14 motion to vary the temporary orders. The motion judge heard the motion in July 2019. She set a date for termination of child support, awarded retroactive child and spousal support, and set an indefinite duration for spousal support.

[2] At the conclusion of the hearing the panel advised the parties that in our view, notwithstanding that the orders being appealed were issued as final orders, they were clearly temporary, and we would direct the Registrar to re-issue them as such. Temporary orders are interlocutory and require leave to appeal. Given the circumstances and the test for leave, the panel would not have granted leave. Further, having heard the appeal, we dismissed both the appellant’s motion to admit fresh evidence and the appeal, for reasons to follow. These are our reasons.

Background

[3] The parties were married in December 1988 and had three children during their marriage. The parties ceased co-habiting February 1, 2010. In July 2011, Mrs. Gayle began divorce proceedings with the final divorce order granted on September 17, 2013. The corollary relief claims were severed from the divorce. On October 28, 2013, Mrs. Gayle obtained a temporary order from Justice Seppi for both child and spousal support.

[4] On April 9, 2019 Mr. Gayle filed a motion to vary child support on the basis of a material change in circumstances, as the two eldest children were not in full-time postsecondary education and were working. He also sought to terminate or reduce his spousal support obligation. That motion, decided on July 17, 2019, is the basis for this appeal. The motion judge adjusted both retroactive and ongoing child and spousal support based on updated income figures. She adjusted retroactive support for three years prior to the motion and set arrears at $39,323 to July 2019. She increased ongoing spousal support to $2,349 per month beginning August 1, 2019, terminated child support for the two older children, and set child support for the youngest child commencing August 1, 2019 to be adjusted annually based on Mr. Gayle’s income.

[5] While the original order is dated July 17, 2019, it was not issued until October 18, 2019. Mr. Gayle filed his notice of appeal on August 12, 2019.

[6] On August 8, 2019, Mr. Gayle wrote to the motion judge requesting that she correct certain errors in the calculation of support. The motion judge issued an amending order dated September 9, 2019. The amending order was also issued on October 18, 2019.

[7] On September 20, 2019 Justice Chozik denied Mr. Gayle’s motion for a stay pending appeal.

[8] Both parties have been self-represented throughout the proceedings.

The Issues

[9] The issues on this appeal are:

1. Are the Orders appealed from final or temporary orders?
2. If mistakenly issued as final orders, can or should this court direct they be reissued as temporary orders?
3. Is the appellant entitled to proceed with the appeal, given that leave to appeal was not sought?
4. Should the appeal be allowed?

Are the Orders appealed from final or temporary orders?

[10] Mr. Gayle appeals from the orders of Justice G. Miller dated July 17, 2019 and September 9, 2019, both issued by the Registrar as final orders on October 18, 2019.

[11] Although there is now a dispute about date of separation, the parties ceased co-habiting by February 1, 2010. On October 28, 2013, Justice Seppi issued a temporary spousal and child support order. The matter has never proceeded to trial.

[12] Mr. Gayle’s motion to vary the 2013 temporary order of Justice Seppi was a Form 14 motion brought under Rule 14 of the Family Law Rules, O.Reg. 114/99, which is the rule applicable to motions for temporary orders. The Family Law Rules also provide for Rule 15 motions to change final orders, and Rule 16 summary judgment motions.

[13] Ms. Gayle responded by way of a Form 15 Response to Motion to Change, although this was not a motion to change final order under Rule 15 of the Family Law Rules. Although she did not file a Notice of Motion or request specific relief, her responding affidavit demonstrated that she sought to increase spousal and child support, on a retroactive and ongoing basis, based on Mr. Gayle’s post-separation increase in income, and that she disputed some claims regarding eligibility of the second child for child support. The motion judge held that although Mrs. Gayle did not formally set out the relief she sought in a Notice of Motion, it was clear she was seeking additional relief, and that both parties indicated their willingness to proceed on the basis of the materials before the motion judge rather than adjourning to permit Mrs. Gayle to file a notice of motion. Neither party brought a summary judgment motion.

[14] The motion judge held that Mr. Gayle’s motion was a motion for variation of a temporary order. She made orders regarding spousal and child support with both retroactive and prospective effect. Her endorsement directed that the orders “be prepared by the court office on behalf of the self-represented parties.” The motion judge was dealing with a motion to vary a temporary order and was issuing a temporary order. Nevertheless, the Registrar signed and issued final orders.

[15] Family Law Rule 25(11) provides that the clerk shall prepare an order when the parties do not have lawyers, or a judge directs the clerk to do so. When an order is prepared by the clerk, Family Law Rule 25(10) provides that approval of the parties is not required. That is what happened here.

[16] In August 2019 Mr. Gayle requested the motion judge to correct certain mathematical errors in her July 17 order as set out in the endorsement, which she did by way of the amended September 9 order. At the time the motion judge corrected the mathematical errors, the Registrar had not yet signed and issued the orders.

[17] I find that the motion judge did not issue final orders. Indeed, she would have had no jurisdiction to do so, since the motion before her was a Rule 14 motion for a temporary order, she was varying a temporary order, and the trial had not yet taken place. The issuance by the Registrar of final orders, rather than temporary orders, was clearly an error, and is properly the subject of this appeal.

If mistakenly issued as final orders, can or should this court direct they be reissued as temporary orders?

[18] I have considered whether Mr. Gayle should have brought a motion pursuant to Family Law Rule 25(10)(a) on the ground that the orders contain mistakes as they were issued as final orders rather than temporary orders. While that would have been a preferable route, since the orders were prepared by the court clerk pursuant to the motion judge’s direction, and the parties are self-represented, I do not hold the failure to bring such a motion as a bar to providing relief on appeal in the circumstances.

[19] There is no question that the final orders were issued by mistake by the Registrar. As noted in Strugarova v. Air France (2009), 82 CPC (6th) 298, 2009 40552, the court has a discretion to re-open a matter where the integrity of the process is at risk or a principle of justice is at stake that requires reconsideration. At para. 7, Roberts, J., as she then was, held: “While a court should re-open a motion or other matter sparingly and with the greatest of care, it may re-open it when it is just to do so in exceptional circumstances.” In the exceptional circumstances of this case, the panel of its own motion, pursuant to Family Law Rule 25 (19) and Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets aside the final orders of the Honourable Justice Miller dated July 17, 2019 and September 9, 2019 on the grounds that the final orders were mistakenly issued by the Registrar. The Registrar is directed to reissue those orders as temporary orders, nunc pro tunc.

Is the appellant entitled to proceed with the appeal, given that leave to appeal was not sought?

[20] Since the orders of the motion judge were for temporary support, they were interlocutory orders for which leave to appeal was required pursuant to Rule 62.02 of the Rules of Civil Procedure and section 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[21] This panel would not have granted leave to appeal the temporary support orders. Rule 62.02(4) of the Rules of Civil Procedure sets out the two situations in which leave to appeal an interlocutory order of a judge of the Ontario Superior Court of Justice should be granted by a panel of Divisional Court.

[22] The first is when 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 for leave to appeal, desirable that leave to appeal be granted. The second situation is when there appears, to the panel hearing the motion, good reason to doubt the correctness of the order in question and the appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. Under either criterion, it is not sufficient for the moving party to show that the order under appeal was wrong or decided upon principles subject to conflict in the jurisprudence. We do not find that the appellant has established either of the two grounds. First, there is no conflicting jurisprudence, nor is it desirable that leave be granted. Second, there is no reason to doubt the correctness of the order, and there are no matters of importance warranting the granting of leave.

[23] An interim support award is a temporary order only and cannot reflect all the evidence that would be called at trial. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 66352 (ON SC) per Sachs J. It should not take seven years to proceed to trial on issues of corollary relief. The resources of the parties should be dedicated to seeking a final resolution to all issues, not successive interim variations. The parties in this matter should proceed expeditiously to trial.

Should the appeal be allowed?

[24] Even though we would not have granted leave to appeal, having heard the appeal, the panel proceeded to determine the appeal on the merits. This is consistent with the primary objective in family law cases, to deal with cases justly by ensuring a fair process which is efficient, proportional, and cost-effective, and represents an appropriate use of the court’s resources: Family Law Rules 2(2)-2(5).

Motion to Admit Fresh Evidence

[25] Mr. Gayle brought a motion to admit fresh evidence. The test for receiving fresh evidence is set out in R. v. Palmer, [1980] 1 S.C.R. 759, 1979 8 and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, 1994 8711 (C.A.). The key elements of the test are:

(a) Is the evidence credible?

(b) Could the evidence have been obtained prior to the hearing through the exercise of reasonable diligence?

(c) If the evidence were admitted, would it likely be conclusive of an issue in the appeal?

[26] Most of the evidence was directed to establishing a different date of separation than had been accepted by Justice Seppi in 2013 and by Justice Miller in 2019. On his motion, Mr. Gayle sought to terminate spousal support. The date of separation was clearly in issue, potentially relevant to both entitlement to and duration of spousal support. Before the motion judge, the appellant filed Divorcemate calculations based on a date of separation of February 1, 2010, thereby accepting that date of separation for the purposes of the motion. He now seeks to adduce fresh evidence establishing an earlier date of separation. All the evidence set out in the motion to admit fresh evidence is information that was clearly available to the appellant by the date of the motion. The evidence relates to events which occurred prior to February 1, 2010, and affidavits and pleadings in his possession well before the motion. It was up to Mr. Gayle to place the evidence he now seeks to admit before the motion judge when he sought to vary the temporary order. He failed to exercise due diligence. Mrs. Gayle disputes the evidence; there is clearly a credibility issue regarding the evidence on the date of separation that will have to be determined at trial.

[27] The appellant also seeks to file evidence not available at the date of the motion, Mrs. Gayle’s 2019 income tax return. Since the decision was rendered in July 2019 that information was not available; the motion judge appears to have used the 2018 income figures. Since this is a temporary order, the trial judge will be able to adjust amounts based on evidence at trial. Interlocutory appeals of spousal support orders are not adjusted on appeal on the basis of after-occurring income information; those are issues for trial.

[28] There is no basis for admitting the fresh evidence on this appeal. The motion to admit fresh evidence is dismissed.

The Standard of Review

[29] The correctness standard applies to pure questions of law. The standard of palpable and overriding error applies to questions of fact and, absent an error in principle or extricable question of law, to questions of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[30] An award of support is fact-based and discretionary. The appellate court “…should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong” (see Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at para.11) An appellate court may not overturn a support order simply because it would have made a different decision or balanced the factors differently.

Disposition of the Appeal

[31] The appellant raised two main points in his appeal.

[32] The first issue focused on by the appellant was an alleged error with respect to the date of separation, which he argues affects duration of spousal support. The only evidence before the motion judge was that both parties accepted the date of separation of February 1, 2010. The fresh evidence is excluded. As a result, the appeal of the temporary order on this ground is dismissed. There was no error of law and no palpable and overriding error of fact.

[33] The appellant argued that the motion judge erred in failing to consider all the relevant factors as set out in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 SCR 231 (“D.B.S.”) when setting retroactive spousal support. I do not agree. The applicant wife claimed spousal support in her application in 2011. Justice Seppi ordered temporary spousal support in 2013. Mr. Gayle conceded that he did not provide Mrs. Gayle with his income tax returns and notices of assessment between the 2013 temporary support order and the 2019 motion. In 2019, the motion judge retroactively adjusted spousal support to 2016 based on actual income.

[34] Factors relevant to determining whether retroactive spousal support should be ordered, the “D.B.S. factors”, are similar to those applicable to retroactive awards of child support: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para. 207. However, the D.B.S. factors are relevant when considering whether to allow an award of spousal support for the period prior to the time a proceeding for spousal support was initiated. The date of the initiation of proceedings for spousal support has been described by the Court of Appeal as the “usual commencement date”, absent a reason not to make the order effective as of that date: MacKinnon v. MacKinnon (2005), 2005 13191 (ON CA), 75 O.R. (3d) 175, at para. 24. The claim for spousal support was initiated as of the date of the application in 2011. In that sense, there was no retroactive claim to which the D.B.S. factors could apply. The motion judge therefore was not required to apply the D.B.S. factors. Nevertheless, while not explicitly set out in her decision, the motion judge’s reasons implicitly do apply the D.B.S. factors, in her finding that there is no reason to go beyond the generally accepted three-year rule, and her rejection of the hardship argument advanced by Mr. Gayle because of his obligations to his second family. There is no extricable error of law. The motion judge’s discretionary determinations and factual findings supporting her decisions on support are to be accorded significant deference on this appeal. Final adjustments of spousal support can be made at trial.

[35] There is no merit to the other grounds of appeal raised. The appeal is dismissed.

Conclusion

[36] Accordingly, the appeal is dismissed and the motion to admit fresh evidence is dismissed.

[37] The final orders of the Honourable Justice Miller dated July 17, 2019 and September 9, 2019 are set aside. The Registrar is directed to reissue those orders as temporary orders, nunc pro tunc.

[38] The parties are encouraged to proceed to trial given the significant delay to date.

[39] In light of the divided success on this appeal, there is no order as to costs.

Kristjanson J.

I agree _______________________________

Pattillo J.

I agree _______________________________

Penny J.

Date of Release: September 30, 2020

CITATION: Gayle v. Gayle, 2020 ONSC 5810

DIVISIONAL COURT FILE NO.: 19/74 DATE: 202009**

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Patillo, Penny and Kristjanson JJ.

BETWEEN:

Mr. Garth Anthony Gayle Appellant

– and –

Mrs. Jean Maureen Gayle Respondent

REASONS FOR JUDGMENT

Kristjanson J.

Date of Release: September , 2020