Court File and Parties

CITATION: Agaga v. Agaga, 2021 ONSC 1589

DIVISIONAL COURT FILE NO.: 432/20 Superior Court of Justice File No.: FC-20-522 DATE: 20210311

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: SAMUEL AGAGA, Applicant (Moving Party) AND: CATHERINE AGAGA, Respondent (Responding Party)

BEFORE: Sachs, Lederer and Mew JJ.

COUNSEL: No one, for the Applicant (Moving Party) Julia Moote, for the Respondent (Responding Party)

HEARD at Toronto: In writing

Endorsement

[1] This matter was the subject of a Case Management Endorsement issued by Justice Favreau on December 4, 2020. It reveals that there were two motions for leave to appeal from related family law proceedings. They were scheduled to be heard on February 22, 2021. The Case Management Endorsement directed that the Applicant (Moving Party) Samuel Agaga was to serve his motion record and factum, by email, by January 22, 2021. Samuel Agaga is self-represented and, thus, was encouraged to seek legal assistance prior to submitting his materials to the Court. He was directed to ProBono Ontario and to the Guide to Appeal in the Divisional Court which is available on the court’s website. It is not known whether Samuel Agaga took advantage of either this service or tool. What is clear is that no material was served or filed in support of the motions by the prescribed date or since. As a result, the Respondent (Responding Party) Catherine Agaga, who is represented by counsel, has brought two motions seeking to dismiss the motions for leave to appeal. These two motions are brought pursuant to rule 61.13(8) of the Rules of Civil Procedure which states, in part:

On a motion for leave to appeal, where the moving party,

(a) in the case of a motion under subrule (6), does not serve and file the documents before the hearing of that motion, or within such longer period as a judge of the appellate court allows;

(b) …

the Registrar shall make an order in (Form 61J) dismissing the motion for delay, with costs fixed at $750, despite rule 58.13.

[Emphasis added]

[2] Subrule 61.13 (6) notes:

(6) On a motion for leave to appeal, where the moving party has not served and filed the motion record and other documents in accordance with subrule 61.03 (2) or subrules 61.03.1 (4) to (6), the responding party may make a motion to the Registrar, on 10 days notice to the moving party, to have the motion for leave to appeal dismissed for delay.

[Emphasis added]

[3] Subrule 61.03 (2) requires that, on a motion for leave to appeal to the Divisional Court, the moving party is to serve a motion record, a factum and any relevant transcripts of evidence and that these materials are to be filed:

…with proof of service, within thirty days after the filing of the notice of motion for leave to appeal.

[4] The material filed contains two Notices of Motion, one for each of the Orders from which leave to appeal was to be sought, and Affidavits of Service indicating they were served by email on January 28, 2021 in company with an Affidavit in support of the motions and draft orders. Whether judged from thirty days of the service of the Notices of Motion for leave to appeal or from the date prescribed by Justice Favreau, it is apparent that the motion records and facta were not served and filed as required and that the service of these motions to dismiss fell outside those dates and give more than the ten days notice provided for.

[5] The only issue remaining is why these two motions have been directed to this panel rather than to the Registrar. Be that as it may, it would be better if they were dealt with as outlined by the rule. Accordingly, these motions are to be placed before the Registrar to sign and issue orders consistent with Form 61J including an award of costs to Catherine Agaga to be paid by Samuel Agaga in the total amount of $1,500 representing $750.00 on each of the two motions.

Lederer, J.

I agree _______________________________ Sachs, J.

I agree _______________________________ Mew, J.

Date: March 11, 2021