CITATION: Desai v. Desai, 2021 ONSC 6923
DIVISIONAL COURT FILE NO.: 343/21
DATE: 20211018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
B E T W E E N:
JIGNA DHAVAL DESAI
Appellant
- and -
DHAVAL JAYANTILAL DESAI
Tahir Majeed, for Mr Desai
Respondent
Heard by ZOOM: June 11, 2021
REASONS FOR DECISION
D.L. Corbett j.:
[1] This is a motion for an extension of time to appeal to Divisional Court from the decision of Harper J. dated October 14, 2020, dismissing Ms Desai’s claims to equalization of net family property on the basis that the claim was brought more than six years after the date of separation, and thus was barred by s. 7(3) of the Family Law Act (Desai v. Desai, unreported).
[2] Ms Desai, who is self-represented, initially brought this appeal to the Court of Appeal. She was advised by counsel for the respondent and by staff at the Court of Appeal that the appeal should have been brought to this court rather than to the Court of Appeal. Ms Desai did not accept that advice, and the matter then went before a panel of the Court of Appeal. The panel found that the appeal involves a single payment of less than $50,000, and thus that the appeal lies to this court. The Court of Appeal dismissed the appeal without costs and did not exercise its discretion to transfer the appeal to this court (Desai v. Desai, 2021 ONCA 265).
Overview and Disposition
[3] By direction to the parties dated May 13, 2021, setting out instructions for the motion for an extension of time in which to bring the appeal, I directed the parties as follows (among other things):
Ms Desai brought her appeal in the Court of Appeal. That court decided on April 26, 2021 that the appeal is within the jurisdiction of the Divisional Court. Ms Desai now moves for an extension of time to bring her appeal in this court. I have advised the parties that the key issues on the motion for an extension are (a) why Ms Desai did not correct her error when staff in the Court of Appeal office told her she should be in the Divisional Court; and (b) whether there is an arguable basis for the appeal.
[4] Ms Desai is self-represented. Appeal routes can be complicated. Sound advice from court staff is a matter that could be taken into account in the Court of Appeal on the issue of costs, but in my view is not a basis on which this court should exercise its discretion to refuse an extension in the time in which to appeal to this court. If a timely appeal has been brought in the Court of Appeal in error, and if the appellant moves promptly to bring the appeal in this court after it has been disposed of in the Court of Appeal, this court will ordinarily be satisfied that the appellant formed a timely intention to appeal and has a reasonable explanation for her delay.
[5] I am not satisfied, however, that there is any merit to the appeal. For that reason the motion to extend the time to bring the appeal is dismissed.
Background
[6] The parties were married on July 13, 1997. They separated on September 12, 2008 following a domestic dispute. There is one child of the marriage who is now over 20 years old and for whom child support is no longer in pay.
[7] Ms Desai commenced proceedings in the Ontario Court of Justice by way of an application for support on March 30, 2009. Ms Desai stipulated September 12, 2008 as the date of separation in this application. A final order in that case ordered child support payable to Ms Desai by Mr Desai in the amount of $200 per month. No spousal support was ordered.
[8] In 2012, Ms Desai moved to change the final order of 2009. In her materials in support of the motion, she stated that the date of separation was September 12, 2008. The motion to change was settled by increase in child support to $600 per month.
[9] On September 13, 2018, Ms Desai filed another motion to change the final order of 2009. In this motion, she sought spousal support. She alleged that the date of separation was September 12, 2008. Edward J. of the Ontario Court of Justice declared the date of separation to be September 12, 2008 by order dated November 13, 2019. No appeal was brought from this decision.
[10] On December 17, 2018, Ms Desai applied for a divorce and other relief in the Superior Court of Justice. She claimed spousal support and equalization of family property and alleged a date of separation of November 4, 2017.
Decision of Harper J.
[11] Before Harper J., Mr Desai argued that the date of separation is res judicata and that Ms Desai’s claims for equalization in the divorce proceedings are statute-barred as being beyond the deadline in s.7(3) of the Family Law Act. The motion judge held as follows in his oral reasons:
In my view, the same issues between the same parties [were] before Justice Edwards when he heard the matter on October 24th, 2019 and released his reasons on the 13th of November, 2019. He fully canvassed the issues relative to the date of separation where there was no reasonable prospect of reconciliation, and he made findings of facts that the date of separation in this matter was September 12th, 2008 and he so made that order. In my view, the doctrine of res judicata, issue estoppel applies and that issue cannot be re-litigated between the parties, [and] the date of separation is September 12, 2008.
[12] The motions judge then addressed the second argument made on behalf of Ms Desai – that the limitation period runs from the later of three eventualities set out in s.7(3) of the Family Law Act: (a) judgment of divorce or nullity; (b) the date of separation; or (c) death of a spouse. The motions judge disposed of this argument by recourse to the text of s.7(3), which states that an application for equalization of net family property shall not be brought “after the earliest of” the three eventualities. The motions judge found that this language is clear and that the applicable limitations period in this case is six years after the date of separation, being six years after September 12, 2008.
[13] There was no motion brought by Ms Desai for an extension of the applicable deadline under s.7(3) of the Family Law Act. Such a motion could have been brought pursuant to s.2(8) of the Act. The motions judge noted that Mr Desai had made it clear from the outset that he was relying on s.7(3) to defeat the equalization claim, and still Ms Desai did not move for an extension pursuant to s.2(8). The motions judge found that Ms Desai’s failure to move for an extension was fatal to granting such an extension, given all the circumstances. He further found that, in the circumstances of the case, where the delay in asserting the claim was for a period of many years, and where Ms Desai had repeatedly asserted a separation date in 2008 in proceedings between the parties, there would be inherent prejudice to Mr Desai in having to defend such a claim now.
Analysis
[14] The issue of the parties’ separation date was decided on a final basis by Edward J. No argument has been raised by the appellant that could justify departing from the principle stated by the motion judge that this issue is now beyond dispute between the parties.
[15] The motion judge’s reading of s.7(3) of the Family Law Act is correct. The deadline under tat provision arises “after the earliest” of the three eventualities. The appellant’s argument to the contrary runs contrary to the plain language of the Act and would lead to absurd results (including that such claims would not expire until six months after the death of the first spouse – the third eventuality). Ms Desai’s claim to equalization is out of time.
[16] Ms Desai relies on reasons of the Divisional Court in a prior related appeal (Desai v. Desai, 2019 ONSC 5848). In that appeal the court reversed an order made at a case conference. Mr Desai had given notice before the case conference that he was seeking to have the court confirm the date of separation, but not that he was seeking dismissal of the equalization claims on the basis of this finding. The case conference judge’s dismissal order was reversed on procedural fairness grounds because Ms Desai had not had notice of the limitations issue: “[i]t is in the interests of justice that the appellant have her day in court” (para. 10). The Divisional Court decision is silent on the merits of the limitations issue and does not assist Ms Desai on this appeal.
Decision
[17] The motions judge correctly found that Ms Desai’s equalization claim is precluded by s.7(3) of the Family Law Act. He made no error in refusing to extend this deadline in all the circumstances. The motion to extend the time to bring an appeal from the decision of Harper J. is dismissed because the proposed appeal is without merit.
[18] Ms Desai shall pay costs of the motion to Mr Desai fixed at $2,500, inclusive, payable within thirty days.
D.L. Corbett J.
Released: October 18, 2021
CITATION: Desai v. Desai, 2021 ONSC 6923
DIVISIONAL COURT FILE NO.: 343/21
DATE: 20211018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Jigna Dhaval Desai
Appellant
- and –
Dhaval Jayantilal Desai
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: October 18, 2021