Court File and Parties

Citation: Kounsil v. Kounsil, 2021 ONSC 7486 Divisional Court File No.: 606/21 Date: 2021-11-12 Superior Court of Justice – Ontario Divisional Court

Re: Harpreet Singh Kounsil, Appellant/Moving Party And: Parmjot Kaur Kounsil, Respondent

Before: Nishikawa J.

Counsel: Peter M. Callahan, for the Appellant/Moving Party Paul C. Buttigieg, for the Respondent

Heard at Toronto: November 12, 2021

Endorsement

Overview and Procedural Background

[1] The Moving Party, Harpreet Singh Kounsil, brings a motion for an extension of time to file a notice of motion for leave to appeal the order of McGee J. dated April 27, 2021.

[2] On April 12, 2021, the Motion Judge heard both parties’ motions for temporary custody, primary residence, and child support relating to the parties’ child, Karman.

[3] On April 27, 2021, the Motion Judge made an order granting temporary decision-making responsibility and primary residence to the Respondent mother, Parmjot Kaur Kounsil. The Motion Judge also ordered a temporary parenting schedule, with supervised parenting time for Mr. Kounsil, and temporary child support of $304 per month to be paid by Mr. Kounsil (the “Merits Order”).

[4] The parties were provided an opportunity to make cost submissions. On June 25, 2021, the Motion Judge made an order requiring that the father pay $18,702.35 in costs and disbursements (the “Costs Order”).

[5] Mr. Kounsil served a notice of motion for leave to appeal on July 5, 2021, seeking leave to appeal both the Merits Order and the Costs Order.

[6] Mr. Kounsel seeks an extension of the time to file his notice of motion for leave to appeal the Merits Order because it was served outside the 15-day period specified under the Rules of Civil Procedure. The notice of motion for leave to appeal the Costs Order was served within the 15-day period, and no extension is required.

Analysis

[7] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to r. 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.

[8] The test that the moving party must meet for an extension of time to file a notice of appeal is well-settled. In deciding whether to exercise its discretion to grant an extension of time, the court will consider the following factors:

(a) Whether the Appellant formed an intention to appeal within the relevant period;

(b) The length of the delay and explanation for the delay;

(c) Any prejudice to the Respondent;

(d) The merits of the appeal; and

(e) Whether “the interests of the case” requires it.

Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.

[9] The test is also applied when a party seeks to extend the deadline for a motion for leave to appeal. The Court of Appeal has further held that while the courts consider different factors, the governing principle is whether the “justice of the case” requires than an extension be given: Canadian Western Trust, at para. 25.

[10] Mr. Kounsil filed two affidavits in support of his motion. No factum was filed. In his affidavits, Mr. Kounsil attests to the merits of his appeal, the injustice of the Merits Order and Costs Order, and the prejudice to him if an extension is not granted.

[11] Mr. Kounsil’s affidavits are silent as to when he formed an intention to appeal the Merits Order. Moreover, at no time during the appeal period, or during the two months between the Merits Order and the Costs Order, did Mr. Kounsil or his lawyer communicate an intention to appeal the Merits Order. In fact, the record supports that there was no such intention until the Costs Order was made.

[12] Similarly, Mr. Kounsil’s affidavits offer no explanation for the delay. His counsel argues that it can be inferred from the affidavits that Mr. Kounsil needed time to assess whether he would pursue an appeal because of his limited financial means. However, the affidavits refer to his financial circumstances to argue that child support and costs ought not to have been ordered. Moreover, while Mr. Kounsil’s affidavit details his medical conditions to explain his inability to earn an income, he does not suggest that they impacted his ability to pursue an appeal.

[13] While the delay in this case is not significant, the Merits Order provides the Respondent and the parties’ young child with certainty regarding his primary residence, decision-making authority and a parenting schedule, at least on a temporary basis. The motion was first scheduled to be heard in November 2020 and was adjourned, at Mr. Kounsil’s request, for five months. Extending the time for leave to appeal would lead to unnecessary uncertainty and would require Ms. Kounsil to respond to the leave motion, when the parties should be looking ahead to trial and final parenting arrangements.

[14] Further, the merits of the proposed appeal would not support granting an extension of time. Rule 62.02(4) states that “leave to appeal from an interlocutory order shall not be granted unless”:

(a) 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, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.

[15] Mr. Kounsil’s proposed appeal is unlikely to satisfy the test for leave. On the issue of whether there is good reason to doubt the correctness of the Merits Order, the Motion Judge’s endorsement provides detailed reasons to support her findings and notes the lack of evidence to address concerns about Mr. Kounsil’s parenting and mental health, including supervision notes and medical documentation. In addition, the Merits Order relates very specifically to the parties’ particular circumstances. While the proposed appeal is important to Mr. Kounsil, it is unlikely that it would be found to be of general importance, beyond the interests of the parties, such that leave to appeal would be granted.

[16] Finally, the justice of the case does not support an extension. The Merits Order grants “temporary decision-making responsibility” to Ms. Kounsil and requires that Mr. Kounsil pay temporary child support of $304 per month, without prejudice to a final order or agreement between the parties. It is not in the interests of the case that the parties devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial. The interests of the parties favour an adjudication of the merits on a final basis.

[17] At the hearing, Mr. Kounsil’s counsel submitted that the time for serving the notice of motion for leave to appeal did not begin to run until September 21, 2021 because, on that date, the Motion Judge issued a revised endorsement deleting two paragraphs from the April 27, 2021 endorsement. The two paragraphs appear to have been inadvertently included and did not relate to this case.

[18] I reject this submission. For the purposes of calculating the time for appeal, the relevant date is the date on which the Merits Order was made. The revision to the endorsement was non-substantive and did not affect the Merits Order, which was issued and entered on April 27, 2021. In any event, Mr. Kounsil served the notice of motion for leave to appeal on July 5, 2021. It would be illogical to suggest that the time did not begin to run until September 21, 2021.

[19] Mr. Kounsil did not take the position that the appeal period for the Merits Order did not begin to run until the Costs Order was made. If that were the case, the motion for an extension of time would have been unnecessary, because the notice was served within 15 days of the Costs Order. Moreover, at no time did Mr. Kounsil indicate that he was waiting for a final determination on costs before appealing the Merits Order. His counsel’s submission is that the Costs Order made the unfairness of the Merits Order more apparent to him. While merits and costs appeals should generally proceed together, in this case, the orders were made separately. In order to seek leave to appeal the Merits Order, Mr. Kounsil was required to serve his notice of motion within 15 days of the Merits Order.

Conclusion

[20] The motion for an extension of time to file the notice of motion for leave to appeal the Merits Order is dismissed.

Costs

[21] Both counsel submitted costs outlines. At the hearing, Ms. Kounsil’s counsel sought full indemnity costs in the amount of approximately $6,500 to $7,000. Her costs on a partial indemnity basis are $3,915.45, which estimated a lengthier time for the hearing. The Moving Party’s costs, on a partial indemnity basis, were $2,756.64.

[22] I see no basis for an award of full or substantial indemnity costs.

[23] The Moving Party shall pay costs of the motion, on a partial indemnity basis, which are fixed at $3,250.

Nishikawa J.

Date: November 12, 2021