CITATION: Sanvictores v. Sanvictores, 2022 ONSC 4844
DIVISIONAL COURT FILE NO.: 419/22 DATE: 20220823
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
KYLE SANVICTORES
Lauri Daitchman, for Mr Sanvictores
Applicant/Respondent
– and –
NANCY SANVICTORES
Ms Sanvictores, self-represented
Respondent/Moving Party
Heard by Teleconference: Aug 17, 2022
CASE MANAGEMENT ENDORSEMENT
D.L. Corbett J.
[1] The court confirms the case management teleconference held August 17, 2022.
[2] On September 24, 2021, by endorsement, Pinto J. granted a temporary order excluding the Moving Party from a jointly owned business (among other things).
[3] On April 5, 2022, Lococo J., by endorsement, granted a temporary order that the parties’ children attend either Lester B. Pearson Elementary School or Ecole Elementaire Jeanne-Lajoie commencing September 2022.
[4] On May 3, 2022, Faieta J. ordered the sale of a jointly owned rental property: 2022 ONSC 2673.
[5] On May 26, 2022, by endorsement, Horkins J. granted an order dispensing with the Moving Party’s signature for the purposes of sale of the jointly owned rental property.
[6] On June 30, 2022, Faieta J. heard a motion by the applicant for an order for equal sharing of summer parenting time. Faieta J. granted the motion on July 4, 2022: 2022 ONSC 3973.
[7] On July 21, 2022, the applicant moved for police enforcement of the order of July 4th (among other things). By endorsement dated July 21, 2022, Faieta J. granted that order and related relief.
[8] The Respondent / Moving Party seeks leave to appeal numerous orders made in this case, dating back to 2020.
The Authority of Court Orders
[9] The Respondent / Moving Party is currently self-represented (she had counsel for some, but not all, of the litigation below).
[10] This court’s role, in case management, is not to adjudicate arguable contested issues, but to provide structure for the case so that the parties may have their issues adjudicated in a fair and time-efficient process.
[11] This said, there are basic principles about litigation, including family law litigation, that the parties must respect as their case moves forward.
[12] The first principle is that court orders are authoritative. We live under the Rule of Law. In accordance with the Rule of Law, everyone must obey court orders.
[13] With certain exceptions (that do not apply here), orders are effective when made and are not stayed pending appeal or pending a motion for leave to appeal. This principle is fundamental.
Finality of Court Orders
[14] All of the orders currently in issue are temporary orders. This means they are effective in accordance with their terms subject only to the final judgment or further court order. Generally, where a court makes a temporary order, it will not entertain a motion to vary the terms of that order unless there has been a material change in circumstances. Litigation is supposed to be a linear process. Once the court makes a temporary order, it resolves the issue before the court pending trial or a material change in circumstance.
[15] There are limited appeal rights in respect to temporary orders. Appeals of those orders may not be brought without first obtaining leave to appeal. Leave is difficult to obtain. There are tight timelines to initiate motions for leave to appeal. Where no motion is brought within the deadline, the temporary order becomes beyond dispute. The case moves on towards trial, and a party may not circle back to challenge temporary orders long after they were made.
[16] That said, it is open to a party to seek an extension in the time in which to seek leave to appeal a temporary order. The test for obtaining an extension is stringent:
i. Whether the appellant formed an intention to appeal within the relevant time period;
ii. The length of the delay and the explanation for the delay;
iii. Prejudice to the respondent;
iv. The merits of the appeal; and
v. Whether the justice of the case requires the granting of an extension
See Wellwood v. Ontario, 2010 ONCA 386; Rizzi v. Mavros, 2007 ONCA 350.
[17] Initially, the Moving Party indicated a desire to move urgently for an order staying aspects of the police enforcement order of Faieta J. Following a case conference, Matheson J. directed the Moving Party to serve her motion materials for this motion. The Moving Party then provided motion materials in which she identified six orders for which she was seeking a stay, but the immediate order of Faieta J. was not among them. On August 8, 2022, Matheson J. then directed a further case conference (the one held before me today) and directed as follows:
The moving party was directed to deliver her motion material regarding her request for an interim stay pending the determination of her motion for leave to appeal the July 21, 2022 decision of Justice Faieta. In response, the moving party has submitted a new notice of motion that states that she is seeking “leave and stay of all current orders listed at Exhibit “T”” of her affidavit. At that exhibit, there are six court orders ranging in time from December 2020 through to July of 2022, not including the order challenged in the leave to appeal motion that is this file -- 419/22.
To the extent that the moving party wishes to seek leave to appeal with respect to these orders, a proper notice of motion seeking leave to appeal must be provided with the related material required in the Notice to Profession. That has not been done. Further, extensions of time would need to be obtained (either on consent or by motion) for at least some if not all of the orders in Exhibit “T” in order to seek leave to appeal and an interim stay pending leave.
As for a stay of the July 21, 2022 order pending leave to appeal, for which motion material was due by August 8, 2022, that order is not included in the relief sought in the new notice of motion.
In the circumstances, no stay motion will be scheduled based upon these motion materials.
[18] In sum, what started as an urgent request to challenge the recent order of Faieta J. appears to have morphed into an ill-defined challenge to earlier orders in this case.
Case Conference August 17, 2022
[19] The first order of business at the case conference was to identify the motions(s) for leave to appeal the Moving Party wishes to pursue. She advised that her first priority was to challenge the order of Lococo J. respecting plans for the children’s schooling this September. That order was made April 5, 2022, long before the start of school in September. The time to commence a motion for leave to appeal that order was fifteen days. School now starts in three weeks.
[20] I advised the Moving Party that the court would not intervene in respect to the order of Lococo J. prior to the start of school. Ordinarily the court would not entertain a stay motion in respect to that order unless leave to appeal had been granted, and the court would first try to expedite an appeal (if leave was granted) rather than second-guessing the motions judge on an interim motion in this court. None of this was possible by the time of the case conference, because of the Moving Party’s delay in pursuing a motion for leave to appeal.
[21] The Moving Party advised that, in light of these points, she would still like to seek an extension in the time to seek leave to appeal the motion. I reviewed the test for an extension with her (as set out above in para. 15), so that she will know the issues she needs to address in her motion materials for the extension motion.
[22] The Moving Party advised that her second priority was to challenge the order of Horkins J., dispensing with her signature in connection with sale of the Rental Property. When asked if she was currently in compliance with court orders, the Moving Party stated that she was, and candidly added that she was not cooperating with the order for sale of the Rental Property. The order for sale of the property has not been appealed, and failure to cooperate in a court-ordered sale lies at the heart of a court’s exercise of discretion to dispense with a party’s signature and other participation in the sale process. Be that as it may, the Moving Party is entitled to move for an extension of time to seek leave to appeal. If the Rental Property is sold in the meantime, that may render a proposed appeal moot, but since the proposed appeal was not moot as of the time of the case conference, I provided a schedule for exchange of materials for the extension motion.
[23] Third, the Moving Party advised that she wished to seek an extension to seek leave to appeal the order of Pinto J. excluding her from a jointly-owned business, an order she described as “unlawful”. The order of Pinto J. was made almost a year ago. It is not on its face “unlawful”: exclusion of one spouse from a jointly-owned business in a high-conflict family law case is generally within the discretion of the court below.
[24] The Moving Party initiated a motion for leave to appeal that order shortly after the order was made, but later abandoned that motion (on advice of counsel, apparently). No circumstances exist that could possibly form a basis for an extension to seek leave to appeal now. The request to do so is vexatious and a direct affront to the finality principle. For this reason I declined to schedule exchange of motion materials for a motion to seek an extension of time in which to seek leave to appeal the order of Pinto J.
[25] The Moving Party indicated that she does not wish to pursue appeal of the summer access orders of Faieta J., and she is no longer going to move for an urgent stay of those orders. Thus the requests that initiated process in this court leading to the case conference are not being pursued. These matters may not be pursued further in future without the Moving Party seeking leave from an administrative judge of this court: again, the finality principle would ordinarily preclude the Moving Party from changing her mind after this time to mount a challenge to these summer access orders.
Moving Forward
[26] I am scheduling the two extension motions because it is up to the parties to decide which issues they wish to pursue. Only in the clearest of cases will the court refuse to permit a party to pursue appeal proceedings. The Moving Party should not take from this that the court has expressed a favourable view in respect of the two extension motions: it will be for the motions judge to decide those motions on their merits. The court noted that the two orders impugned in the upcoming motions are discretionary orders of Superior Court Justices, ordinarily entitled to considerable deference on appeal, and her motion materials for the extension motions should explain why the proposed appeals have apparent merit.
Order
[27] I provided my order to the parties orally, in all respects other than the hearing date itself. For these reasons, order to go as follows:
The Moving Party shall serve her motion materials for an extension in the time in which to seek leave to appeal the order of Lococo J. by August 22, 2022. Responding motion materials shall be served by September 6, 2022.
the Moving Party shall serve her motion materials for an extension of time in which to seek leave to appeal the order of Horkins J. by August 27, 2022. Responding motion materials shall be served by September 12, 2022.
The two extension motions shall be heard together by a single judge of the divisional Court on September 28, 2022, for an estimated 90 minutes.
The parties shall upload their materials for the motions (including costs materials) to CaseLines by September 28, 2022.
The dates for service of the Moving Party’s motions materials were suggested by her on the basis of her desire to move forward with these motions promptly.
___________________________ D.L. Corbett J.
Date of Endorsement: August 23, 2022
DIVISIONAL COURT FILE NO.: 419/22 DATE: 20220723
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
KYLE SANVICTORES Appellant
– and –
NANCY SANVICTORES Respondent
CASE MANAGEMENT ENDORSEMENT
D.L. Corbett J.
Released: August 23, 2022