Court File and Parties

CITATION: Clayton v. Clayton, 2022 ONSC 3706

DIVISIONAL COURT FILE NO.: 781/21-ML

DATE: 2022/06/16

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DANIEL STEPHEN CLAYTON, Applicant (Responding Party)

AND: SHIRLEY VIOLET CLAYTON, KAREN ELIZABETH DAVIES, and PATRICIA ANNE LEWINGTON in their capacity as TRUSTEES OF THE CLAYTON FAMILY TRUST, Respondents (Moving Parties)

BEFORE: H. Sachs J.

COUNSEL: Kathleen McDormand and Chris Shorey, for the Applicant (Responding Party) Joel Reinhardt, for the Respondents (Moving Parties)

HEARD: by teleconference on June 16, 2022

Endorsement

[1] The Respondents applied for leave to appeal to the Divisional Court from an order a single judge removing Karen Elizabeth Davies and Patricia Anne Lewington as Trustees of the Clayton Family Trust and replacing them with the Bank of Montreal. The Divisional Court denied the motion for leave, finding that any appeal lay to the Court of Appeal.

[2] The Divisional Court’s order denying leave did not provide that the matter should be transferred to the Court of Appeal. Nor was such a request included in the Respondents’ motion for leave. The Respondents then sought to include such a provision in the order of the Divisional Court arising from the motion for leave. The Parties appeared before the Registrar to settle the order and the Registrar refused to insert a provision providing for transfer to the Court of Appeal since the endorsement giving rise to the order in question did not provide for same.

[3] The Respondents then sought an appointment before me, as a member of the panel that denied leave, to ask that I settle the order in such a way that a term transferring the appeal to the Court of Appeal be inserted.

[4] The Applicant resisted the request, arguing that it is inappropriate to use an appointment to settle an order as a basis for arguing for relief that was never requested in the original motion before the court and never granted by the court. I agree with the Applicant. A motion to settle an order is procedural. It is not an opportunity to seek substantive relief. The Order as signed by the Registrar accurately reflects the court’s endorsement on the motion for leave to appeal and I decline to vary it.

[5] The Respondents are entitled to some very modest costs for the appointment motion, which I fix in the amount of $1000.00.

H. SACHS J.

Released: June 16, 2022