CITATION: Hassan v. Dahroug, 2022 ONSC 5506
DIVISIONAL COURT FILE NO.: 22/122
DATE: 20220928
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Amr Hamada Saad Hassan, Moving Party/Appellant
AND:
Maha Gamal Eldin Dahroug, Respondent
BEFORE: Nishikawa J.
COUNSEL: Amr Hamada Saad Hassan, in person
Maha Gamal Eldin Dahroug, in person
HEARD at Toronto: September 27, 2022, by videoconference
ENDORSEMENT
Overview
[1] The Moving Party/Appellant, Amr Hamada Saad Hassan, brings a motion for an extension of time to appeal the order of Kraft J. dated January 24, 2022 (the “Order”). The Order, among other things, gave the Respondent, Maha Gamal Eldin Dahroug, full carriage of the sale of the property in which she and the parties’ children were residing, in the event that Mr. Hassan failed to bring the mortgage into good standing.
[2] On February 18, 2022, a notice of motion for leave to appeal the Order was filed with the Court of Appeal by an articling student working for Mr. Hassan’s lawyer (at the time). The Appellant’s notice of motion was not filed with this court until February 24, 2022, or 16 days after the required time.
[3] For the reasons that follow, the motion for an extension of time to seek leave to appeal is dismissed.
Analysis
[4] 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.
[5] In granting an extension of time, the court considers the following four factors identified by Swinton J. in Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554:
• Whether the moving party formed an intention to appeal within relevant period;
• The length of the delay and the explanation for it;
• The prejudice to the responding party; and
• The merits of the appeal.
[6] The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.
[7] On the first two factors, the delay of 16 days was not lengthy and there is a reasonable explanation for the delay. Mr. Hassan in fact filed the notice of motion for leave to appeal with the Court of Appeal within the timeline required for an appeal to that court, thus evidencing an intention to appeal within what his lawyer believed was the requisite time period. At an appearance before the Superior Court on February 23, 2022, Steele J. informed the parties that because the Order was not final, an appeal would be to the Divisional Court, with leave. Mr. Hassan’s lawyer then promptly filed a motion for leave to appeal with the Divisional Court.
[8] Ms. Dahroug disputes that Mr. Hassan formed an intention to appeal within the 15-day appeal period in the Divisional Court because he and his counsel were taking steps to comply with the Order. She further submits that Mr. Hassan sought to appeal as a “tactic” to prevent the sale of the property, because he mistakenly believed that an appeal would stay the Order. I do not accept this submission. Mr. Hassan would be expected to take steps to comply with a court order as long as it was in effect, and taking such steps ought not to be seen as negating an intention to appeal. Moreover, Steele J. advised the parties that the Order would not be stayed automatically on the filing of an appeal. Finally, if Mr. Hassan’s objective was to prevent the sale of the property, he would have no reason to continue to pursue the appeal because the property has now been sold.
[9] On the issue of prejudice, Ms. Dahroug argues that the matter is consuming time, energy and resources, and that it is causing her significant stress. Ms. Dahroug has not been able to identify a specific prejudice arising from the delay of two weeks in Mr. Hassan commencing the appeal to the Divisional Court.
[10] In respect of the fourth factor, the merits of the proposed appeal would not support granting an extension of time. In order to obtain leave to appeal, Mr. Hassan would have to meet the test under Rule 62.02(4), which 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.
[11] Mr. Hassan’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 Order, the motion judge’s endorsement provides detailed reasons to support her findings. In addition, the Order relates very specifically to the parties’ particular circumstances. While the proposed appeal is important to Mr. Hassan, 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.
[12] Mr. Hassan raises the following grounds in the Notice of Motion for Leave to Appeal:
(a) The motions judge erred in ordering the sale of the property because it belongs solely to him and was not a matrimonial home;
(b) The motion judge erred in failing to consider his position on why the property should be sold;
(c) The motions judge erred in finding that Mr. Hassan was unwilling or careless in his obligations toward his children because she failed to consider evidence that he had been supporting the children over many years, until he experienced financial difficulty;
(d) The motion judge erred in finding that Mr. Hassan stole some of Ms. Dahroug’s jewelry because she failed to consider all of the evidence he submitted on the motion;
(e) The motion judge erred in deciding the issues between the parties on a short motion, when the case is complicated and involves properties and assets in three different countries; and
(f) The motion judge erred in failing to take into account of Mr. Dahroug’s current financial circumstances, namely, that he lost his job in January 2022.
[13] In my view, it is evident from the grounds summarized above that the appeal lacks merit because Mr. Hassan seeks to appeal matters that were not finally determined on the motion. In addition, many of his grounds are attempts to appeal the motion judge’s reasons, as opposed to the Order.
[14] Mr. Hassan submits that the motion judge erred on the fundamental issue of when the parties separated and that many of her findings flow from that error. Specifically, Mr. Hassan maintains that the parties were divorced in the United Arab Emirates in 2010. His position is that the property was not a matrimonial home because he purchased it after that date.
[15] The issue of whether the property was a matrimonial home was not finally determined by the motion judge. The Order makes clear that the relief ordered was without prejudice to the question of whether the property was a matrimonial home. That issue remains to be determined on a complete record at trial. Pursuant to the Order, the proceeds of the sale are being held in court pending a final resolution of the matter. The motion judge permitted $50,000 from the sale proceeds to be disbursed to Ms. Dahroug to enable her to seek alternate accommodation and pay other expenses. The motion judge authorized this advance only after satisfying herself that in the event that Ms. Dahroug owes Mr. Hassan equalization and/or that a portion of the advance has to be repaid, she could fulfil this obligation from the proceeds of the sale of another jointly owned property in Egypt.
[16] Given that the mortgagee had commenced power of sale proceedings, it was clear that that the property had to be sold. Mr. Hassan was given five days to bring the mortgage into good standing but failed to do so. In any event, Mr. Hassan had also been seeking the sale of the property. His position that the motion judge did not consider his rationale for seeking a sale of the property takes issue with the motion judge’s reasons, as opposed to the Order. What Mr. Hassan seeks is to have the proceeds of the sale of the property disbursed to him. That determination must await a trial or resolution between the parties, which further demonstrates that the Order is without prejudice to either party.
[17] Similarly, contrary to Mr. Hassan’s position, the court has reached no final decision on the issue of whether the parties were divorced in 2010. I further note that early in the proceeding, in June 2021, Papageorgiou J. found that this issue would have a significant impact on all matters in the dispute and, on consent, granted leave to bring a summary judgment motion to determine the issue. Although he steadfastly maintains his position that the parties were divorced in 2010, Mr. Hassan has not pursued a motion to have the issue determined.
[18] On the issue of child support, in June 2021, the parties agreed to a consent order requiring that Mr. Hassan pay $1,211 per month, based on his income at the time. Before the motion judge, Mr. Hassan did not bring a cross-motion to suspend or vary child support, but nonetheless sought to be relieved from his obligation to pay past and future child support on the basis that his employment was terminated in January 2022. The motion judge made no order in respect of child support but found Mr. Hassan in breach of the June 2021 order because, at least until he lost his job, he was able, but failed, to pay child support.
[19] On the issue of the jewelry, I do not read the motion judge’s reasons to have made any final determination regarding the jewelry. The motion judge’s findings were limited to the disclosure that Mr. Hassan would have to provide.
[20] In short, the Order that Mr. Hassan seeks to appeal was not a final order. Many of the issues raised he raises on appeal are matters that he is not foreclosed from pursuing at trial.
[21] In this case, the justice of the case does not weigh in favour of an extension of time. The motion judge observed that this is an “extremely high conflict case made worse by a flurry of interim motions brought by both parties seeking relief, requiring these parties to exhaust their resources on litigation rather than on expenses that need to be paid for the benefit of the children.” 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.
Conclusion
[22] Accordingly, the motion for an extension of time is dismissed.
[23] Both parties are self-represented and neither party submitted a costs outline. There will be no order as to costs.
“Nishikawa J.”
Date: September 28, 2022