CITATION: Shiewitz v. Shiewitz, 2023 ONSC 1491
DIVISIONAL COURT FILE NO.: DC-232/22
DATE: 2023 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Trimble and O’Brien JJ.
BETWEEN:
Nuphar Shiewitz Applicant (Respondent in Appeal)
– and –
Ashier Naphtali Shiewitz (aka Aron Neil Shiewitz) Respondent (Appellant)
Sam A. Zaslavsky, for the Applicant (Respondent in Appeal)
Samalie Nsubuga, for the Respondent (Appellant)
Trimble J.
HEARD: on March 2, 2023 in Toronto via videoconference
ENDORSEMENT
[1] The Appellant, Mr. Shiewitz, appeals from an order of Kristjanson J. dated 1 April 2022 which emanated from Kristjanson J.’s 25 February 2022 Endorsement. By email shortly before the hearing, the Panel directed that the parties focus in their submissions, first, on the question of the jurisdiction of this court to hear the appeal, and referred the parties to certain cases.
[2] At the hearing, the Panel gave oral reasons that the order appealed from is interlocutory, with reasons to follow. In addition, the Panel fixed a timetable (the subject of an email sent separately from these reasons) and addressed costs. These are those reasons.
The Motion:
[3] Kristjanson J.’s Endorsement was made in a Case Conference within the Appellant’s Motion to Change in which he sought to reduce ongoing child support and child support arrears. These were fixed by the final order of Paisley J. dated 22 October 2018 on an imputed income for the Appellant of $70,000. The Appellant claimed on the motion to change that this was not his actual income.
[4] At the 25 February 2022 case conference, the Respondent sought an order pursuant to r. 1(8) of the Family Law Rules, Reg. 114/99 that the Appellant be barred from taking further steps until he had paid accumulated cost orders.
The Order Appealed From:
[5] Kristjanson J. made an order with the following provisions:
The Appellant was required to pay $49,566.46 in costs within thirty days. This was the total of three costs awards: Paisley J’,s 22 October 2018 cost award of $14,621.31 following the trial; Horkins J.’s 8 November 2021 costs order of #$32,945.15 following the trial of the Respondent’s mobility motion; and Kristjanson J.’s 10 December 2020 cost order of $2,000 on an interlocutory matter.
If the Appellant failed to pay the costs as ordered, his Notice of Motion to Change was to be struck out and he was barred from taking any further steps in the proceedings until the costs were paid in full; and
If the Appellant paid the costs as ordered, the Respondent had leave to bring a motion for security for costs.
[6] Before the hearing of this appeal, the Case Management Judge directed the parties to ensure they briefed the issue of jurisdiction in their materials before the panel. In addition, after having reviewed the parties’ written submissions, earlier this week the panel issued a direction specifically asking that the parties be prepared to address the question of whether the order of Kristjanson J. was interlocutory, such that leave from this Court would be needed to proceed. The Panel directed the parties to consider two cases.
Result:
[7] As indicated at the conclusion of the hearing, we find that the 29 March 2022 order of Kristjanson J. which emanated from her 25 February 2022 Endorsement, which is the subject of this appeal, is interlocutory. The Panel extended the time to bring a motion for Leave to Appeal and set the following timetable, which was the subject of an email to the parties:
The Appellant shall serve and file the notice of motion for leave to appeal and supporting materials by March 24, 2023 at 4:00 p.m.
The Respondent shall serve and file responding material by April 14, 2023 at 4:00 p.m.
All material shall be uploaded to CaseLines by April 14, 2023 at 4:00 p.m.
Positions of the Parties:
[8] In their written materials filed before receiving the direction of the Court, all parties considered that Kristjanson J.’s order was final. After receiving the direction from the Court, the Appellant reconsidered his view, and agreed that Kristjanson J.’s order was interlocutory, and asked for leave to extend the time to bring the motion for Leave to Appeal.
[9] The Respondent continued in her position that the order was final as the orders that lay behind it were also final. Therefore, no leave was required.
Analysis:
[10] Where an order includes a condition that if a thing is not done within a certain time a party’s pleading or action will be struck, and the pleading is then struck, whether the order is a final or interlocutory order for appeal purposes is determined not by the fact the pleading is struck. It is determined instead by the nature of the order, the failure to follow which results in the pleading being struck.
[11] In J.K. v. Ontario, 2017 ONCA 332, the order appealed from provided that the action would be stayed unless the plaintiff produced certain records. In finding that the order was interlocutory, the Court characterized the order as a production order with a sanction in the event of non-compliance. It emphasized that, as stated in, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, “the nature of the underlying motion is an important consideration in deciding whether an order is final or interlocutory.”
[12] In Benarroch v. Abitbol, 2018 ONCA 203, the Court of Appeal applied the same reasoning in the family law context to an order stating that if the husband failed to comply with the provision requiring him to make certain payments, including spousal and child support payments, the wife was entitled to move to strike his pleadings involving the financial issues. Applying the reasoning from J.K., the Court stated that “a term…directed at the consequence of non-compliance with the order, cannot alter the nature of the order.”
[13] Here, Kristjanson J.’s order was that the Appellant was to pay the total of the outstanding costs awards within a specific time, failing which his Notice of Motion to Change would be dismissed. Further, she ordered that he could not take any further steps until the cost orders were paid.
[14] Kristjanson J.’s order is interlocutory for two reasons. First, it arose from a Case Conference, not a trial or other event which finally determined issues between the parties. Second, the order itself did not finally determine issues between the parties. The Motion to Change would have continued had the cost orders been paid. In other words, the crux of the order was the requirement to pay costs. The striking of the pleadings was consequence of non-compliance with the order.
Extend time for Leave to Appeal Motion:
[15] Given the Court’s finding that Kristjanson J.’s order was interlocutory, the Appellant asked for an extension of time to bring a motion for Leave to Appeal. The Respondent opposed it, arguing that the Appeal should be dismissed, and the time to bring a motion not be extended.
[16] The Court has the discretion to extend the time to bring an appeal or a motion for leave to appeal: r, 2.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and Wellwood v. Ontario (Provincial Police), 2010 ONCA 386, at para. 34. The test on an extension motion is:
(a) whether the moving party formed an intention to appeal within the relevant time.
(b) the length of and explanation for the delay.
(c) prejudice to the Respondent.
(d) the merits of the appeal.
(e) whether the justice of the case requires granting an extension.
[17] The Appeal was brought in a timely way. Kristjanson J.’s Endorsement was made on 27 February 2022 and released on 29 March 2022. The Notice of Appeal was issued on 13 April 2022. There is no delay in bringing the motion for leave. Both parties thought that this appeal was from a final order, hence any delay in bringing the motion for leave is driven by this Court’s determination that the order of Kristjanson J. is interlocutory. The Case Management Judge also specifically directed that the issue of jurisdiction would be addressed by the panel. There is no prejudice to the Respondent in granting the extension. Although the Respondent raised issues of prejudice arising from the Appellant’s litigation strategy in general, she did not point to specific prejudice arising from an extension of time to file a leave motion. Finally, as to the interests of justice, where the Appellant had a clear intention to appeal and was directed by the Case Management Judge to argue jurisdiction at the hearing before the panel, the interests of justice require that an extension be granted.
Costs:
[18] By agreement, who pays the costs of the day is left to the panel hearing the Motion for Leave to Appeal. On consent, the costs of the day are fixed at $5,000.
Trimble J.
I agree: _____________________________________
Lococo J.
I agree: _____________________________________
O’Brien J.
Released: March 6, 2023
CITATION: Shiewitz v. Shiewitz, 2023 ONSC 1491
DIVISIONAL COURT FILE NO.: DC-232/22
DATE: 2023 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Trimble and G.W. King JJ.
BETWEEN:
Nuphar Shiewitz Applicant (Respondent in Appeal)
– and –
Aron Shiewitz aka Asher Shiewitz Respondent (Appellant)
ENDORSEMENT
Released: March 6, 2023