Court File and Parties

CITATION: Pavletic v. Pavletic, 2023 ONSC 2547

DIVISIONAL COURT FILE NO.: 004/23

Superior Court File No. FS-21-99932-0000

DATE: 20230426

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

Title: NADIA PAVLETIC, Applicant/Respondent on Appeal

AND:

MIROSLAV PAVLETIC, Respondent/Appellant

BEFORE: Leiper J.

COUNSEL: Belinda Rossi / Hannah Rich, Lawyers for the Applicant

Valarie Matthews, for the Respondent

HEARD: March 13, 2023 by teleconference at Toronto and further supplementary submissions in writing received 18 April 2023

Date of Decision: April 26, 2023

E N D O R S E M E N T

[1] This endorsement follows a series of case conferences and written submissions concerning an appeal from an order made by Mandhane, J. on December 13, 2022. At the last case conference, counsel sought an opportunity to make submissions on costs and on whether the appeal should be dismissed for lack of jurisdiction or transferred to the Court of Appeal pursuant to s. 110 of the Courts of Justice Act, and the issue of costs.

[2] The parties were married and have three children. They separated in September of 2020. The December 13, 2022 order appealed from struck the respondent’s pleadings based on his failure to comply with prior orders for payment of support. It provided a deadline by which the respondent was to meet those obligations. He failed to do so. The parties agree that the effect of the order striking his pleadings is final, and that any appeal from that order should be to the Court of Appeal for Ontario.

[3] In January of 2023, the applicant raised the jurisdictional issue with the respondent, who took the position that the order did not become final until he failed to meet his obligations by the deadline: February 23, 2023. He failed to meet his obligations by the due date, having made part payments only and leaving substantial arrears outstanding. There is authority from this court that an order striking a pleading is a final order: see Four Seasons Travel Ltd. v. Laker Airways Ltd., 1974 881 (Div. Crt) Laczko v. Alexander, 2012 ONCA 803 at para 6. There are multiple examples of appeals from the striking of pleadings directly to the Court of Appeal: Manchanda v. Thethi, 2016 ONCA 909; Mullin v. Sherlock, 2018 ONCA 1063; Holly v. Greco, 2019 ONCA 464.

[4] On the first issue, I would not transfer this matter to the Court of Appeal for Ontario.

[5] Where an appeal is brought in the wrong court, the court has the authority to transfer the appeal to the proper court: see Courts of Justice Act, s. 110(1). As stated in Bernard v. Fuhgeh, 2020 ONCA 529, at para. 15, whether to transfer the appeal is a matter of discretion, with reference to the factors set out in Dunnington v. 656956 Ontario Ltd. (1992), 1991 7107 (ON SC), 9 O.R. (3d) 124 (Div. Ct.):

a. the merits of the appeal;

b. whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard; and

c. whether the appellant moved expeditiously after becoming aware that jurisdiction was in dispute.

[6] I have considered each factor in turn and find that first, the respondent’s appeal has questionable merit. He is bound by prior court orders, which he did not seek to appeal. This included a finding of fact by the motion judge which wholly rejected the respondent’s claim of impecuniosity. These orders required that he variously pay ongoing support to his spouse and children and pay costs. The decision under appeal ordering his pleadings struck is an exercise of discretion, with reasons in support of the motion judge’s exercise of that discretion. Second, any prejudice arising from a further appeal to the applicant/respondent on the appeal is equally problematic, however it is the applicant/respondent on appeal who seeks a dismissal rather than a transfer. Finally, the respondent/appellant on appeal did not move expeditiously upon being put on notice that jurisdiction was in dispute: he was put on notice in January but did not take steps to either file an appeal to the Court of Appeal or to expeditiously terminate the proceedings before the Divisional Court on being put on notice.

[7] On the issue of costs, I would exercise my discretion to award costs in favour of the applicant, given the time spent addressing the issue of jurisdiction, the fact that the applicant raised the jurisdictional issue before the first of three case conferences. There was prior case law supporting the conclusion that this was a final order, and it was the respondent’s responsibility to consider such case law before launching an appeal. The context of his prior failures to pay costs, and support (via orders which are not being appealed) while continuing to litigate with direct impacts on the children involved, leads me to conclude that a costs order should be made which deters such conduct, as part of encouraging settlement, compliance with court orders and respect for the administration of justice.

[8] The applicant filed costs materials and a costs outline seeking $34,000 in costs, including for lengthy preparation and research in advance of three case conference attendances in this court on January 18, 2023, February 22, 2023, and March 13, 2023, and for the supplementary written submissions. While the factual underpinnings and history are detailed, the legal issues were ultimately straightforward. The respondent’s bill of costs, although incomplete because it does not include the March 13, 2023 attendance, totals $18,858.66. It involved three lawyers, a law clerk and a student who all billed for time on this file while it was before the Divisional Court. Two lawyers attended each case conference. Both parties have dedicated significant time and resources to what has turned out to be a fruitless proceeding. These funds could have been better used, and their use is directly linked to the respondent’s first decision to pursue this appeal before the Divisional Court.

[9] I have reduced the amount which the applicant has sought in costs to factor in the differences between the two bills of costs, and some of the time spent in preparation for case conferences, which was extensive for relatively short appearances.

CONCLUSION

[10] I order that the appeal be dismissed with costs payable to the applicant, Nadia Pavletic in the amount of $28,000.

_______________________________ Leiper J.

Released: April 26, 2023