CITATION: Spagnolo v. Spagnolo, 2023 ONSC 5780

DIVISIONAL COURT FILE NO.: 300/23

DATE: 20231013

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HALYNA SPAGNOLO, Appellant

AND:

PAUL SPAGNOLO, Respondent

BEFORE: D.L. Corbett, Nishikawa and O’Brien JJ.

COUNSEL: Galyna Pribytkova, for the Appellant

Paul Spagnolo, in person

HEARD at Toronto: October 12, 2023 (by videoconference)

ENDORSEMENT

THE COURT:

Overview

[1] The Appellant, Halyna Spagnolo, appeals from the interim Order of Akazaki J. dated May 4, 2023 (the “Order”). The Order dismissed the Appellant’s motion for spousal support and for section 7 expenses for the parties’ two children and awarded $2,000 in costs to the Respondent, Paul Spagnolo. The Appellant seeks an order setting aside the Order, including the order that she pay costs of $2,000, and an order directing that the motion for spousal support be scheduled.

[2] The Respondent takes the position that the case conference judge did not err in making the Order.

[3] Prior to and at the hearing of the appeal, the Respondent sought an adjournment because he had dismissed his previous counsel and has been unable to find new counsel. The adjournment request was denied on the basis that it was in both parties’ interest to have the appeal proceed. It was for this reason that the appeal had been expedited in the decision granting leave to appeal, so that this appeal would not hold up the matter below. As explained below, the substantive impact of this appeal decision concerns a $2,000 costs order – the balance of the appeal decision does no more than get this case back on track procedurally – something that both parties agreed is desirable.

Background

The Appellant’s Motion

[4] The parties cohabitated since 2007 and were married in 2011. The parties separated on November 23, 2022. They both continued to reside in the matrimonial home until February 2023, when the Appellant left the matrimonial home with the two children to live with her mother.

[5] In early 2023, the Appellant made some attempt to schedule a case conference but did not receive a conclusive response from the Respondent. On April 26, 2023, the Appellant brought an urgent motion, returnable on May 4, 2023, seeking interim child support, section 7 expenses and spousal support. The Respondent was seeking additional parenting time but had not yet brought a motion.

[6] On May 1, 2023, the parties appeared before Shore J., the To Be Spoken To (“TBST”) judge. The TBST judge made a consent, without prejudice order for interim child support. In the endorsement, the TBST judge further directed as follows:

[3] The parties shall attend an urgent case conference via Zoom on May 4, 2023, at noon, to conference the issues of spousal support and possession of the matrimonial home.

[4] The parties may rely on their motion material filed and need not file conference briefs for the case conference.

[5] Costs of today reserved to the conference judge.

The Order

[7] At the attendance on May 4, 2023, the case conference judge dismissed the Appellant’s motion for s. 7 expenses and spousal support for prematurity. He found that, contrary to Rule 14(4) of the Family Law Rules, O. Reg. 114/99, the Appellant failed to proceed with a case conference before bringing the motion. He further found that there was no urgency or hardship, as required under Rule 14(4.2), that would warrant the motion proceeding before a case conference was held. The case conference judge further ordered that the parties attend an intake meeting with a court-affiliated mediation service within 20 days.

[8] On the case conference portion of the Endorsement, the case conference judge stated that he “was not prepared to consider that a case conference was properly held on the issue of spousal support” because the materials were incomplete, and the parties had not explored ways to resolve the issues. He scheduled the case conference for August 25, 2023.

[9] On August 11, 2023, this court granted leave to appeal the Order on an expedited basis: Spagnolo v. Spagnolo, 2023 ONSC 4454 (Div. Ct.).

[10] The parties attended a case conference, as directed by the case conference judge, on August 25, 2023.

Issues

[11] The issue raised in this appeal is whether the case conference judge erred in failing to complete a case conference and instead proceeding to hear a motion on the issue of interim spousal support where the TSBT judge had directed an urgent case conference.

Analysis

[12] The Appellant takes the position that the case conference judge exceeded his jurisdiction in hearing and dismissing the motion for s. 7 expenses and interim spousal support during what was to be a case conference, as directed by the TBST judge. The Appellant submits that the parties were not advised that the matter was being heard as a motion, as opposed to a case conference.

[13] The TBST judge’s endorsement was clear that the May 4 attendance before the court was for an urgent case conference of the issues of spousal support and possession of the matrimonial home.[^1] The motion for interim spousal support was not before the case conference judge. The case conference judge’s endorsement reflects a misunderstanding of the matter that was before him:

The state of affairs procedurally was that there was a motion that the Applicant had not withdrawn or adjourned, for which the Respondent had to prepare responding materials. There was a direction from my colleague directing the parties to attend a case conference. Formally, therefore, there were two matters, an urgent motion and an appointment for a case conference. (Endorsement, para. 7.)

[14] The case conference judge understood that because there were motion materials before him with a return date of May 4, 2023, that he was to both hear the motion and conduct a case conference. However, based on the TBST judge’s direction, the only matter before him was a case conference. This was also reflected in the docket, referenced in the case conference judge’s endorsement, which had only a case conference listed. There was no motion before him. The motion materials were put before him solely because the TBST judge allowed the parties to rely on them for the purposes of an urgent case conference, as there was insufficient time to prepare case conference briefs.

[15] It appears from his endorsement that the case conference judge was not aware of the TBST judge’s direction until directed to it by counsel at the May 4 attendance. However, once made aware of the direction, the case conference judge ought not to have proceeded to determine the issue of urgency and dismiss the motion based on a lack of urgency. In scheduling an urgent case conference, the TBST judge had found that the matter should proceed to an urgent case conference before a motion was to be scheduled. That was the matter before the case conference judge that day.

[16] In addition, the parties understood that the May 4 attendance was for a case conference, both before and during that attendance. It was unfair to the parties, who had not prepared for a motion, to proceed to hear the matter as a motion. In addition, at the May 4 attendance, the parties discussed substantive issues on the motion with the case conference judge. As a result, it was an error for the case conference judge to then hear the matter as a motion. The case conference judge also erred in hearing a substantive motion at a case conference without the parties’ consent: A.B. v. N.L.A., 2013 ONSC 2990, at para. 135; Afful v. Laing, 2014 ONSC 74, at paras. 23 and 29).

[17] As a result, the appeal must be granted.

[18] We would add the following observations arising from this appeal. This court rarely grants leave to appeal from case conference, case management, or scheduling decisions. It should be apparent why this case was an exception. The TBST judge assessed this case and gave clear directions designed to assist the parties in what appeared to be an emergent high conflict case. Sensitive assessment and timely response to cases such as this one can do a real service to a family in distress. The TBST judge’s assessment and her efforts to move this matter forward were undone by the Order. It may have been that the case conference judge mis-read the endorsement of the TBST judge. But it should be emphasized that case management in our system is a team project, necessitating careful review of and respect for the directions provided by judges leading up to the matter before the court.

[19] Can a case management judge ever take a different approach than that taken by their colleagues in prior endorsements? Of course. Circumstances may change. A judge may conclude that they have a deeper appreciation of a situation and find a compelling need to take a different approach. But the starting point is to advance the case constructively from the position it is in.

[20] In this case there was no proper basis to take a different approach than that directed by the TBST judge. The case came before the TBST judge as an urgent motion. The TBST judge dealt with one pressing issue (child support), on a consent without prejudice basis. She declined to permit a motion proceed on the balance of the relief sought without a case conference, but she directed an expedited case conference on those issues. Had the court below done this, the issues would have been case conferenced in early May, and any motion arising from the conference could have been scheduled in the late spring or summer. That motion has still not been scheduled. The parties have lost five months and incurred the cost of appeal proceedings – to no benefit to them or to the administration of justice.

Subsequent Events

[21] As noted above, the case conference judge ordered that a case conference take place before the Appellant’s motion for spousal support could be heard. That case conference took place before Kraft J. on August 25, 2023. By the time that case conference took place, leave to appeal the Order had been granted by this court. In her endorsement, Kraft J. granted the Appellant leave to bring a motion for temporary spousal support “only after the appeal of the order of Akazaki J., dated May 4, 2023, is determined.”

[22] We recognize that the direction was likely out of an abundance of caution and to avoid interfering with the appeal which had, in any event, been expedited. However, in highly contentious family law cases, the existence of an appeal or motion for leave to appeal before this court ought not bring the proceedings below to a halt. Family law parties can and should be able to proceed where doing so would be in compliance with the rules and any existing orders that have not yet been set aside. In this case, the Order prevented the Appellant from bringing her motion until after a case conference took place. She was thus entitled to do so any time after the August 25, 2023 case conference. To be clear, in the absence of a statutory stay or a formal stay order from the court, an appeal to this court of an interlocutory order should not halt – or even slow – proceedings in the court below.

Conclusion

[23] Accordingly, the appeal is granted. The Order is set aside. No costs are ordered in relation to the May 4 attendance or the attendance before the TBST judge. The parties are directed to request that the Appellant’s motion for interim spousal support and s. 7 expenses be scheduled before the Superior Court at the earliest opportunity. The Respondent says that he wishes to bring a motion in respect to parenting time and asked us to order that his motion “go first” in the proceedings below. There is no impediment to the Respondent taking steps below in respect to such a motion, and it is for him to follow the proper processes, as may be directed by the court below. There is no basis for this court to intercede in the management of such a motion.

[24] The Appellant seeks costs of the appeal on a full indemnity basis in the amount of $8,800. Her costs on a partial indemnity basis are $6,700, all-inclusive. At the hearing, the Respondent advised that if successful, he would seek $10,000 in costs. We see no basis for substantial or full indemnity costs, which are limited to exceptional cases involving egregious or high-handed conduct. While the Respondent sought an adjournment of the appeal, the appeal otherwise proceeded in an efficient and expedited manner. It was not the Respondent’s fault that the court below erred in its handling of this matter, but he did elect to oppose the appeal and by that choice is responsible to indemnify the appellant for her costs.

[25] The Respondent shall pay the Appellant’s costs of the appeal, fixed at $6,700, inclusive, plus costs of $2,000 awarded on the motion for leave to appeal (for a total of $8,700 inclusive), within 30 days.

[26] A copy of this decision shall be provided to the Toronto Family Team Leads by Divisional Court staff.

“D.L. Corbett J.”

“Nishikawa J.”

“O’Brien J.”

Released: October 13, 2023

[^1]: It appears that while the Appellant’s material was ambiguous, there was no motion for possession of the matrimonial home.