Court File and Parties

Citation: Buehlmann-Miyake v Buhlmann, 2024 ONSC 2808 Divisional Court File No.: 259/24 Date: 2024-05-16 Superior Court of Justice – Ontario Divisional Court

Re: Guido Buehlmann-Miyake, Appellant -and- Eiko Buhlmann, Respondent

Before: F.L. Myers J.

Counsel: Guido Buhlmann-Miyake, for himself in writing

Read: May 16, 2024

Endorsement

[1] On April 29, 2024, I directed the Registrar to give notice to the appellant that the court was considering dismissing this motion for leave to appeal under Rule 2.1.02 for being frivolous, vexatious, or an abuse of the court’s process. At the same time, the court gave notice to the appellant that it was considering making an order under ss 4.10 (1), (2), and (5) of the Administration of Justice Act, RSO 1990, c A.6 revoking his Fee Waiver and precluding him from seeking Fee Waivers related to this proceeding in future.

[2] I have now received written submissions from the appellant concerning the proposed appeal.

[3] This motion for leave to appeal arises in a high conflict family law applicaiotn with allegations about alienation and intimate partner violence. It has been before the Superior Court many times.

[4] In February and March of this year, Bennett J made orders to help the family commence therapy and to ready the case for an upcoming trial. In his endorsement dated March 14, 2024, Bennett J specifically declined a request to hold further case conferences other than for trial management.

[5] By order dated April 12, 2024, Daurio J refused to hear an urgent motion ostensibly brought by the appellant relating to relocation of the children in August, 2024 and for changes to parenting time in the interim. This is the order from which the appellant seeks leave to appeal. Daurio J has had significant involvement in this matter previously.

[6] In declining to hear the proposed motion, Daurio J noted that the appellant delivered more than 300 page of materials. The judge was unable to make sense of much of it. Daurio J held:

With respect to parenting Orders and relocation. The Court declines to consider these requests as this matter is scheduled to proceed to trial during the first week of the May 2024 trial sittings.

A reading of many of the previous endorsements in this matter demonstrate that the issues related to the children are complex. A motion such as this could not be heard during a regular motion list (and no dates are available before the sittings, in any event) – this motion would require several hours of Court time (what we refer to as a “long motion”), long motions proceed during the trial sittings.

It is entirely unclear to the Court what relief the Respondent is seeking in association with a purported Motion to Change.

[7] In the conclusion to her brief endorsement, Daurio J. noted:

In addition to many hours of Court time being used by the parties for conferences, urgent motions, 14B motions and regular motions, the parties also benefitted from a lengthy and comprehensive conference before Justice Bennett in February 2024, and his detailed endorsement released in March 2024. They have exhausted the tools available to them and the matter must proceed to trial.

The parties should be focusing on the plan devised by Justice Bennett, and not be distracted by these inappropriate motions. [Emphasis added.]

[8] Even if the motion proposed before Daurio J. had been legible and comprehensible, there was no court time available to hear the motion before the scheduled trial date. Like Bennett J. she saw no basis to continue efforts to assist the parties short of proceeding to the trial.

[9] It is not clear to me that a judge determining that there is no time available to hear a proposed long motion before the upcoming trial sittings at which the parties are already scheduled to proceed to trial is a judicial decision that is subject to appeal.

[10] If the decision is a judicial determination, then the scheduling of a hearing (or declining to do so in light of an upcoming trial) is a purely discretionary matter that cannot be appealed successfully absent an error in principle or a very clear and serious error in the result. Realistically speaking, an appeal from the order saying that the court has exhausted its ability to help these warring parties so they should just get on with their trial that is scheduled to begin in just a few weeks time, is not an order that any other judge is likely to overrule absent some exceptionally exceptional circumstances. Rather, it is the obvious outcome especially given the discussion by Bennett J previously.

[11] I have read the appellant’s submission under Rule 2.1. It is clear from his motion below, his motion for leave to appeal (to the extent that I can make sense of what is before me), and his submissions, that he is acting out of a sense of desperation. The parties and children have immigration issues that may lead to them losing their entitlement to remain in Canada. The appellant is not confident a trial will be held before they have to leave. He wants to change the parenting provisions in place. The essence of his rationale for his proposed appeal is as follows:

The reason for the appeal is that a solution must be found in the family court by June 2024, that the danger to the children is unnoticed, that illusions cannot be referred to again and Plan B is rejected in advance. This problem was clearly shown and justified in the motion but was rejected and the risk to the children was therefore accepted. Without the timely clarification of the relocation of the children, all other negotiations will also be unnecessary, and the husband will be completely excluded from any proceedings for several compelling reasons, which means that the implementation will be legally questionable in principle, but reality will provide the answer at the latest. There is no intention to anticipate anything or to force it through in an hour. One way or another, the issue must be finally resolved in the next two months and therefore this Plan B, in addition to the possible trial, is a supplementary platform to be able to implement the essential, prioritizing the well-being of the children safely and in a timely manner. The parties have been grappling with this issue for more than 20 months, all predictions are now fact, and the facts are overwhelmingly on the table. It is not true that the motion documents are illegible. – In the settlement offer, which is only part of the submission as information and was judged as such by the court, there is sometimes a different official font that corresponds 100% to the rules (font 12pt and 2 line spacing), which has already been recognized several times before. – This is a distorted portrayal and is subtle rather than factual in the best interests of the