Superior Court of Justice – Ontario

Divisional Court

CITATION: Hardy v. Lee, 2024 ONSC 5211

DIVISIONAL COURT FILE NO.: 328/24

DATE: 20240919

RE: CLAIRE INGRID ELIZABETH LOUISE HARDY, Applicant -and- BRUCE WILLIAM LEE, Respondent

BEFORE: FL Myers J.

COUNSEL: Claire Ingrid Elizabeth Louise Hardy, for herself Cheryl Williams, for the Respondent

HEARD at Toronto: September 19, 2024 (by videoconference)

ENDORSEMENT

Introduction

[1] The applicant brings a motion for leave to appeal an interlocutory order of Kaufman J. granting the applicant’s request to adjourn the trial of this application on terms to which the applicant objects. Matheson J. convened a case conference before me to assist the parties with scheduling of the motion for leave to appeal.

[2] In my view, for the reasons set out below, the applicant requires leave of a Superior Court judge before she is entitled to bring her proposed motion for leave to appeal. Accordingly, the motion is stayed pending the earlier of (a) the applicant obtaining leave to bring this motion; and (b) the resumption of the trial.

The Adjournment of the Trial

[3] The parties are in the midst of a trial before Kaufman J. concerning the breakdown of their relationship.

[4] On May 27, 2024, the trial judge reluctantly adjourned the trial to November. He accepted the applicant’s request for the adjournment based on health grounds. In doing so, the trial judge found:

[17] The result is that there is an apparent lack of respect from the Applicant towards the court in not bringing the adjournment request forward at the first opportunity. Trial time would not be wasted and could have been allocated to another case. Counsel would not have had to prepare for the resumption of a trial. The court would not have reviewed transcripts in anticipation of the trial resuming. If required, Dr. Malcolm could have been available to respond to the Court’s concerns prior to having to determine the adjournment request with questions remaining unanswered.

[18] Balancing the competing arguments before the court, it is determined that the adjournment request, for this event, will be reluctantly granted. It is important in the administration of justice that legal disputes are determined on their merits. The primary objective of the Family Law Rules is to enable the court to deal with cases justly. The parties and their lawyers are expected to assist the court in promoting the primary objective. This case is 2402 days old from its inception. Further delay may well cause irreparable prejudice to the parties that cannot be compensated other than by dismissal. On another day. However, that day is not today.

[19] For what it is worth, the Applicant has acknowledged through her counsel that another adjournment will not be sought based on medical reasons.

[20] I have orally presented my reasons to the parties in granting the adjournment on terms. This Endorsement was designed to elaborate upon my oral decision. At the risk of being repetitive, unnecessary costs have been incurred by the Respondent. The court appreciates his frustration in not being able to achieve some form of closure today based on the age of the case and all that has transpired since its inception. Although unsuccessful in having the case dismissed, the Respondent is entitled to a costs award to compensate him for at least some of the preparation costs for the resumption of the trial that will not proceed at this time. Had the Applicant requested judicial involvement back in April following receipt of the doctor’s note, much if not all of these costs could have been avoided.

[21] Under Rule 24(12), I am governed by a test of reasonableness and proportionality in assessing costs. Firstly, I dismiss the Applicant’s request for costs of $5,000. I find no entitlement to costs for the Applicant for reasons aforesaid. Having received submissions from Ms. Williams, I am awarding the Respondent the sum of $15,000 for the costs thrown away, to be payable from the real estate proceeds of the sale of the former family residence. This payment is to be attributable from the Applicant’s share of the sale proceeds as may be further determined when the trial resumes. The real estate lawyer holding the funds in trust is hereby ordered to facilitate the payment to the Respondent forthwith.

[22] The Respondent has raised a reasonable concern regarding the potential award of costs that might flow from the trial decision. There is approximately $178,000 remaining in trust from the sale of the jointly owned family residence. The potential costs award at trial may well exceed what remains in trust. Hopefully the parties have both considered what is at stake as the costs of both parties will greatly exceed what remains in trust.

[23] The Respondent raises concern about the Applicant’s litigation strategy, her alleged attempts to delay the trial and comments from prior courts that have dealt with this case. There is no claim for security for costs before this court. However, there is a valid concern that this trial may never reach an end. Based on evidence that I have heard and behaviour that I have observed, there will be an Order that the Applicant may not sell or encumber her property municipally known as 49 Semley Avenue, Welland, Ontario, L3C 1X5 without the consent of the Respondent or by Court Order.

[24] Leave is given to the Applicant to bring a motion on notice to the Respondent if there is a need for her to access her equity in her home located at the above address. The motion will be brought in my court as I am seized of this matter and any evidence that may arise until its conclusion.

[25] Prior to the motion being scheduled, counsel shall arrange a conference call with me to manage the motion including scheduling a date, setting timelines for the exchange of

materials and to discuss the need for the home to be either sold or encumbered. It is suggested that the counsels have dialogue beforehand to determine if the issue can resolve on terms. [Emphasis added.]

[5] The applicant seeks leave to appeal the terms of adjournment being: (a) that she pay costs thrown away fixed at $15,000 forthwith from the proceeds of a jointly owned property that are being held pending the outcome of the case; and (b) that she not sell or encumber another property because, due to the conduct that the trial judge has observed, the costs liability at the end of the trial may exceed the amount being held in trust for the parties.

[6] The applicant wants to argue that the judge erred in granting costs thrown away on a punitive basis and without receiving a Bill of Costs in advance. She also submits that the judge erred in granting execution before judgment against her property. She also says the additional property ordered held was bought by her disabled daughter with funds from an inheritance. The applicant says that she holds title to the property in trust for her daughter so as not to jeopardize her daughter’s entitlement to ODSP due to her ownership of valuable assets.

[7] The applicant also says that she needs to refinance the house by February of next year. So, she is concerned with timing. As the trial is resuming in November and she will be free to ask the trial judge to review his order and/or to allow a refinancing, I do not see those concerns as creating urgency.

[8] The applicant says she has perfected the motion for leave to appeal. The respondent has not responded. Counsel for the respondent advises that she can respond by September 27, 2024 if required to do so.

The Order Prohibiting Further Motions except with Leave

[9] In the trial scheduling order made by Jarvis J. on October 23, 2023, the case management judge ordered that no party may bring any further motions except with leave.

[10] No one appealed the order made by Jarvis J. It is not open to collateral attack now.

[11] As quoted in paras. [24] and [25] of his endorsement above, the trial judge granted leave to the applicant to bring a motion to access funds being held pending the trial if she needs to do so. But that leave was granted on terms that any motion brought be case managed by the trial judge.

[12] Ms. Hardy submits that the order of Jarvis J. expired when the trial commenced. I disagree. No doubt the trial judge has the final say on how the trial is heard. That allows him to vary pretrial orders concerning the trial. But pretrial orders do not cease on the commencement of the trial. Orders of the court bind the parties in accordance with their terms.

Analysis

[13] As the order made by Jarvis J. continues to bind the parties, it follows that Ms. Hardy is not free to bring a motion for leave to appeal from the terms of the adjournment order made by Kaufman J. without seeking leave to do so. I am buoyed in this conclusion by the fact that Kaufman J. felt it necessary to grant leave to allow a specific motion to be brought by Ms. Hardy. He had not imposed a leave requirement. He could only have been dealing with the leave requirement imposed by the order made by Jarvis J.

[14] Ms. Hardy submits that the order of Jarvis J. does not bind this court. The question of the relationship between the Divisional Court and the Superior Court of Justice is an interesting one. But the issue is not whether the order of Jarvis J. binds the Divisional Court. The important point is that the order binds the parties.

[15] The Court of Appeal for Ontario routinely requires parties who have been precluded from commencing proceedings without leave of the Superior Court to refrain from bringing appeals in the Court of Appeal without leave first being obtained. It is the parties who face the prohibition under the court’s order; not the appellate court.

[16] The one obvious exception is that (unless leave to appeal is otherwise required) a party does not need leave to appeal the actual order prohibiting them from bringing proceedings without leave. Leave may be required by the CJA. But the leave requirement of the impugned order will not preclude an appeal of that very order. This is apparent as well in the analogous provisions of s. 140 (2.3) of the CJA regarding vexatious litigant orders.

[17] As noted above, this is not a motion for leave to appeal from the order of Jarvis J. precluding motions without leave. That order remains operative and unchallenged.

[18] I also considered Rules 14 (21) and 17 (8)(c) of the Family Law Rules, O. Reg. 114/99 that appear to be the jurisdictional bases for the order made by Jarvis J. The need for leave and similar case management requirements to curb dilatory and other abusive behaviour does not end at the trial courtroom door.

[19] In my view, the applicant is not entitled to proceed with the motion for leave to appeal from the terms of the adjournment ordered by Kaufman J. on May 27, 2024 unless or until she obtains leave to do so as required by the order of Jarvis J. dated October 23, 2023.

[20] Rather than dismissing the motion for leave to appeal, it seems to me appropriate to stay it to give the applicant time to consider whether she wishes to move for leave to proceed in the Superior Court. Accordingly, the motion for leave to appeal is stayed pending the earlier of (a) the applicant obtaining leave to bring this motion; and (b) the resumption of the trial.

FL Myers J.

Date: September 19, 2024