Court File and Parties

CITATION: Palazzolo v. Palazzolo, 2012 ONSC 6573

COURT FILE NO.: DC-12-00403

DATE: 20121121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carolyn Ann Palazzolo Respondent

– and –

John Palazzolo Appellant

COUNSEL:

George Van Hoogenhuize, for the Respondent

Daniel W. Simard, for the Appellant

HEARD: October 11, 2012

REASONS FOR DECISION

EDWARDS J.

Background

[1] The appellant husband (the “Husband”) seeks leave to appeal the decision of McGee J., dated April 4, 2012. Pursuant to the Order of McGee J., the Husband was ordered to pay spousal support in the amount of $2,800.00 per month, which level of support was based on the Husband’s 2011 income of approximately $103,000.00 as opposed to what the Husband suggests is his projected 2012 income of approximately $75,000.00. The support order was made retroactive to February 1, 2011.

[2] At the heart of the Husband’s argument is the suggestion that McGee J. failed to determine spousal support on the best evidence, that being a pay stub from his employer, dated March 17, 2012, showing that his year to date income was $15,784.00, which would extrapolate into a projected annual income of approximately $75,000.00.

[3] The Husband’s earning history for the years 2008 through 2011 was as follows:

(a) Approximately $103,000.00 for the year 2008;

(b) Approximately $109,000.00 for the year 2009;

(c) Approximately $114,000.00 for the year 2010; and

(d) Approximately $103,000.00 for the year 2011.

[4] In order for the Husband to obtain leave to appeal, he must establish that there is a conflicting decision by another judge or court in Ontario or elsewhere and in addition, this court must conclude that it is desirable to grant leave to appeal. Alternatively, the Husband must establish that there is good reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that in the court’s view leave to appeal should be granted.

[5] It is well established that an appellate court should not interfere with an interlocutory order which involves the exercise of discretion, unless it is clearly and demonstratively wrong. This is especially so in interlocutory matters involving family matters where appeals are to be discouraged. See Bergen v. Sharpe, 2011 ONSC 1930, [2011] O.J. No. 1482. Appeals from interlocutory orders in family matters have been historically discouraged as they will generally only add additional expense to the parties and delay the final resolution at trial.

[6] It is readily apparent from a review of the very detailed Reasons of McGee J. that she exercised her discretion in determining the appropriate level of income upon which to base a spousal support order. It will become readily apparent to anyone reading these Reasons that given the Order of McGee J. was made on April 4, 2012 and the leave application was not actually heard until October 11, 2012, that by now the Husband’s income for 2012 will be readily ascertainable. The appropriate procedure for the Husband to establish a new benchmark for spousal support purposes would be either to seek a variation of the Order of McGee J. or, alternatively, move the matter along to trial.

[7] The issue before this court on a leave application is clearly fact driven. Even if I had good reason to doubt the correctness of the decision of McGee J. (which I do not), this case is not one of general importance such that leave should be granted. Undoubtedly, the issues raised are of fundamental importance to the parties but they do not transcend that importance into an issue of general importance such that leave to appeal should be granted.

[8] As to the question of whether or not there are conflicting decisions and whether it is desirable that leave be granted, I note that most of the conflicting decisions referred to in argument by counsel for the Husband were trial decisions and not decisions made on an interlocutory basis. Even if I were to accept that there were conflicting decisions, given that this is a proposed appeal from an interlocutory order in a family matter, where the courts have historically made clear that such an appeal should be discouraged, I am not of the view that it is desirable to grant leave. Under both components of Rule 62 of the Rules of Civil Procedure, the Husband has been unsuccessful and leave to appeal is denied.

[9] As to the question of costs, counsel for the Husband suggested that if he had been successful, in obtaining leave to appeal, he would have sought costs in the amount of $8,000.00 and would have expected to have paid costs in the amount of $4,000.00 if he had lost the leave application. Counsel for the respondent (the “Wife”) advised that if the leave application was dismissed, he would be seeking costs in the amount of $7,700.00 and would have been expected to pay a like amount had leave been granted.

[10] Unless there are offers that may impact on the question of costs, I am inclined to award the successful Wife costs fixed in the amount of $5,000.00 payable forthwith. If the parties wish to make additional submissions with respect to the quantum of costs, written submissions should be filed with this court within ten days from the release of these Reasons. If no further submissions are received in that regard, the Wife shall thereafter be entitled to costs in the amount of $5,000.00.

Justice M.L. Edwards

Released: November 21, 2012