COURT FILE NO.: FS-13-78828-00
DATE: 2015-12-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KATHERINE MULLIN
Applicant
- and -
JOHN SHERLOCK
Michael F. O’Connor, for the Respondent
Respondent
HEARD: In writing
Price J.
Reasons For Order
NATURE OF MOTION
[1] Mr. Sherlock seeks leave to appeal to the Divisional Court from the interlocutory order made by Justice Emery on September 1, 2015, refusing Mr. Sherlock’s motion for an order severing his claim for divorce from the claims for corollary relief pursuant to Rule 12(6) of the Family Law Rules.[^1]
[2] After living together since 2000, John Sherlock and Katherine Mullin were married in 2012. Their marriage ended in separation nine months later. There are no children of the marriage.
[3] The parties’ separation was followed by acrimonious litigation in which Mr. Sherlock made a claim for divorce and Ms. Mullin responded with claims for spousal support and equalization of net family property. Ms. Mullin says that Mr. Sherlock threatened that she would “get nothing”, and Ms. Mullin, after failing to secure financial disclosure from Mr. Sherlock pursuant to two court orders, hired a forensic accountant to examine the records of his medical supply business.
[4] In September 2015, after being separated from Ms. Mullin for two years, and complying with court orders requiring him to pay spousal support to her, Mr. Sherlock moved for an order severing his claim for divorce from the claims Ms. Mullin had made for corollary relief. He stated that he wanted a divorce “for my emotional and mental well-being.”
[5] Ms. Mullin opposed Mr. Sherlock’s motion and made a motion of her own for an order permitting her forensic accountant to re-attend at Mr. Sherlock’s offices to conduct further inquiries and review further records.
[6] Justice Emery refused Mr. Sherlock’s motion to sever his claim for divorce. He noted that Mr. Sherlock had not complied with orders requiring him to make financial disclosure to Ms. Mullin, and found that severing his claim for divorce could potentially prejudice a claim Ms. Mullin might have against Mr. Sherlock’s estate in the event of intestacy.
[7] Mr. Sherlock moves, without notice to Ms. Mullin, for leave to appeal to the Divisional Court from Justice Emery’s order. He argues that the potential prejudice to Ms. Mullin’s claim against Mr. Sherlock’s estate is too remote and speculative to warrant refusing him permission to proceed with his claim for divorce.
BACKGROUND FACTS
[8] Ms. Mullin stated in an affidavit sworn August 26, 2015, in opposition to Mr. Sherlock’s motion to sever his claim for divorce:
- I oppose the Respondent’s request to sever the divorce from the corollary relief to allow him to obtain an immediate divorce. I believe that John has not been fair or open in the litigation. He has failed to make full disclosure and breached two previous court orders. Further, I believe that a severance of the divorce will prejudice me in this litigation and otherwise, as I set out below.
[9] Ms. Mullin sets out extensive evidence in her affidavit to support a conclusion that Mr. Sherlock breached a disclosure order made by Justice Sproat on November 25, 2013, and further orders for disclosure made on consent by Justice Trimble on June 12, 2014, and August 11, 2014. Ms. Mullin continues:
The Real Reason the Respondent may Insist on a Divorce at this Time
As early as October 11, 2013, the accountant of GS Medical Packaging Inc., Ann Fan, informed me that she and the Respondent would do anything to protect GS Medical Packaging from my matrimonial claims, including bankrupting the company. In light of the Respondent’s obstruction encountered in the last 23 months, I believe this is a real threat. I also note that as recently as July 10, 2015, the Respondent’s new lawyer, Michael O’Connor, stated in an email “that putting this off beyond September to January or longer could see my client bankrupt.”
I believe that the only reason that the Respondent desires a divorce at this stage of the proceeding is to permit him to obtain financing or refinancing of the two matrimonial homes without the need of obtaining a spousal release or consent. I will be at a significant disadvantage if the Respondent or the companies in which I claim an interest are burdened by additional debt.
The Respondent asserts no reason for his insistence on obtaining a divorce other than his statement of “for my own emotional and mental well-being”. This is a fabrication and the Respondent has offered no medical or other evidence to support his assertion.
I will be Disadvantaged by the Issuance of a Divorce Judgment
- At the time of separation, I was the sole beneficiary of the last will and testament of John Sherlock. In addition, I was named the sole beneficiary of $1 million dollar life insurance policy on the Respondent. Without any reliable disclosure, I do not know whether the provisions made for me by the Respondent in the event of his death remain in effect. These provisions are extremely important to me and I want them to remain in place until the conclusion of my action. If they are not in place at this time, and I am no longer his spouse, I will lose even my preferential share in his estate to which I’m entitled by law.
[10] On September 1, 2015, Justice Emery dismissed Mr. Sherlock’s motion to sever his divorce claim from the other claims in the proceeding. He stated:
I am dismissing the motion of the Respondent husband to sever the divorce claim for the following reasons:
He seeks that relief for his “peace of mind.” There would appear to be no tangible reason why he requires that relief right now.
The Applicant wife argues that she may lose rights under family or succession statutes, and possible insurance coverage, if she is no longer a spouse. In paragraph 26 of her affidavit, the applicant wife speaks to this possible loss. In argument, the loss of a preferred position should, the Respondent husband die without a will was explored in terms of a dependents relief claim, and on occasion of an intestacy. I do not give any weight to the claim relating to coverage under any insurance policy.
Family Law Rule 12(6) is discretionary. That discretion can only be exercised by a judge where neither spouse will be disadvantaged by the order. Justice Gray in the recent case of Al-Saati v. Fahmi 2015 ONSC 1114, after a review of the cases on the point, interprets “disadvantaged” within Rule 12(6) to mean “legal disadvantage” that the respondent party may suffer if severance is granted. It is not a requirement or necessity that a legal disadvantage will be suffered to resist a motion to sever; only a possibility within the reasonable realm of possibilities. Should the Respondent husband die after revoking a previous will or a will challenge, or both, the applicant wife is at risk of not being a spouse to inherit his estate if a spouse on an intestacy under s. 44 of the S.L.R.A.
I also heard submissions that the Respondent husband has been difficult or dilatory in providing disclosure as ordered at least by Justice Trimble. There is enough evidence before this court about disclosure issues to at least determine the Respondent husband is not “fault-free” in the disclosure process, at least not for the purpose of bringing a motion to sever such as was the case in Smith v. Smith 2011 ONSC 3915.
The Respondent husband may learn at trial that cooperation and compliance will go a long way in the court process.
ISSUES
[11] The court must determine whether Mr. Sherlock has satisfied all the tests for leave to appeal from an interlocutory decision of this court. It must determine whether Justice Emery’s decision is in conflict with another decision of the court, whether there is reason to doubt its correctness, and whether it involves an issue of such importance that it is desirable that leave be granted.
PARTIES’ POSITIONS
[12] Mr. Sherlock submits that Justice Emery’s decision is in conflict with the decision of Justice Gray in Al-Saati v. Fahmi, in 2015.[^2] In that decision, Justice Gray granted leave to sever a claim for divorce, stating:
Ordinarily, unless there is prejudice to the responding party or there are children involved, an Order severing the Divorce is granted almost as a matter of course.
In my view, the word “disadvantaged”, as used in Rule 12(6)(a), must mean legal disadvantage that the responding party may suffer if severance is granted. It must mean more than simply allowing the divorce to be withheld or delayed as a form of leverage for other issues that can be pursued separately. In my view, the Applicant will suffer no disadvantage if the divorce is severed. The spousal support issue can be pursued regardless of whether the divorce is severed or granted. The Applicant already has a sizable judgment against the Respondent, and it can be enforced regardless of whether the divorce is severed or granted. In substance, the Applicant is simply trying to use the withholding or delaying of the divorce as leverage. I do not think that is what is contemplated by Rule 12(6)(a).
[13] Mr. Sherlock further submits that there is reason to doubt the correctness of Justice Emery’s decision because the disadvantage that he relied on in refusing to sever the divorce claim was remote and speculative.
ANALYSIS AND EVIDENCE
a) The test for leave to appeal
[14] Applications for leave to appeal from an interlocutory order under s.19(b) of the Courts of Justice Act[^3] are governed by Rule 62.02(4) of the Rules of Civil Procedure.[^4] That rule states:
(4) Grounds on which leave may be granted – Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[15] The test for granting leave to appeal under Rule 62.02(4) is well-settled. Leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Each involves a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
[16] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts.[^5]
[17] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate.”[^6] In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice.[^7]
b) Applying the tests to the facts of this case
i. First branch of the tests – First test
[18] I must first determine whether there is a conflict between Justice Emery’s decision and another decision of the court.
[19] Justice Emery’s decision in the present case and Justice Gray’s decision in Al-Saati v. Fahmi are not in conflict as to the basis upon which a claim for divorce may properly be severed from claims for collateral relief. In Al-Saati v. Fahmi, there was no evidence that severing the claim for divorce would cause legal disadvantage to the other spouse, and Justice Gray found that the wife’s opposition to the motion was purely to gain leverage against the husband. That was not the case here.
[20] The particular circumstances of the present case and, in particular, Mr. Sherlock’s failure to make financial disclosure to Ms. Mullin, informed Justice Emery’s determination that the legal disadvantage that severing the claim for divorce would cause to her justified a refusal to do so. This was a situation in which a different result was reached than the one which Justice Gray reached in Al-Saati v. Fahmi in respect of particular facts.
[21] Having regard to Mr. Sherlock’s failure to make financial disclosure to Ms. Mullin, there was an air of reality to the apprehension that severing the claim for divorce would result in legal disadvantage to Ms. Mullin, whose claim for ongoing spousal support had been impeded by the lack of financial disclosure. Ms. Mullin may not have adequate security for such spousal support as she may be entitled to, apart from that which she would derive from her status as Mr. Sherlock’s wife pursuant to the S.L.R.A.
ii. First branch of the tests – Second test
[22] There is not a good reason to doubt the correctness of Justice Emery’s order. He exercised the judicial discretion given to him by Rule 12(6) of the Family Law Rules. He based his exercise of that discretion on a legal disadvantage that he found would result to Ms. Mullin from severing the claim for divorce from the claims for collateral relief. In doing so, he applied the proper test as set out in Rule 12(6). In that regard, I am mindful of the fact that the second test in the first branch of Rule 69.02 does not require that I find that the order from which leave is sought is in error: it merely requires me to be satisfied that there is good reason to doubt its correctness.
[23] Rule 12(6) of the Family Law Rules states:
12: Withdrawing, Combining or Splitting Cases
Splitting divorce from other issues
(6) The court may, on motion, make an order splitting a divorce from the other issues if,
a) neither spouse will be disadvantaged by the order; and
b) reasonable arrangements have been made for the support of any children of the marriage.[^8]
[24] An order granting or refusing a motion to sever a claim for divorce must make specific reference to the grounds set out in Rule 12(6), upon which the decision is based. In Costa v. Costa, in 2014, Justice Then granted leave to the wife to appeal to the Divisional Court from the decision of a motion judge which severed the husband’s claim for divorce from the wife’s claims for corollary relief.[^9] The husband in that case had applied for divorce. The wife had delivered an Answer in which she claimed an order setting aside the parties’ separation agreement and granting her collateral relief, including support, medical and life insurance coverage, equalization of net family property and freezing of the husband’s assets. The husband made two motions, one to sever his claim for divorce from the wife’s claims for collateral relief, and the other for summary judgment dismissing her claims for collateral relief.
[25] Justice Paisley dismissed the husband’s motion to sever the claim for divorce, stating, “Nevertheless, in my view, the outstanding issues should be resolved before severance is granted. The Applicant may renew his motion for severance after the summary judgment motion has been determined.” Later, Justice Stewart granted the wife’s request to adjourn the husband’s motion for summary judgment to allow the wife to file an amended Answer based on new grounds alleging fraudulent concealment by the husband. The husband opposed the wife’s request for adjournment, but took the position that if an adjournment were granted, it should be on condition that his claim for divorce be severed from the motion for summary judgment.
[26] Justice Stewart, granting the wife’s request to adjourn the husband’s motion for summary judgment, and severing the claim for divorce as a term of the adjournment, stated:
Paisley J.’s order of May 29, 2014 was founded on an assumption that the motion would proceed today, and that the Applicant could renew his motion for severance thereafter. Given the lengthy anticipated delay resulting from this adjournment, and in light of the issues raised on the motion and the nature of the evidence relating thereto, I am of the view that the divorce sought by the Applicant ought to be severed from these corollary issues, and I so order.
[27] Justice Then, in granting leave to appeal from the order severing the divorce claim, found that Stewart J. had failed to consider whether a legal disadvantage to the wife would result from severing the claim for divorce. He stated:
First, Mr. Ben-Zvi submits that no motion was brought pursuant to Rule 12(6). But, more importantly, Mr. Ben-Zvi submits that the granting of the divorce will change the respondent’s legal status disentitling her to spousal medical and life insurance benefits arising from her employment. Mr. Weir submits that the medical benefits survive the divorce by virtue of the separation agreement and that the insurance policies do not engage her interests. Apart from the fact that none of this material is before me, it was incumbent on Stewart J. to determine whether there was disadvantage or prejudice to Mrs. Da Costa as required by Rule 12(6) of the Family Law Rules. In the absence of a specific finding that there was no disadvantage or prejudice to Mrs. Da Costa, I cannot assume that the discretion of the motion judge was properly exercised or that her decision does not conflict with that of Paisley J. in principle. [Emphasis added.]
[28] Justice Then noted that Paisley J.’s approach, based on Rule 12(6) of the Family Law Rules, conformed to the approach taken by the Court of Appeal in Colletta v. Colletta, in 1992,[^10] and by McCartney J. in Reiner v. Reiner in 2000.[^11] He noted that Justice Stewart had not referred to Rule 12(6), nor given any indication in her reasons that she had considered whether severing the divorce claim would result in a legal disadvantage to the wife. Justice Then therefore held that it was appropriate to grant leave on the first branch of Rule 62.02(4).
[29] With respect to the second branch of the test under Rule 62.02(4), Justice Then found that Justice Stewart had made an apparent error in principle by severing the divorce from the summary judgment motion without a specific determination of disadvantage or prejudice to the spouse as required by Rule 12(6) of the Family Law Rules. He therefore also granted leave on the basis of the second branch of Rule 62.02(4) of the Rules of Civil Procedure.
[30] Justice Then’s decision in Costa is consistent with jurisprudence in other provinces, where courts have held that a spouse opposing a motion to sever a claim for divorce must demonstrate that severance would potentially cause a legal disadvantage to the other spouse. In Pow v. Pow, in 2005, the wife appealed to the Manitoba Court of Appeal to quash orders severing divorce proceedings from other joined matters and granting her husband a divorce upon summary judgment.[^12] The husband wished to remarry. The divorce had been joined with a number of contested property issues, which had not yet been resolved and were likely to be ongoing for a lengthy period of time. Neither party had contested the granting of the divorce in the pleadings. The Manitoba Court of Appeal declined to intervene, stating that in the circumstances, the interests of justice resided, as the motions judge had held, with the husband and the principle of finality. Given that grounds for divorce were made out, that no bars were present, and that both parties were asking for a divorce, there was no triable issue and summary judgment for divorce was appropriate. The court saw no grounds for appellate intervention in the discretionary order. Additionally, at para. 5, the court held that although matters may have been severed, a justice of the court retained the jurisdiction and discretion to decline to grant a divorce in any case, even though the parties may have consented, on any number of grounds, ranging from the possibility of reconciliation, to the inadequacy of the financial arrangements for children, or the fact that the parties may not have been living separate and apart for a year.
[31] Justice Emery gave reasons for exercising his discretion with specific reference to Rule 12(6). Additionally, he identified the specific legal disadvantage that might result to the wife if he exercised his discretion to grant severance, as well as the absence of any evidence of any disadvantage to Mr. Sherlock from refusing to sever the claim for divorce at that time.
[32] Mr. Sherlock submits that an impact on the wife’s entitlement to a share in the husband’s estate upon an intestacy is not a legal disadvantage. I disagree.
[33] The Supreme Court of Nova Scotia, Family Division, in Al-Khouri v. Al-Khouri, in 2011, refused a husband’s motion for severance on the ground that the he had not proved, on a balance of probabilities, that severance of the divorce was an appropriate exercise of the court’s discretion. Justice Forgeron relied on the fact that an order for maintenance under the Nova Scotia legislation did not attach to an estate and that the wife, upon a divorce being granted, would lose her claim to the husband’s estate under the equivalent of Ontario’s Succession Law Reform Act [S.L.R.A.].[^13] She stated:
A financial prejudice will attach to Ms. Al-Khouri if the severance is granted. Ms. Al-Khouri, after approximately 35 years of marriage, likely has a maintenance claim against Mr. Al-Khouri. Mr. Al-Khouri has no life insurance. Without life insurance, Ms. Al-Khouri has little security because maintenance does not attach to an estate. In Carmichael v. Carmichael (1992) 1992 NSCA 62, 115 N.S.R. (2d) 45 (C.A.), Freeman, J.A. stated that the court had no jurisdiction to make a support order binding on the payor’s estate, as reviewed in paras. 17 to 27.
Further, in the event of Mr. Al-Khouri’s death, Ms. Al-Khouri will have no access to the Testator’s Family Maintenance Act if the divorce was granted. A former spouse is not included within the definition of a dependent in s. 2 of the Act. However, the new Ms. Al-Khouri would have standing.[^14]
[34] Justice Emery placed no weight on the impact that a divorce might have on Ms. Mullin’s coverage under Mr. Sherlock’s insurance policies. This is a further basis, however, upon which discretion could properly be exercised to refuse to sever the husband’s claim for divorce. The weight that the court, in the exercise of its discretion under Rule 12(6), gives to the loss of insurance coverage as a potential disadvantage that the other spouse may suffer as a result of the early severing of the claim for divorce depends on the evidence in the particular case.
[35] In Colletta, the wife argued that the granting of the divorce changed her legal status, disentitling her to spousal benefits arising from her husband’s employment. The Court stated:
The wife's position on appeal is that Chadwick J. did not provide adequate, or indeed any, replacement for her loss of these benefits and, therefore, she wants to maintain her spousal rights until the issue of provision for the lost benefits has been finally decided. The way things stand now, the husband has his divorce and the right to remarry, in other words, everything he wanted out of his petition. His new wife will enjoy all the benefits that the appellant wife has just lost. The appellant wife is in limbo. She has no spousal benefits and if the husband dies, she will have nothing by way of survivor benefits. She has been denied the interim award she sought and is appealing. The trial of her issue as to corollary relief is yet to be held.[^15] [Emphasis added.]
The Court in Colletta ruled that the wife’s appeal was not frivolous.
[36] In Cochard v. Cochard, in 2002, the Alberta Court of Queen’s Bench granted the husband’s motion to sever his claim for divorce from the wife’s claim for corollary relief. Justice Veit stated:
In this case, both parties wish to be divorced and the evidence establishes that the necessary pre-requisites to divorce are all in place. There are no children of the marriage. The only issue to be decided is whether Ms. Cochard’s claim for spousal support and division of matrimonial property would be so negatively affected by severance of the divorce judgment itself that this discretionary relief should not be granted.
As was pointed out by Granger J. in McIntosh, it is relevant in this context to note that while Parliament had, in s. 9 of the 1968 Divorce Act, recognized that the granting of divorce could prejudice a claim for spousal support and that the court could refuse to grant a divorce if such effect could be foreseen, that reference was dropped in the current Act. Indeed, the fact that a claim for spousal support can now be heard independently from a claim for divorce was considered to be a daring constitutional initiative to provide greater flexibility to divorcing couples when the 1985 Act was proclaimed. For example, it allowed divorcing couples to get over the emotional trauma of the breakdown of the marriage relationship before tackling the hard issues of money.
However, since the 1985 Act has been in effect, courts have held that, in certain circumstances, they would not exercise their discretion to order severance because of potential prejudice to one of the spouses. An example of specific prejudice can be seen in Bhullar v. Bhullar [1997] B.C.J. No. 2845 (Sup. Ct.) where Burnyeat J., after referring to Zimmerman v. Zimmerman [1992] A.J. No. 545 (Q.B.) and to the earlier B.C. Court of Appeal decision in Johnson, concluded that an adjournment of the trial should be granted because: no urgency for a divorce had been shown by the petitioner, the petitioner’s potential departure from the jurisdiction would make enforcement of any spousal maintenance order obtained by the wife difficult, and that a B.C. divorce might impede the wife’s claims in India for return of dowry or maintenance.[^16] [Emphasis added.]
[37] The court in Cochard held that there would be no prejudice to the wife from severing the husband’s claim for divorce and granting the divorce. Although the court rejected the wife’s argument that severing the claim for divorce and permitting a divorce judgment to issue would deprive her of the right to sue under the Family Relief Act, the court concluded that a divorce would not, in fact, prejudice her position under that legislation. The court stated:
Ms. Cochard argues that, if she were divorced, she would lose her right to make a claim against Mr. Cochard’s estate under the Family Relief Act. This is not a persuasive argument for two reasons. First, the weight of the jurisprudence suggests that spousal support orders can be made against a deceased spouse’s estate; indeed, the Ontario Court of Appeal said in Linton that there was “ample authority” for that proposition. It is true, of course, that one can find authority to the opposite effect; for example, in Giraud, without giving reasons for its decision to reject the husband’s request for a support order against his estate, the court ordered support for the joint lives of the spouses. Second, and more importantly, if the loss of a right to sue under the Family Relief Act were a form of prejudice, no one could ever get divorced because every person who is no longer a spouse has status to sue under that legislation.[^17]
[38] Mr. Sherlock argues that Ms. Mullin not be permitted to use her opposition to his claim for divorce as leverage to exact a strategic advantage in her claims for corollary relief. While this is so, it is permissible for the court to refuse to exercise its discretion to sever the claim for divorce where it would be unfair to do otherwise.
The discretion which the court exercises in relation to claims for divorce
[39] The discretion that the court exercises under Rule 12(6) is consistent with the discretion that the court has exercised in the past in determining whether to make a decree nisi for divorce absolute, where the husband was in default of his obligations to pay maintenance (spousal support), or in determining whether to grant summary judgment for divorce.
[40] The Court of Appeal for Ontario, in Hanlon v. Hanlon et al., in 1979, stated:
Section 13(4) preserves the discretion of the Court. It would take very clear statutory language to compel the interpretation that one who is, on the facts, in contempt of the judgment nisi is entitled as of right to have the judgment made absolute. I do not think that a party who is in default under a judgment or who chooses to ignore it can compel the Court to make it final for his purposes. The issues of custody and maintenance are not severable from the judgment in divorce cases and I think it was the clear intention of Parliament that these family matters be resolved together when in issue between the parties. While it is true that the Divorce Act provides for variation of the judgment nisi in so far as it provides for maintenance and custody, it also preserves the discretion necessary under s. 13(4), so that the Court can ensure the integrity of its process where it is apparent that an applicant seeks the benefits of a judgment but ignores the obligations under it. I emphasize that this is a discretion that must be exercised judicially and it does not follow that merely because there are some arrears that the judgment absolute must be denied.[^18] [Emphasis added.]
[41] The Ontario Court of Appeal in Colletta denied summary judgment for divorce in a case where the change in status would have caused the other spouse to lose benefits such as insurance coverage and health insurance coverage prior to determination of the corollary relief issues.
[42] The Alberta Court of Queen’s Bench in Zimmerman v. Zimmerman, in 1992,[^19] and the B.C. Supreme Court in Hill v. Hill, in 1993,[^20] declined to grant a divorce order before settling property and support issues between the parties because of the risk of prejudice to the other spouse, and in the absence of urgent and compelling reasons on behalf of the spouse seeking the divorce.
[43] The Manitoba Court of Queen’s Bench, in Desjardins v. Desjardins, in 1993, refused an application by a wife for summary judgment for divorce where she had met someone else and wished to re-marry.[^21] The court found that it would be preferable if all the issues were resolved together, noting that there was no evidence that the trial would be unduly complicated or delayed if the matter proceeded as one claim.
[44] In Menzinger v. Menzinger, in 1998, Justice Kitely granted a husband’s motion for summary judgment for divorce, rejecting the wife’s claim that this could result in her loss of coverage under the husband’s benefit plans. In that case, however, there was evidence that the wife had no such coverage. Justice Kitely stated:
The wife has not asked for a divorce judgment in the Counter Petition. But she has resisted the granting of the divorce to the husband for the following reason:
A divorce to be granted only on the completion of reasonable support arrangements for the wife as set out here below, including the ensuring the provision to her of all coverages under the husband's benefit plans including without limitation, health and prescription coverage and including without limitation under the husband's Pension Plan with his employer the University of Toronto.
In para. 25 of her affidavit opposing the husband's motion for summary judgment, the wife has deposed to the following:
I am still a beneficiary/dependent (or am entitled to be) under my husband's benefit plans and his pension and granting my husband a divorce prior to the disposition of collateral issues will materially prejudice me and ought not be done. Moreover it is my legal position that my husband, by his collusive behaviour, has barred himself at a maximum from any entitlement to a summary divorce judgment.
In Heon v. Heon (1988), 1988 CanLII 4824 (ON CA), 67 O.R. (2d) 312, 56 D.L.R. (4th) 175 (C.A.) the court held that a judgment of divorce may be granted on a motion for summary judgment "in a proper case". The wife is now not a beneficiary of the husband's benefit plans or pensions. Nor has she any present entitlement to become a beneficiary. In the unchallenged 1981 Minutes of Settlement, the wife released any claims to property. The dismissal of property claims was subsequently incorporated in an order. While the wife has been successful in establishing that there are genuine issues for trial, that does not mean that the husband is disentitled to a divorce. The evidence of prejudice is vague; indeed, it is simply an assertion of prejudice. The husband has not responded to that allegation. But even without a response, the allegation itself in the context set out above, does not justify the refusal of the divorce. As Granger J. indicated in McIntosh v. McIntosh (1993), 1993 CanLII 16118 (ON SC), 49 R.F.L. (3d) 20, if the wife is subsequently found to be entitled to spousal support and her recovery is prejudiced by the granting of the divorce judgment, the trial judge could take that prejudice into account when dealing with the corollary relief claims.
Furthermore, the allegation made is that the divorce judgment should be postponed until reasonable support arrangements are made for the wife. The Divorce Act does not identify that as a ground for refusing a divorce. The related ground is where reasonable support arrangements have not been made for the children. That does not apply here.
For the foregoing reasons, the motion brought by the husband for a divorce judgment is granted, subject to the amendment with respect to the date of the marriage as set out below.[^22]
[45] The Alberta Court of Appeal, in Miles v. Miles, in 2004, upheld the chambers judge’s decision not to sever the claim for divorce from the main action and grant summary judgment for divorce, based on a finding that it was preferable that all matters proceed at one time, and that the husband had not demonstrated an urgent need for severance, nor presented any compelling evidence suggesting that severance would be advantageous to him.[^23] The court cited Veit J. of the Alberta Court of Queen’s Bench in Cochard, who had stated:
The principles which govern the exercise of discretion by the court to grant summary judgment of divorce, as outlined in many decisions across Canada, have been remarkably consistent: severance may be granted when it is fair in the circumstances to do so.[^24] [Emphasis added.]
[46] In Costa, the wife sought leave to appeal to the Divisional Court from an order of a judge on a motion for summary judgment brought by the husband, where the motion judge granted the wife an adjournment on condition that the divorce sought by her husband be severed from the corollary issues. In exercising her discretion to sever the divorce application from the claim for corollary relief, the motion judge stated the following:
Paisley J.’s order of May 29, 2014 was founded on an assumption that the motion would proceed today and that the Applicant could renew his motion for severance thereafter. Given the lengthy anticipated delay resulting from this adjournment and in light of the issues raised on the motion and the nature of the evidence relating thereto, I am of the view that the divorce sought by the Applicant ought to be severed from these corollary issues, and I so order. [^25]
[47] The Divisional Court in Costa found that in granting severance of the divorce from the claims for corollary relief as a condition of granting the wife’s request to adjourn the husband’s motion of summary judgment, the motion judge did so based on “extraneous factors”, namely, the delay caused by the adjournment and the nature of the allegation and evidence of fraudulent concealment. It held that there was no indication in the motion judge’s endorsement that Rule 12(6) had been considered.
[48] In M.C. v. R.P., in 2009, the P.E.I. Court of Appeal dismissed an appeal from an oral decision of the motion judge granting summary judgment dissolving the marriage.[^26] The Court of Appeal held that a divorce may be severed and summary judgment for divorce granted, and that it was within the discretion of the trial judge to do so when it would not be unjust or unduly prejudicial to a spouse. The Court reviewed the jurisprudence and held that the decisions that had considered whether summary judgment could be granted in a divorce case had concluded that, in an appropriate case, a court can grant a divorce by way of summary judgment. The court cited, among others, the decision of the Ontario Court of Appeal in Heon v. Heon.
[49] The Ontario Court of Appeal in Heon v. Heon, in 1988, held that the summary judgment rule, being a rule of general application, applied to divorce actions. Krever J.A., writing for the court, stated at para.12:
It is my view that the provisions of the Divorce Act, 1985 and Rule 20 can coexist in harmony. I do not say that the invocation of Rule 20 will always be successful. The facts of the case will determine that. I say only that in a proper case, a judgment of divorce may be granted on a motion for summary judgment.[^27]
[50] The Saskatchewan Court of Queen’s Bench in Behnami v. Mirakhori, in 2013, applied the Manitoba decision in Pow.[^28] In Benhnami, the wife established all the requisite criteria for divorce, including residency, separation for more than a year,[^29] the absence of collusion, and no possibility of reconciliation. She maintained that her application for permanent residency for herself and her two adult sons would be rejected unless she provided a divorce certificate to the immigration authorities by May 15, 2013, and that deportation would place her sons in jeopardy of arrest on their return to Iran. The husband opposed her application on the grounds that: (1) granting judgment for divorce would prejudice his ability to remain in Canada as he was admitted for residency as the petitioner’s spouse; and (2) granting the divorce judgment would prejudice or impair his ability to advance his family property claim. The Saskatchewan court held that granting a divorce in these circumstances could have little bearing on the determination of the family property division. The wife was prepared to proceed immediately to pre-trial settlement conference and there was no indication that a date could not be obtained expeditiously. The court therefore severed the claim for divorce and granted the divorce.
[51] In the present case, Mr. Sherlock’s failure to make financial disclosure pursuant to the orders made by Justices Sproat and Trimble have arguably impeded Ms. Mullin’s ability to establish her claim to ongoing spousal support, including obtaining such order for security for such support as may be appropriate. The delay which has resulted increases the importance of Ms. Mullin’s potential claim against Mr. Sherlock’s estate in the event of intestacy. Such a claim will not prevent a severance of a claim for divorce in all cases, but I am unable to find, in the circumstances of the present case, that there is reason to doubt the correctness of Justice Emery’s exercise of discretion in refusing the order that Mr. Sherlock requested.
iii. Second branch of the tests
[52] Addressing the second branch of the tests for leave to appeal, Justice Emery’s finding that in the particular circumstances of this case, severing the claim for divorce would result in a legal disadvantage to Ms. Mullin, was one that was supportable by the evidence before him, and this finding was a proper basis upon which to exercise his discretion under Rule 12(6). In other circumstances, including those that Justice Gray faced in Al-Saati v. Fahmi, the legal disadvantage that a divorce might cause to the other spouse in her entitlement to the applicant’s estate in the event of an intestacy might not warrant a refusal of severance. Here, it did.
[53] The appeal does not raise issues of sufficient importance to the public or to the administration of justice to justify granting leave to appeal. It is therefore not desirable that leave be granted in this case.
CONCLUSION AND ORDER
[54] For the foregoing reasons, I find that Mr. Sherlock has not met the onus on him to establish that Justice Emery’s decision is in conflict with decisions of the court or that there is reason to doubt its correctness. Justice Emery’s decision was a proper exercise of discretion based on factors that Rule 12(6) permitted him to consider in exercising his discretion. Mr. Sherlock’s motion for leave to appeal is therefore dismissed.
Price J.
Released: December 4, 2015
COURT FILE NO.: FS-13-78828-00
DATE: 2015-12-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KATHERINE MULLIN
Applicant
- and –
JOHN SHERLOCK
Respondent
REASONS FOR ORDER
Price J.
Released: December 4, 2015
[^1]: Family Law Rules, O. Reg. 114/99, as am.
[^2]: Al-Saati v. Fahmi, 2015 ONSC 1114
[^3]: Courts of Justice Act, R.S.O. 1990, c. C.43.
[^4]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[^5]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.)
[^6]: Nazari v. OTIP/RAEO Insurance Co., 2003 CanLII 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.)
[^7]: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.)
[^8]: Family Law Rules, O. Reg. 114/99, as am.
[^9]: Costa v. Costa, 2014 ONSC 7172.
[^10]: Colletta v. Colletta (1992), 1992 CanLII 7658 (ON CA), 10 O.R. (3d) 464 (C.A.).
[^11]: Reiner v. Reiner, 2000 CarswellOnt 795 (S.C.)
[^12]: Pow v. Pow, 2005 MBCA 1, 14 R.F.L. (6th) 101.
[^13]: Succession Law Reform Act, R.S.O. 1990, c. S.26.
[^14]: Al-Khouri v. Al-Khouri, 2011 NSSC 122, at paras. 18-19.
[^15]: Colletta, at p. 468.
[^16]: Cochard v. Cochard, 2002 ABQB 961, 8 Alta L.R. (4th) 340, at paras. 31-34.
[^17]: Cochard, at paras. 37-38.
[^18]: Hanlon v. Hanlon et al. (1979), 1979 CanLII 1850 (ON CA), 24 O.R. (2d) 335, at pp. 339-40 (C.A.).
[^19]: Zimmerman v. Zimmerman (1992), 1992 CanLII 6275 (AB KB), 129 A.R. 392 (Q.B.).
[^20]: Hill v. Hill, [1993] B.C.J. No. 1784 (S.C.).
[^21]: Desjardins v. Desjardins (1993), 1993 CanLII 15105 (MB KB), 89 Man.R. (2d) 140 (Q.B.).
[^22]: Menzinger v. Menzinger, 1998 CanLII 14849 (ON SC), 40 O.R. (3d) 205, [1998] O.J. No. 3567 (Gen. Div.), at paras. 20-23 [Cited to QL].
[^23]: Miles v. Miles, 2004 ABCA 361.
[^24]: Cochard, at para. 24.
[^25]: Costa, at para. 11.
[^26]: M.C. v. R.P., 2009 PECA 15, 289 Nfld. & P.E.I.R. 293.
[^27]: Heon v. Heon (1988), 1988 CanLII 4824 (ON CA), 67 O.R. (2d) 312 (C.A.).
[^28]: Behnami v. Mirakhori, 2013 SKQB 177, at para. 28.
[^29]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8(2)(a).