Irwin-McLean v. McLean, 2015 ONSC 1219
COURT FILE NO.: 3235/15
DATE: 2015-02-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARILYN ELLEN IRWIN-MCLEAN
Respondent/Applicant
– and –
WILLIAM ALEXANDER MCLEAN
Appellant/Respondent
E. McCooeye, Counsel for the Respondent
B. Pritchard, Counsel for the Appellant
HEARD: February 19, 2015
varpio, j.
ENDORSEMENT
[1] The moving party brought a motion to have support payments suspended – or paid into an account that is not released to the respondent – pending the determination of the validity of a Separation Agreement. The moving party contends that they entered into the Separation Agreement without the benefit of adequate independent legal advice.
[2] This motion was rightfully brought in the Ontario Court of Justice on December 17, 2014. The respondent sought an adjournment and the moving party opposed. Kwolek J. granted the adjournment and the matter was adjourned until May 2015, although I am advised by the respondent’s counsel that earlier dates were available.
[3] The moving party appealed the granting of the adjournment and, pursuant to Rule 38(25), suggests that I have jurisdiction to order that the payment of support can be suspended pending the appeal of the granting of the adjournment.
[4] Rule 38(25) states:
MOTIONS IN APPEALS
(25) If a person needs to bring a motion in an appeal, rule 14 applies with necessary changes to the motion. O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (3).
ANALYSIS
[5] I interpret Rule 38(25) as a procedural rule that governs the bringing of motions before appellate courts. I do not, however, interpret Rule 38(25) as providing me with the authority to grant the relief that the appellant is seeking.
[6] Further, I would not be inclined to grant said relief even if I were imbued with the authority so to do. The appellant has appealed and adjournment. Were I to have granted the appeal, it seems to me that the appropriate remedy would be to send the matter back to Kwolek J. for a fresh hearing. Suspending the payment of support would, in effect go beyond the relief sought in the appeal and would grant substantive remedy on a procedural basis.
[7] I note that paying money into a “suspension account” not to be disbursed to the respondent, on the other hand, would not generate any irreparable harm since the money would be paid into Court or held by FRO pending the ultimate determination of the appeal. Nonetheless, I note that Gregson J. made a June 25, 2013 Order governing the arrears. It seems to me that, if Mr. McLean wish to have had his arrears payments paid into a “suspension account”, he ought to have appealed Gregson J.’s June 25, 2013 Order. Again, the remedy sought in this motion appears to go beyond that which could be granted if the appeal were granted peremptorily (i.e. send the matter back to Kwolek J. for immediate determination).
[8] As such, I dismiss the motion. The parties may address me with respect to costs in no more than 1 page each no later than 14 days after the release of this endorsement.
Varpio, J.
Released: February 24, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARILYN ELLEN IRWIN-MCLEAN
- and -
WILLIAM ALEXANDER MCLEAN
ENDORSEMENT
Varpio J.
Released: February 24, 2015