CITATION: Kadolph v. Kadolph, 2015 ONSC 3047
COURT FILE NO.: FC-14-1344
DATE: 2015/05/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ruth Anne Kadolph
Applicant/Responding Party
– and –
Stephen Lloyd Kadolph
Respondent/Moving Party
Fan MacKenzie, for the Applicant/Responding Party
Rod Vanier, for the Respondent/Moving Party
HEARD: in writing
Justice patrick smith
DECISION ON LEAVE TO APPEAL
[1] This is a motion for leave to appeal to the Divisional Court from the order of M. Linhares de Sousa J., dated February 11, 2015, brought pursuant to Rule 38(1) of the Family Law Rules, O. Reg. 439/07, s. 1 and Rules 62.02 of the Rules of Civil Procedure, O. Reg. 575/07, s. 6.
[2] The Respondent, Stephen Lloyd Kadolph seeks leave to appeal Justice Linhares de Sousa’s decision which granted the Applicant, Ruth Anne Kadolph interim retrospective and ongoing spousal support and dismissed the Respondent’s request for an order for child support and contribution to the child’s section 7 expenses.
[3] Three aspects of the interim order are the subject of this request for leave to appeal:
The award of retrospective spousal support
The award of the quantum of prospective support
The dismissal of the moving party’s request for child support and contribution to section 7 expenses.
[4] Rule 38(1) of the Family Law Rules provides that, in cases where an appeal lies to the Divisional Court or, where leave to appeal to the Divisional Court is required, Rules 61 to 63 of the Rules of Civil Procedure apply.
[5] Rule 62.02(4) of the Rules of Civil Procedure sets out the test for determining when leave to appeal from an interlocutory order of a Superior Court Justice will be granted:
(4) 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 reasons 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.
Discussion
[6] An application for leave to appeal is not to be confused with an appeal. Poulin v. Poulin, (2007), 2007 56489 (ON SC), 48 R.F.L. (6th) 196 (SCJ).
[7] The essential issue in a leave application is not whether the orders made are wrong or even probably wrong. The proper question is whether the orders in question are “open to very serious debate”.
[8] With respect to the first prong of the Rule 62.02(4)(a), I am not persuaded by the Respondent that there is a conflicting decision on any of the issues by another judge in Ontario or elsewhere.
[9] A conflicting decision was defined in Brownhall v. Canada (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91, (relying on Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3rd) 542 by DiTomaso as: “a difference in the principle chosen as a guide to the exercise of such discretion.”
[10] Simply demonstrating that there are other cases in which judges, on similar facts, have made different decisions is not sufficient to satisfy the requirement of Rule 62.02(4)(a). What is required is to demonstrate that there are other decisions based upon different legal principles or legal tests. The Respondent has not done so.
[11] The Respondent has also failed to satisfy both of the requirements of Rule 62.02(4)(b).
[12] Firstly, regarding the issue of “correctness”, the question to be decided in order to grant leave to appeal is not that the decision is wrong, or probably wrong, but rather “whether the correctness of the decision is open to very serious debate.” Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282].
[13] My reading of the decision and materials filed in support of this application has failed to persuade me that the decision is not “correct”.
[14] Rule 62.02(4)(b) is disjunctive and the Respondent has not shown that the matters in issue are of such importance that leave to appeal should be granted.
[15] In Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110, 28 C.P.C. (2d) 294, the Ontario Divisional Court wrote:
The conditions for granting leave are conjunctive. A judge hearing such an application must have good reasons to doubt the correctness of the decision. He must also be satisfied that the matters involved are of “such importance” that in his opinion leave should be granted. We wish to draw to the attention of the members of this court and the profession at large that those words referred to matters of general importance, not matters of particular importance relevant only to the litigants. General importance relates to matters of public importance and matters relevant to the development of the law and the administration of justice.
[16] The issues that the Respondent wishes to appeal are undoubtedly important to the litigants and have significant private importance for them but they do not raise issues of public importance or are relevant to the development of the law or administration of justice.
Disposition
[17] For the reasons set out above, the application for leave to appeal is dismissed.
[18] In the event that the parties are unable to resolve the issue of costs themselves they may provide written argument on the issue within 30 days of the release of this decision.
Justice Patrick Smith
Released: May 13, 2015
CITATION: Kadolph v. Kadolph, 2015 ONSC 3047
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ruth Anne Kadolph
Applicant/Responding Party
– and –
Stephen Lloyd Kadolph
Respondent/Moving Party
DECISION ON LEAVE TO APPEAL
Patrick Smith J.
Released: May 13, 2015