Hunt v. Carr, 2015 ONSC 326
CITATION: Hunt v. Carr, 2015 ONSC 326 BELLEVILLE COURT FILE NO.: FS-14-0276-00
DATE: 2015/01/15
SUPERIOR COURTOF JUSTICE - ONTARIO
RE: Linda Sue Mary Hunt, Applicant/Appellant
AND
Andrew James Carr, Respondent/Respondent
BEFORE: Mr. Justice Stanley Kershman
COUNSEL: Mr. Scott McMahon, for the Applicant/Appellant
Mr. L. Picart, for the Respondent/Respondent
HEARD AT BELLEVILLE: December 12, 2014
Decision on Motion for leave to appeal
Introduction:
[1] This is a Motion for leave to appeal from a decision of Justice R. Scott made on October 10, 2014.
Factual Background:
[2] The Applicant, Ms. Hunt, brought an application for various relief in a family law matter. The application materials were served on the Respondent, Mr. Carr, on August 27, 2014. Mr. Carr did not respond to the pleadings prior to the time limits as prescribed by the Family Law Rules (O. Reg. 439/07, s.1). On October 1, 2014, Mr. Picart, counsel for Mr. Carr, sent a letter to Mr. McMahon, counsel for Ms. Hunt; seeking an extension of time to serve and file his materials. Mr. McMahon responded on October 3, 2014, indicating that late filing would be acceptable, provided that certain conditions were agreed to by Mr. Carr. These conditions included Mr. Carr moving out of the house within 48 hours and paying $1,500 in costs to Ms. Hunt.
[3] These conditions were not agreeable to Mr. Carr.
[4] On October 7, 2014, Mr. Picart served a Form 14B Notice of Motion and Affidavit dated October 7, 2014, on Mr. McMahon seeking the following relief:
a) An Order abridging the time for service and filing of the Respondent, Mr. Carr’s, Answer and Financial Statement, pursuant to Rule 3(5) of the Family Law Rules;
b) An Order that the Motion be heard prior to the Case Conference, pursuant to Rule 14(4.2) of the Family Law Rules;
c) An Order that the Motion proceed by way of a Form 14B Motion, as opposed to Form 14A Notice of Motion and Affidavit, pursuant to Rule 14(10) of the Family Law Rules;
d) An Order that Mr. Carr shall have four weeks from the date of the Order to serve and file his responding materials, pursuant to Rule 2 of the Family Law Rules; and,
e) Such further and other Orders as counsel may advise and this Honourable Court deems just.
[5] The matter was dealt with by Scott, J. whose endorsement, dated October 10, 2014, reads as follows:
Respondent shall be allowed 28 days from today's date to file necessary documents. Status Quo to remain. Given all of the circumstances, the Respondent is entitled to his costs fixed at $200 payable forth with.
[6] The Order was taken out on November 5, 2014. Mr. Carr complied with the timelines for filing his responding materials in accordance with the Order.
[7] Ms. Hunt seeks leave to appeal from the aforesaid Order.
[8] Mr. McMahon filed an Affidavit from Ms. Hunt on the Motion for Leave. Mr. Picart filed an Affidavit from Mr. Carr in response. Mr. McMahon argues that the Court should not rely on Mr. Carr’s Affidavit.
[9] The Court finds that since Ms. Hunt filed an Affidavit, it is appropriate for Mr. Carr to file an Affidavit in response. The Court can rely on both Affidavits for the purposes of this Motion.
Applicable Law:
[10] The following statutes and provisions are relevant in this matter:
a) Rule 62.02(4) of the Rules of Civil Procedure, O. Reg. 575/07, s.6(1), which reads:
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.
b) Rule 1(8.4) of the Family Law Rules, which reads:
If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case.
c) Rule 2(2)(3) of the Family Law Rules, which reads:
The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
d) Rule 3(5) of the Family Law Rules, which reads:
The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in subrule 33 (1) (timetable for child protection cases) only if the best interests of the child require it.
e) Rule 10.5 of the Family Law Rules, which reads:
The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer.
f) Rule 14(4.2) of the Family Law Rules, which reads:
Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
g) Rule 14(6)(e.2) of the Family Law Rules, which reads:
Subrule (4) does not apply to a motion,
made without notice, made on consent, that is unopposed or that is limited to procedural, uncomplicated or unopposed matters (Form 14B);
h) Rule 14(10) of the Family Law Rules, which reads:
If a motion is limited to procedural, uncomplicated or unopposed matters, the party making the motion may use a motion form (Form 14B) instead of a notice of motion and affidavit.
i) Rule 14(10.1) of the Family Law Rules, which reads:
If a party uses a motion form (Form 14B) and no person served with the motion form serves and files a response within four days after being served, the motion shall be dealt with by the court as an unopposed motion.
j) Rule 14(11) of the Family Law Rules, which reads:
A party making a motion with notice shall,
(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than four days before the motion date;
(b) file the documents as soon as possible after service, but not later than two days before the motion date; and
(c) file a confirmation (Form 14C) not later than 2 p.m. two days before the motion date.
Issue:
1. Should Leave to Appeal from the decision of Scott J. dated October 10, 2014 be granted?
Conflicting Decisions:
Analysis:
[11] It is the Court’s understanding, from a review of the Appellant’s Factum and the submissions made, that counsel is not making any submissions with respect to r. 62.02(4)(a).
[12] In the case of Lee Sand & Gravel v. Lee [2007], O.J. 227 (Ont. Sup. Ct.), Di Tomaso J. set out the test for leave to appeal under r. 62.02(4)(a), at paragraph 26, as follows:
In order to obtain leave under Rule 62.02(4)(a), it is insufficient to show that two courts have exercised their discretion to produce different results. It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such discretion.
[13] In the case of Gill (Litigation Guardian Of) v. Waters, 2014 ONSC 5364, G.M. Mulligan J. restated the test for granting leave to appeal, at paragraph 17, as follows:
In Farmers Oil & Gas Inc. v. Ontario (Ministry of Natural Resources), 2013 ONSC 1608 (Ont. Div. Ct.), Molloy J.
expressed the test as follows:
[4] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and in each case, both aspect of the two-part test must be met before leave may be granted.
[5] 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 heating 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.
[6] 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. ... In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice.
[14] Based on the test set out in the Lee Sand & Gravel and the Gill cases, a conflicting case under s. 62.02(4)(a) is one that applies conflicting legal principles. While the conclusion of the Motions Judge in the case at hand does not follow the cases submitted in the Appellant counsel’s factum, the Court finds that the decisions in counsel’s factum do not conflict, in principle, with the decision of the Motions Judge.
Disposition under Rule 62.02(4)(a)
[15] Based on the aforesaid analysis, the Court finds that it is not appropriate for leave to appeal to be granted on this ground.
Good Reason to Doubt the Correctness of the Order:
Position of the Appellant:
[16] The Ms. Hunt argues that she had the right to participate at the Motion, but was not afforded the opportunity to do so.
[17] Ms. Hunt argues that the language of Rule 14(11) of the Family Law Rules requires the Respondent to provide the Appellant with at least four days’ notice before the Motion was dealt with. This was not done.
[18] Finally, Ms. Hunt argues that no Motion confirmation form was filed, as required, pursuant to Rule 14 (11)(c).
Position of the Respondent:
[19] Mr. Carr argues that Rule 14(6)(e.2) sets out various exceptions to Rule 14(4). Exceptions are based on urgency, hardship, or whether the matter is of a procedural nature.
[20] Mr. Carr claims that he was seeking to extend the time to file his Answer and Financial Statement in order to avoid a miscarriage of justice; Ms. Hunt was seeking to have him removed from the home, in which he had lived for at least nine years. The situation was more problematic because of Mr. Carr’s poor health and financial situation.
[21] Mr. Carr further argues that, on an uncomplicated and procedural matter, the Motion can proceed by way of a Form 14B Motion, in accordance with Rule 14(10).
Analysis:
[22] The application materials were served on August 27, 2014. The responding materials were to be filed by September 27, 2014. September 27 and 28 were a Saturday and Sunday, respectively. The first date that the Respondent could have been in default would have been September 29, 2014.
[23] Two days later on October 1, 2014, Mr. Picart sent a letter to Mr. McMahon seeking an extension of time to file materials. He cited the fact that he had been recently retained and that his assistant had just returned from her vacation. Mr. McMahon wrote back on October 3, 2014, agreeing to the extension—provided that certain conditions were complied with by Mr. Carr. As previously mentioned: those conditions included Mr. Carr vacating the home that he had lived in since 2004 and paying $1,500 in costs to Ms. Hunt.
[24] Having reviewed the conditions, the Court finds that they are very strict and onerous, particularly in light of the fact that Mr. Carr is 74 years of age and is living on a fixed income of $1,617 per month, consisting of Canada Pension Plan and Old Age Security income. His Affidavit states that he has serious health issues including skin cancer, irritable bowel syndrome, and chronic obstructive pulmonary disorder.
[25] Had Mr. Carr filed his materials on time, the status quo would have been maintained (i.e.: the parties would still be living in the same residence). Ms. Hunt would not have been entitled to any of the conditions sought for the extension of time, including the costs and the requirement that Mr. Carr moved out of the home. Ms. Hunt would have been required to wait until a case conference, or, in the alternative, she would have had to bring a Motion with leave of the Court.
[26] The un-contradicted evidence of Mr. Carr is that he met with Mr. Picart on September 8, 2014. He said that Mr. Picart required further evidence from him in order to advise him of his rights. He met again with Mr. Picart on September 15 and 22, 2014. The evidence is it Mr. Picart’s secretary was away on holidays from September 22 to 29, 2014. Mr. Picart said that upon her return, he would write to Mr. McMahon seeking a four week extension, which he did.
[27] As to the argument that the relief with respect to the status quo and costs was not relief sought in the Notice of Motion, the Court disagrees. While these items were not specifically requested, the Court finds that they are covered in the wording: “[s]uch further and other Orders as counsel may advise and this Honourable Court deems just.”
[28] The Notice of Motion specifically requested an Order that the matter proceed by way of Form 14B Motion, as opposed to Form 14A Notice of Motion and Affidavit, pursuant to Rule 14(10) of the Family Law Rules.
[29] In the Court’s view, Justice Scott was fully aware that this matter was proceeding by way of a Form 14B Motion, as opposed to a Form 14A Notice of Motion and Affidavit, because part of the relief set out in the Notice of Motion specifically requested proceeding by way of a Form 14B Motion.
[30] The Court is aware that the Form 14B is marked that it is to be served, with notice, on all persons affected. The Motion materials were served on October 7, 2014, at 12:48pm, by fax, on Mr. McMahon. There was no return date on the Notice of Motion. The hearing date on the Motion form was also left blank. That form included a section that indicated that the Motion was made “with notice to all persons affected –opposition expected.”
[31] Near the bottom of Page 1 of the Notice of Motion, the form reads: “I want the Court to deal with this Motion: ☒ by relying only on the written materials.” The boxes, which allowed for personal attendance at Court or attendance by conference call, were not checked off.
[32] The Court finds that the reason why the hearing date was left blank was because the Motion was to be in writing only. Mr. Picart served Mr. McMahon with the Form 14B Motion and Affidavit. There is no evidence that Mr. McMahon responded to being served with a Notice of Motion. He could have called Mr. Picart, sent him an email, or a fax, in relation to these materials. He did not.
[33] Mr. McMahon did send a letter to Mr. Picart on October 10, 2014, dealing with a violation under the Trespass to Property Act. At no time does it appear that Mr. McMahon acknowledged being served with the Form 14B Motion and Affidavit.
[34] The opportunity was available for Mr. McMahon to deal with the Form 14B Motion, however, that opportunity was not taken advantage of.
[35] Pursuant to Rule 14(10.1), Ms. Hunt had four days’ time to respond to Mr. Carr’s Form 14B Motion, after which time it would be dealt with by the Court as an unopposed matter. The Court finds that Ms. Hunt had no intention of filing an Affidavit in response to the Form 14B Notice of Motion within the four days. If she had, she would have filed an Affidavit by October 12, 2014, which she did not do.
[36] Because the Form 14B Motion and Affidavit were served by Mr. Picart on October 7, 2014, based on Rule 14(10.1), the matter should not have been dealt with until October 12, 2014. It was dealt with on October 10, 2014.
[37] The Scott J. endorsement was served on Mr. McMahon on October 22, 2014. It appears that the Ms. Hunt did not receive the Scott, J. endorsement until that date. This meant that Ms. Hunt was unaware of the Endorsement until ten days after the expiry of time to file an Affidavit in response to the Form 14B Motion.
Disposition under Rule 62.02(4)(b)
[38] Based on the aforesaid analysis, the Court finds that it is not appropriate that leave to appeal be granted on this ground.
[39] As to the other relief sought by Ms. Hunt in the Notice of Motion for Leave to Appeal, since the Motion is dismissed, the Court will not consider the additional relief claimed.
[40] In conclusion, the Motion for Leave to Appeal fails.
Costs:
[41] The parties will have 10 days to resolve the issue of costs, failing which, the parties can obtain a date from the Trial Coordinator to deal with the matter. Each party will have 10 minutes to argue the issue of costs. Cost outlines and formal Offers to Settle are to be provided.
[42] Order accordingly.
Mr. Justice Stanley Kershman
Date: January 15, 2015
CITATION: Hunt v. Carr, 2015 ONSC 326 BELLEVILLE COURT FILE NO.: FS-14-0276-00
DATE: 2015/01/15
ONTARIO
SUPERIOR COURTOF JUSTICE
RE: Linda Sue Mary Hunt, Applicant/Appellant,
AND
Andrew James Carr, Respondent/Respondent
BEFORE: Mr. Justice Stanley Kershman
COUNSEL: Mr. Scott McMahon, for the Applicant/Appellant
Mr. L. Picart, for the Respondent/Respondent
decision on motion for leave to appeal
KERSHMAN J.
Released: January 15, 2015