COURT FILE NO.: 263-15

DATE: 20151110

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jo-Anne Madeline Anderson, Applicant (Respondent on Motion for Leave)

AND:

Stephen Gerrard Anderson, Respondent (Applicant on Motion for Leave)

BEFORE: Mr. Justice H. Wilton-Siegel

COUNSEL: Christine Vanderschoot, for the Applicant (Respondent on Motion for Leave)

Theodore Nemetz, for the Respondent (Applicant on Motion for Leave)

HEARD: In Writing

ENDORSEMENT

Introduction

[1] The applicant on motion for leave, Stephen Anderson, seeks leave to appeal from the order of McWatt J. dated April 27, 2015 (the “Order”). In the Order, the motion judge required that the applicant post security for costs in the amount of $30,000 and pay costs of the motion in the amount of $21,000, including disbursements and HST, within six months of the date of the Order.

Background

[2] The parties were married in 1988. In 1994, the parties executed a separation agreement, dated July 1, 1994 (the “Separation Agreement”), and a domestic contract, dated July 20, 1994 (the “Domestic Contract”). The parties dispute the date of separation. The respondent, Jo-Anne Anderson, says the parties separated in 1994; the applicant puts the date at 1999 or 2000. In any event, the date of separation is now irrelevant and any equalization claims are barred.

[3] The respondent brought an action for divorce in 2000. The applicant opposed the divorce and filed an Answer seeking no relief. While the Answer was subsequently amended to seek relief, nothing further occurred on this file. Perhaps it should have been dismissed in August 2001.

[4] The respondent brought a further proceeding seeking a simple divorce in 2010. In his Answer, the applicant brought a cross-application asserting a claim to one-half of the matrimonial home pursuant to the Domestic Contract. The proceeding for the divorce was severed and the parties were divorced in 2012. However, the applicant’s claim for ancillary relief remains outstanding and is scheduled to go to trial.

[5] The applicant asserts a claim to one-half of the matrimonial home based on the provisions of clause 6(1) of the Domestic Contract. It reads as follows:

The Wife agrees that should she attempt, set in motion or commence any legal proceeding whatsoever with respect to Child Support or Spousal Support and Maintenance in any jurisdiction or by any instrument of law at any time in the future, the Husband will automatically and simultaneously be entitled to 50% of the Matrimonial Home.

[6] The applicant also says that the respondent is obligated to pay his legal costs of this proceeding pursuant to clause 6(5) of the Domestic Contract. It provides as follows:

The Wife will assume all legal and court costs of the Husband arising as a result of actions taken on her part with respect to this Agreement or any issue with regard to Child Support or Spousal Support and Maintenance.

[7] The respondent brought a summary judgment motion regarding the ancillary relief that was heard by Herman J. on July 19, 2012. The respondent sought a declaration that she was the sole owner of the matrimonial home. The respondent’s claim was based on the Separation Agreement and the Domestic Contract. Alternatively, the respondent argued that there should be a set-off of the applicant’s obligations to pay child support, of which he has paid nothing, against his interest in the house.

[8] Herman J. dismissed the summary judgment motion by finding a triable issue on the validity of the Separation Agreement on account of issues pertaining to the execution of that document. Herman J. also found a triable issue on the validity of the Domestic Contract on account of the respondent’s alleged duress and the applicant’s attempt to contract out of his obligation to provide child support. With respect to the set-off argument, Herman J. concluded that there was a triable issue given the absence of any determination of the applicant’s interest, if any, in the house as well as his child support obligations.

[9] The applicant was subsequently ordered to produce financial disclosure by order of Paisley J. dated September 20, 2012. The order remains unsatisfied. In addition, he has failed to prepare a trial management brief as ordered.

[10] It appears to be undisputed that neither party is financially well-endowed, and that the applicant is receiving support from the Ontario Disability Support Program.

Test for Leave to Appeal

[11] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, is well-settled. It is recognized that 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. Both branches involve a two-part test, and, in each case, both aspects of the two-part test must be met before leave may be granted.

[12] 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 motion judge, “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: see Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[13] 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”: see Nazari v. OTIP/RAEO Insurance Company Inc., 2003 CanLII 40868 (ON SC), [2003] O.J. No. 3442 (S.C., per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div., per Farley J.). 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: see Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J., per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

Issues on this Leave Motion

[14] The applicant seeks leave to appeal both determinations in the Order. I will deal first with the requirement in the Order that the applicant post security for costs and then address the costs award.

The Order for Security for Costs

[15] The order regarding security for costs was granted pursuant to Rule 24(13)4 of the Family Law Rules, O. Reg. 114/99, which provides that a judge may make an order for security for costs that is just based on, among other factors, there being good reason “to believe that the case is a waste of time or a nuisance” and that the party against whom the order is made does not have enough assets in Ontario to pay costs.

[16] In this case, there are no conflicting decisions upon which the applicant relies. The fact that Herman J. found that triable issues existed in regard to the respondent’s summary judgment motion does not give rise to a conflicting decision for this purpose. Accordingly, the applicant cannot satisfy the test under Rule 62.02(4)(a).

[17] With respect to the test under Rule 62.02(4)(b), the motion judge found there was no merit in the applicant’s claim to one-half of the matrimonial home. The applicant is the party who has asserted a claim to the matrimonial home in his Answer to the respondent’s simple action for a divorce. He can hardly complain about the respondent’s defences to his claim, including the set-off defence, which is premised on a finding in his favour under the Domestic Contract. Moreover, the basis on which Herman J. dismissed the respondent’s summary judgment motion does not demonstrate any merits in the applicant’s claim.

[18] With respect to the finding that this case falls within the circumstances contemplated by Rule 24(13)4, the motion judge reviewed the course of this proceeding and the prior proceeding. There is ample evidence to support her conclusion that the applicant “only participates in the court process to protest the inevitable end of his vexatious suit.”

[19] There is therefore no reason to doubt the correctness of the Order on this ground. Further, and in any event, the applicant has not satisfied the second prong of the test under Rule 62.02(4)(b). The matters at issue are of importance only to the litigants. The proposed appeal does not engage any matter of general importance.

[20] The applicant suggests that the Order engages an issue of access to justice inasmuch as he cannot post the amount ordered to be posted as security for costs. The evidence of the applicant’s financial circumstances on this motion is limited to a statement that neither he nor the respondent has any significant financial resources. However, Rule 24(13)4 specifically provides for an order for security for costs if a court finds a party’s case to be a waste of time or a nuisance in circumstances of impecuniosity. There is therefore no absolute right to continue a vexatious suit because a party is impecunious. The Court must balance the interests of each of the parties, as well as the interest of the administration of justice. In this case, there is no benefit to be served in allowing the applicant’s unmeritorious counter-application to continue at a cost to the respondent who is also without significant financial resources.

The Order for Costs

[21] The Order also provides that the applicant shall pay costs in the amount of $21,000. In addition to the costs of the motion before the motion judge on a full recovery basis, this amount includes costs on the same basis for the period since an order of Goodman J. dated November 25, 2014. This order reserved costs until the hearing before McWatt J.

[22] As this is not a situation in which there are conflicting decisions, the applicant must also satisfy the test under Rule 62.02(4)(b) in respect of this aspect of the Order.

[23] Costs are discretionary awards of this court. The award of the motion judge can only be interfered with if she made a palpable and overriding error in respect of any determination of fact or of mixed fact and law or made an error in principle.

[24] Insofar as the applicant relies on the provisions of clause 6(5) of the Domestic Contract, such provision presumes a finding in his favour to the effect that the provisions of clause 6(1) have been triggered. For the reasons set out above, there is no merit in such an allegation. Accordingly, there can be no merit in any argument based on clause 6(5). Further, given the finding of the motion judge that the applicant’s case falls within the circumstances contemplated by Rule 24(13)4, an award of costs on a full recovery basis is appropriate.

[25] Based on the foregoing, I conclude that there is no reason to doubt the correctness of the Order with respect to costs. Moreover, there is clearly no issue of such importance that leave to appeal should be granted. This is a matter that is confined entirely to the parties in this proceeding.

Conclusion

[26] Based on the foregoing, leave to appeal the Order is denied. The respondent seeks costs of this leave motion in the amount of $8,010.33 on a full recovery basis. The applicant did not file a costs outline or any responding materials in respect of the respondent’s costs outline. The full-recovery basis for costs is consistent with the costs award of the motion judge. In the circumstances, I think such an award is appropriate given the absence of merit on the leave motion, the late filing of the notice of appeal, and an unnecessary attendance in court. Accordingly, I fix costs payable by the applicant to be $8,000 on an all-inclusive basis.

Wilton-Siegel, J.

Date: November 10, 2011