Smith v. Sanftenberg, 2016 ONSC 637

CITATION: Smith v. Sanftenberg, 2016 ONSC 637

COURT FILE NO.: FC-13-1271

DATE: 2016/01/26

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Heather Smith, Applicant (Respondent on this motion)

AND

Richard Sanftenberg, Respondent (Appellant on this motion)

BEFORE: Justice Julianne Parfett

COUNSEL: John E. Summers, for the Respondent

Bryan Delaney, for the Appellant

HEARD: In writing

ENDORSEMENT

Introduction

1This is a motion for leave to appeal to the Divisional Court from the order of the Honourable Justice Minnema, dated October 16, 2015, brought pursuant to Rule 38(1) of the Family Law Rules,¹ and Rule 62.02 of the Rules of Civil Procedure.²

Procedural History and Background

2This matter has a complicated procedural history. The parties started living together in 2007 and were married on November 9, 2009. They separated on January 26, 2013. The Appellant (Respondent on the motion) was involved in a motor vehicle accident in 2001 and later, a motorcycle accident in 2008. In the latter accident he was rendered a quadriplegic. He also has numerous other serious health issues. He has never worked and his only source of income has been the insurance settlements from the two accidents. The parties were in a relationship approximately 5 ½ years. The parties are joint owners of two properties: the matrimonial home [Fireside Drive property] and another property occupied by the Appellant’s parents [Hyndford Road property].

3The Respondent retained a lawyer who contacted the Appellant in February of 2013. He received no response. In June 2013 the Respondent’s lawyer served the Appellant with the application and other court materials and a case conference was set for August 2013. No response was received from the Appellant and he did not appear at the case conference. An order was made at that time giving the Appellant until August 30, 2013 to defend the case failing which the matter would proceed to an uncontested trial. This order was personally served on the Appellant.

4Following this step in the proceeding, the Appellant did contact a lawyer, who while not retained, did take some preliminary steps towards negotiating a settlement. Nothing having been accomplished, the matter proceeded to an uncontested trial on February 13, 2014 and a final Divorce order with various terms was granted. Upon receiving the order, the Appellant retained counsel and sought to set aside the default judgment. The Appellant’s motion was adjourned while counsel once again tried to negotiate a settlement.

5In July 2015, the Respondent visited one of the properties owned by the parties for the purpose of arranging for it to be placed on the market. The Appellant immediately brought an urgent motion, ex parte, to set aside the Divorce order and its terms. An interim order was granted on a very temporary basis until the Respondent could be notified. There followed an urgent motion brought by the Appellant for certificates of pending litigation and a stay of the default judgment. This motion was heard on July 29, 2015. The Honourable Justice Corthorn denied the request for certificates of pending litigation but stayed the default judgment in part pending a further order [Corthorn decision³].

6The matter was then brought back for a further motion – this time to set aside the Divorce judgment. That motion was heard on October 7, 2015. The Honourable Justice Minnema granted the request to set aside the Divorce order, but he did so on terms. Specifically, he upheld the Honourable Justice Corthorn’s decision regarding the possession of the matrimonial home, the rental and sale of the Hyndford Road property and the order for spousal support in the amount of $2500/month [Minnema decision⁴].

7The Appellant seeks leave to appeal from Justice Minnema’s decision relating to the Hyndford Road property and the order for payment of spousal support.

Test for Leave to Appeal

8Rule 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.

9The 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 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.

10Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal an interlocutory Order 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.

11The moving party seeks leave to appeal for the following reasons:

• There are conflicting decisions by another judge or court in Ontario on the matters involved in the proposed appeal.

• There is good reason to doubt the correctness of the decision of Justice Minnema because he decided to uphold certain portions of the decision of Justice Corthorn, whose decision the Appellant argues was wrong in law.

12For the reasons set out below, the motion for leave to appeal is denied.

Discussion

Conflicting Decision

13The test under rule 62.02(4)(a) has two branches. First, the applicant must show that there is a conflicting decision by another judge in Ontario or elsewhere on the matter involved in the proposed appeal. Second, the applicant must satisfy the court that it is desirable that leave to appeal be granted.

14To succeed in a motion for leave to appeal pursuant to rule 62.02(4)(a), it is essential that the applicant satisfy the court that there is a conflicting decision where there is a difference in the principle chosen as a guide to the exercise of a Judge’s discretion.⁵

15A judge who exercises his or her discretion when the circumstances of the case are different than in other jurisprudence is not necessarily making a “conflicting decision”. A motion judge’s decision is entitled to deference. Therefore, in order to be successful on a motion for leave to appeal, it is necessary for the appellant to demonstrate that there is a difference in the principles chosen by the motions judge as a guide to the exercise of discretion, and not simply a different set of facts leading to a different conclusion.⁶

16The Appellant states that there are conflicting decisions in relation to the legal principles to be applied in this matter. However, in his factum, the Appellant addresses what he regards as conflicting decisions in relation to the Corthorn decision. He fails entirely to address this ground for leave to appeal in relation to the Minnema decision – the one that he is seeking leave to appeal. Instead, the Appellant indicates the following on this issue:

The decision of Minnema, J. to continue the Order of Corthorn, J. related to spousal support and the sale of the Hyndford Property is in conflict with His Honour’s decision to set aside the [Divorce judgment] and therefore it is desirable that leave to appeal be granted.⁷

17This is not the type of conflict that is contemplated by Rule 62.02(4)(a). Consequently, leave to appeal on this ground must fail.

Good Reason to Doubt Correctness of the Decision

18The test under rule 62.02(4)(b) contains two branches. To succeed in a motion for leave to appeal pursuant to rule 62.02(4)(b), the applicant must satisfy the court that (1) there is good reason to doubt the correctness of the motion judge’s decision and (2) that the appeal raises matters of general importance.⁸

19The phrase “good reason to doubt the correctness of a decision” does not require a conclusion that the decision in question was wrong or even probably wrong. Nor does it require that the judge hearing the leave motion would have decided it differently had he or she been presiding as the motion judge. The test is whether the decision is open to serious debate.⁹

20In his factum, the Appellant states his position in relation to this branch of the test for leave to appeal as follows:

There is good reason to doubt the correctness of Justice Minnema’s order relation to the support payment and the sale of the Hyndford Property. As noted above, Minnema, J. simply upheld these orders, which were made by Justice Corthorn. Therefore, on must look to Justice Corthorn’s Order and reasons for judgment to determine if there is a good reason to doubt the correctness of [Justice Minnema’s order].¹⁰

21I disagree. The decision under review is that of Justice Minnema and therefore, the focus of the debate must be on his decision. The Appellant did not indicate why Justice Minnema’s decision might be incorrect. More specifically, he did not indicate why Justice Minnema’s acceptance of Justice Corthorn’s analysis of the issues of the sale of the Hyndford property and spousal support might be incorrect. Instead, he focussed his argument on why he believed Justice Corthorn’s decision was wrong in law. In this case, Justice Minnema’s decision to set aside the Divorce judgment on terms was a matter of discretion. There is no evidence that he exercised that discretion improperly and consequently, this branch of the test for leave to appeal is also not met.

22Even if I should be wrong on this point, in my view the proposed appeal does not involve any matter of such general importance that leave to appeal should be granted. For the purpose of rule 62.02(4)(b), matters of importance refer “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”.¹¹

23The terms on which the Divorce judgment was set aside are of importance only to the parties to this action. They are not matters of public importance, relevant to the development of the law and the administration of justice.¹²

24The motion to grant leave to appeal is therefore dismissed.

Costs

25The parties should resolve the issue of costs themselves if possible. However, if the parties cannot resolve the issue of costs, brief written submissions of not more than one page, with attachments including a detailed Bill of Costs, are to be provided within 15 days with a right of reply within a further five days.

Justice Julianne Parfett

Released: January 26, 2016

CITATION: Smith v. Sanftenberg, 2016 ONSC 637

COURT FILE NO.: FC-13-1271

DATE: 2016/01/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RE: Heather Smith, Applicant

(Respondent on this motion)

AND

Richard Sanftenberg, Respondent

(Appellant on this motion)

Footnotes

1. 1O. Reg. 114/99
2. 2R.R.O. 1990, Reg. 194
3. 32015 ONSC 5582
4. 42015 ONSC 6393
5. 5Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542 at para. 7 (Div. Ct.)
6. 6Nikore v. Proper, 2010 ONSC 2307 at para. 33, 101 O.R. (3d) 469 (Div. Ct.)
7. 7Factum of the Appellant, p. 18, paras. 68 & 72.
8. 8Bell ExpressVu Limited Partnership v. Morgan (2008), 2008 CanLII 63136 (ON SCDC), 67 C.P.C. (6th) 263 at paras. 1-3 (Ont. Div. Ct.)
9. 9Judson v. Mitchele, 2011 ONSC 6004 at para 15, 108 O.R. (3d) 129. See also Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 at 284 (Gen. Div.)
10. 10Factum of the Appellant, p. 20, para. 75.
11. 11Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SCDC), 65 O.R. (2d) 110 at 113 (Div. Ct.)
12. 12See 1327429 Ontario Ltd. v. 1151637 Ontario Ltd., 2005 CarswellOnt 7729 (SCJ) at paras. 4-5.