CITATION: Peerenboom v. Peerenboom, 2016 ONSC 6434

COURT FILE NO.: 320/16

DATE: 20161021

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NICOLE PEERENBOOM, Applicant (Responding Party)

AND:

ROBERT PEERENBOOM, Respondent (Moving Party)

BEFORE: MOLLOY J.

COUNSEL: Valois P. Ambrosino, for the Respondent (Moving Party)

Counsel, for the Applicant (Responding Party)

HEARD: In writing

ENDORSEMENT

Introduction

[1] Robert Peerenboom seeks leave to appeal from the order of Stevenson J. dated June 16, 2016. In that order, the motion judge ordered the respondent (Mr. Peerenboom) to pay the applicant (Ms. Peerenboom) interim costs and disbursements in the amount of $100,000.

[2] Mr. Peerenboom also seeks leave to appeal the costs ordered by the motions judge in the amount of $12,000.

Test for Leave to Appeal

[3] 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 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.

[4] 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 hearing 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: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[5] 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”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 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: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[6] The moving party relies on both branches of the leave to appeal rule.

[7] With respect to Rule 62.02(4)(a), the moving party argues that the decision of the motion judge in this case is in conflict with other cases decided by judges of this Court. I do not agree. The motion judge’s decision this case was an exercise of discretion based on factual findings she made in this case. Other judges have come to different conclusions in similar, but not identical situations. However, these differences are not about matters of general principle, but rather flow from the application of general principles to the circumstances of the case. The test for leave under this branch is therefore not met.

[8] With respect to Rule 62.02(4)(b), the moving party argues that there is reason to doubt the correctness of the motion judge’s decision. I do not need to deal with that issue because regardless of this point, the moving party has failed to meet the second part of the test relating to the nature of the issues raised in the appeal. The moving party has attempted to cast the appeal as raising issues of general importance to the development of the law citing the following issues:

• the meaning of and evidentiary standard necessary for demonstrating “ability to pay” and “inability to continue funding litigation”; and

• whether a payor spouse is required to go into debt to pay for interim disbursements of the other spouse.

[9] In my view, the appeal does not raise issues of general application with respect to these principles. The issue is not what the terms “ability to pay” and “inability to continue funding litigation” actually mean. The issue is whether the motion judge made supportable findings based on the evidence before her with respect to these issues. Likewise, although the moving party contends that the order of the motion judge requires him to go further into debt, the findings of the motion judge relate to factual matters related to the interconnectedness of the moving party and his wealthy father, including issues with respect to the legitimacy of a default judgment for nearly $1 million obtained against the moving party by his father and the fact that the moving party previously worked for a family business from which he was fired by his father and now works in another business owned by his father for a substantially less salary. The motion judge took all of these factors into account in determining that the moving party could afford to pay the $100,000 interim costs award and that the responding party could not otherwise fund the litigation. The result in this appeal would be fact-specific and driven by the circumstances of these two individuals. Broader issues affecting the administration of justice and general development of the law are not raised.

[10] If I had granted leave on the substantive issues raised on the appeal, I might also have granted leave on costs. However, I see nothing about the costs order that is outside the norm. The relevant factors were taken into account by the motion judge and she made an award that is within the realm of what would be reasonable in those circumstances. There is no reason to doubt the correctness of the costs award and no issues of general importance are raised. There is no reason to grant leave with respect to the costs order on a stand-alone basis.

Order

[11] The motion for leave to appeal is dismissed.

[12] The parties have agreed that the unsuccessful party shall pay to the successful party the costs of this motion fixed at $5000 plus H.S.T. The only issue upon which they do not agree is when those costs should be paid. Mr. Peerenboom takes the position that costs should be payable at the conclusion of the trial, which is what the parties agreed to and what Thorburn J. ordered earlier this year upon dismissing Ms. Peerenboom’s motion for leave to appeal from an interim child support order. Ms. Peerenboom takes the position that costs should simply be awarded in accordance with the normal rule, which provides for payment of costs within 30 days unless the court is satisfied that a different order would be more just.

[13] In this motion for leave to appeal, the successful party has been Ms. Peerenboom and she is entitled to costs of $5000 plus H.S.T. On the previous leave to appeal motion, Ms. Peerenboom was the unsuccessful party and was ordered to pay costs of $5000 plus H.S.T. In my view, the most just disposition is that these two orders for costs shall be set off against each other.

MOLLOY J.

Date: October 21, 2016