CITATION: Alwan v. Aulaiwi, 2017 ONSC 2309
COURT FILE NO.: FC-14-101
DATE: 20170412
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NIDAA ALWAN, Applicant
-and-
HAIDAR AULAIWI, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Nidaa Alwan, Self-represented
James Anderson, for the Respondent
HEARD: In writing
ENDORSEMENT
[1] The Applicant seeks an order to extend the time to file her notice of motion for leave to appeal. The Respondent opposes this motion and seeks security for costs should an extension of time be granted.
[2] The Applicant’s materials contain a motion form, dated March 9, 2017 and, while it is not described as an appeal, it seeks the following relief:
Retain the motion dated February 23, 2017 and obtain court for full disclosure of business information (this is essential to the trial in May 2017, to assess child support, spousal support, equalization and reach a fair result).
Terminate the costs ($1800) ordered to be paid to the Respondent based on the false facts submitted by the Respondent in his affidavit (attached).
[3] It is somewhat difficult to determine the basis for that appeal since no affidavit is attached; nevertheless, I can conclude that the Applicant seeks to appeal the order of Justice Engelking dated February 23 which reads as follows:
Applicant’s motion dismissed. The Applicant has not served the third-party record holders. This matter is scheduled to be heard on the May 2017 trial sittings. The applicant has not complied with the order of McKinnon J. regarding access by the respondent to the youngest child and did not comply with the order of Master Fortier of January 11, 2017 to provide disclosure by February 10, 2017. Pursuant to rule 1(8), I order that the Applicant is not entitled to bring further motions pending trial. The applicant shall pay the Respondent $1800 costs.
[4] In seeking leave to extend the time to file her leave to appeal, the Applicant did file an affidavit sworn March 14, 2017 wherein she explains that she was not provided the proper forms by the family court office to file her leave to appeal on time.
[5] By way of background, this matter has been outstanding for some time, with minimal progress, as Justice Minnema noted at a case conference on April 15, 2016. At that time, he directed the Respondent to pay child support in the amount of $116 per month commencing May 1, 2015 and he made an order for disclosure.
[6] On October 21, 2016, there was a settlement conference wherein Justice MacKinnon made an order that OCL social worker supervise three access visits between the Respondent and the youngest child of the marriage. She also directed each party to prepare a binder of disclosure to ensure that each of them has complied with the order of Justice Minnema and directed them to attend before the Master on January 11, 2017 at 2:00 p.m. to review the disclosure produced. She also made an order releasing funds ($3,000) held in trust from the sale of the matrimonial home to each of the parties.
[7] There was a subsequent motion heard on November 22, 2016. It appears that the Respondent sought leave to amend his Answer to seek spousal support. Justice Aitken noted:
This matter is on the May trial list. The parties have already had the two settlement conferences. The respondent is now on his fifth lawyer. The applicant no longer has a lawyer. Her position is that she cannot afford one….. Allowing the respondent the right to amend pleadings at this late date would result in further delays, would require a further settlement conference, and would jeopardize the May trial date….
[8] The parties then attended at the case conference before Master Fortier as directed by Justice MacKinnon on October 21, 2016 at which time Master Fortier made further orders for disclosure. The Applicant then brought her motion for third-party disclosure and other relief which motion was heard by Justice Engelking whose order is the subject of the proposed appeal.
The Law
[9] The factors that apply on a motion to extend the time for filing a notice of appeal has been set out by the Ontario Court of Appeal in Mauldin v. Cassels Brock and Blackwell LLP, 2011 ONCA, 274 O.A.C. 353, at para. 5:
• Has the appellant maintained a firm intention to appeal within the relevant time period?
• Has the appellant provided a reasonable explanation for the delay in perfecting the appeal?
• Is there prejudice to the respondent in granting the extension?
• Is there is so little merit in the proposed appeal that the court could reasonably deny the appellant this important right?
• Does the “justice of the case” require the granting of an extension?
[10] While the material before me is limited, I am satisfied that the Applicant has indicated an early intention to appeal and has provided an explanation for her delay. I am satisfied however that there would be a significant prejudice to the Respondent as granting the relief sought would lead to the adjournment of the trial. This would cause significant prejudice to the Respondent who has had limited access to his son to date. Other judges have noted the delays to date and have stressed the importance of proceeding with this matter for trial in May as scheduled. The Respondent’s request to amend his pleadings was denied for that very reason.
[11] Moreover, there are only two grounds to grant leave under rule 62.02(4):
Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another court or judge 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 and the proposed appeal involves matters of such importance that, in his or her opinion you should be granted.
[12] The Applicant has not filed a factum in support of her motion, but has delivered a reply document which is of little assistance in understanding the merits of her proposed appeal. She has not provided a conflicting decision of another judge or court in Ontario.
[13] Moreover, I do not have good reason to doubt the correctness of the order in question. It appears that the Respondent persuaded Justice Engelking to limit the scope of the Applicant’s motion to third-party disclosure. Justice Engelking was correct in noting that the Applicant had failed to serve any of the third-party record holders. In ordering costs, Justice Engelking noted the Applicant’s own failure to comply with orders for disclosure and the continued denial of access.
[14] The “justice of the case” does not favour granting an extension of time since the matter is on the May trial list and this Court has repeatedly stressed the importance of proceeding with the trial at that time. The endorsement of Justice Engelking does not prejudice the Applicant’s ability to summon witnesses to trial if that is necessary.
[15] The Applicant’s motion to extend the time to bring her motion for leave to appeal is dismissed with costs reserved to the trial judge.
Mr. Justice Robert N. Beaudoin
Date: April 12, 2017
CITATION: Alwan v. Aulaiwi, 2017 ONSC 2309
COURT FILE NO.: FC-14-101
DATE: 20170412
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: NIDAA ALWAN, Applicant
-and-
HAIDAR AULAIWI, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Nidaa Alwan, Self-represented
James Anderson, for the Respondent
ENDORSEMENT
Beaudoin J.
Released: April 12, 2017