Court File and Parties
Court File No.: FC-16-372-00 Date: 2017-04-20 Ontario Superior Court of Justice
Between: Joanne Romanelli, Applicant – and – Mario Romanelli, Respondent
Counsel: Christopher Sorley, for the Applicant Kevin Zaldin, for the Respondent
Heard: In Writing
Ruling on Motion for Leave to Appeal
Vallee J.
[1] In his endorsement dated February 24, 2017, Justice J. McDermot ordered the respondent to pay the applicant’s interim fees and disbursements of $60,000. The respondent brings this motion for leave to appeal the order. The applicant did not file any responding materials.
[2] The test for leave to appeal is correctly stated by the respondent. According to Rule 62.02(4) of the Rules of Civil Procedure, leave is not to be granted unless:
- There is a conflicting decision and it is desirable that leave be granted, or
- There is good reason to doubt the correctness of the order and the appeal involves matters of such importance that leave to appeal should be granted.
Is there a conflicting decision? Is granting leave desirable?
[3] The respondent refers to Rosenberg v. Rosenberg, [2003] O.J. No. 2193, and states that the motion judge wrongly focused on only the third criterion, the ability of the moving party to repay the amount if unsuccessful. Two other criteria are also set out being the merits of the matter and the hardship to the moving party if the relief is not granted.
[4] I note that in addition to considering the third criterion, the motion judge carried out a careful review of the merits in paragraphs 23 – 31 and the hardship issue in paragraphs 32 – 42. On the first part of the test, I am not satisfied that granting leave is desirable.
Is there good reason to doubt the correctness of the order? Does the appeal involve matters of such importance that leave to appeal should be granted?
[5] The respondent states that the motions judge made an error in law because he did not analyse the principle of joint family venture when considering the merits of the case. He treated the parties as if they were married and as if they were obliged to equalize their respective net family property. He did not respect the parties’ decision to not marry and to choose an alternative family form, as set out in Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325.
[6] I note that in paragraph 27, the motion judge clearly states that “date of marriage” regarding a financial statement is clearly not relevant because the parties did not marry. In paragraph 30, the motion judge noted that, “The applicant does not have to prove her claim for unjust enrichment. She needs to present facts upon which a claim may be based.” The motion judge went on to state that he was not prepared to find that the applicant’s claims were without merit. He commented that they would not be dismissed on a motion for summary judgment.
[7] The respondent states that the motion judge should have adjourned the motion. The applicant put the respondent’s credibility in issue. Therefore, the respondent should have been questioned first before the motion proceeded.
[8] The motion judge determined that questioning, among other things, would be necessary. He accepted the applicant’s evidence that the related legal fees would be between $8,000 and $15,000. The respondent’s position that questioning should have been carried out before the order was made is illogical because the applicant did not have the financial resources to pay legal fees for questioning. Her inability to fund the litigation was the reason for the motion.
[9] On the second part of the test, I find that there is no good reason to doubt the correctness of the order. Accordingly, I do not need to consider whether the appeal involves matters of such importance that leave to appeal should be granted.
[10] For these reasons, the respondent’s motion for leave to appeal is dismissed.