COURT FILE NO.: 50648-15 DATE: 2017-06-26 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: RINA JAKUPI, Applicant/Responding Party on Leave Application AND: SHEFIK JAKUPI, Respondent/Moving Party on Leave Application
BEFORE: The Honourable Justice C.D. Braid
COUNSEL: Tara Lattanzio, Counsel for the Applicant Meredith Rady, Counsel for the Respondent
HEARD: In writing
Endorsement on Motion for Leave to Appeal
I. Introduction
[1] The Respondent father, Shefik Jakupi, seeks leave to appeal from the order of Justice Campbell dated February 15, 2017. In that order, the motions judge ordered the father to pay interim child support and costs of the motion. For the reasons set out below, the motion for leave to appeal is dismissed.
II. Facts
[2] The Application was issued on October 2, 2015. The Applicant mother, Rina Jakupi, made claims for custody of their two children; access; child support; spousal support; and other relief.
[3] In 2017, the mother brought a motion seeking interim child support. The father brought a cross-motion. He did not ask for child support for the son, who was living with him at the time of the motion.
[4] The motions judge made a temporary order requiring the father to pay child support for the daughter, to the mother, in the amount of $1,321 per month. This was based on an imputed income of $158,000. Child support was ordered to commence October 1, 2016.
[5] The motions judge also ordered that the father pay costs of the motion in the amount of $2,800.
III. Test for Leave to Appeal
[6] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure 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.
[7] 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.).
[8] 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.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). 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.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).
IV. Analysis
[9] In his motion for leave, the father relies, in part, on oral submissions and oral reasons. No transcript has been filed so it is difficult to assess these arguments. For purposes of this motion for leave, I am prepared to accept counsel’s description of submissions and oral reasons.
[10] In my opinion, this is not a case in which it is desirable that leave be granted. In addition, this appeal does not raise matters of such importance that leave should be granted. In coming to these conclusions, I have considered the following:
Child support is the right of the child. The application was issued in October 2015, and the mother has had at least one child in her care since that time, with no child support paid to her. It was entirely within the discretion of the motions judge to make an order for interim child support retroactive to October 1, 2016.
The mother provided evidence that she was not employed and was suffering from multiple sclerosis. The diagnosis of MS was admitted by the father. The father had quit his job at a car dealership where he earned more than $150,000 in 2014. The father had notice that the mother was seeking to impute income to the father at a greater amount than what he declared to be his actual income. In the circumstances, it was entirely within the discretion of the motions judge to impute income to the father pursuant to s.19 of the Child Support Guidelines.
On the issue of set-off of child support pursuant to s.8 of the Child Support Guidelines, there was no evidence that the mother was working, and no claim for child support in the father’s motion.
This was an interim order only. The parties will have an opportunity to argue issues of child support and the calculation of arrears before a final order is made.
Costs are in the discretion of the presiding judge.
The Order is fact-specific and involves the exercise of discretion. It raises no broader issues of public importance.
[11] As noted above, it is not desirable to grant leave, and this appeal does not raise matters of such importance that leave should be granted. Since the second part of the tests for leave is not satisfied, it is not be necessary to fully address the merits of the order under appeal.
[12] The application for leave to appeal is dismissed.
V. Costs
[13] The mother is the successful party and is entitled to her costs of this leave application. I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), and I find that costs to the mother in the amount of $3,000, inclusive of taxes and disbursements, is fair and reasonable. Therefore, the father shall pay the mother $3,000 by way of costs of this application, by August 31, 2017.
VI. Note to the Parties
[14] This Motion for Leave to Appeal was only brought to the attention of the trial co-ordinator on June 22, 2017. On behalf of the court, I wish to extend my apologies for the delay in providing this decision to the parties.
Braid, J. Date: June 26, 2017