CITATION: Vasovich v. Montour Estate, 2017 ONSC 617

COURT FILE NO.: 16-740ML (Div. Ct.)

DATE: 2017-01-27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dr. Inge Marie Vasovich, Applicant (Respondent in Proposed Appeal)

AND:

The Estate of Peter John Montour, Respondent (Appellant in Proposed Appeal)

BEFORE: The Honourable Mr. Justice C.S. Glithero

Ken Cole and Lily Ng, Counsel for the Respondent (Appellant in proposed appeal)

Harold Niman, Sarah Strathopolous and Aaron Detlor, Counsel for the Applicant (Respondent in the proposed appeal)

HEARD: In Writing

ENDORSEMENT

Introduction

[1] The respondent estate seeks leave to appeal from the order of Reid J. dated October 27, 2016. In that order, the motion judge ordered the respondent estate to pay costs to the applicant in the amount of $40,000 within 30 days and dismissed the estate’s request for an order that off-reserve property of the estate be used for the payment of the cost order. The estate does not seek leave to appeal the quantum of the order or that the order was in favour of the applicant (respondent). Rather, the leave sought is to appeal the dismissal of the request for an order that off-reserve property be used to satisfy the costs award.

[2] This is a bitter and protracted battle between the applicant wife and the estate of her deceased husband, in which the applicant seeks relief with respect to support and property issues. Mr. Montour was registered as an Indian under the Indian Act, R.S.C., 1985, c.I-5. His applicant wife was not.

[3] The respondent resists these claims relying on a marriage contract and a separation agreement, both of which contain mutual releases from support obligations and equalization of net family property.

[4] The wife counters that both the marriage contract and the separation agreement should be set aside on the basis of improper disclosure, and in reliance on a reconciliation provision contained in the separation agreement, the terms of which she claims were fulfilled here so as to entitle her to recovery.

[5] The costs order flowed from two long motions, heard together, in which the applicant wife was successful on both. She succeeded totally on her motion for an order that the estate make proper disclosure as required pursuant to rule 13 of the Family Law Rules. The respondent’s motion was for summary judgment dismissing the applicant’s claims for equalization of property and spousal support on the basis that such claims were unenforceable, before they had even been determined, which motion was dismissed.

[6] The deceased Montour owned property on two different reserves as well as property off the reserve (non-reserve property).

[7] The motion judge ruled that summary judgment was not appropriate in that it sought a declaration that basically restated s.89 of the Indian Act, which the estate contended would prevent the applicant from satisfying any judgment she could obtain as against on-reserve property, and that because of the obstacles to enforceability, the applicant should be deprived of the right to have a determination of entitlement made at a trial. The motion judge determined that she was entitled to have her claim adjudicated and that any enforceability problems would be her problems as opposed to those of the respondent estate. The motion judge distinguished between the issues of entitlement and the issue of an ability to enforce a judgment.

[8] It must be remembered that the other relief granted was the requirement that the estate make the proper disclosure that as of that date had never been made despite years of litigation.

[9] In the costs endorsement released October 27, 2016, the motion judge again acknowledged in paragraph 10 that the relief sought on the summary judgment motion was premature as the issue of enforcement is to follow a decision on the merits as to entitlement, rather than precede it.

[10] In the final paragraph of the endorsement, the motion judge notes that on the state of disclosure then known, the order sought by the estate for leave to sell the only then known off-reserve asset to satisfy a costs order in favour of the applicant, would have the of depriving the applicant in whole or in part of the very property in which she seeks to establish her claim, and potentially the only asset against which she may be able to recover a judgment. As he put it “in effect, she could be receiving payment of costs out of her own entitlement”.

Test for Leave to Appeal

[11] 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.

[12] 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.).

[13] 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.).

Analysis

[14] It is essential to remember that the motion judge made no order in respect of on-reserve property. On the summary judgment motion, he was not requested to make any order with respect to off-reserve property. The first claim to that relief was advanced within the submission on costs.

[15] With respect to Rule 62.02(4) (a), I know of no decision indicating that a motion judge in a family court matter cannot deny a request by one spouse to sell an off-reserve property, in which the other spouse claims an interest, in order to pay a costs order in favour of the other spouse before she has had her claim adjudicated.

[16] At paragraph 20 of his endorsement dated July 20, 2016, Reid J. noted “the issue of whether the applicant is entitled to some amount of money for equalization of net family property and whether she is entitled to payment of support is independent from her ability to enforce a judgment. Since the estate has assets that are not on-reserve, at the very least it appears necessary to know the value of total assets, both on-reserve and off-reserve to assess the applicant’s potential entitlement to establish a claim against off-reserve assets. Once entitlement is established, it is open to the applicant to seek any means of enforcement which are not prohibited by the operation of s.89 of the Indian Act”.

[17] As held in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, “A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”.

[18] Counsel for the estate cites a myriad of cases in which courts have held that s.89 prevents enforcement provisions of various types, or possessory rights, in respect of on-reserve property. The motion judge here did not make any order with respect to on-reserve property.

[19] As to the second part of the test under Rule 62.02(4)(a) that I be satisfied that it is “desirable that leave to appeal be granted”, I am not so satisfied. In the fact of this case, the issue as perceived by the motion judge, correctly, as opposed to that advanced by the estate, is perfectly sensible as between these parties in the circumstances of this case at the stage to which the litigation has reached.

[20] Similarly, under Rule 62.02(4) (b) I am not satisfied there is any reason to doubt the correctness of the portion of the order impugned. The issue was perceived by the motion judge, and decided, correctly in my opinion. In addition, I am of the opinion that the proposed appeal does not involve a matter of such importance that leave to appeal should be granted.

[21] Particularly in the circumstances of this case, where disclosure has never been properly made, far from doubting the correctness of the decision, I think it was a correct one.

[22] For these reasons, leave to appeal is denied.

Costs

[23] If the parties are unable to agree on the issue of costs, written submissions may be made and forwarded to my chambers in Kitchener at the Court House, 85 Frederick Street, 7th floor, Kitchener, N2H 0A7. As the factums on this leave application numbered 269 paragraphs in total, I stipulate that such costs submissions are not to exceed 5 typed double spaced pages, exclusive of bills of costs, relevant offers to settle, and relevant authorities. Those of the applicant (respondent in the proposed appeal) are to be received within 21 days, and those of the respondent (appellant in the proposed appeal) are to be received within 14 days thereafter. If such submissions are not received within these time limits, or such extensions as may be sought and granted, the issue of costs will be deemed to have been settled as between the parties.

Released: January 27, 2017.

C.Stephen Glithero J.