Dulku v. Dulku, 2017 ONSC 840

CITATION: Dulku v. Dulku, 2017 ONSC 840

COURT FILE NO.: DC-16-144-ML

DATE: 20170206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUKHWINDER DULKU, Appellant

AND

PARMINDER KAUR DULKU, Respondent

BEFORE: EMERY J.

COUNSEL: Frances M. Wood, for the Appellant Sukhwinder Dulku

Mukesh Bhardwaj, for the Respondent Parminder Kaur Dulku

HEARD: In Writing

ENDORSEMENT

1The applicant Sukhwinder Dulku brings this motion for leave to appeal the interlocutory orders made by The Honourable Mr. Justice Price on October 13 and 27, 2016. Mr. Dulku submits that:

a) Justice Price made a temporary order on October 13, 2016 that fixed retroactive child support payable by Mr. Dulku to the respondent Parminder Kaur Dulku without a full evidentiary record, contrary to established principles;

b) Justice Price did not address the applicant’s motion for the sale of the matrimonial home on October 27, 2016 after he adjourned the motion to that date to enable Mr. Dulku to amend his application to plead the Partition Act.

Background

2The parties were married in Punjab, India, on March 19, 2000. Depending on the evidence accepted at trial, they separated on either January 15, 2016 or March 31, 2016.

3The parties have three children of the marriage, aged 6, 13, and 14 respectively.

4In his Application, Mr. Dulku seeks an order for the sale of the matrimonial home. He does not specify the Partition Act as authority for seeking this order.

5The Answer filed by Ms. Dulku does not oppose the sale of the matrimonial home. However, she seeks relief in the nature of an order that she be permitted to purchase Mr. Dulku’s interest. Ms. Dulku does not include any reference to the Partition Act in her Answer.

6On April 26, 2016, the parties consented to an order made by Justice Snowie at a case conference to establish a framework that would either enable Ms. Dulku to purchase Mr. Dulku’s interest in the matrimonial home, or to list the matrimonial home for sale.

7On September 28, 2016, Mr. Dulku brought a motion before Justice Price for an order that the matrimonial home be listed for sale. The motion also requested ancillary relief to implement that order and to facilitate the payment or preservation of the net proceeds of sale. Mr. Dulku did not refer to the Partition Act, the Family Law Act, or any family law rule in his motion as a basis for seeking this relief.

8On the same day, Ms. Dulku brought a cross motion for various heads of relief, including an order for retro-active child support from the date of separation on March 31, 2016, and for determination of the fair market value of the matrimonial home. The cross motion also requested a determination by the court as to what amount would be owed to Mr. Dulku by Ms. Dulku from the buy-out of the matrimonial home after set-off. Ms. Dulku did not specify any statutory authority for the relief she was seeking in her cross motion.

9On October 13, 2016, Justice Price released his Reasons for Order consisting of 120 paragraphs, and spanning 52 pages. In those Reasons for Order, Justice Price observed at paragraph 35 of his reasons that Mr. Dulku had not pleaded the Partition Act for his request that the matrimonial home be listed for sale.

10Justice Price further concluded that “the limited circumstances in which an order of sale can be made pursuant to the FLA (Family Law Act) do not exist in the present case.” His Honour reached this conclusion on finding that the ownership of the property was not an issue, and that the sale of the matrimonial home was not necessary to satisfy an order for an equalization of the net family property of the parties. At paragraph 116, Justice Price reiterated that, absent the narrow circumstances where the court could make an order under the Family Law Act, the Partition Act is the sole basis for the court’s jurisdiction to order the sale of a matrimonial home. Justice Price stated that Mr. Dulku’s motion for the immediate sale of the matrimonial home was premature, and could not be adjudicated by the court until he amended his Application to plead the Partition Act.

11Later in the Reasons for Order, Justice Price ordered that Mr. Dulku pay retro-active child support to Ms. Dulku in the amount of $3,088.00 from March 2016 to October 2016 at the rate of $386.00 per month, based on his income of $25,950.00 a year. This order was made subject to recalculation of the support ordered when better evidence was available regarding Mr. Dulku’s income.

12Justice Price therefore adjourned the motion to October 27, 2016 at 9:00 a.m. before him on the following terms:

• Both parties were given leave to amend their pleadings by October 15, 2016 to plead the Partition Act;

• Mr. Dulku was ordered forthwith to pay to Ms. Dulku arrears of child support from March 2016 to October 2016, inclusive, for the support of Shareen Dulku and Gaurav Dulku, fixed in the amount of $3,088.00; and

• The parties were required, before October 27, 2016, to seek to agree on a draft listing agreement, and to be prepared to file the draft agreement on October 27, 2016 for approval by the court.

13The parties re-attended on the motions before Justice Price on October 27, 2016, as directed. On that date, the parents of Mr. Dulku appeared in court and indicated their intention to assert their own claim to an interest in the matrimonial home. They indicated that they required a further month to retain counsel and to make an application.

14Counsel also advised Justice Price that:

a) The parties had completed the disclosure requirements set out in his order of October 13, 2016,

b) Had obtained a joint evaluation of the matrimonial home.

c) about the further time required for the Office of the Children`s Lawyer to complete the clinical investigation on the custody and access issues regarding the children,

d) That counsel may need to conduct questioning and to schedule a meeting with the Dispute Resolution Office or consider the process of mediation or mediation/arbitration.

15Justice Price discussed the scheduling of a settlement conference for January 18, 2017 with counsel, and the prospect that the case would benefit from the appointment of a case manager.

16For the purposes of this motion for leave to appeal, Justice Price made the following orders on October 27, 2016 that are relevant to the motion for leave in the following paragraphs of his endorsement:

1. That the parents of Mr. Dulku retain a lawyer by November 30, 2016 if they are able to do so and in any event, if they intend to assert their own claim for an interest in the matrimonial home;

2. That any application commenced by Mr. Dulku’s parents be tried with the application between the parties, or one immediately following the other, and interim steps in these proceedings shall occur simultaneously;

3. That Mr. Dulku and Ms. Dulku provide written argument on costs, together with the costs outline in connection with Mr. Dulku’s motion heard September 28, 2016; and

4. That Mr. Dulku and Ms. Dulku be prepared at the settlement conference on January 18, 2017 to submit a proposed timetable of remaining steps required in their proceedings.

17From my review of the endorsement made by Justice Price on October 27, 2016, it does not appear that Mr. Dulku’s motion for an order that the matrimonial home be listed for sale was actually dismissed by the court. There is only paragraph 5 of the order that the parties make written submissions on costs for that motion.

18There is no indication given in the endorsement made by Justice Price on October 27, 2016 that Mr. Dulku had amended his pleadings to continue with the motion he had brought for an order to list the matrimonial home for sale under the Partition Act.

19I have been provided with the transcript of the proceedings before Justice Price that day. On page 12 of that transcript, the following exchange took place between the court, and counsel for each of the parties:

THE COURT: Well, but, I have indicated that they were to attend court today if they were going to assert a claim.

MR. BHARDWAJ: I think the parents are outside in the body of the court, Your Honour.

MS. BHAGAT: The parents were sitting outside, Your Honour.

THE COURT: Well, maybe you’d better get them in. So, Mr. Dulku has amended his pleadings?

MS. BHAGAT: Yes, Your Honour, and amended the Notice of Motion. [emphasis added]

20I have taken it upon myself in the interest of justice to review the court file in addition to the motion materials furnished to me for this motion for leave to appeal. I consider the greater court file to be available to a judge on a motion for leave to appeal in circumstances where objective facts are at issue that can be determined by checking the court file. Objective facts in this respect include specific dates on which documents were filed by any party, or the date pleadings were amended to add a claim or to provide statutory authority to give the court jurisdiction to hear a claim. In that respect, I consider the greater court file to be part of the evidentiary record for the purposes of this motion.

21Upon reviewing the continuing record, I am satisfied by the filings with the court that the Application was amended on October 13, 2016 to plead the Partition Act, and there is proof of service on Ms. Dulku the next day. Mr. Dulku also amended the Notice of Motion on October 21, 2016 to specifically rely upon the Partition Act. This amended Notice of Motion was served on the law firm representing Ms. Dulku the same day.

22Counsel for Mr. Dulku submits that Justice Price made the following errors of law that require appellate review:

a) Failing to adjudicate the motion for the listing of the matrimonial home for sale after the required amendment to plead the Partition Act were made;

b) Applying an analysis of how listing the property for sale would impact on Ms. Dulku’s rights to claim exclusive possession of the matrimonial home, when that issue was not raised by either party to put it before the court;

c) Giving consideration to the fair market value at which to list the matrimonial home for sale based on his own research; and

d) Making an order for retroactive child support on a temporary basis without the benefit of a full evidentiary record.

Test for Leave

23This court confirmed in Kashat v. Kashat, 2017 ONSC 232, that the test for granting leave to appeal in a family case is the same as the test for granting leave set out in the Rules of Civil Procedure. This test is frequently cited in the form that follows.

24The 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 that 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.

25Under 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), 1992 CanLII 7405 (ON SC), 7 O.R. (3d) 542 (Div.Ct.).

26Under 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 is satisfied that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 CanLII 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 O.R. (3d) 282 (Gen Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice: Rankin v. McLeod Young Weir Ltd. (1986), 1986 CanLII 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 O.R. (2d) 110 (Div.Ct.).

Analysis

27I do not consider the motion for leave to appeal the order of Justice Price to pay retroactive support to merit leave to appeal. Legal principles have emerged over the last few years to allow the court to award retroactive support from the date of the notice: MacKinnon v. MacKinnon, 2005 Canlii 13191 (Ont. C.A.), and more recently, Wharry v. Wharry, 2016 ONCA 930. There is no conflicting authority at the appellate level to give effect to the primary ground under Rule 62.02(4)(a). As a direct consequence, I also see no reason to doubt the correctness of this order to bring it within the ambit of Rule 62.02(b). In any event, I am not persuaded that it is desirable for leave to appeal be granted for this issue. This order does not transcend the immediate interests of the parties to be considered a matter of public importance, or relevant to the development of the law.

28I consider the failure of Justice Price to adjudicate and determine the motion of Mr. Dulku another matter. In Sahota v. Sahota, 2015 Canlii 20903, Justice Malloy observed that the failure of a judge to give adequate reasons for decision is an error of law: R. v. Sheppard, 2002 SCC 6. For that reason alone, the leave judge has a basis to doubt the correctness of the decision made by the motion judge.

29The Divisional Court in Sahota v. Sahota, 2016 ONSC 314 explained the importance of giving reasons this way:

8As stated by Binnie, J. in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24, and reiterated by Weiler J.A. in Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487, 227 O.A.C. 51, at paras. 10-12, reasons for judgment at the trial level are meant to serve three functions: (1) to explain to the losing party why he or she lost; (2) to enable informed consideration as to whether to appeal; and (3) to enable interested members of the public to see whether justice has been done. The reasons must permit meaningful appellate review in the particular context in which they are given, one consideration being whether the reasons for the judge’s conclusion are obvious on the record: “[s]tanding alone, conclusory and generic reasons … do not permit appellate review. In order for the [appellate] court to determine whether there has been a proper application of legal principles, the pathway to the result is necessary …” (Diamond, at para. 12).

30In this case, Justice Price failed, even if inadvertently, to decide the issue he had adjourned to October 27, 2016. The issue of jurisdiction that concerned him in his Reasons for Order had been addressed by October 27, 2016 with Mr. Dulku’s amendment to his Application on October 13, 2016 to plead the Partition Act. Whether required or not, counsel for Mr. Dulku had also amended the Notice of Motion to rely upon the Partition Act at the return of the motion, even if the Family Law Rules do not specifically require a party to plead the grounds on which he or she relies to bring a motion: Fratianni v. D’Ambrosio, 2014 ONSC 2680 (SCJ) at paragraph 28-31.

31I can see how collateral issues such as the intention of Mr. Dulku’s parents to assert a claim against the matrimonial home made known to the court on October 27, or the valuation issues surrounding the buyout or listing of the property for sale may have obscured the necessity to make a ruling. However, the fact a ruling was not expressly made on the issue had the regrettable effect of leaving the parties with no decision or reasons for a decision to speak of.

32If failure to give adequate reasons is considered to be an error or law, the failure of the motion judge to determine the issue at all in those circumstances must also be considered an error in law. Therefore, the correctness of the decision is open to serious debate to satisfy the first part of the test under Rule 62.02(4)(b).

33Justice Price describes elsewhere in his Reasons for Order the tensions that exist between the Partition Act and the Family Law Act in various respects on a motion to list a matrimonial home for sale. This discussion illuminates the importance of the issues raised on Mr. Dulku’s motion. The tensions that Justice Price so thoroughly examines extend beyond the interests of the involved parties, and are of general importance to the development of the law to justify appellate consideration.

Conclusion

34Leave to appeal the order of Justice Price limited to Mr. Dulku’s motion to list the matrimonial home for sale is granted. In view of this conclusion, I do not propose to consider any other error of law in the reasons given on October 13 or October 27, 2016 advanced as a ground for leave by either counsel.

Costs

35If either party seeks costs on this motion, they may file written submissions consisting of no more than three pages, not including a bill of costs, by February 14, 2017. The other party shall then have until February 21, 2017 to file responding materials limited to the same extent. No reply submissions are permitted without leave. All written materials may be sent by fax to my judicial assistant, Ms. Priscilla Gutierrez, at 905-456-4834 in Brampton.

Emery J