COURT FILE NO.: FC-18-448-0

DATE: 2021/11/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thomas Alan Johnson, Applicant

AND

Carol Patterson, Respondent

BEFORE: Justice Engelking

COUNSEL: Karla Policelli, for the Applicant

Mark W. Smith, for the Respondent

HEARD: July 28, 2021

ENDORSEMENT

[1] This is a motion brought by the Respondent, Ms. Patterson, seeking leave to appeal the Family Arbitration Award of E. Jane Murray dated February 10, 2021 and received by her on February 16, 2021. She also seeks an order extending the time for bringing this motion pursuant to section 2(8) of the Family Law Act[^1].

[2] The Applicant, Mr. Johnson, seeks to have Ms. Patterson’s motion first dismissed for delay, and second, dismissed for lack of merit. If the motion is dismissed, Mr. Johnson seeks an order incorporating the terms of the Arbitration Award as per s. 59.8 of the Family Law Rules[^2]. If it is not dismissed, Mr. Johnson seeks an order for security for costs in the amount of $25,000.

[3] The issues are:

1. Should Ms. Patterson be granted an extension of time to serve and file her Notice of Appeal and Notice of Motion for leave to appeal?

2. If so, should leave to appeal be granted?

3. If so, should an order for security for costs be granted pending the appeal?

[4] For the reasons that follow, Ms. Patterson’s motion for an order extending her time to serve and file her Notice of Appeal and Motion for Leave to Appeal is granted. Her Motion for Leave to Appeal, however, is denied.

Background Facts

[5] The parties were married on October 13, 1994 and separated on March 15, 2013. They entered into an Arbitration Agreement dated February 11, 2019 for Ms. Murray to arbitrate specific aspects of their marital dispute. The second phase of the arbitration was held with respect to the issue of spousal support and Ms. Murray made a Family Arbitration Award on February 10, 2021, which Ms. Patterson received on February 16, 2021.

[6] On March 11, 2021, Mr. Johnson was served with Ms. Patterson’s Notice of Appeal dated March 11, 2021 and Notice of Motion for Leave to Appeal the Arbitration Award, which was outside of the 15-day service requirement of Rule 38(50)(a) of the Family Law Rules[^3]. An uncommissioned Affidavit of Service of Mr. Smith dated March 11, 2021, indicates that on that date at 2:20 p.m. he served Mr. Yemensky, Mr. Lyon and Ms. Murray by email with a Notice of Change of Representation, Notice of Appeal, Affidavit of Carol Patterson sworn on March 10, 2021 and Notice of Motion.

[7] It is unclear when Ms. Patterson filed her Notice of Motion with the court, but Rule 38(50)(b) of the Family Law Rules provides it is to be so no later than five days after service. Pursuant to Rule 38(51) of the Rules, Ms. Patterson’s affidavit in support of her motion was to be served on Mr. Johnson within 30 days of the filing of the Notice of Motion with the court. Presuming the Notice of Motion was filed by March 18, 2021 (or five days after service), then her affidavit was to be served on Mr. Johnson by no later than March 19, 2021.

[8] Notwithstanding the affidavit of service noted in paragraph 6 above, on May 6, 2021, Mr. Johnson’s counsel, Ms. Policelli, wrote to Ms. Patterson’s counsel, Mr. Smith, to indicate that as Ms. Patterson’s Notice of Motion was not served in time in accordance to the Family Law Rules, and as to that date, Ms. Patterson had not served or filed her Motion Record, she (Ms. Policelli) would not accept service of same absent an order extending time for her to serve and file her motion materials. Ms. Policelli also indicated that Mr. Johnson would oppose any such motion for the extension of time.

[9] It is unclear to me when Mr. Johnson received Ms. Patterson’s affidavit of March 10, 2021, if it was not on March 11, 2021, as indicated by her. Regardless, Ms. Patterson did not obtain any order granting her an extension of time to serve and file her materials prior to proceeding with this motion, but requests it as part of this motion.

[10] An Affidavit of Service of Mr. Smith dated May 17, 2021, which is also not commissioned, indicates that he served Ms. Policelli with Ms. Patterson’s Notice of Motion and Factum, along with copies of the Family Arbitration Agreement and Family Arbitration Award, on the same date.

[11] The motion was originally scheduled for June 23, 2021. On that date, Ms. Patterson sought an adjournment to permit her to respond to Mr. Johnson’s materials. The parties agreed on terms of an adjournment. On a without prejudice basis to Ms. Patterson pursuing her appeal, if granted leave, Justice MacEachern issued an order incorporating the terms of the Arbitration Award.

[12] The motion was then heard by this court on July 29, 2021.

Analysis

Issue #1 – Should Ms. Patterson be granted an extension of time to serve and file her Notice of Appeal and Notice of Motion for Leave to Appeal?

[13] Paragraph 11 of the Arbitration Agreement of the parties dated February 11, 2019 provides:

11.1 The Award of the Arbitrator may be appealed only in accordance with subsection 45(1) of the Arbitration Act, 1991.

11.2 The parties specifically waive the application of s. 59.8(6) of the Family Law Act to any Award made by the Arbitrator in accordance with this Agreement.

[14] Subsection 45(1) of the Arbitration Act[^4] states:

45 (1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) determination of the question of law at issue will significantly affect the rights of the parties.

[15] As was indicated above, the timing of the Appeal and the Motion for Leave to Appeal are governed by Rule 38 of the Family Law Rules. There is no question that Ms. Patterson did not adhere to the timelines contained therein. Even if her time commenced as of March 11, 2021, Ms. Patterson was approximately a month late in serving her factum on Mr. Johnson[^5], and did so only after having been prompted by Mr. Johnson’s counsel’s letter. She, therefore, seeks an order granting her an extension of time for service and filing of her Notice of Appeal and Motion for Leave. Mr. Johnson seeks to have Ms. Patterson’s motion for leave dismissed for delay.

[16] In Huron-Perth Children’s Aid Society v. K (RC), 2015 ONSC 3023, upon which Mr. Johnson relies, the court sets out at paragraph 24 the following five factors to consider in determining whether or not to exercise the court’s discretion to extend the time for launching or perfecting an appeal:

(a) Whether the appellant both formed and maintained an intention to appeal, and perfect the appeal, within the relevant deadlines;

(b) The length of the delay and the explanation for the delay;

(c) Any prejudice to the respondent;

(d) The merits of the appeal; and,

(e) Whether the “justice of the case” requires it.

[17] In this case, Ms. Patterson indicates that although the Arbitration Award was signed on February 10, 2021, it was not received by her until February 16, 2021, as Ms. Murray would not release it without payment of her invoice. She then states that her previous counsel and Mr. Johnson’s then counsel were communicating regarding clarification of an insurance coverage issue, which issue, according to a letter from Mr. Lyon to Mr. Yemensky dated March 11, 2021, had the potential of reopening the arbitration.

[18] On the same date, March 11, 2021, Ms. Patterson’s new counsel, Mr. Smith, delivered a Notice of Appeal and Notice of Motion for Leave to Appeal to Mr. Thomas’ counsel.

[19] Ms. Patterson relies on section 47(1) of the Arbitration Act, which provides:

47(1) An appeal of an award or an application to set aside an award shall be commenced within thirty days after the appellant or applicant receives the award, correction, explanation, change or statement of reasons on which the appeal or application is based.

[20] Ms. Patterson also relies on section 2(8) of the Family Law Act, which provides that a court, on motion, may extend a time prescribed by the Act if it is satisfied that, (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

[21] Ms. Patterson asserts that it was her belief, held in good faith, that the time for the service and filing of her appeal only commenced as of March 11, 2021, when the insurance issue was clarified by her counsel. Ms. Patterson also indicates that the pandemic and provincial stay-at-home directives contributed to delay in delivering her remaining documents.

[22] On May 17, 2021, Ms. Patterson’s factum and supporting documents were delivered to Mr. Johnson’s counsel. On June 8, 2021, Ms. Patterson’s counsel was served with Mr. Johnson’s Notice of Motion, Affidavit sworn on June 8, 2021, Affidavit sworn on November 12, 2020, Reply Affidavit sworn on November 20, 2020, and Factum.

[23] I have no evidence to indicate that Ms. Patterson’s intention to appeal was formed and maintained as of February 25, 2021, (or March 3, 2021, if February 16, 2021 is the operative date) but her intention was acted upon as of March 11, 2021. Even if Ms. Patterson was mistaken in her belief that the time for the filing of her appeal commenced as of that date, her belief was not unreasonable, given s. 47(1) of the Arbitration Act, and the wording of Mr. Lyon’s letter dated March 11, 2021, wherein he stated: “We trust that this will obviate the difficulties in reopening the arbitration to address this issue.” I, therefore, find that although she did not do so, Ms. Patterson intended to appeal within the relevant deadlines.

[24] Additionally, the length of the delay, if March 11, 2021, was not the date at which Ms. Patterson’s time started to run, was not so long as to cause the court to deny her an extension of time. If the time started to run as of February 10, 2021, Ms. Patterson was 14 days late in serving her Notice of Appeal and Notice of Motion for Leave to Appeal. If it started to run as of February 16, 2021, when she received the Arbitration Award, she was only eight days late. Her explanation for the delay as indicated above, coupled with the fact that she had to retain new counsel for the appeal, was reasonable.

[25] Given that Ms. Patterson’s delay in serving the Notice of Appeal and Notice of Motion for Leave to Appeal was no more than either 14 or eight days, I do not find that there is any real prejudice to Mr. Johnson, at least not one that cannot be compensated through cost considerations. Whether or not it affected the start date for the timelines of the appeal, the parties were still dealing with the implications of the Award through correspondence up to March 11, 2021.

[26] The merits of the appeal, in this case, can be more properly dealt with in the Motion for Leave to Appeal. Indeed, one part of the test for granting leave as set out in Section 45(1) of the Arbitration Act is whether the court is satisfied that the importance to the parties of the matters at stake in the arbitration “justifies an appeal”.

[27] Finally, given the issues at stake, the short delay, including that Ms. Patterson’s Motion for Leave to Appeal materials were served by May 17, 2021, and in the context of potential delays in communication/completion of documentation occasioned by the pandemic, I find that the justice of the case requires that Ms. Patterson be granted an extension of time to serve and file her Notice of Appeal and Notice of Motion for Leave to Appeal.

Issue #2 – Should Leave to Appeal be Granted?

[28] Ms. Murray made an award that Mr. Johnson is entitled to retroactive support in the amount of $112,140.

[29] Ms. Patterson seeks to appeal the Arbitration Award, submitting that the Arbitrator erred in law by not properly considering the prevailing law with respect to retroactive spousal support.

[30] The test for leave to appeal such an award is contained in section 5(1) of the Arbitration Act, which provides:

45(1) If the arbitration agreement does not deal with appeals on questions of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that,

(a) The importance to the parties of the matters at stake in the arbitration justifies an appeal; and

(b) Determination of the question of law at issue will significantly affect the rights of the parties.

[31] In Ferreira v Esteireiro, 2013 ONSC 7947, Justice Stevenson found at paragraph 22 that in order to answer these questions, the judge dealing with the Motion for Leave to Appeal an Arbitration Award had “to first determine whether there were errors of law (the only ground for leave to appeal)”, and that, of necessity, she had to address the issues as set out in moving party’s Notice of Motion and Factum.

[32] In her Notice of Appeal, Ms. Patterson sets out the legal grounds for her appeal as follows:

1. Section 45(6) of the arbitration Act provides that an appeal from a Family Arbitration Award lies to ..(b) the Superior Court of Justice in the rest of Ontario.

2. Pursuant to the terms of the Arbitration Agreement between the parties, an award can only be appealed in accordance with section 45(1) of the Arbitration Act, with leave, on a question of law.

3. The Arbitrator erred in law in not properly considering the prevailing law with respect to retroactive spousal support and in particular, failed to properly consider all of the factors as being relevant to the suitability of a retroactive award of spousal support including;

a) The needs of the recipient,

b) The reason for the delay in seeking support; and

c) Any hardship the retroactive award may occasion to the payor spouse.

[33] In her Notice of Motion for Leave to Appeal, Ms. Patterson states that the order she requests is for “leave to appeal the Family Arbitration Award of E. Jane Murray dated February 10, 2021, and received February 16, 2021.” She does not set out any grounds upon which she seeks that relief.

[34] In her factum, Ms. Patterson identified that Ms. Murray properly indicated that section 17(1)(a) of the Divorce Act[^6] permits an award of retroactive support, and that she listed the following factors from Kerr v. Baranov as being relevant to the suitability of a retroactive spousal support award:

a) The needs of the recipient,

b) The conduct of the payor,

c) The reason for the delay in seeking support, and

d) Any hardship that the retroactive award may occasion the payor spouse.

[35] She then submits, however, that Ms. Murray erred in properly considering factors a), c) and d).

[36] The Arbitration occurred in two stages, the first dealing with the parties’ date of separation and the second dealing with the issue of spousal support, both ongoing and retroactive. There is no transcript from the Arbitration proceeding; as this is the case, one must turn to the content of the Arbitration Award to ascertain what Ms. Murray considered in coming to her decision.

[37] On the first page of her Arbitration Award dated February 10, 2021, Ms. Murray identified the following as one of the questions for determination: “2. Is Mr. Johnson entitled to retroactive spousal support commencing March 15, 2013, which the first stage of arbitration determined to be the date of separation?”

[38] On page 3 of the Award, Ms. Murray indicated the following in relation to Mr. Johnson’s claim to retroactive spousal support:

Finally, Mr. Johnson is seeking retroactive spousal support in the amount of $213,760.00 for the period between the date of separation, March 15, 2013 and April 2019 when Ms. Patterson began paying interim without prejudice support. This amount is arrived at using the cost/benefit midpoint methodology used by Shelston J. in Verhey v. Verhey, 2017 ONSC 2216 to calculate a net of income tax lump sum spousal support award for retroactive spousal support. The calculations provided by counsel for Mr. Johnson were done using the actual Line 150 income for each of the parties for each of the years in question and the midrange SSAG amounts.

[39] On page 4 of the Award, Ms. Murray sets out the position of Ms. Patterson with respect to this claim as: “Ms. Patterson also disputes the extent of Mr. Johnson’s claim for retroactive spousal support. Ms. Patterson’s position is that Mr. Johnson is not entitled to support for the period prior to the date that he issued his claim which was March 2018.”

[40] Further at page 4, Ms. Murray found the following with respect to Mr. Johnson’s claim for retroactive spousal support:

2. Mr. Johnson is entitled to retroactive spousal support in the amount of $113,792.00. After crediting the overpayment noted in paragraph 1, the balance owing by Ms. Patterson to Mr. Johnson is $112,140.00. this amount is calculated using the low end of the SSAG range and the method employed by Justice Shelston in the Verhey case for the period commencing June 1, 2014 and ending April 30, 2019 after imputing an income of $30,000 per annum to Mr. Johnson. If Ms. Patterson makes the payment to Mr. Johnson within 30 days of the date of this award no interest shall be payable. Post-judgement interest shall start to accrue on the 31^st day after the date of this award.

[41] On page 7, Ms. Murray summarized Mr. Johnson’s evidence as to his health issues to include Crohn’s Disease, two hip surgeries, metal poisoning as a result of his first hip surgery, frequent kidney stones, arthritis, depression and a declined cognitive functioning and memory loss caused by the metal poisoning and his depression.

[42] On page 9 of the Award, Ms. Murray described Mr. Johnson’s evidence on the issue of the timing of his claim for spousal support thus:

Mr. Johnson was cross examined with respect to the timing of his claim for spousal support. Counsel for Ms. Patterson provided a timeline which was entered as Exhibit 25. The timeline starts with an e-mail from Mr. Johnson’s lawyer to Ms. Patterson’s lawyer dated May 2014 and ends in November 2017 when Mr. Johnson’s Financial Disclosure Brief was provided to counsel for Ms. Patterson. Mr. Johnson testified that he found the process of completing his financial statement and providing disclosure to be extremely difficult given his pain levels, depression and low energy. He stated that he had found the entire process to [be] “off the scale” in terms of difficulty. He also indicated that he had been extremely reluctant to pursue his claim for spousal support because he knew that it would lead to significant conflict with Ms. Patterson. In order to avoid the conflict and stress that it would have caused for him, he chose to support himself with his savings for a significant period after the date of separation.

[43] On pages 13 of the Award, Ms. Murray referred to Ms. Patterson’s current Financial Statement and indicated: “She appears to be operating with a monthly deficit of over $5000 per month...” However, Ms. Murray indicated at page 16 of the Award that “once the legal fees, savings and interim spousal support are deducted, Ms. Patterson’s monthly income exceeds her expenses by more than $2700.00 per month.”

[44] On page 20 of the Award, Ms. Murray found that “the evidence of Dr. Starosta [Mr. Johnson’s physician] is sufficient for me to conclude that Mr. Johnson is not and was not capable of working full time at the time that the parties separated.”

[45] At page 24 of the Award, Ms. Murray concluded from a review of Mr. Johnson’s Net Family Property Statement and his (then) most recent Financial Statement that “Mr. Johnson used his equalization payment to support himself for the period between April 2013 and May 2019 when he began to receive without prejudice support payments from Ms. Patterson. This explains how he dealt with the shortfall between his income and his expenses throughout that time period.”

[46] Commencing on page 25 of the Arbitration Award, Ms. Murray provides her analysis of the issue of retroactive support. After referencing Kerr v. Baranow, as indicated above, Ms. Murray states at page 26: “In the present case, there is little question that Mr. Johnson had a need for spousal support during the period between the date of separation and May 2019. He completely exhausted his equalization payment in order to support himself during the period between the date of separation and the date that Ms. Patterson began to pay spousal support.” She found further that it was evident that Ms. Patterson had the ability to pay spousal support during this period, and Ms. Murray stated:

Ms. Patterson’s most recent Financial Statement dated November 17, 2020 indicates that her net worth has increased significantly since the date of separation. As noted in Mr. Johnson’s affidavit dated November 20, 2020, Ms. Patterson’s net family property on the date of separation was $584,56.32. After deducting the equalization payment owing to Mr. Johnson in the amount of $288,354.02, her net worth on the date of separation was approximately $295,902. On November 20, 2020, Ms. Patterson’s net worth was $639,946.50. Her net worth increased by $344,044.00 over the same period of time that Mr. Johnson was depleting his savings to support himself.

[47] Ms. Murray examines Ms. Patterson’s claim that Mr. Johnson is not entitled to retroactive spousal support prior to the provision of his financial disclosure in November of 2017 or the issuance of his application in March of 2018, in pages 26 to 29 of the Arbitration Award. After thoroughly reviewing the caselaw, including by noting that at paragraph 207 of Kerr v. Baranow, the court confirmed that S.(D.B.) v. G.(S.R.) 2006 SCC 37, 2006 S.C.C. 37 considerations are applicable to deciding the suitability of retroactive spousal support awards, Ms. Murray stated:

While it is true that there was some delay on the part of Mr. Johnson in pursuing his claim for spousal support, I find that effective notice of his claim was provided by counsel for Mr. Johnson by way of an e-mail to counsel for Ms. Patterson dated May 26, 2014. This e-mail is included in the Timeline re: Spousal Support that was filed as Exhibit 25. The body of the e-mail refers to “some spousal support guideline information” as being attached. I was not provided with the attached information, but it is clear that the topic of spousal support was “broached”, and it must have been evident to counsel for Ms. Patterson from this e-mail that Mr. Johnson intended to assert a claim for spousal support.

[48] Ms. Murray also noted Mr. Johnson’s reasons for delay as being wishing to avoid the conflict with Ms. Patterson and his health issues making it difficult for him to complete his financial disclosure. Ms. Murray indicated at page 29 that “Mr. Johnson’s health issue may explain his delay and he was required to live on his savings and capital. There is evidence of effective notice of his claim having been made as of May 2014.” Ms. Murray went on to state:

As a result, I find that there should be a retroactive award of spousal support [support] for the period commencing June 1, 2014 being the month after Ms. Patterson was put on notice of Mr. Johnson’s support claim and ending April 30, 2019 when the interim with out prejudice support payments began.

I note that this date also coincides with the date that the matrimonial home was sold. I find the fact that Mr. Johnson had the benefit of living in the matrimonial home for the period between [the] date of separation and the date that it was sold to be a factor that mitigates against making a retroactive spousal support award that commences on the date of separation.

[49] In her affidavit in support of her motion sworn on March 9, 2021, Ms. Patterson asserts in paragraph 5 that Ms. Murray “made an error in law with respect to the determination of the legal basis for retroactive support and the amount.” At paragraph 6, Ms. Patterson states:

6. I am now 63 years of age and will not be working after my 65^th birthday. The decision in the Family Arbitration Award will cause me serious financial harm. It will deplete my assets and given my age will not allow me sufficient time to replenish them. This issue is of extreme importance to me and will significally [sic] affect my rights with respect to the ability to attend to my own financial needs.

[50] That is the extent of Ms. Patterson’s evidence on her Motion for Leave. While Ms. Patterson certainly points out what she believes the effects of the Arbitration Award will be on her, she does not identify what errors in law Ms. Murray made in coming to it. Similarly, in her affidavit sworn on July 5, 2021, which is in response to Mr. Johnson’s motion to dismiss her Motion for Leave for delay, Ms. Patterson does not set out any particular facts which point to or support her assertion that Ms. Murray erred in law

[51] In her Supplementary Factum dated July 6, 2021, Ms. Patterson submits that although Ms. Murray embarked on a review of the net worth of each of the parties, she did not “make any finding to establish that she put her mind to the consideration of the hardship to the payor as required in Kerr”, and she submits this constitutes an error in law.

[52] Both Ms. Patterson and Mr. Johnson rely on Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, where the Court of Appeal commented at paragraph 19 on one or more of the following constituting an error of law reviewable on a standard of correctness:

(a) The application of an incorrect principal,

(b) The failure to consider a required element of a legal test, or

(c) The failure to consider a relevant fact.

[53] Mr. Johnson submits in his factum that Ms. Patterson has not particularized the question of law at issue, not led evidence to establish that there was an error of law, and has not pointed to anything in the Arbitration Award to support her proposition that there was an error of law. With this I agree.

[54] Ms. Murray found need on the part of Mr. Johnson, and she did so in the context of all of the evidence, including the medical evidence from Dr. Starosta, and evidence regarding the depletion of his assets prior to support being in pay. Ms. Murray also dealt with the issue of Mr. Johnson’s delay in seeking spousal support. Indeed, she referenced S.(D.B.), indicating that it is applicable to claims of retroactive spousal support. She, thus, put her mind to the criteria contained therein, in particular, delay. Ms. Patterson disagrees with her conclusion, but she has provided no evidence to this court which would demonstrate that Ms. Murray applied an incorrect principle, failed to consider a required element of a legal test or failed to consider a relevant factor. On these grounds, the recipient’s needs and delay, Ms. Patterson fails to establish that Ms. Murray made an error in law.

[55] Ms. Patterson similarly falls short on the ground that Ms. Murray failed to consider the issue of hardship. Except for the statement contained in Ms. Patterson’s Supplementary Factum outlined in paragraph 51 above, Ms. Patterson has not even referenced anything that would cause this court to conclude that Ms. Murray made any error of law as per the criteria in Deslaurier. Most importantly, Ms. Patterson has not provided any evidence to this court regarding Ms. Murray having failed to consider relevant factors (i.e. evidence led by her at the arbitration hearing which Ms. Murray failed to properly consider) or having failed to consider a required element of a legal test. Clearly, Ms. Murray put her mind to the capacity of Ms. Patterson to pay retroactive support. She did so by considering Ms. Patterson’s net worth at the time of the hearing versus her net worth at the time of the separation. She did so, moreover, in the context of the applicability of S.(D.B.) factors, one of which is hardship.

[56] Returning then to Ferreira, I agree with Justice Stevenson that in order to determine whether the importance to the parties of the matters at stake in the arbitration justifies an appeal and whether the question of law at issue will significantly affect the rights of Mr. Johnson and Ms. Patterson, I must first determine whether there was an error in law made by Ms. Murray. In this case, Ms. Patterson has failed to demonstrate that such an error or errors occurred.

[57] For these reasons, Ms. Patterson Motion for Leave to Appeal is dismissed.

[58] Justice MacEachern’s order incorporating the terms of the Arbitration Award shall, therefore, become a with prejudice order.

Costs

[59] If the parties are unable to reach an agreement as to the liability or quantum for cost of the motion by November 15, 2021, they may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Engelking J.

Date: November 1, 2021

COURT FILE NO.: FC-18-448-0

DATE: 2021/11/01

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Thomas Alan Johnson, Applicant

AND

Carol Patterson, Respondent

BEFORE: Justice Engelking

COUNSEL: Karla Policelli, for the Applicant

Mark W. Smith, for the Respondent

ENDORSEMENT

Engelking J.

Released: November 1, 2021

[^1]: R.S.O. 1990, c.F.3, as am.

[^2]: O. Reg. 114/99 as am

[^3]: 15 days from February 10, 2021 is February 25, 2021. 15 days from February 16, 2021 is March 3, 2021.

[^4]: 1991, S.O. 1991, c. 17

[^5]: As required by Rule 38(50)(c)

[^6]: R.S.C. 1985, c.3 (2nd Supp), as am