Duffy v. Duffy, 2025 ONSC 793
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
LEONA DUFFY
Applicant
AND
Michael Paul Duffy
Respondent
BEFORE: VELLA J.
COUNSEL: Defendant
HEARD: JANUARY 21, 2025
ENDORSEMENT – reasons on settlement of orders
1The Respondent, Mr. Duffy, requested this appointment to settle the terms of the Order resulting from my Reasons for Decision dated June 11, 2024 (the “Decision”). He filed a Form 25E Notice Disputing Approval of Order. It is important that the Order be settled, so that the Respondent can perfect his appeal from the Decision.
2In addition, the parties cannot agree on the form of the costs order, though this issue was not raised during the course of submissions before me. The Respondent filed a separate Form 25E disputing approval of the costs order.
3I will deal with the costs order first. By endorsement dated June 21, 2024, I ordered, on consent, costs payable by the Respondent in the sum of $12,678.60 payable by July 17, 2024. I also ordered, also on consent, that the costs will be added as support.
4The only dispute centres around the language necessary to enforce the costs order by way of a support deduction order. The parties agree as to the wording of the balance of the costs order.
5The disputed paragraph from the Applicant’s draft costs order reads:
The Respondent, Michael Paul Duffy, shall provide to the other party and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the date of the change taking place.
6I agree with the Respondent. The impugned paragraph does not accord with the terminology for a support order as prescribed by O. Reg. 454/07: Recommended Standard Terms for Support Orders (as promulgated under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended). Accordingly, the form of costs order tendered by the Respondent shall be signed by the Registrar except that the administrative “Temporary” and “Final” boxes shall be left blank.
7The parties jointly submit that there were two main areas of disagreement leading to this appointment.
8First, the parties dispute the nature of my order. The Respondent submits that it is a final order, while the Applicant submits it is an interlocutory order. They disagree upon which, if any, box at the top of the order signifying “temporary” or “final” should be ticked. This is important, according to the parties, as the Respondent has filed a notice of appeal with the Court of Appeal. The Applicant intends to bring a motion to quash on the basis that they believe the appeal route is to seek leave before the Divisional Court. The Respondent contends that my order is “Final” for purposes of appeal (s. 6(1)(b) of the Courts of Justice Act) and the Applicant submits that my order is interlocutory (s. 19(1)(b) of the Courts of Justice Act).
9I have considered the submissions.
10Pursuant to r. 25(7) of the Family Law Rules where the parties are unable to settle the order at a telephone conference, the clerk shall, as soon a s possible, refer the order to the judge who made it, to be settled. I required the parties to attend to make their submissions.
11In my view, the characterization of my order as interlocutory or final is not necessary for the settlement of the terms of the order. I note that the boxes are administrative in nature and not determinative of the nature of the order. Furthermore, there is no box that denotes interlocutory. Both parties agree that my order is not temporary.
12In Knapp v. Knapp, 2021 ONCA 305 ONCA 305, at para. 41, the Court of Appeal noted that it will independently determine whether an impugned order is interlocutory or final for purposes of establishing the correct appellate route, irrespective of how the order may be marked on the form of order.
13Furthermore, if I were to issue a decision on this issue, it could arguably then be the subject of an appeal. This does not make practical sense.
14The appellate court will determine whether my order is interlocutory or final.
15Hence, neither box will be ticked.
16However, this anomaly in the administrative form of order might be worthy of review by the family law rules committee. It could be of value to have a third box that is labelled “interlocutory”.
17The second area of dispute is whether or not Justice Shore’s Order, giving rise to the motion that was before me, should be referenced in the Order. In my view, it should be. The motion was, in its essence, a motion to determine whether the Applicant validly exercised the Right of First Refusal to purchase the Matrimonial Home (as defined in my decision) granted by Justice Shore on March 31, 2023, on consent (the “Shore Order”), with respect to an offer received on October 2, 2023.
18I determined, inter alia,
a) the terms of the Shore Order were not repudiated by the parties but modified by mutual agreement;
b) the parties received a recommendation to accept an offer to purchase the matrimonial home in accordance with the terms of the Shore Order;
c) the Applicant had validly exercised that ROFR pursuant to the Shore Order and the Respondent must cooperate with the Applicant in completing the transfer of title from him to her;
d) the Respondent is directed to cooperate with the transfer of the matrimonial home into the Applicant’s name in a timely manner;
e) with respect to the disposition of sale proceeds, the amounts listed in the Applicant’s Statement of Adjustments are approved, subject to the accrual of any further spousal support from April 1, 2024 and May 1, 2024 and the amount the Applicant states is owing to her from the realtors (for which I will accept brief written submissions from the parties on the final amount owing to the Respondent with respect to the net sale proceeds if there is a disagreement).
19In my view, the Shore Order should be referenced in the Order.
20In 1819472 Ontario Corp. v. John Barrett General Contactors Limited, 2024 ONCA 333, at para 22, the Court of Appeal held that the form of an order must make the legal basis of the order “obvious”. This is in part so that the appellate court can be aided in its determination of whether or not the order appealed from is within its jurisdiction.
21Rule 25 of the Family Law Rules does not provide specific guidance as to the principles that should be followed in settling an order. However, a guiding principle applicable to civil and therefore family proceedings is that the order should describe the result, but not the underlying reasons that gave rise to the result. In other words, the order sets out the specific relief provided but not the findings of fact giving rise to the relief (DBDC Spadina Ltd. v. Walton, 2014 ONSC 5130, at para.3). Importantly, this is not an opportunity to re-litigate the issues I have determined, or otherwise expand the relief from what I granted.
22Since my order arose from whether the Shore Final Order’s consent conferral of the ROFR was validly exercised and therefore enforced as against the Respondent, it is, in my view, necessary that the Shore Order be referenced. It was the foundational order in the motion before me, and this may inform the appellate court’s characterization of the substantive nature of my order as interlocutory or final.
23I do not entirely agree with the form of order proposed by either party because each of their respective proposed drafts includes references to findings of fact or the rationale underlying the relief granted.
24Furthermore, I did not make a finding of fact as to the specific amount that may be owing by the realtors to the Applicant or any accrued spousal support. I provided that in the event that the parties could not agree with respect to the amount payable to the Respondent from the net sale proceeds of the matrimonial home, then they may address that matter by written submissions before me.
25In addition, the draft orders make reference to issues that I declined to making findings on; ie: I declined to make a finding under r. 1(8) and I did not entertain the Respondent’s requested relief or whether he is precluded from seeking such relief. These statements do not amount to the granting of relief and therefore have no place in the order.
26I also modified the costs paragraph. There is no need to describe the process for presenting costs submissions in the event of disagreement on costs. Rather, it is sufficient to state that costs are under reserve.
27Overall, I favour the wording of the Respondent’s proposed draft order but with modifications.
28Accordingly, I have attached the form of order to be signed by the Registrar as Schedule A. I have also attached the form of the costs order to be signed by the Registrar as Schedule B.
________________________ Justice S. Vella
Released: February 14, 2025