



COURT OF APPEAL FOR ONTARIO

CITATION: Timleck v.
    Beltrano, 2014 ONCA 585

DATE: 20140814

DOCKET: M44028

Pardu J.A. (In Chambers)

BETWEEN

April Timleck

Appellant/Moving Party

and

Robert Beltrano and Kally Beltrano

Respondents/Responding Parties

Susan W. Garfin, for the moving party

Robert Beltrano, appearing in person

Kally Beltrano, appearing in person

Heard: August 5, 2014

On motion for directions and on motions for extending
    time for the appeal.

ENDORSEMENT

[1]

The appellant mother moves for directions regarding the conduct of this
    appeal, as well as for a third order extending the time for this appeal, and an
    order extending the time to appeal from two other orders made between the
    parties, one in the Superior Court of Justice on December 5, 2013, and the
    other in the Divisional Court on September 20, 2013.

[2]

There is a lengthy history to this matter. The parties were married in
    1986 and separated in 1991. There were two children of the marriage, born in
    1987 and 1988.

[3]

A consent order in the Ontario Court (Provincial Division) in 1993 fixed
    the terms of access to the two children, and required the father to pay child
    support of $125 per month per child. There was no provision for spousal
    support.

[4]

Some twelve years later, the mother claimed spousal support and arrears
    of child support, alleging that the father had concealed his income and ought
    to have paid more child support. The father responded with a claim for child
    support for his son Andrew from the mother for the time that Andrew lived with
    him.

[5]

On April 27, 2012, the trial judge dismissed the mothers claim and
    found in favour of the father. After a nine day trial, he found that the fathers
    income was as stated, and that no income had been concealed. He found that the
    father had for many years been unable to work due to illness, and had not had
    the ability to pay spousal support. The trial judge also rejected the mothers
    contention that the father had misappropriated the sons own earnings during
    the time Andrew lived with him. The mother had argued that the amount
    misappropriated should be set off against her obligation to pay support for her
    son. The trial judge ordered the mother to pay child support for the time
    Andrew lived with his father in the sum of $12,488 and ordered the mother to
    reimburse the father for overpayment of child support in the sum of $15,930. He
    granted costs to the father in the sum of $45,000.

[6]

The mother filed a Notice of Appeal on May 30, 2012.

[7]

The mother alleges that the father deliberately tricked her when he
    served her with the Respondents Certificate Respecting Evidence on June 8,
    2012. In preparation for the appeal, the mother had ordered partial transcripts
    of the trial. She claims that when the father served her with the Respondents
    Certificate wherein he requested the entire trial transcript  he faxed her
    the reverse side of the document so that she only received blank pages, and
    that consequently she did not receive notice of his request for the complete
    transcripts. She alleges that she had no reason to believe that partial
    transcripts of the trial she had ordered would not suffice, and that she has
    been unable to perfect her appeal because she did not know that the complete transcripts
    were required. The father denies engaging in any such deceptive practice.

[8]

On October 17, 2012 the mothers appeal was dismissed for delay by the Registrar,
    with costs to the father fixed at $750.

[9]

On November 15, 2012 the appeal was restored pursuant to the order of
    Weiler J.A. The time to perfect the appeal was extended to January 30, 2013.
    During the course of her motion to set aside the dismissal of the appeal, the
    mother indicated that she wished to bring a motion before the trial judge to
    set aside the trial judgment. She alleged that the father had failed to make
    full disclosure at trial and had committed a fraud on the court. The appeal
    court endorsement notes, The applicant advises that she wishes to bring a
    motion before Paisley J. to set aside the trial judgment and the earliest such
    a motion could be heard is December 11, 2012. If she is successful at that time
    she would not need to pursue this appeal.

[10]

The
    mother moved to have the trial judgment set aside on the grounds of fraud,
    based on rule 59.06 of the
Rules of Civil Procedure
. On January 8,
    2013 the parties appeared on the motion before the trial judge who gave them
    procedural directions and adjourned the matter to January 15, 2013.

[11]

On
    January 8, 2013, the fathers counsel wrote to counsel for the mother,
    confirming that the entire transcript was required for both the motion to set
    aside the trial judgment and the appeal. This letter specifically notes that
    the Respondents Certificate Respecting Evidence had requested the complete
    transcript. Whatever the origin of the miscommunication regarding the Respondents
    Certificate Respecting Evidence, this letter makes the fathers position clear.

[12]

On
    February 5, 2013, the trial judge ordered the mother to file the complete
    transcripts of the trial, including the submissions of counsel, for use on the
    motion, factums as previously directed, and to ensure that the endorsement
    record was complete. He indicated that the motion could not be heard on its
    merits as it was apparent that relevant portions of the transcripts of the
    trial have not been ordered. As a result he adjourned the mothers motion and
    ordered costs of $5000 payable by the mother in favour of the father.

[13]

On
    February 21, 2013 Sharpe J.A. made an order on consent extending the time to
    appeal from the original judgment of April 27, 2012 to 50 days following the
    determination of the rule 59.06 motion before the trial judge.

[14]

On
    September 20, 2013, Aston J. of the Divisional Court dismissed the mothers
    motion for leave to appeal from the order of February 5, 2013. He indicated
    that the trial judges reasons for making the order were compelling. He ordered
    the mother to pay further costs fixed at $5000.00.

[15]

On
    December 5, 2013, the parties appeared again before the trial judge on the rule
    59.06 motion. The mother had still not obtained the transcripts she had been
    ordered to obtain. She asked the motion judge to stay her own motion to set
    aside the trial judgment. In the result, the trial judge refused her request
    for a stay, and instead dismissed the motion to set aside the trial judgment
    for want of prosecution. He ordered the costs of February 5, 2013, payable
    forthwith, and a further sum of $500 for the costs of December 5, 2013.

[16]

The
    appellant took no steps to appeal either the order of the Divisional Court or
    the trial judges order of December 5, 2013.

[17]

On
    July 3, 2014 the Registrar of the Court of Appeal notified the mother that her
    appeal would be dismissed for delay if not perfected by July 17, 2014.

[18]

This
    motion for an extension of time to perfect the appeal from the original trial
    judgment; to extend the time to appeal from the Divisional Court order, and the
    order of December 5, 2013; and for directions as to the conduct of the appeal
    was served on July 14, 2014.

[19]

According
    to the order of this court of February 21, 2013 the appeal from the original
    trial judgment ought to have been perfected within 50 days of the December 5,
    2013 order, or by January 25, 2014. The mother has not adequately explained why
    she failed to perfect her appeal by that time. She has known, at the very least
    since January 8, 2013, that the father required transcripts of the entire trial
    for the purposes of the appeal. She still has not ordered the transcripts of the
    trial for use on the appeal.

[20]

She
    did nothing until prompted by the Registrars notice of pending dismissal for
    delay. Given that this appeal was already dismissed once for delay, and that
    two further extensions of time to perfect have previously been given, it was
    incumbent upon the mother to make all reasonable efforts to comply with the
    last deadline, but she did nothing for about five months.

[21]

The
    mother initially delayed perfecting this appeal on the ground that she was
    pursuing a motion to set aside the trial judgment, but then asked that her own
    motion for that relief be stayed. (See paragraph 15 of respondents affidavit,
    and exhibit at page 43 of respondents record)

[22]

Prior
    to bringing this motion, the mother has not indicated any intention to appeal
    the orders of September 20, 2013 or December 5, 2013. Aston J. heard the motion
    for leave to appeal the procedural order made by the trial judge as a single
    judge sitting in the Divisional Court. Rather than proceeding to the Court of
    Appeal with leave, the appeal of such an order lies to a full panel of the
    Divisional Court by way of motion to set aside or vary. Sections 21(3) and (5)
    of the
Courts of Justice Act
(CJA) state:

21(3) A motion in the Divisional Court shall be heard
    and determined by one judge, unless otherwise provided by the rules of the
    court.



(5) A panel of the Divisional Court may, on motion,
    set aside or vary the decision of a judge who hears and determines a motion.

[23]

Rule
    61.16 (6) provides that motions to set aside or vary made under s. 21(5)
    of the
CJA
shall be made by notice of motion served within four days
    after the order is made.

[24]

The
    order of December 5, 2013 was a final order. It appears that the proposed
    appeal from that order relates only to the costs ordered. Leave to bring such
    an appeal is required by s. 133(b) of the
CJA
. Rule 61.03.1(3)
    requires that notice of a motion for leave to appeal be served within 15 days
    of the making of the order from which leave to appeal is sought.

[25]

The
    mother has not adequately explained why she has not perfected this appeal
    within the time allowed by the last extension. She has not explained why she
    has not taken timely steps to pursue her proposed appeals from the orders of
    December 5, 2013 or September 20, 2013. There is no evidence that any document
    initiating an appeal has ever been delivered in respect of either of the last
    two orders.

[26]

The
    father has now accumulated numerous costs orders in his favour, with little
    prospect of recovery. I am not satisfied that the justice of the case requires
    a further extension of time to appeal. The trial judges original conclusions
    were based on findings of credibility. I am not satisfied that the entire WSIB
    file upon which the mother now wishes to rely could not have been obtained at
    trial with the exercise of reasonable diligence, and I am not satisfied that it
    would make any difference to the result. The evidence submitted to me on this
    motion, though voluminous, does not establish with precision an arguable case
    that the conclusions drawn by the trial judge were unwarranted or would be
    altered by new evidence.

[27]

Weighing
    in the balance the delays, the previous extensions, the failures to indicate an
    intention to appeal, the absence of any explanation for the delays, and the
    justice of the case, I am not persuaded that any further extension of time
    should be granted, and the motion is dismissed.

[28]

Following
    argument of this motion, counsel for the mother twice delivered a letter to me
    making further submissions. This was improper. Rule 1.09 provides that when a
    proceeding is pending before the court, no party to the proceeding and no
    partys lawyer shall communicate about the proceeding with a judge, directly or
    indirectly unless all the parties consent in advance to the out of court
    communication or the court directs otherwise. I have disregarded the further
    submissions in coming to my decision in this matter.

[29]

Costs
    should follow the result. Costs to the respondent on the motion fixed at
    $1000.00.

G. Pardu J.A.


