



COURT OF APPEAL FOR ONTARIO

CITATION: Robertson v. Robertson, 2016 ONCA 356

DATE: 20160509

DOCKET: M46373

MacPherson J.A. (In Chambers)

BETWEEN

Amy Florence Robertson

Applicant (Moving Party)

and

Stephen James Robertson

Respondent (Responding Party)

William H. Fysh, for the moving party

Philip Viater, for the responding party

Heard: May 6, 2016

MacPherson J.A.:

[1]

The applicant Amy Robertson brings this motion seeking an order
    extending the time for commencement of an appeal from the Order of Jarvis J. of
    the Superior Court of Justice dated April 24, 2015. In that order, the
    application judge dealt with several matters in the matrimonial proceedings
    involving the appellant and her former husband, the respondent Stephen
    Robertson. The application judge ordered the sale of the matrimonial home at
    116 Willow Park Lane in Aurora. It is this component of the application judges
    Order that the applicant seeks leave to appeal. If leave is granted, the
    applicant also seeks an order staying Jarvis J.s Order and related orders by
    Rogers J. dated March 31, 2016 and Jarvis J. dated April 19, 2016, pending the
    disposition of the appeal by this court.

[2]

Justice Jarvis held a Case Conference in the matrimonial proceedings.
    The parties and their counsel were present; all spoke at various times
    throughout the case conference.

[3]

At the conclusion of the Case Conference, the application judge
    delivered an endorsement. He said: Both parties are agreed that the matrimonial
    and commercial property be sold. The applicant says that she did not consent
    to the sale of the matrimonial home. She wants to appeal this component of the
    Order.

[4]

The date of the Order the applicant seeks to appeal is April 24, 2015.
    The appeal should have been commenced within 30 days of that date. The
    applicant filed this motion on April 15, 2016. Accordingly, she is about 11
    months late in taking an appropriate step in this court.

[5]

In
Rizzi v. Mavros
(2007), 85 O.R. (3d) 40 (C.A.), at para. 16,
    Gillese J.A. set out the factors to consider on a motion for leave to extend
    time to file an appeal:

(1)

whether the appellant formed
    an intention to appeal within the relevant period;

(2)

the length of the delay and
    explanation for the delay;

(3)

any prejudice to the
    respondent;

(4)

the merits of the appeal;
    and

(5)

whether the justice of the
    case requires it.

[6]

I will consider these factors in turn.

[7]

On the first factor, the applicant retained counsel to appeal Jarvis
    J.s Order on May 7, 2015. A motion for leave to appeal to the Divisional Court
    was delivered on May 8, 2015. Accordingly, the appellant formed an intention to
    appeal and acted on it within two weeks of the Order, well within the relevant
    30 day period.

[8]

With respect to the second factor, the applicants original leave motion
    was filed in the wrong court. She only filed materials in the right court (this
    court) on April 15, 2016. The applicant has an 11 month delay to explain. Her
    explanation is a simple one  I thought that I was in the right court for
    almost all of this period.

[9]

I do not accept this explanation for two reasons. First, the applicant
    was warned by opposing counsel and by one superior court judge (on October 15,
    2015) that she might be in the wrong court. Yet she did not resolve this issue
    until, at a motion before Bale J. of the Superior Court on February 16, 2016,
    she concluded that she was in the wrong court. Second, during the 10 months
    that the appeal was lodged in the Divisional Court, the applicant took
    virtually no steps to move it forward. She was constantly faced with motions to
    dismiss for delay. My conclusion on the second factor is, therefore, this: the
    applicants delay in commencing an appeal in this court is very long (11
    months) and her explanation for the delay is unpersuasive.

[10]

On the third factor, there will be prejudice to the respondent if leave
    to appeal is granted. If a stay were granted pending the appeal, the
bona
    fide
sale of the matrimonial home scheduled to close on July 5, 2016 would
    be placed in jeopardy with the risk of more legal proceedings by the purchaser
    and by a bank under power of sale proceedings. As well, the respondent incurred
    considerable legal expenses in the applicants misconceived and lengthy appeal
    proceedings in the Divisional Court. Accordingly, this factor favours the
    respondent.

[11]

The fourth factor  the merits of the proposed appeal  tells
    overwhelmingly in favour of the respondent. There is in the record a transcript
    of the entire hearing before the application judge on April 24, 2015. From
    start to finish, it is obvious that both parties agreed that the matrimonial
    home must be sold. Indeed, that is the principal topic of discussion throughout
    the hearing. I set out merely a few examples:

·

p. 4              THE COURT: I note as well that there seems to
    be some issue with respect to both parties wishing to have the matrimonial home
    sold.

·

P. 9              MS. BRUCE [the applicants counsel]: Well, the
    difficulty we have, Your Honour, is my client has been cashing in RRSPs to try
    to get the home in the best possible sale position Shell be doing the
    cleaning and maintenance to show the home.

·

P. 14            MR. VIATUR [the respondents counsel]: I can
    also advise you of my discussions with Ms. Bruce prior to appearing before Your
    Honour, when the parties were agreeing to list both properties for sale the
    agreement was Mom would select the agent for the matrimonial home, which she
    did, and Dad cooperated. In effect there is a listing agreement in place for
    the matrimonial home.

·

P. 16            MS. BRUCE: my client is working hard to try to
    maximize the value of the home.

·

pp. 41-42      MS. ROBERTSON: Well there was an agent that I
    involved, Susan Cowan.

·

THE COURT: So you have your choice of agent for the home.

[12]

After an afternoon recess, the application judge returned and said:

This is the endorsement that I have made and Im going to add
    to that after discussing its contents with counsel. Ill give each party an
    opportunity to discuss this with your respective clients. Well do it all in
    the courtroom right now.

Parties appearing with counsel. Both parties are agreed that
    matrimonial home, which Ive just said MH, and commercial property be sold.
    Applicant wife shall be entitled to choose the agent to sell the matrimonial
    home. Respondent husband shall be entitled to choose agent to sell the
    commercial property. Both parties shall instruct the agent chosen by them to
    cooperate fully with the other party. Each party shall be guided by the
    advice/recommendation of the agent involved with the sale of that property.
    Listing agreements to be signed by 1 May 2015. The net proceeds of the sale of
    each property shall be held in trust and not disbursed except by written
    agreement of the parties or further order of the court. Parties are cautioned
    that failure to cooperate in the expeditious listing and steps needed to effect
    a timely sale of either property may result in the court ordering that the
    parties consent to the sale be dispensed with.

[13]

The applicants counsels response to this draft was:

MS. BRUCE: I have no difficulty with what Your Honour has done
    so far today. My concern is that we didnt get an opportunity to discuss
    support but I dont know that we have time now.

[14]

In my view, the import of these passages is clear. The parties agreed
    that the matrimonial home needed to be sold. At the hearing, the discussion
    then focused on the mechanics of the sale.

[15]

I make a final point on this factor. My conclusion about the applicants
    consent at the hearing to the sale of the matrimonial home is supported by the
    applicants actions both before and after the hearing.

[16]

Before the hearing, the parties had listed the matrimonial home for sale
    as early as January 22, 2015. As well, in January and February, the applicant
    sent several emails to the respondent setting out what she was doing to prepare
    the home for sale.

[17]

Two weeks after the hearing, on May 8, 2015, acting pursuant to the
    component of the application judges order stating that the applicant could
    choose the real estate agent for the sale of the matrimonial home, the
    applicant sent a letter to the respondents counsel:

Dear Sir:

For many reasons I have decided to retain the services of a new
    listing agreement with regards to the sale of 116 Willow Farm Lane.

The new agent is Daniel Lehmkuhl.



I intend to cooperate with Mr. Lehmkuhl with regards to the
    sale of the property and expect to be able to show the home to prospective
    buyers commencing Wednesday, May 13, 2015.

[18]

My conclusion on the fourth factor is that the applicants position
    about the sale of the matrimonial home before, during and after the hearing
    amply justifies the application judges statement that [b]oth parties are
    agreed that matrimonial home  be sold. Accordingly, the proposed appeal
    contesting this finding is devoid of merit.

[19]

The fifth and final factor is whether the justice of the case requires
    granting an extension of time to file an appeal. Obviously, given what I have
    said about the second, third and, especially, fourth factors, the justice of
    the case requires that, at this juncture in long, acrimonious and expensive
    matrimonial proceedings, a meritless appeal not be permitted to proceed.

[20]

In light of this conclusion, it is not necessary to consider the three
    other orders challenged by the applicant on this motion.

[21]

The motion is dismissed. The respondent is entitled to his costs of the
    motion fixed at $4,700, inclusive of disbursements and HST.

Released: May 9, 2016 (J.C.M.)

J.C.
    MacPherson J.A.


