



COURT OF APPEAL FOR ONTARIO

CITATION: Hodgson v. Cheng, 2020 ONCA 689

DATE: 20201029

DOCKET: M51829 (C68483)

Roberts, Trotter and Thorburn
    JJ.A.

BETWEEN

Lee Christian Hodgson

Appellant (Responding Party)

and

Jaeden Cheng

Respondent (Moving
    Party)

Aaron Franks and Hilary Ingle, for the moving
    party

Meghann Melito, for the responding party

Heard: October 26, 2020 by video
    conference

On a motion
    to quash the appeal from the order of Justice E. Llana Nakonechny of the
    Superior Court of Justice dated March 13, 2020.

REASONS
    FOR
DECISION

[1]

The moving party, Jaeden Cheng, seeks to quash
    the appeal brought by the responding party, Lee Christian Hodgson, from the
    dismissal of his motion in which he requested that the motion judge entertain
    further submissions and reconsider or set aside her costs order dated September
    20, 2019. Alternatively, she seeks security for costs.

[2]

At the conclusion of the motion, we advised the
    parties that the appeal was quashed with reasons to follow. These are those
    reasons.

Brief factual and procedural background

[3]

Some brief context is necessary to understand the
    nature of the order under appeal and the parties submissions. These
    proceedings arise out of the parties acrimonious custody dispute concerning
    their young daughter. Ms. Cheng moved with their daughter to Ontario from Hong
    Kong where the parties had been residing. Mr. Hodgson commenced proceedings in
    Hong Kong and in Ontario to seek their daughters return to Hong Kong. In the Hong
    Kong proceedings, an order was granted on August 1, 2019 requiring the daughters
    return.

[4]

Prior to the release of the August 1, 2019 Hong
    Kong order, Mr. Hodgson adjourned his motion for the same relief in Ontario. The
    parties made oral and written submissions concerning the disposition of costs. Ms.
    Cheng requested her costs of the adjourned motion and the application. Mr.
    Hodgson submitted that the costs should be reserved. The motion judge granted Ms.
    Cheng her costs in relation to the adjourned motion and the application commenced
    by Mr. Hodgson in the amount of $37,245. Mr. Hodgson launched an appeal from
    this costs order to the Divisional Court which, on January 6, 2020, was
    dismissed as abandoned with costs to Ms. Cheng in the amount of $750.

[5]

Mr. Hodgson then brought a 14B motion before the
    motion judge to request that she reconsider or set aside her September 20, 2019
    costs order and that she entertain further costs submissions. The main thrust
    of his motion was that since the parties were able to use the materials from
    the Ontario proceedings in the Hong Kong proceedings, Ms. Chengs costs had not
    been thrown away, and that his success in obtaining an order requiring the return
    of his daughter to Hong Kong entitled him to costs of the application in Ontario.
    Other than agreeing that the adjourned motion should be vacated, Ms. Cheng
    opposed this motion. On March 13, 2020, the motion judge dismissed Mr. Hodgsons
    motion. This is the order under appeal.

[6]

On October 5, 2020, Mr. Hodgson paid the Divisional
    Court costs order with interest. On the same day, he paid into his Hong Kong solicitors
    trust account the amount of the September 20, 2019 costs order, with interest, to
    be paid to Ms. Cheng if his appeal is quashed.

Parties positions

[7]

Ms. Chengs main submission on her motion to
    quash is that the order appealed from was interlocutory and that the correct
    appeal route was to the Divisional Court with leave.

[8]

Mr. Hodgson argues that the motion judges March
    13, 2020 order was final and that his appeal is properly before this court because
    the order foreclosed his right to seek costs of his Ontario application.

Analysis

[9]

We agree that Mr. Hodgsons appeal should be
    quashed on the basis that it is interlocutory in nature. It is therefore
    unnecessary to consider Ms. Chengs alternative submissions or motion for security
    for costs.

[10]

The motion judges order refusing Mr. Hodgsons
    request that she reconsider her costs order and entertain further submissions was
    clearly interlocutory. By the time she dealt with the issue of costs in her
    September 20, 2019 order, the Hong Kong court had ordered that the parties
    daughter be returned to Hong Kong. It was common ground that Mr. Hodgsons Ontario
    application would not likely proceed. In consequence, as the motion judge indicated
    in para. 27 of her September 20, 2019 reasons and explained further in her March
    13, 2020 endorsement, she disposed of Ms. Chengs costs related not only to the
    abandoned motion but also to the entire application.

[11]

In our view, the motion judges March 13, 2020
    order was nothing more than a procedural order made to manage the proceedings before
    her and dispose of Mr. Hodgsons request to re-open the costs disposition and make
    further costs submissions. It did not finally dispose of any substantive right
    of the parties or issue in the application but related to the motion judges previous
    final costs order, the appeal of which Mr. Hodgson had abandoned. S
ee:
Wachsberg
    v. Wachsberg
, 2018 ONCA 508, at paras. 6-7;
Deltro Group Ltd. v. Potentia Renewables Inc.
, 2017 ONCA 784, at para. 3
.
A
s such, an appeal does not lie to this court and this court does
    not have jurisdiction to entertain it.

[12]

There can be no question that the motion judges
    September 20, 2019 order is immediately payable to Ms. Cheng with interest at
    the rate provided for in the order from the date of the order. Indeed, the
    order became payable in accordance with its terms following Mr. Hodgsons abandonment
    of his appeal from the September 20, 2019 order and the automatic stay was consequently
    lifted. At that point, the September 20, 2019 order was no longer under appeal
    and therefore not automatically stayed. Mr. Hodgson has not obtained a stay of
    this order. His appeal from the motion judges March 13, 2020 order did not stay
    her September 20, 2019 order. It is beyond well-established that parties must
    obey court orders unless they are stayed or until they are set aside or varied.

Disposition

[13]

The appeal is therefore quashed.

[14]

Ms. Cheng is entitled to her partial indemnity costs
    in the amount of $3,500, inclusive of disbursements and applicable taxes.


[15]

Mr. Hodgson shall pay these costs prior to November
    4, 2020.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.


