



COURT OF APPEAL FOR ONTARIO

CITATION: Henderson v.
    Henderson, 2014 ONCA 571


DATE: 20140801

DOCKET: M43773/M43864

Juriansz J.A. (In Chambers)

BETWEEN

Scott Henderson

Applicant (Appellant in Appeal)

and

Suzanne Ruth Henderson

Respondent (Respondent in Appeal)

Simon Zucker and Nancy Tourgis, for the applicant

William Fanjoy, for the respondent

Heard and released orally: July 31, 2014

On motion to extent time to perfect the appeal and on
    motion to quash the applicants motion.

ENDORSEMENT

[1]

In this family law proceeding, the husband applies for an extension of
    time to perfect his appeal and the wife applies for security for costs and a
    variety of conditions to be imposed on the husband. At the outset, counsel for
    the wife stated his position that the order under appeal is interlocutory in
    nature. I indicated to counsel that I did not have jurisdiction to decide that
    question but that the view I took of that question could be a factor in
    determining the husbands motion to extend time to perfect his appeal. If time
    were not extended, the appeal would be dismissed and the wifes motion would
    become moot. On that basis we proceeded to deal with the motion to extend time
    first.

[2]

I need not review the long and fractious history of this proceeding. It
    is sufficient to say that the husband filed a motion in the Superior Court for
    various directions with a view to varying the final support orders in place.
    The wife filed a motion to quash the husbands motion. Both motions were placed
    on the long motions list. A number of appearances followed and the matter came
    before Justice Barnes, who made the order under appeal. He made an order that
    stipulated a number of conditions that the husband had to satisfy before he
    could proceed with his long motion. These conditions included the payment of
    arrears and outstanding costs orders.

[3]

Generally, it is clear that the stipulation of terms on which parties
    may proceed to a final determination of a proceeding is interlocutory. In fact
    the formal order of Justice Barnes indicates on its face that it is Temporary.
    The cause of difficulty in this case is that Justice Barnes imposed a wrap-up
    term in his order that if the husband failed to comply with a number of the
    terms specified earlier in his order by February 12, 2014, his long motion
    would be permanently stayed with prejudice.

[4]

The main authority I was provided with,
Laurentian Plaza Corp. v.
    Martin
(1992), 7 O.R. (3d) 111 (C.A.), deals generally with whether orders
    made on condition are interlocutory or final. Morden J.A. said:

It can, of course, be fairly said that the effect of the order
    will be final if the conditions are not met. This is what makes the question a
    difficult one.

One aspect of the difficulty is that orders made on condition
    vary greatly. For example, they may range from orders imposing: undertakings on
    defendants; strict time periods for the completion of the pre-trial steps; the
    obligation to pay the plaintiff's costs thrown away; to the giving of security
    in varying amounts with respect to the plaintiff's claim. As a matter of policy
    it may seem that some of these orders, which, analytically, are interlocutory,
    might be appropriately treated as final -- but, if this were to be done, where
    would the line be drawn and how could the definition of what is final be
    expressed so that it could be applied with some degree of predictability or
    confidence?

Neither can the nature of the order reasonably turn on the
    particular circumstances of the defendant. The question of categorization which
    determines access to appellate review must be decided on the basis of the legal
    nature of the order and not on a case by case basis depending on the
    application of the order to the facts of a particular case. As I have
    indicated, jurisdictional rules should be as clear as possible and their
    application should not be beset with factual disputes which themselves may be
    protracted and difficult to resolve.

Further, the consideration that the order may have the effect
    of terminating the proceeding does not mean that it is a final one. See
Chesapeake
    & Ohio Railway Co. v. Ball
, 1953 CanLII 126 (ON CA), [1953] O.R. 877
    (C.A.) and
Ontario Medical Association v. Miller
1976 CanLII 679 (ON
    CA), (1976), 14 O.R. (2d) 468, 2 C.P.C. 125 (C.A.).

[5]

Counsel for the husband submits this reasoning does not apply in this
    case because February 12, 2014 has come and gone without the husband satisfying
    the conditions. At the time the notice of appeal was filed, which was after
    February 12, 2014, the order of Justice Barnes had, in effect, determined his
    long motion finally.

[6]

I provided counsel with a more recent decision of this court,
Inforica
    Inc. v. CGI Information Systems and Management Consultants Inc.
, 2009 ONCA
    642. The case is not on point because it deals with the jurisdiction of a
    Superior Court judge to review an arbitration decision. But at para. 26, Sharpe
    J.A. offers an interpretation of
Laurentian Plaza Corp.
which I find
    pertinent. He said:

I recognize that failure to satisfy an order for security for
    costs may lead to a dismissal of the claim, but the sanction for non-compliance
    with an order cannot alter the nature of the order itself. Many procedural or
    interlocutory orders  for particulars, for production of documents, for the
    payment of costs ordered in interlocutory proceedings  may carry the ultimate
    sanction of dismissal of the non-complying partys claim. But if the claim is
    dismissed, the dismissal flows from the partys failure to comply with the
    interlocutory or procedural order, not from the order itself, and does not
    alter the interlocutory or procedural nature of the order that led to
    dismissal: see
Laurentian Plaza Corp. v. Martin
(1992), 7 O.R. (3d)
    111 (C.A.).

[7]

In my view this reasoning applies in this case. If Justice Barnes order
    has had the effect of permanently staying the husbands long motion, the stay has
    resulted not from the nature of the order itself but from the husbands failure
    to satisfy the conditions that the order imposed. The overall intention and
    effect of Justice Barnes order was to impose terms to shepherd the proceeding
    along to the final hearing and disposition of the long motion.

[8]

It is my opinion that the order under appeal is interlocutory. To obtain
    an extension of time a party must demonstrate the proposed appeal is not
    meritless. An appeal of an interlocutory order filed in this court is
    meritless. I see no purpose in extending the time for the perfection of a
    matter that is not properly before this court.

[9]

The husbands motion for the extension of time is refused. The Registrar
    may dismiss his appeal for failure to adhere to the time limits. The wifes
    motion is moot.

[10]

Costs
    of the motions and of the appeal are fixed in the amount of $24,000.00 all
    inclusive, enforceable as support.

R.G.Juriansz
    J.A.


