



COURT OF APPEAL FOR ONTARIO

CITATION: Elmgreen v. Evans, 2016 ONCA 124

DATE: 20160211

DOCKET: M45231 (C59831) and M45237 (C59879)

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

Jens Peter Elmgreen

Appellant (Moving Party)

and

J. William Evans

Respondent (Responding Party)

AND BETWEEN

M45237 (C59879)

Constance Marie
    Georgette Larouche Elmgreen

Appellant (Moving Party)

and

Jens Peter Elmgreen

Respondent (Responding Party in Cross-Appeal)

Jens Peter Elmgreen, appearing via teleconference

Richard W. Greene, for J. William Evans

James R. Webster, for Constance Marie Georgette Larouche
    Elmgreen

Heard and released orally:  February 5, 2016

ENDORSEMENT

[1]

On June 11, 2015, Watt J.A. dismissed the motions of Mr. Elmgreen
    seeking an order:

1)

permitting him to expand the records in two pending appeals C59831 and
    C59879  by including on each appeal the materials relating to the other appeal
    as well as material that Watt J.A. characterized as not material or relevant to
    either; and

2)

providing that the two appeals should be heard together.

[2]

C59831 is an appeal from an order striking Mr. Elmgreens action against
    his former matrimonial lawyer, J. William Evans, because it did not disclose a
    cause of action and is an abuse of process.

[3]

C59879 is an appeal by Mr. Elmgreens former spouse, Ms. Larouche
    Elmgreen, from an order providing for a step-down of the spousal support to
    which she is entitled.  Mr. Elmgreen has cross-appealed on the ground that the
    judge below erred in not setting aside a court order incorporating a settlement
    agreement between the parties.

[4]

Justice Watt also ordered Mr. Elmgreen to perfect both appeals within 45
    days.

[5]

Mr. Elmgreen has brought these motions to review the orders of Watt
    J.A.  However, he now seeks an adjournment of his motions.  Mr. Elmgreen says
    that he should be granted an adjournment because he believes that he may obtain
    information on a not-yet-scheduled long motion in the Superior Court that will
    show that his former spouse committed perjury in an affidavit at a time when he
    was represented by Mr. Evans.  Counsel for Ms. Larouche Elmgreen advises that
    the motion Mr. Elmgreen refers to is to address the issue of whether Ms.
    Larouche Elmgreens obligation to refund overpayments of spousal support is
    stayed pending appeal.

[6]

Ms. Larouche Elmgreen, the respondent in C59879 and the related M45237,
    does not oppose the adjournment.  Mr. Evans, the respondent in C59831 and the
    related M45231, opposes the adjournment.  He notes that the matter has already
    been adjourned once.

[7]

We decline to grant the adjournment.  On these motions, it is the
    material that was before Watt J.A. that is relevant.  The material Mr. Elmgreen
    seeks on the not-yet-scheduled long motion was not before Watt J.A.

[8]

In response to these motions, Mr. Evans argues that this court should
    dismiss Mr. Elmgreens motion to review the order of Watt J.A. and should
    require Mr. Elmgreen to perfect his appeal within 15 days failing which it will
    be automatically dismissed with costs.

[9]

In our view, Watt J.A. was correct in declining to permit Mr. Elmgreen
    to amplify the records below on appeal.  Nor do we see any reason why the two
    appeals should be heard together.

[10]

Mr.
    Elmgreen also argues that Watt J.A. erred in ordering him to perfect C59879. 
    In C59879, he advances a cross-appeal and not an appeal and Ms. Larouche Elmgreen
    has not yet perfected her appeal.  Counsel for Ms. Larouche Elmgreen consents
    to Mr. Elmgreen having 45 days after Ms. Larouche Elmgreen perfects her appeal
    in C59879 to perfect his cross-appeal.  He advises that Ms. Larouche Elmgreen will
    perfect her appeal by April 30, 2016 and we extend the time for perfection of
    her appeal to that date.  We accordingly clarify the order of Watt J.A. to
    require Mr. Elmgreen to perfect his cross-appeal in C59879 by June 15, 2016.

[11]

C59831,
    however, is not a cross-appeal and Mr. Elmgreen has still not perfected his
    appeal in C59831.  Mr. Elmgreen shall perfect C59831 within 45 days failing
    which his appeal shall be dismissed.

[12]

Within
    30 days, Mr. Elmgreen shall pay Mr. Evans his costs of this motion, fixed in
    the amount of $1,924.48, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


