Dutchak v. Dutchak, (2009) 337 Sask.R. 46 (CA)

• Judge: Jackson, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 22, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 337 Sask.R. 46 (CA);2009 SKCA 89

Dutchak v. Dutchak (2009), 337 Sask.R. 46 (CA);

    464 W.A.C. 46

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AU.015

Leon Edward Dutchak (applicant/proposed appellant) v. Sharon Irene Dutchak (respondent/proposed respondent)

(No. 1778; 2009 SKCA 89)

Indexed As: Dutchak v. Dutchak

Saskatchewan Court of Appeal

Jackson, J.A.

August 13, 2009.

Summary:

The wife sought a distribution of family property. The husband was ordered to (1) provide information regarding assets and income, (2) pay $20,000 to the wife as an interim distribution, (3) provide copies of income tax returns and notices of assessment, (4) provide certain particulars and (5) pay solicitor and client costs of $1,000. Twenty days after the order was issued, the husband applied for an order extending the time to appeal. A preliminary issue arose as to the applicable appeal period. If the order was considered to be interlocutory, leave to appeal was required and the application for leave had to be made within 15 days of the order (ss. 8 and 9(3) of the Court of Appeal Act).

The Saskatchewan Court of Appeal, per Jackson, J.A., held that leave to appeal was required and refused to extend the time for applying for leave to appeal. The husband was ordered to pay costs on the application of $1,500 (Column 2 of the Court of Appeal Tariff).

Family Law - Topic 870

Husband and wife - Marital property - Distribution orders - Appeals - The wife sought a distribution of family property - The husband was ordered to (1) provide information regarding assets and income, (2) pay $20,000 to the wife as an interim distribution, (3) provide copies of income tax returns, (4) provide certain particulars and (5) pay solicitor and client costs of $1,000 - Twenty days after the order was issued, the husband applied for an order extending the time to appeal - A preliminary issue arose as to the applicable appeal period - If the order was considered to be interlocutory, leave to appeal was required and the application for leave had to be made within 15 days of the order (ss. 8 and 9(3) of the Court of Appeal Act) - The Saskatchewan Court of Appeal, per Jackson, J.A., held that leave to appeal was required and refused to extend the time for applying for leave to appeal - Parts 1, 3 and 4 of the order were clearly interlocutory - Part 2, as an interim distribution, was arguably governed by the Family Property Act and subject to a right of appeal under s. 55 - However, two previous decisions had found such an order to be interlocutory - That was the current practice - Therefore, the husband had to demonstrate both that the application for leave should be heard late and that leave should be granted - He failed to do so - The application was not supported by any useful evidence - While the husband had applied for leave to appeal Part 5, the costs order, he had not addressed the decision's merits - Given that the husband was not granted an extension of time to apply for leave to appeal the balance of the order, the court was not inclined to grant leave to appeal the costs order alone - See paragraphs 1 to 16.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - The wife sought a distribution of family property - The husband was ordered to (1) provide information regarding assets and income, (2) pay $20,000 to the wife as an interim distribution, (3) provide copies of income tax returns, (4) provide certain particulars and (5) pay solicitor and client costs of $1,000 - Twenty days after the order was issued, the husband applied for an order extending the time to appeal - A preliminary issue arose as to the applicable appeal period - The parties were permitted to file additional material on the issues - The Saskatchewan Court of Appeal, per Jackson, J.A., dismissed the husband's application and ordered him to pay costs on the application of $1,500 (Column 2 of the Court of Appeal Tariff) - The husband's application resulted in two appearances by the wife's counsel and necessitated the preparation of three briefs - While the court made every effort to assist unrepresented litigants, the husband's lack of understanding had significantly increased the wife's legal costs - See paragraph 17.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - [See Family Law - Topic 870 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Family Law - Topic 870 ].

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Family Law - Topic 966 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Family Law - Topic 966 ].

Practice - Topic 8871.2

Appeals - Leave to appeal - Whether required (incl. extension of time for determining) - [See Family Law - Topic 870 ].

Practice - Topic 8872

Appeals - Leave to appeal - Extension of time for application for - [See Family Law - Topic 870 ].

Practice - Topic 8875

Appeals - Leave to appeal - From allowance or dismissal of interlocutory application - [See Family Law - Topic 870 ].

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - [See Family Law - Topic 870 ].

Practice - Topic 8889

Appeals - Leave to appeal - From order respecting costs - [See Family Law - Topic 870 ].

Practice - Topic 8889.1

Appeals - Leave to appeal - Costs - [See Family Law - Topic 966 ].

Practice - Topic 8985

Appeals - When appeal available - From interlocutory ruling - [See Family Law - Topic 870 ].

Cases Noticed:

Rimmer v. Adshead (2003), 232 Sask.R. 68; 294 W.A.C. 68; 224 D.L.R.(4th) 372; 2003 SKCA 19, refd to. [para. 7].

Conley v. Conley (1985), 47 Sask.R. 279 (C.A.), folld. [para. 9].

Mannix v. McKay (2007), 307 Sask.R. 154; 417 W.AC. 154; 2007 SKCA 93, folld. [para. 9].

Iron et al. v. Saskatchewan (Minister of the Environment and Public Safety) et al. (1993), 109 Sask.R. 49; 42 W.A.C. 49; 103 D.L.R.(4th) 585 (C.A.), refd to. [para. 9].

Bird Construction Co. v. Maier, [1949] 1 W.W.R. 920 (Sask. C.A.), refd to. [para. 11].

Joynt v. Topp (No. 2) (1962), 40 W.W.R.(N.S.) 248 (Sask. C.A.), refd to. [para. 11].

Royal Bank of Canada v. G.M. Homes Inc. et al. (1982), 25 Sask.R. 6 (C.A.), refd to. [para. 11].

Bank of Nova Scotia v. Saskatoon Salvage Co. (1954) Ltd. (1983), 29 Sask.R. 285 (C.A.), refd to. [para. 11].

Treeland Motor Inn Ltd. v. Western Assurance Co. et al. (1983), 30 Sask.R. 154; 4 D.L.R.(4th) 370 (C.A.), refd to. [para. 11].

P.G.R. Films Ltd. et al. v. Sooters Studios Ltd. (1994), 123 Sask.R. 301; 74 W.A.C. 301 (C.A.), refd to. [para. 11].

Montreal Trust Co. of Canada v. Dominion Bank et al., [2003] Sask.R. Uned. 33; 2003 SKCA 14, refd to. [para. 11].

Counsel:

Leon Dutchak on his own behalf;

Doreen K. Clark, for the respondent.

This application was heard on July 22, 2009, with supplementary submissions on July 28 and August 4, 2009, by Jackson, J.A., of the Saskatchewan Court of Appeal, who delivered the following reasons for judgment on August 13, 2009.