Elgner v. Elgner, (2010) 268 O.A.C. 267 (DC)

• Judge: Herold, Jennings and Lederman, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 11, 2010
• Jurisdiction: Ontario
• Citations: (2010), 268 O.A.C. 267 (DC);2010 ONSC 3512

Elgner v. Elgner (2010), 268 O.A.C. 267 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. SE.035

Carol Ann Elgner (applicant/responding party) v. Claude Frederick Elgner (respondent/moving party)

(593/09; 2010 ONSC 3512)

Indexed As: Elgner v. Elgner

Court of Ontario

Superior Court of Justice

Divisional Court

Herold, Jennings and Lederman, JJ.

September 9, 2010.

Summary:

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. T14, awarded temporary support to the wife. The husband moved for alternative relief, seeking first an order that he was entitled to appeal as of right, and without the necessity of obtaining leave, the temporary support order; in the alternative, if leave was required, leave to do so. His motion for a stay of the order until his appeal had been dealt with was dismissed.

The Ontario Divisional Court, in a decision reported at (2010), 267 O.A.C. 1; 2010 ONSC 1578, held that leave to appeal the temporary order was required and dismissed the motion for leave to appeal. The husband sought an order setting aside or varying the order, based on the argument that s. 21(1) of the Divorce Act provided him with an "unfettered" right to appeal.

The Ontario Divisional Court, Jennings, J., concurring in the result for differing reasons, dismissed the appeal.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - Requirement of conflict or repugnancy - [See third Family Law - Topic 4162 ].

Courts - Topic 12

Stare decisis - Authority of judicial decisions - General principles - Refusal to grant leave to appeal - Effect of - [See third Family Law - Topic 4162 ].

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - At issue was whether leave to appeal was required for temporary orders under the Divorce Act - The husband argued that the words in s. 21(1), "an appeal lies to the appellate court" created an unfettered right of appeal - Section 21(6) provided that, "an appeal under this section shall be asserted ... according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed" - The Ontario Divisional Court stated that s. 21(1) could not be read other than in conjunction with s. 21(6) and in the context of the policy considerations which led to those enactments (the modern approach to statutory interpretation) - "Permitting interlocutory matters to be appealed without any gatekeeper function to and through the Court of Appeal would result in the most inappropriate situation wherein the interim motion tail was wagging the litigation dog ... The gatekeeper function is becoming more and more necessary and acceptable in our judicial system and it is, in my respectful view, within that context that s. 21 of the Divorce Act must be considered" - See paragraph 21.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - At issue was whether an interlocutory (temporary) order under the Divorce Act could be appealed to the court without leave - Section 21(6) of the Divorce Act provided that, "an appeal under this section shall be asserted ... according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed" - The husband argued that a right to appeal was a substantive right and not merely a question of procedure - The Ontario Divisional Court stated that "Requiring an aggrieved litigant to pass some preliminary test before he or she can exercise his or her right of appeal is, in my view, no different than ruling that appeals may be dismissed for failing to comply with such things as filing requirements, timelines, et cetera. The substantive right of appeal always exists; the manner in which it is to be asserted and processed is the subject matter of procedures which follow 'the ordinary procedure governing appeals to the appellate court from the court rendering judgment or making the order being appealed.'" - See paragraph 22.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - A single judge of the Ontario Divisional Court held that leave to appeal the temporary support order was required and dismissed the husband's motion for leave to appeal - The husband sought an order setting aside or varying the judge's order, based on the paramountcy doctrine, namely, that ss. 21(1) and 21(6) of the Divorce Act rendered s. 19(1)(b) of the Courts of Justice Act inapplicable to the extent that they were in conflict with one another, and that s. 21(1) of the Divorce Act provided him with an "unfettered" right to appeal - The Ontario Divisional Court concluded that s. 19(1) of the Courts of Justice Act was not inconsistent with, and was in fact pursuant to s. 21 of the Divorce Act; "it does not take away a substantive right to appeal, it merely sets out the procedure for asserting and enforcing that right. Accordingly, the substantive right to appeal an interlocutory order of a judge of the Superior Court of Justice shall be exercised with leave as provided for in the Rules" - See paragraph 23.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - The husband moved before Sachs, J., a single judge of the Ontario Divisional Court, for a declaration that he was entitled to appeal a temporary order without leave, or alternatively for leave - Sachs, J., held that she was bound by the decision of a panel of the court in Kral v. Kral (1994), which determined that leave was required, and dismissed the motion - The husband moved to set aside or vary that order - The Ontario Divisional Court dismissed the motion - Jennings, J., concurred in the result for differing reasons - "I do not share the opinion of my colleagues ... that the principle of stare decisis is 'interesting but dispositive of nothing.' Applying the principle, Sachs, J., disposed of the motion before her by dismissing it. In my opinion she was entirely correct in so doing. Similarly in my opinion a panel of this Court ought not to hold differently on this issue from what was decided by the panel in Kral, absent a clear finding that the decision in Kral was per incuriam" - See paragraphs 27 and 28.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - The issue raised in this appeal was whether leave was required to appeal an order for temporary relief made under the Divorce Act - The Ontario Divisional Court dismissed the appeal - Jennings, J., concurred in the result but did not agree with his colleagues' reasons - His concern was caused by the state of the jurisprudence on s. 21 of the Divorce Act, which he reviewed - "One cannot have a substantive right of appeal if one has to apply for leave, which is not to be granted unless the conditions set out in r. 62.02(4) are met. Simply showing that the decision from which leave to appeal is sought is wrong, is clearly insufficient. That is quite incompatible with the granting of an absolute right to appeal and certainly is not comparable with the provision 'that appeals may be dismissed for failing to comply with such things as filing requirements, timeliness, etc.' In my opinion, a right to apply for a right to appeal is not a right of appeal as provided in s. 21" - In light of the persuasive jurisprudence holding that Kral did not correctly interpret the effect of s. 21(6), appellate guidance was needed - See paragraphs 40 to 43.

Practice - Topic 12

General principles and definitions - Substantive versus procedural rules or rights - [See third Family Law - Topic 4162 ].

Practice - Topic 8875

Appeals - Leave to appeal - From allowance or dismissal of interlocutory application - [See first, second and third Family Law - Topic 4162 ].

Practice - Topic 8985

Appeals - When appeal available - From interlocutory ruling - [See first, second and third Family Law - Topic 4162 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See first Family Law - Topic 4162 ].

Cases Noticed:

Pollak v. Pollak (1993), 48 R.F.L.(3d) 56 (Ont. C.J.), consd. [para. 1].

Goldberg v. Goldberg (1989), 68 O.R.(2d) 124 (Div. Ct.), consd. [paras. 1, 33].

Bajzat v. Bajzat (1991), 52 O.A.C. 25; 35 R.F.L.(3d) 59 (Div. Ct.), consd. [paras. 1, 34].

Colletta v. Colletta (1992), 57 O.A.C. 283; 10 O.R.(3d) 464 (C.A.), consd. [para. 1].

Potts v. Potts (1993), 63 O.A.C. 175; 47 R.F.L.(3d) 82 (Div. Ct.), consd. [paras. 1, 35].

Kelvin Energy - see Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al.

Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al., [1992] 3 S.C.R. 235; 143 N.R. 191; 51 Q.A.C. 49, consd. [paras. 8, 37].

Kral v. Kral (1994), 68 O.A.C. 188 (Div. Ct.), consd. [paras. 8, 27].

792266 Ontario Ltd. v. Monarch Trust Co. (Liquidation) (1996), 94 O.A.C. 384; 30 B.L.R.(2d) 219 (C.A.), refd to. [para. 13].

R. v. Chatwell (D.R.) - see R. v. Puskas (J.F.); R. v. Chatwell (D.R.).

R. v. Puskas (J.F.); R. v. Chatwell (D.R.), [1998] 1 S.C.R. 1207; 227 N.R. 1; 110 O.A.C. 374, refd to. [para. 13].

Silver et al. v. IMAX Corp. et al., [2009] O.T.C. Uned. V72 (Sup. Ct.), refd to. [para. 15].

Kerr et al. v. Danier Leather Inc. et al. (2005), 205 O.A.C. 313; 77 O.R.(3d) 321 (C.A.), affd. (2007), 368 N.R. 204; 231 O.A.C. 348; 2007 SCC 44, refd to. [para. 15].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 16].

Kotelmach v. Mattison (1987), 61 Sask.R. 207; 11 R.F.L.(3d) 56 (C.A.), consd. [para. 30].

Haigh v. Haigh (1987), 15 B.C.L.R.(2d) 375 (C.A.), consd. [para. 31].

H.K. v. D.S. (1988), 22 Q.A.C. 163; 1988 CarswellQue 48 (C.A.), consd. [para. 32].

Ferguson v. Imax Systems Corp. (1982), 38 O.R.(2d) 59 (Div. Ct.), refd to. [para. 33].

Rimmer v. Adshead (2003), 232 Sask.R. 68; 294 W.A.C. 68; 224 D.L.R.(4th) 372 (C.A.), refd to. [para. 38].

DeFehr v. DeFehr - see De Fehr v. De Fehr.

De Fehr v. De Fehr, [2002] B.C.A.C. Uned. 144; 2002 BCCA 577, refd to. [para. 38].

G.M. v. F.L., 2009 QCCA 649, refd to. [para. 38].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 19(1)(b) [para. 12].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 21(1), sect. 21(6) [paras. 11, 29].

Counsel:

Julie Hannaford, Harold Niman and Golnaz Emam, for the applicant/responding party;

Charles Beall and Jennifer Herzog, for the respondent/moving party.

This appeal was heard at Toronto, Ontario, on June 11, 2010, before Herold, Jennings and Lederman, JJ., of the Ontario Divisional Court. The decision of the Divisional Court was released on September 9, 2010, when the following opinions were filed:

Herold, J. (Lederman, J., concurring) - see paragraphs 1 to 24;

Jennings, J. (concurring in the result for differing reasons) - see paragraphs 25 to 43.