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Samuel Mossman, counsel

‘Strongly worded’ dissent analyzes issues in spousal support application dispute, counsel says

Thursday, December 23, 2021 @ 9:26 AM | By Amanda Jerome


The Court of Appeal for Ontario was split in its decision to allow an appeal regarding an application for payment of support that was administratively dismissed after the appellant missed a deadline imposed by the court.

While the majority found that the motion judge “made errors in principle which, in this case, justify appellate interference with her exercise of discretion,” Justice David Brown, writing in dissent, opined that “[R]emoved as we are at Osgoode Hall from the reality of managing the volume of cases in the family law trenches, we might be tempted to weigh some factors differently. But that is not our job. The task of weighing factors falls to the motion judge.”

In Mihoren v. Quesnel, 2021 ONCA 898, the court heard that the appellant, Cherie Anne Marie Mihoren, had her application for payment of support by the respondent, Alan Quesnel, “administratively dismissed under r. 41(6) of the Family Law Rules.”

According to court documents, Mihoren “missed a deadline, that her lawyer had neglected to diarize, by which certain steps had to be taken.”

The court noted that Mihoren started an application for spousal support against Quesnel in October 2017. Mihoren claimed that, “although she and the respondent were not married, they had cohabited continuously between 2005 to 2016 and were therefore spouses with support entitlements and obligations under Part III of the Family Law Act.”

In December 2017, the court noted, Quesnel filed in response, disputing Mihoren’s “characterization of their relationship and that they had cohabited continuously for over three years (the relevant time period to trigger spousal status under Part III of the Family Law Act: s. 29).” He denied Mihoren had “any entitlement to support from him, as she lacked the status of a spouse.”

According to court documents, there was “activity in the litigation in 2018.” A case conference was attended in March 2018, the respondent’s questioning was completed in October 2018 and the appellant’s questioning was done in November of the same year.

In November 2018, the court noted, the “lawyers for the parties exchanged correspondence” and Mihoren’s lawyer “provided certain documents and indicated that the appellant was in the process of collecting other information and documents relating to undertakings given on her questioning.” When “certain productions” from the respondent were not forthcoming, Mihoren’s lawyer “indicated he would bring a motion.”

According to court documents, a clerk of the Superior Court sent a notice in October 2018 of “approaching dismissal under r. 41(5) of the Family Law Rules, as the case had not been settled, withdrawn, or scheduled for trial within 365 days of its commencement.”

“The notice provided that the clerk would dismiss the case unless, within 60 days (that is, by December 27, 2018), one of the steps specified in r. 41(6) of the Family Law Rules was taken,” the court explained, noting the steps were: “obtaining an order lengthening time, filing an agreement for a final order disposing of all issues and a notice of motion to carry out the agreement, serving a notice of withdrawal discontinuing the case, scheduling the case for trial, or arranging a case conference or settlement conference for the first available date.”

Obtaining an order lengthening the time was one of the steps taken, the court noted, adding that an order was made on “December 6, 2018, on the consent of the parties, extending the ‘time for dismissal’ that had been specified in the notice to October 25, 2019.”

Therefore, Oct. 25, 2019, became “the new deadline by which one of the steps in r. 41(6) had to be taken to avoid dismissal of the application by the clerk.”

“Notwithstanding the importance of this deadline,” the court explained, Mihoren’s lawyer “did not diarize it, due to what the motion judge accepted was inadvertence.”

According to court documents, Mihoren “gave evidence that she met with her lawyer in February 2019” and he “told her to prepare a list of witnesses who would have to meet with him and provide signed statements.” A list was prepared and “[S]ome witnesses provided statements over the next several months …” However, Mihoren “acknowledged that the compilation of a final witness list for a settlement conference was delayed.”

The court noted that the “only communication between counsel in 2019, prior to the new dismissal date, was a letter dated July 6, 2019, in which counsel for the respondent wrote to the appellant’s lawyer, listing the undertakings given on the appellant’s questioning, and requesting answers by the end of the month.” The letter went unanswered and “none of the steps specified in r. 41(6) to prevent dismissal of the action were taken” before the October 2019 deadline.

Therefore, the court issued an order dismissing Mihoren’s application on Oct. 26, 2019.

Mihoren’s lawyer got the dismissal order in November 2019 and the appellant “brought a motion to set aside the dismissal order under r. 41(9) on February 27, 2020, returnable March 20, 2020.” However, the court noted, due to the COVID-19 pandemic, “the motion could not be heard until August 14, 2020.”

According to court documents, the motion judge, Justice Pamela Hebner of the Superior Court of Justice, “referred to the onus on family law litigants to move cases forward in a timely manner, with the expectation set by rr. 41(5) and (6) that they will be resolved or scheduled for trial within a year.”

Justice Hebner pointed to case law, including H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, that “set out the principles to be considered when deciding whether to set aside an administrative dismissal in civil cases under r. 48 of the Rules of Civil Procedure.” The judge “accepted that the civil approach should inform the approach to an administrative dismissal under the Family Law Rules, within the context of the primary objective of those rules, dealing with cases justly.”

Justice Hebner considered the Reid factors, which are: “whether there was an explanation for the delay that led to the dismissal order, whether the deadline set out in the notice was missed due to inadvertence, whether the motion to set aside the dismissal was prompt, and whether there has been prejudice to the responding party.”

With regards to the delay after the extension order, Justice Hebner determined that the appellant “displayed … inertia, at best, or a complete lack of interest, at worst”, and “noting the lack of an adequate explanation for that delay,” decided not to set aside the dismissal order.

Justice Benjamin Zarnett, writing for the majority at the Court of Appeal, agreed with Justice Hebner that “the principles derived in the context of civil cases, such as Fuller, are appropriate to inform the approach to motions under r. 41(9) of the Family Law Rules.”

He wrote that “Fuller holds, at para. 20, that on a motion to set aside an administrative dismissal, the court should consider the Reid factors,” but Fuller also “makes it clear that these factors are not to be treated as a rigid set of hurdles the moving party must meet.”

“Instead, an overall contextual approach is required that takes into account those factors and all of the relevant circumstances, including the conduct of both parties,” he explained.

However, Justice Zarnett found that Justice Hebner erred in applying the Fuller principles and her “approach involved three interrelated errors in principle.”

“First, she failed to contextually evaluate the Reid factors as Fuller requires, essentially treating one as a rigid hurdle and giving no effect to two others. Second, she gave erroneous treatment to the factor of prejudice. Third, she failed to properly consider whether upholding the dismissal order constituted a just result in all of the circumstances, by misapplying the policy favouring timely resolution of family law proceedings and not properly considering the policy that favours proceedings being determined on their merits,” he explained.

Justice Zarnett noted that “although there was a litigation delay, the effect of it could have been avoided at any time up to October 2019, but was not, due to lawyer’s inadvertence.”

Justice Zarnett also determined that Justice Hebner erred in her analysis of prejudice.

“The motion judge identified the only prejudice to be the passage of time. She appears to have considered this to support a presumption of prejudice because ‘it can be presumed that a witness’s recollections will be somewhat dimmed’ by the passage of time, and because the existence of a family law case may mean that the parties are unable to move forward with their lives until it is completed,” he explained, stressing that Justice Hebner “did not explain how witnesses’ memories would diminish during that period.”

“Accordingly,” he added, “this finding of prejudice is tainted by legal error and cannot stand.”

Justice Zarnett also determined that the “finding of prejudice due to the nature of family law proceedings” was “also tainted by error.”

He explained that Justice Hebner’s “comment to the effect that in some cases, the mere existence of a family law proceeding prevents parties from moving forward with their lives could not be applied to this case without evidence that the respondent had been so affected.”

He also found that Justice Hebner “failed to consider whether setting aside the dismissal was just in all the circumstances.”

“The motion judge was entitled to consider that the Family Law Rules are in place for a reason, and that there was unexplained delay. But she was also obligated to consider that the Family Law Rules contemplate the setting aside of dismissal orders where it is just to do so, and that the factors and policies implicated in such a decision go beyond these considerations. She failed, as described above, to take into account the appropriate factors contextually, and then failed to consider whether the preferred policy of allowing actions to be determined on their merits should in this particular case bow to considerations of timely administration of justice in accordance with the Family Law Rules,” he emphasized.

In a decision released Dec. 16, Justice Zarnett, with Justice Lois Roberts in agreement, determined that the “just result is to set aside the dismissal order.”

“Although the litigation delay between late 2018 and the dismissal order was not adequately explained, the appellant had the opportunity to get the application back on track in a manner contemplated by the Family Law Rules, by arranging a case conference or settlement conference. She lost that opportunity due to her lawyer’s inadvertence. It would not be just to visit that loss of opportunity on her,” he explained, further noting that there “is no prejudice to the respondent and no basis to conclude that his fair trial rights have been compromised.”

“Moving this proceeding to a family law conference is more consistent with both the goals of deciding the case on its merits and achieving a timely and efficient resolution than the alternative of upholding the dismissal and allowing the appellant to start a new proceeding,” he added.

In his dissent, Justice Brown “strongly” disagreed with his colleagues, noting that “there is no basis to interfere with the motion judge’s dismissal of Ms. Mihoren’s motion to set aside the October 26, 2019 administrative dismissal order (the ‘Dismissal Order’) of her application for spousal support.”

He noted that the majority of the Supreme Court in R. v. G.F., 2021 SCC 20 “recalled, for the benefit of intermediate appellate courts, the importance of a functional and contextual reading of a lower court’s reasons and directed appellate courts to resist the temptation to finely parse a judge’s reasons in search of error.”

“In my respectful view, my colleagues have run afoul of that direction,” he stressed.

Justice Brown believed that the majority’s “disagreement” with Justice Hebner “essentially stems from their different view of the significance of the litigation obligation the appellant failed to meet in this case, which resulted in the dismissal of her application.”

However, Justice Brown noted, “much more was involved than missing a mere deadline ‘by which certain steps had to be taken.’ ”

“In this case,” he added, “the appellant failed to meet the Family Law Rules’ fundamental expectation about the amount of time a family law case may tarry in the court system.”

“My colleagues’ reasons essentially downplay the significance of the obligation that rr. 41(5) and (6) impose on family law litigants,” he wrote.

Justice Brown stressed that “[M]uch water has flowed under the access-to-justice-bridge since 2010. Chronic delays and disproportionate legal costs are now seen as barriers to a just civil and family court system in Ontario.”

He noted that the decisions in Hryniak v. Mauldin, 2014 SCC 7 and R. v. Jordan, 2016 SCC 27 have “forced Ontario courts to rethink their traditional laissez-faire attitude toward the time it takes to move cases from their start to a final disposition on the merits.”

Justice Brown added that in Jordan, the Supreme Court “decried the ‘culture of complacency towards delay’ that had emerged in the criminal justice system.”

“An equally virulent culture of complacency towards delay is deeply embedded in Ontario’s civil and family justice systems. The presumptive ‘in and out of court in one year’ baseline for family law cases created by r. 41(5) of the Family Law Rules, coupled with the limited exceptions to that baseline enumerated in r. 41(6), represents an effort to root out that culture of complacency in the family law system,” he explained, stressing that the “presumptive one-year ‘in and out of court’ timeline provides the overarching context in which any motion judge must consider an applicant’s request to revive an administratively dismissed family law proceeding and determine what order would be just in all the circumstances.”

Samuel Mossman, counsel for respondent

Samuel Mossman, counsel for respondent

Justice Hebner’s “consideration of the passage of time as prejudice was not a reversible error; it was a proper step in trying to defeat the culture of complacency towards delay in the family law system,” he determined.

Concluding that he would dismiss the appeal, Justice Brown determined that Justice Hebner’s decision “merits the support of this court, not its reversal.”

Samuel Mossman, a sole practitioner based in Windsor, Ont., and counsel for the respondent, told The Lawyer’s Daily that the obvious takeaway from this decision is to “diarize time limits.”

“One year to get a family law matter to trial is an unrealistically short time frame when even a case conference is often scheduled two or more months from the date of requisition. The absence of the requirement to provide notice of approaching dismissal to counsel after a first extension seems to me to be unnecessary, some-what mean-spirited towards counsel and harsh,” he added.

“Justice Brown’s dissent was strongly worded and correctly, in my view, analyzed the issues,” said Mossman, adding that “once the application was dismissed, the motions judge was entitled to consider more than just the inadvertence of counsel in missing the deadline but to consider the rather lackadaisical attitude of the applicant towards the pursuit of her claim.”

Mossman said the “administrative dismissal came after a case conference and questioning. Had the rules allowed for a dismissal with costs, which would have been appropriate given the legal fees expenditure to that point, costs would have presented an impediment to the applicant simply starting up again and the administrative dismissal order would be more substantive and significant.”

Counsel for the appellant was unable to comment before press time.

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