|
Appeals - Quashing (2). S.S. v. S.R.A.
In S.S. v. S.R.A. (Ont CA, 2025) the Ontario Court of Appeal granted the respondent's motion to quash a family law appeal, here where the appeal was brought against the trial judgment:[7] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits an appellate court to quash an appeal “in a proper case”. This discretionary power will only be exercised in the clearest of cases. Relevant to the circumstances of the present appeal, this court has quashed appeals where a party willfully fails to comply with court orders, such as support orders: see, for example: Abu-Saud v. Abu-Saud, 2020 ONCA 824, 48 R.F.L. (8th) 330, at para. 4; Consentino v. Consentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8; Lamothe v. Ellis, 2022 789, 79 R.F.L. (8th) 8, at para. 4.
[8] The present case is one of those clearest of cases justifying the quashing of an appeal. The appellant has deliberately and unwaveringly breached crystal-clear orders, which are not stayed by his appeal, requiring him to allow his former spouse parenting time and to pay spousal and child support. The appellant remains in substantial arrears of his support obligations and, further, has failed to satisfy costs orders that are not under appeal.
[9] It is beyond well-established that support and parenting orders are not stayed by an appeal and that all orders that are not stayed must be followed until they are set aside or amended. The appellant’s breaches not only detrimentally affect his former spouse and their child, who, he acknowledges, are financially dependent on him, but they bring the administration of justice into disrepute.
[10] This is an egregious case. As we have already summarized, the record establishes that before the Superior Court and this court, the appellant has engaged in vexatious and frivolous behaviour. He has refused to comply with court orders; pursued frivolous and unmeritorious steps in the proceedings, seeking to relitigate support and parenting issues; and filed compendious and misleading materials.
[11] Before the stay of his appeal, he failed to take the requisite steps to perfect his appeal. His appeal appears unmeritorious, as the grounds amount to no more than a thinly veiled attempt to have this court revisit the trial judge’s careful findings of fact and credibility, all of which were open to the trial judge to make.
[12] The appellant’s flagrant disregard of court orders and of his fundamental support and parenting obligations continues his entrenched pattern of misconduct designed to punish his former wife and alienate her from their child.
[13] The appellant’s misconduct bears all the distinct hallmarks of frivolous and vexatious litigation: Talwar v. Grand River Hospital, 2025 ONCA 35, at para. 3; J.J.W. v. K.F., 2024 ONCA 362, 1 R.F.L. (9th) 1, at paras. 19-22.
[14] The court cannot tolerate this kind of deliberate misbehaviour. . Kakoutis v. Bank of Nova Scotia
In Kakoutis v. Bank of Nova Scotia (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash an appeal "on the basis that this court does not have jurisdiction to hear the appeal":[3] Contrary to the appellants’ submissions, there is no prohibition on the respondent bringing this motion as a preliminary motion and it is properly before the court. Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, explicitly contemplates that the court has the power to quash an appeal on a motion. There is no requirement that a motion to quash be brought after the respondent has filed materials in response to the appeal. Such a requirement would unfairly increase the costs of litigation in circumstances where there is a valid basis for quashing an appeal. For the same reason, s. 7.2.5 of this court’s practice direction concerning civil appeals provides that a motion to quash will be heard “at an early date” if its basis is that the court lacks jurisdiction to hear the appeal.
[4] We agree with the respondent that this court does not have jurisdiction to hear an appeal from the Associate Judge’s order. An appeal from a final order of an associate judge is to be brought to the Divisional Court: Courts of Justice Act, s. 19(1)(c). An appeal from an interlocutory order of an associate judge is to be brought to a single judge of the Superior Court: Courts of Justice Act, s. 17(a). Accordingly, this court does not have jurisdiction over this appeal. . Add-Vance Service Centre Ltd. v. Triloq Corp. ['appeal' of default judgment is premature]
In Add-Vance Service Centre Ltd. v. Triloq Corp. (Ont CA, 2024) the Ontario Court of Appeal quashed an appeal, here of a default judgment on the prematurity grounds that it was not a final order - since a motion to set aside was available and more efficient:[1] This is a motion to quash the notice of appeal of Edgar Bray, which was initially served on the respondents/moving parties, Add-Vance Service Centre Ltd. (“Add-Vance”) and Abdalrahman Alhazmy, filed on June 6, 2024.
[2] The motion is unopposed. We granted the motion at the hearing for reasons to follow. These are our reasons.
....
[4] The moving parties argue that no appeal lies to this court from a decision on default judgment because it is not a final order of a judge of the Superior Court of Justice under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] As this court has observed, default judgments are not uncommon and a motion to set aside a default judgment under r. 19.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides “an efficient and relatively inexpensive means by which a party can challenge a default judgment”: 10720143 Canada Corp. v. 2698874 Ontario Inc., 2023 ONCA 463, at para. 16. Such motions are often successful.
[6] The interlocutory nature of a default judgment has been confirmed by this court on many occasions: 10720143 Canada Corp v. 2698874 Ontario Inc., at paras. 16-18. See also, for example, National Bank of Canada v. Royal Bank of Canada (1999), 1999 CanLII 3733 (ON CA), 44 O.R. (3d) 533 (C.A.); Hans v. Mohammadi (2005), 2005 CanLII 21090 (ON CA), 198 O.A.C. 374 (Ont. C.A.), at para. 11; Siivonen v. Halow (2002), 2002 CanLII 41790 (ON CA), 59 O.R. (3d) 211 (Ont. C.A.), at paras. 6-7; Laurentian Bank of Canada v. Goldshmidt, 2013 ONCA 122, at para. 4; Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73, 42 C.L.R. (4th) 7, at para. 4.
[7] Therefore, the motion to quash must be granted. . Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure)
In Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure) (Div Court, 2024) a single judge of the Divisional Court considered a JR by a citizen's group of the province's "decision not to include the redevelopment of Ontario Place’s West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment Project pursuant to the Environmental Assessment Act".
Here the court dismissed a motion to quash the JR:Test on a Motion to Quash
[20] The test on a motion to quash an application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the application cannot succeed: Ye v. Toronto District School Board, 2023 ONSC 2918 at para.18.
[21] Alternatively, to the extent that there is no longer a tangible and concrete dispute between the parties, a single judge can quash an application on the basis of mootness.
|
