Leave to Appeal: Musheyev v. Gilkarov 2016 ONSC 4120

In this case, the Ontario Superior Court of Justice granted leave to appeal to the Divisional Court for a determination of whether a material change in circumstances must be established before a party can commence action to vary a temporary without prejudice order. In its conclusion, the court held that the meaning of the term “without prejudice” in a temporary consent order warrants resolution on appeal.

Background

The mother and father had consented to a temporary without prejudice order providing the father with access to the child every Tuesday and Thursday from after daycare until 7:15 p.m., and alternating weekends.

The father brought a motion to vary the temporary order, seeking further access.

The motion judge rejected the father’s claim, stating that the father was unable to show that a material change in circumstances had taken place.

The father appealed to the Ontario Superior Court of Justice, seeking leave to appeal the motion judge’s decision.

Analysis

Justice Charney begins the analysis by setting out the test for granting leave to appeal.

Pursuant to Rule 62.02(4) of the Rules of Civil Procedure, leave to appeal should not be granted unless

  1. There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
  2. There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

In applying this test to the facts, Justice Charney states that a material change is one which, if known at the time the order was granted, would likely have resulted in different terms.

It is the father’s position that imposing a material change in circumstances test on a temporary without prejudice consent order is erroneous, as it defeats the purpose of the order. According to the father, without prejudice means that the parties have agreed that the order is not intended to create a new status quo. As the father points out in his argument, the requirement to establish a material change in order to vary a temporary order will discourage these kinds of settlements in the future.

Justice Charney points out that there is conflicting case law on this issue. On the one hand, in family law, the material change in circumstances test is generally accepted as a threshold to vary a court order. On the other hand, there is case law, such as Ceho v. Ceho 2016 ONSC 4120, and Damaschin-Zamfirescu v. Damaschin-Zamfirescu 2016 ONSC 4120 in which the Ontario Superior Court of Justice has held that the material change in circumstance tests should not apply in cases of temporary without prejudice motions.

Justice Charney agrees with the submissions of the father, and states that the intentions of the parties in the case of temporary without prejudice orders is to “break a litigation logjam” and achieve some measure of stability in the short term. He further states that these agreements give parties the change to disengage from the litigation process without formally giving up their position. There is little doubt, he adds, that temporary without prejudice agreements would be easily achievable if the parties thought they were establishing a new status quo.

In conclusion, Justice Charney held that pursuant to Rule 62.02(4)(b) of the Rules of Civil Procedure, there is good reason to doubt the motion judge’s decision, and the matter is of such importance that leave to appeal should be granted.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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