Rosenau v. Mercer, 2013 NLCA 64

Date: 20131119 Docket: 13/58 Citation: Rosenau v. Mercer , 2013 NLCA 64 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : TIMOTHY ALLEN ROSENAU INTENDED APPELLANT AND : JACQUELINE LAHJLA MERCER INTENDED RESPONDENT Coram: Rowe J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201102F1084 Application Heard: November 19, 2013 Decision Rendered: November 19, 2013 (Orally) Memorandum of Disposition Filed: November 19, 2013 Counsel for the Appellant: Joseph S. Twyne Counsel for the Respondent: Katrina A. Brannan Q.C.

MEMORANDUM OF DISPOSITION Rowe J.A.: [ 1 ] Mr. Rosenau and Ms. Mercer are divorced. They have one child of the marriage, a daughter, 15 years of age. She lives with Ms. Mercer. At issue is the child support that Mr. Rosenau pays to Ms. Mercer. Various orders have been made. In December 2011, Ms. Mercer commenced an action to vary child support. In June 2013, a justice of the Trial Division gave a decision as to the level of Mr. Rosenau’s income for the purposes of child support. This was more complex than most such determinations, as it involved Mr.

Rosenau’s family business. [ 2 ] The Trial Division judge continued the existing level of child support, pending the hearing of evidence “as to an appropriate amount of child support for [the daughter] based on this income”. In July 2013, pursuant to Rule 57.02(1)(a), counsel for Mr. Rosenau sought leave to appeal to this Court regarding the Trial Judge’s determination of Mr. Rosenau’s income. This application was opposed by Ms. Mercer. (I have reviewed Mr. Rosenau’s proposed factum; it is not frivolous, but rather contains arguable issues concerning the determination of Mr. Rosenau’s income.)

[3] Both parties are agreed that the decision is interlocutory and not final. See United Food and Commercial Workers, Local 1252v. Fishermen’s Union v. Cashin et al. (1994), (NL CA), 124 Nfld. & P.E.I.R. 201 (Nfld. C.A.) at para. 31 and Kent v.Kent, 2010 NLCA 53, 301 Nfld. & P.E.I.R. 152 at para. 25. [4] That said, a preliminary question is whether there is an “order” to be appealed, in that the determination of Mr. Rosenau’sincome is merely the disposition of an issue. On its face, such a determination is not an “order”. (Though see Stoiantsis v. Spirou(2008), 2008 ONCA 553 , 91 O.R. (3d) 184 (C.A.) Nonetheless, giving a purposive

interpretation to Rule 57.02, one canforesee circumstances where the Court could exercise its discretion to hear an appeal of the determination of an issue, even where noorder per se follows. One such example could be a tort action, where proceedings are bifurcated between liability and damages.

If therewere live issues likely to give rise to an appeal regarding liability and if proceedings regarding damages were likely to be lengthy and,thus, costly to the parties, that could well be a proper basis to exercise discretion in favour of hearing an appeal on the determination ofliability before the trial proceeded to hear evidence regarding damages. [5] What is critical in this case is the anticipated time and expense to the parties of the hearings leading to a final decision on theamount of child support. The teenage daughter does not have special needs.

The judge has called for information relating to hisconditions and needs, as well as the ability of the mother to contribute to providing for these. (She is currently unemployed.) Bothcounsel were of the view that remaining proceedings relating to the determination of child support would be relatively brief. [6] That being so, in my view, it is not in “the interests of justice” (to quote Rule 57.02(4)(e)) that leave to appeal be granted. Norhas counsel for Mr.

Rosenau made out a basis for the granting of leave to appeal under the other factors listed in Rule 57.02(4). [7] What makes practical sense for those parties is to delay no longer (five months have been taken up with this leave application),but rather to get on to a final determination of child support. When that order is made, Mr. Rosenau will have his right to appeal to thisCourt. For now, Ms.

Mercer should be delayed no further from pressing on with the trial. [8] Parties should understand that the test for the exercise of discretion for the granting of leave to appeal an interlocutory orderrequires that the Court be persuaded there is good reason to interrupt the ordinary conduct of a trial to completion. That simply was notshown here. [9] The application for leave to appeal is denied. Ms. Mercer will have her costs for this application. ____________________________________ M. H. Rowe J.A.