Ludlow v. Ludlow, 2011 MBCA 29

Citation: Ludlow v. Ludlow, 2011 MBCA 29 Date: 20110316 Docket: AF 10-30-07433 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) C. N. Guberman LYNN VALERIE LUDLOW ) for the Applicant ) (Petitioner) Respondent ) L. I. Z. Pinsky ) for the Respondent ) - and - ) ) Chambers motion heard: ) March 4, 2011 JAMES CALVIN REGINALD LUDLOW ) ) Decision pronounced: (Respondent) Applicant ) March 16, 2011 BEARD J.A. I. THE ISSUE 1 The applicant has applied for a stay of the appeal filed in this matter by the respondent, pending the receipt of a final decision on his motion for

summary judgment that is pending in the Court of Queen’s Bench. The respondent is opposed to her appeal being stayed and takes the position that the underlying issue is one of importance that should be determined regardless of the outcome of the applicant’s motion for

summary judgment. II. THE FACTS 2 The parties separated in 2006. They entered into a comprehensive separation agreement in July 2007, and were divorced in March 2008, at which time a final order was also pronounced. In December 2008, the respondent applied for a variation in support, claiming child support and a contribution to s. 7 expenses and extra-curricular expenses, and it is that matter that is now wending its way through the courts. There is no motion to change the current regime of custody and control of the four children of the marriage, which is being shared equally by the parties. 3 In the fall of 2009, Little J. put in place a litigation

schedule setting deadlines for various steps to be taken prior to a contested hearing and fixing a date for the hearing. In preparing for that hearing, the respondent issued a subpoena to the applicant’s employer, to cross-examine him on the applicant’s income. The applicant applied to quash the subpoena, and the application was granted by Johnston J. Shortly after, the respondent served a second subpoena on the applicant’s employer, which was also quashed by Johnston J.

The respondent’s current appeal, which the applicant has applied to stay, is an appeal of the order to quash the second subpoena. 4 On February 25, 2010, the parties and their lawyers met for the applicant’s cross-examination of the respondent, but instead of proceeding, they spent the day negotiating an agreement of the outstanding issues. As a part of that agreement, the respondent had agreed not to appeal Johnston J.’s order. To date, the parties have not been successful in completing a written agreement to document the outcome of their negotiations.

The respondent now takes the position that either there was no true meeting of the minds, or that the applicant has repudiated their agreement, which she accepted, so that agreement is at an end and she can proceed with the underlying motion to vary. 5 In September 2010, the respondent filed an appeal of Johnston J.’s order. In December 2010, the applicant filed a motion for

summary judgment in the Court of Queen’s Bench to obtain a judgment confirming the agreement that he says was concluded on February 25, 2010. If he is successful, that agreement would include a provision that the respondent would not appeal Johnston J.’s order. III. THE POSITIONS OF THE PARTIES 6 The applicant’s position on this motion is that the respondent’s appeal should be stayed pending the determination of his application for

summary judgment because, if he is successful, the respondent will be found to have given up her right to this appeal.

Further, if he is successful, the substantive matter of the determination of future support will also be resolved, leaving no outstandingcontroversy between the parties.

If the respondent is successful on this appeal and the applicant is successful on the motion forsummary judgment, the respondent will have the right to cross-examine the applicant’s employer, but there will be no need for any cross-examination, rendering the decision moot. 7 The respondent argued that, apart from resolving this issue between the parties, the appeal addresses a basic and importantarea of practice and should be determined for all litigants in Manitoba.

The outstanding issue is that of whether Johnston J. erred in lawin importing a requirement for leave to be granted under Queen’s Bench Rule 39.03(1) to examine a third party on a motion, and whetherhe erred in law in applying Queen’s Bench Rule 31.10 when considering the subpoena under Rule 39.03(1). 8 Further, the respondent argued that she is anxious to move forward with her variation application, and she sees theapplicant’s motion for

summary judgment as being without merit, having been brought only to delay a final decision on her application. A resolution at an early date of her right to subpoena the applicant’s employer would put her in a position to proceed with her variationapplication more quickly in the event that the applicant is not successful on his motion for

summary judgment. 9 The respondent argued that this matter should be resolved according to the principles applicable to the granting of staysgenerally, being the following: - is there a serious question to be argued on appeal; - would the applicant suffer irreparable harm if the stay is refused; and - on a balance of convenience, who would suffer greater harm from the granting or refusal of the stay. (See Child and Family Services of Western Manitoba v.

K.B. et al., 2006 MBCA 48, 205 Man.R. (2d) 31 at para. 26.) 10 She argued that all of these factors should be resolved in her favour, being that there is a serious question to be argued, thatthe applicant would not suffer irreparable harm if the stay is refused as any costs he incurs can be compensated, and that she and thechildren would suffer the greater harm in form of a further delay in proceeding with her appeal and the underlying motion for childsupport. 11 The applicant disagreed with her assessment of these factors.

He argued that: he is making the ongoing child supportpayments; under the agreement, the child support payments from his bonus, which he has not paid, are payable only on the signing of theagreement; and, overall, he cannot be compensated for the time and effort that will be wasted if the appeal proceeds and is ultimatelyrendered moot by a favourable ruling on his motion for

summary judgment. IV. ANALYSIS 12 The first step in the analysis is whether there is a serious question to be argued on appeal. While the question that is thesubject of the appeal in this case is a serious question, that does not end the matter. It is also necessary to consider whether there willremain a live question to be considered on appeal if the applicant is successful on his motion for

summary judgment if that decision hasthe effect of rendering the whole appeal moot. 13 The principles related to when an issue becomes moot and what effect that has on a proceeding were the basis of the decisionof Freedman J.A. in Woods v. Canada (Attorney General) et al., 2005 MBCA 24, 192 Man.R. (2d) 117 at para. 14, in which he adoptedthe following statement by Sopinka J. in Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 (at p.353): The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights,the court will decline to decide the case.

This essential ingredient must be present not only when the action or proceeding is commencedbut at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding,events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties,the case is said to be moot. …. 14 In this case, if the applicant is successful in his motion for

summary judgment, that will resolve all aspects of the underlyingvariation application, such that there will no longer be any live controversy affecting the rights of the parties to which the decision underappeal would apply. That would make the appeal moot. 15 As Freedman J.A. noted (at para. 16), that does not end the matter. Sopinka J. went on to state as follows (at p. 353): .… The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.

The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concretedispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessaryto decide if the court should exercise its discretion to hear the case.

The cases do not always make it clear whether the term “moot”applies to cases that do not represent a concrete controversy or whether the term applies only to such of those cases as the court declinesto hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonethelesselect to address a moot issue if the circumstances warrant.

16 After noting that a court retains the discretion to hear an issue that is moot in an exceptional case (at para. 17), Freedman J.A. adopted (at para. 18) the three criteria set out by Sopinka J. in Borowski for determining whether the case is exceptional: - the presence of an adversarial context; - the concern for judicial economy; and - the need for a court to be sensitive to its role as the adjudicative branch in the political framework, and to be careful not to depart from its traditional role. 17 Dealing with the first criterion, in this case, if the motion for

summary judgment is granted, that

summary judgment will finally resolve the underlying matter, such that there will be no substantive matter before the courts. Thus, there will be no adversarial context within which to hear the appeal. If the appeal is heard before a decision is made on the

summary judgment motion and while the matter is still outstanding, the applicant will be put to the cost of arguing a matter that may be of no assistance in resolving any dispute that assists or even affects him, resulting in unnecessary costs to him for no benefit. 18 A further consideration must be the unfairness of putting the applicant to the time and expense of opposing an appeal that a court may find the respondent had no right to bring in the first place, as a result of the terms of the alleged agreement. 19 With regard to the second criterion, I can see no judicial economy in proceeding. While the issue of the

interpretation of the Queen’s Bench Rules raised on the appeal may be of some legal interest, there was no evidence it represents a pressing or prevalent problem that cries out for a determination. If it arises in the future, it can be determined in the context of an ongoing matter. 20 The third criterion appears to have no relevance on this motion. 21 The onus rests on the party seeking a determination on the merits to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals. It is highly likely that, in the event that the applicant is successful in obtaining

summary judgment, the court would refuse to proceed with the appeal, the issue having become moot. Further, to permit the respondent to proceed now would be unfair to the applicant. Thus, the respondent has not met that onus. I am not persuaded that this appeal, if it becomes moot following the decision on the motion for

summary judgment, is so exceptional that the court would decide to hear it on the merits. That said, it would certainly be open to the respondent to renew her appeal following a final determination of the motion for

summary judgment. 22 The second step in the analysis is whether the applicant would suffer irreparable harm if the stay is refused. While the applicant would be put to unnecessary work and expense if the stay is refused, much of the expense can be dealt with in the form of an order for costs. I am not satisfied that he would suffer any irreparable harm if the stay were refused.

That said, there would be a certain degree of unfairness to the applicant if the respondent is permitted to proceed with her appeal and it is later determined that she had agreed not to do so, and this unfairness could not be undone. 23 The third step in the analysis is to determine who, on a balance of convenience, would suffer the greater harm from the granting or refusal of the stay. The respondent argued that the support payments are for the benefit of the children, and that it is the children who are suffering by not receiving the total payments to which the applicant had committed in the settlement.

She pointed out that, in the K.B. case, Freedman J.A. stated as follows (at para. 27): But in matters involving the protection of children, in my opinion the second and third factors must be modified to take into account consideration of the child’s best interests. …. 24 She argued that, while this is not a child protection case, the best interests of the children are still paramount and require that the variation application proceed as expeditiously as possible, and that the test for a stay should be applied with this in mind. 25 In considering this third step, I note the following: - the applicant is paying the agreed-upon monthly payments of $1,800, the private school expenses, the costs for extra-curricular activities and the other amounts as agreed, except the proportion of his bonus; and - the children continue to spend an equal amount of time with each parent. 26 Thus, the children’s needs are not going unmet.

The applicant is paying a substantial amount of child support, and any amounts that are in arrears can be collected once the amount of child support is determined by agreement or by court order. Thus, it is hard to say that this is an issue that affects the best interests of the children in such an immediate way that it would be detrimental to their best interests to grant the stay. 27 In

summary, there may or may not be a serious question to be argued on appeal, depending on the outcome of the motion for

summary judgment. While the applicant would not suffer irreparable harm if the stay was refused, the balance of convenience favours neither party. The whole proceeding relates to the payment of money, and it appears that the successful party will be able to collect any amounts owing from the other party. When all of these factors are considered, I find that this motion should be granted and there should be a stay of the appeal pending a determination of the applicant’s motion for

summary judgment. 28 The respondent argued that, in the event that I granted the applicant’s motion, I should also set a fixed date to continue the appeal to prevent the applicant from delaying the resolution of the

summary judgment proceeding. I am not satisfied that such a step is

either required or appropriate. The respondent can

schedule a further case conference with a justice of the trial court to deal with the timing of the motion for

summary judgment and all related preparatory steps. The applicant advised that he complied with the

schedule set by Little J. regarding the scheduling of the underlying variation motion, and he would comply with any future scheduling orders. If he fails to do so, that matter should be dealt with by the trial court and not by this court. 29 The applicant will have his costs on this motion. __________________________ J.A.