“This court does not ordinarily give reasons on motions for leave to appeal, mirroring the practice in the Court of Appeal and the Supreme Court of Canada. We give reasons in this case solely to provide some guidance in family law cases: there is a continuing pattern of unmeritorious motions for leave to appeal temporary support orders in family law cases, and this is undesirable for the parties and for the administration of justice.
In this case, the motions judge ordered Mr Khan to pay spousal and child support for two children to Ms Lokhandwala. The motions judge did not state that the children spend half their time with their father. The motions judge did not apply a s.9 offset, nor did he explain why he was not applying a s.9 offset, given the time the children spend with each parent.
Assuming without finding that the motions judge made a palpable and overriding factual error, this would be a basis on which to doubt the correctness of his order. However, that does not make the proposed appeal a matter of “such importance… [that] leave to appeal should be granted” (Rule 62.02(04)(a)). Nor does it make it “desirable that leave to appeal be granted” (Rule 62.02(04)(b)). Under either branch of the test under R.60.02(04), the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice: Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 OR (3d) 282 (Gen. Div.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 OR (2d) 110 (Div. Ct.). Further, even where there is an issue of “importance”, leave will still not usually be granted where that issue will still be available for appellate adjudication after trial: Silver v. Imax (2011) ONSC 19035, paras. 46 and 55.
In family law, temporary support orders are designed to establish or maintain a reasonable state of affairs pending trial. Unless expressly stated otherwise, these orders are without prejudice to adjustment by the trial judge. Interlocutory appeals in family law matters are costly, time-consuming, and tend to impair the reasonable and efficient course of those proceedings. Errors in temporary support orders – even ones that are straightforward – are almost always better addressed at trial rather than by way of interlocutory appeal. As argued by the responding party in her factum, “instead of expending their scarce resources on a potential appeal from a [temporary] Order, the parties should focus their attention on resolving the case on a final basis.”
This case is not important to the development to the law. Any error there may have been calculating temporary child support may be adjusted by the trial judge in due course. And any error made by the trial judge on these issues can be pursued by way of an appeal from a final order.
Finally, we wish to be clear that we are not criticizing counsel for the moving party in this endorsement. The practice of seeking leave to appeal in cases like this has been commonplace in family law matters. By this endorsement we signal to the family law bar that this practice should not continue.”