Golnaz Emam

The respondent appealed a motion judge's ruling that leave was required to appeal a temporary spousal support order made under the Divorce Act.

The respondent argued that the Divorce Act provided an unfettered right of appeal that superseded the leave requirements of the Courts of Justice Act.

The Divisional Court dismissed the appeal, holding that the Divorce Act's appeal provisions must be read in conjunction with provincial procedural rules, meaning leave to appeal an interlocutory order is still required.

The appellant brought a motion to set aside a Registrar's order dismissing his appeal for delay.

The appellant, who was self-represented, failed to perfect his appeal within the prescribed 30-day period after being granted leave to appeal.

Applying the tests from Scaini and Viola, the court found the delay was not extensive, the appellant had a settled intention to appeal, and the appeal had merit.

Although the court rejected the appellant's explanation for the delay, it concluded the justice of the case demanded setting aside the dismissal on terms.

The motion was granted on the condition that the appellant perfect the appeal within 10 days and pay $3,000 in costs to the respondent.