COURT OF APPEAL FOR ONTARIO
Weiler, Blair and Rouleau JJ.A.
BETWEEN
William Wong
Appellant/Respondent
and
Susan Gong
Respondent/Applicant
Simon Schneiderman, for the appellant/respondent
Harold Niman and Karen Wilson, for the respondent/applicant
Heard & released orally: January 13, 2010
On appeal from the order of Justice Janet Wilson of the Superior Court of Justice dated July 30, 2009.
ENDORSEMENT
1Ms. Gong moves to quash the appeal on the basis that the order of Wilson J. was interlocutory. We agree.
2The order of Wilson J. is (a) a temporary order and (b) does not decide a claim in the application: Family Law Rule 2(1). It is an interlocutory order under the general jurisprudence as well because it does not finally determine an issue in dispute between the parties or deprive Mr. Wong of any substantive right or possible defence. See Mantella v. Mantella, 2009 CarswellOnt 1060, 2009 ONCA 194.
3In any event, Mr. Niman concedes that Mr. Wong may still raise the issue of set off of the payments of $3,000 per month her husband was making on the promissory note in favour of the wife with respect to the issues remaining to be determined at trial.
4Wilson J.’s decision was simply to the effect that the set off argument was not accepted as a basis to prevent payment of the monies in court, which was the interlocutory matter before her. In directing payment out she made it clear that the ultimate determination of arrears remained open and that “a component” of the amounts paid out pursuant to her order “may be for future support” if the appellant turns out to be successful in his argument that the outstanding arrears were in the amount that he claimed.
5The order is interlocutory and the appeal must be quashed. Costs of the motion and of the appeal to the moving party/respondent fixed in the amount of $7,500 all inclusive.
“K.M. Weiler J.A.”
“R.A. Blair J.A.”
“Paul Rouleau J.A.”