COURT FILE NO.: 460/03
DATE: April 16, 2004
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: SAM OSOVETSKY, a.k.a. SAMION OSOVETSKY, a.k.a. SHIMON OSOVETSKY (Appellant) (Defendant) and RITA OSOVETSKY (Respondent) (Plaintiff)
BEFORE: MATLOW, FERRIER & O’CONNOR JJ.
COUNSEL: Sam Osovetsky, Appellant in person Lenard Kotylo, for the Respondent Rita Osovetsky Daniela Bertossi, for the Ministry of Community, Family and Children’s Services Shane Foulds, for the Family Responsibility Office
HEARD: April 15, 2004
E N D O R S E M E N T
MATLOW, J.
[1] After hearing submissions on the issue of the jurisdiction of this Court to hear this appeal, we concluded that we did not have jurisdiction and we declined to hear it. Because all counsel appearing before us advised us that the specific issue which confronted us had not been judicially determined in any cases of which they were aware, we stated that we would render written reasons for our conclusion at a later time. These are those reasons.
[2] This appeal was brought by the appellant from an order of a judge of the Superior Court of Justice on motion made by him for an order varying an existing order requiring him to pay child support to the respondent and rescinding arrears which had accrued pursuant to that order on the ground of a material change in circumstances.
[3] The existing order, which was made on consent, had provided for the payment of $425 per month for child support. As at the time of the hearing of the motion, arrears of $21,353.40 had accrued.
[4] After considering the evidence and hearing the submissions made to her, the motions judge dismissed the appellant’s motion. Her order provided that child support at the rate of $425 per month continue and that arrears, which she fixed at $21,343.40, not be rescinded and that they be paid within ninety days.
[5] The source of our jurisdiction to hear this appeal must be found in section 19 (1) (a) of the Courts of Justice Act. It reads as follows;
- (1) An appeal lies to the Divisional Court from
(a) a final order of a judge of the Superior Court of Justice,
(i) for a single payment of not more than $25,000, exclusive of costs,
(ii) for periodic payments that amount to not more than $25,000, exclusive of costs, in the twelve months commencing on the date the first payment is due under the order,
(iii) dismissing a claim for an amount that is not more than the amount set out in subclause (i) or (ii), or (emphasis added)
(iv) dismissing a claim for an amount that is more than the amount set out in subclause (i) or (ii) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in subclause (i) or (ii);
[6] The order in appeal, on its face, falls within both subclauses (ii) and (iii). Under subclause (ii), the amount of twelve periodic payments of $425 each is $5,100. Under subclause (iii), the amount which the appellant sought to have rescinded was $21,343.40.Both sums together total $26,443.40.
[7] In our view, the word, “or” that appears at the end of subclause (iii) should be understood as being applicable to each of the four subclauses. Taken literally, this means that in order for this Court to have jurisdiction, the order in appeal must be one that is described in only one of the four subclauses. However, in its context, it also means that this Court has jurisdiction if the order in appeal is described in more than one of the four subclauses but only if the total amount in issue does not exceed $25,000.
[8] This interpretation is consistent with the language used in the legislation and with its clear intention to confer appellate jurisdiction to this Court only in cases which involve no more than the stipulated ceiling. If the legislation were interpreted differently, it could produce the result that appeals involving periodic payments totalling slightly over $25,000 would lie to the Court of Appeal but appeals involving combinations of periodic payments and a single payment totalling $49,000 would lie to this Court. It is obvious that this would not be in accordance with the intention of the Legislature.
[9] Our conclusion is not necessarily fatal to the appellant’s right of appeal. It may well be possible for him to continue with the appeal in the Court of Appeal to where we have transferred it.
MATLOW J.
FERRIER J.
O’CONNOR J.
DATE: April 16, 2004
COURT FILE NO.: 460/03
DATE: 20040416
SUPERIOR COURT OF JUSTICE – ONTARIO
Divisional Court
RE: Sam Osovetsky, a.k.a. Samion Osovetsky, a.k.a. Shimon Osovetsky (Appellent) (Defendant) and Rita Osovetsky (Respondent) (Plaintiff)
BEFORE: MATLOW, FERRIER & O’CONNOR, JJ.
COUNSEL: Sam Osovetsky, Appellant in person Lenard Kotylo, for the Respondent, Rita Osovetsky Daniela Bertossi, for the Ministry of Community, Family and Children’s Services Shane Foulds, for the Family Responsibility Office
ENDORSEMENT
MATLOW J.
DATE: April 16, 2004