COURT FILE NO.: 429/08
DATE: 20080829
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
HALIT DURUKAN
Plaintiff
- and -
FIGEN AKOVA
Defendant
In Person
Aliamisse O. Mundulai, for the Respondent
HEARD at Toronto: August 29, 2008
aston J.: (Orally)
[1] This matter comes before the Court today under s.19.1(b) of the Courts of Justice Act, which provides that an appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the Rules of the Court.
[2] The threshold question is whether the order of August 19, 2008, of Kiteley J. is an interlocutory order or a final order. If it is a final order then the appeal of that order would go directly to the Court of Appeal. However, I’m going to assume for the purposes of today that the order is, in fact, interlocutory, though I must say I do have some doubt about that.
[3] The rules of the Court that apply for leave to appeal an interlocutory order are essentially rules 61.03 and rule 62.02. Under rule 62.02(4):
“Leave to appeal shall not be granted unless:
(a) there is a conflicting decision by another judge or Court in Ontario involving the matter proposed on the appeal and it is in the opinion of the judge hearing the motion desirable that leave to appeal should be granted, or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that in his or her opinion leave to appeal should be granted.”
[4] The proceeding before Kiteley J. on August 29 was the culmination of a motion that had been adjourned on at least two other occasions. It was specifically for the purpose of determining whether the mother ought to be allowed to travel to Turkey from September 2008 to February 2009 with the child of the marriage who was then about four and half years of age.
[5] At the motion hearing the father made certain submissions to Kiteley J. concerning reasons why he thought the order should not be made; including the assertion that his son would not be safe, particularly because of his deficit with some verbal skills. He wanted the mother ordered to some sort of medical testing. He expressed concerns about drug use. He expressed concerns about the mother not returning and the need for some sort of bond or deposit to assure that she would return. He made various other objections which he has identified in his notice of motion and repeated to the court today.
[6] The point is that all of these submissions were made to Kiteley J. The father had an opportunity to present his point of view. Kiteley J. considered it. Her reasons indicate that she used the best interests of the child as the test for what order to make. She applied the proper law in that regard exercised a discretion. It’s not apparent to me that there is any reason to doubt the correctness of her order. Furthermore, the determination of the issue did not involve matters of public importance, or “importance” as that word has been interpreted in rule 62.02(4).
[7] I have endorsed the notice of motion: “For oral reasons given and recorded, this motion for leave to appeal is dismissed.”
ASTON J.
Date of Reasons for Judgment: August 29, 2008
Date of Release: October 31, 2008
COURT FILE NO.: 429/08
DATE: 20080829
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
HALIT DURUKAN
Plaintiff
- and -
FIGEN AKOVA
Defendant
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: August 29, 2008
Date of Release: October 31, 2008