Zakhour v. Nayel, 2020 ONSC 7001

Citation and Court Information

CITATION: Zakhour v. Nayel, 2020 ONSC 7001

DIVISIONAL COURT FILE NO.: 19-2473

DATE: 20201117

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MAYA ZAKHOUR, Applicant (Appellant)

AND:

FADY NAYEL, Respondent (Respondent on Appeal)

BEFORE: Swinton, J.A. Ramsay and Favreau JJ.

COUNSEL: Maya Zakhour, self-represented, Appellant

Diane Condo, for the Respondent (Respondent on Appeal)

HEARD by videoconference: November 16, 2020

ENDORSEMENT

[1]

Background

The appellant Maya Zakhour appeals an order of Linhares de Sousa J. dated April 2, 2019, granting the respondent’s motion for summary judgment and dismissing the appellant’s claim for equalization of net family properties and spousal support under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). The motions judge found that the appellant was not a spouse within the meaning of the FLA because of the annulment of the parties’ marriage in Lebanon.

[2]

Jurisdiction

The Divisional Court does not have jurisdiction to hear this appeal, as the order dismisses an equalization claim. Pursuant to s. 4(1) of the FLA, an order respecting equalization must be made by a Superior Court judge. There can be no appeal from such an order to the Divisional Court pursuant to s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which deals with appeals from the Family Court under certain statutes such as the FLA where an appeal would lie from an order of the Ontario Court of Justice to the Superior Court of Justice.

3This Court can only take jurisdiction in this appeal pursuant to s. 19(1.2) of the CJA. Pursuant to s. 19(1.2)(c), the Divisional Court has jurisdiction to hear an appeal from a final order that dismisses a claim for an amount not more than $50,000. There is no indication in the appellant’s claim for relief respecting equalization in her Application that she seeks an amount of $50,000 or less. There is no mention of the amount in dispute in the motions judge’s decision. Accordingly, this Court has no jurisdiction to deal with this appeal respecting equalization, and the appeal lies to the Court of Appeal.

4This Court has jurisdiction pursuant to s. 110(1) of the CJA to transfer an appeal to the Court of Appeal. One consideration in determining whether to transfer is the merits of the appeal. Here, there is an arguable case with respect to the issue of equalization, given the Court of Appeal’s decision in Okmyansky v. Okmyansky, 2007 ONCA at para. 43 and s. 7(1) of the FLA, which allows a spouse, including a former spouse, to pursue a claim for equalization of net family properties. The motions judge made no finding that the appellant’s family property claims were determined in the Lebanese proceedings.

5In addition, the appellant is self-represented, and the respondent did not alert her to a jurisdictional problem.

[6]

Disposition and Costs

Accordingly, this appeal is transferred to the Court of Appeal. There shall be no costs of the hearing before this Court.

7The parties should contact the Court of Appeal to obtain a date for the hearing.

Swinton J.

J.A. Ramsay J.

Favreau J.