DATE: 20031009

DOCKET: C40034

COURT OF APPEAL FOR ONTARIO

RE: DAVID CADA (Appellant) – and – MICHELLE CADA (Respondent)

BEFORE: McMURTRY C.J.O., GOUDGE AND SIMMONS JJ.A.

COUNSEL:

David Cada in person

Melanie Sager and Alex Finlayson for the respondent

HEARD: October 6, 2003

On appeal from the judgment of Justice Myrna Lack of the Superior Court of Justice dated April 22, 2003.

ENDORSEMENT

Released Orally October 6, 2003

[1] We agree that the appeal from the order relating to directions for the sale of the matrimonial home and exclusive possession is moot. The matrimonial home has now been sold and the proceeds of sale have been paid into court.

[2] On a practical level, there are no outstanding issues to be dealt with on appeal as the issue of division of the proceeds of sale has not yet been dealt with by the trial court and the issue of the application of the Divorce Act to Mr. Cada was not raised at the time the order under appeal was made. It remains open to Mr. Cada to raise the latter issue in the court below along with the issue of legal representation.

[3] The remaining aspects of the order under appeal are interlocutory on their face. Therefore an appeal lies to the Divisional Court and is subject to leave.

[4] In the circumstances, the appeal from the order dated April 22, 2003 is quashed and there shall be no order as to costs.

_ “R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”