DATE: 20050203

DOCKET: M31683 (C40033)

COURT OF APPEAL FOR ONTARIO

RE: Mr. Danny Zomparelli (respondent) and Ms. Rose Zomparelli (appellant)

BEFORE: FELDMAN, SIMMONS AND GILLESE JJ.A.

COUNSEL: Ms. Rose Zomparelli, in person

Mr. Danny Zomparelli, in person

HEARD: January 31, 2005

On motion for a review of the order of Cronk J.A. dated August 27, 2004.

E N D O R S E M E N T

Released Orally January 31, 2005

[1] Ms. Zomparelli asks us to review the order of Cronk J.A.dated August 27, 2004.

[2] Today, Ms. Zomparelli informs us that she has now retained counsel for the appeal. In these circumstances, this motion should have been pursued by counsel.

[3] We would not interfere with Cronk J.A.'s disposition of Ms. Zomparelli's motion for interim relief pending appeal for the following reasons:

(a) re the orthodontist’s fees

(i) Mr. Zomparelli has now undertaken in court to pay today the orthodontic fees as ordered by Wood J.;

(ii) The order forming the subject matter of the appeal is an order of Wood J. dated April 13, 2003. As there is no appeal from Wood J.'s order concerning payment of orthodontic fees, requests for enforcement of that aspect of his order are properly made to the Superior Court. However, Mr. Zomparelli's undertaking is noted for the benefit of the panel that will hear the appeal;

b) re non-harassment order

(iii) No order for non-harassment was made by Wood J. in the Superior Court. As there is no appeal from that aspect of Wood J.'s order, Ms. Zomparelli's request at this stage for a non-harassment order should be made in the Superior Court; and

[4] Ms. Zomparelli informed us in court today that she was abandoning her request for a contempt order.

[5] Cronk J.A. found that, on the record before her, the requested relief was not warranted. On our review of that record, we see no error in her conclusion.

[6] Costs of this motion are reserved to the panel hearing the appeal.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”