Court of Appeal for Ontario

Date: 2006-11-10 Docket: C44191

Re: Paul Pitts (Appellant) – and – Samarasinghe De Silva (Respondent in appeal)

Before: Moldaver, Simmons and Gillese JJ.A.

Counsel: Brian W. Bond, for the appellant Samarasinghe De Silva in person

Heard: November 10, 2006

On appeal from the final order of Justice Margaret Eberhard of the Superior Court of Justice (Family Court) dated August 17, 2005.

Appeal Book Endorsement

[1] The respondent brought a motion without notice in the Superior Court for an order confirming that she was entitled to interim and permanent custody of her child born February 16, 1993 as set out in a Sri Lankan order dated September 24, 1996 and for an order that the appellant return the child to Ontario. Although the motion had not been served, on August 17, 2005, the motion judge granted the order for interim and permanent custody and for the return of the child. In our view, in making an order for permanent custody the motion judge erred in principle and that aspect of the order should be set aside.

[2] Both parties have placed material before us that was not before the motion judge and which has not been verified by affidavit. Further, all of the material that was before the motion judge is not before us. However, it is apparent that the child has remained in Oklahoma with the appellant since August 17, 2005.

[3] In all of the circumstances, the proper course in relation to the order for interim custody and for the return of the child (the "temporary order") is for the appellant to move before the Superior Court to have the temporary order set aside (the "set aside motion"). Provided the set aside motion is made returnable on or before December 11, 2006, the temporary order is stayed pending the return of the set aside motion. We reserve to the motion judge the right to determine, on the return date of the set aside motion, the issue of whether the child should be returned to Ontario before the set aside motion is heard and whether any further stay of the temporary order should be directed.

[4] Accordingly, the appeal is allowed in part, the order for permanent custody is set aside and the temporary order is stayed in accordance with these reasons.

[5] No order as to costs.