DATE: 20060113

DOCKET: C44137

COURT OF APPEAL FOR ONTARIO

RE:

THOMAS PIRNER (Applicant (Appellant)) – and – DIANE MARION PIRNER (Respondent (Respondent))

BEFORE:

FELDMAN, SIMMONS and LAFORME JJ.A.

COUNSEL:

Thomas Pirner

In person

John Legge

for the respondent

HEARD & ENDORSED:

January 12, 2006

On appeal from the order of Justice Nancy L. Backhouse of the Superior Court of Justice dated August 11, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The motion before Backhouse J. was brought following the endorsement of Goodman J. of May 2005.

[2] The full motion for variation of custody was adjourned by Goodman J. to be brought on after the Court of Appeal released its decision on the appeal from O’Connell J. That appeal decision was released in November of 2005.

[3] The appellant wanted to achieve a change of custody on an emergency basis based on the school issue in the summer. The motion judge was not prepared to do that. That order does not finally dispose of the variation issue, which is still to be brought on before the Superior Court. The order below is therefore an interlocutory order which is not appealable to this court.

[4] The appeal is therefore quashed with costs fixed at $4,500 on the partial indemnity scale, inclusive of G.S.T. and disbursements.