CITATION: Wong v. Gong, 2010 ONCA 25

DATE: 20100115

DOCKET: C50966

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Rouleau JJ.A.

BETWEEN

William Wong

Appellant/Respondent

and

Susan Gong

Respondent/Applicant

Simon Schneiderman, for the appellant/respondent

Harold Niman and Karen Wilson, for the respondent/applicant

Heard & released orally: January 13, 2010

On appeal from the order of Justice Janet Wilson of the Superior Court of Justice dated July 30, 2009.

ENDORSEMENT

[1] Ms. Gong moves to quash the appeal on the basis that the order of Wilson J. was interlocutory. We agree.

[2] The order of Wilson J. is (a) a temporary order and (b) does not decide a claim in the application: Family Law Rule 2(1). It is an interlocutory order under the general jurisprudence as well because it does not finally determine an issue in dispute between the parties or deprive Mr. Wong of any substantive right or possible defence. See Mantella v. Mantella, 2009 CarswellOnt 1060, 2009 ONCA 194.

[3] In any event, Mr. Niman concedes that Mr. Wong may still raise the issue of set off of the payments of $3,000 per month her husband was making on the promissory note in favour of the wife with respect to the issues remaining to be determined at trial.

[4] Wilson J.’s decision was simply to the effect that the set off argument was not accepted as a basis to prevent payment of the monies in court, which was the interlocutory matter before her. In directing payment out she made it clear that the ultimate determination of arrears remained open and that “a component” of the amounts paid out pursuant to her order “may be for future support” if the appellant turns out to be successful in his argument that the outstanding arrears were in the amount that he claimed.

[5] The order is interlocutory and the appeal must be quashed. Costs of the motion and of the appeal to the moving party/respondent fixed in the amount of $7,500 all inclusive.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”