Court of Appeal for Ontario

CITATION: Gordon v. McGuire, 2010 ONCA 795

DATE: 20101123

DOCKET: C51670

BEFORE: Rosenberg, Moldaver and Karakatsanis JJ.A.

BETWEEN

Joseph Alexander Gordon

Applicant (Appellant)

and

Ashley Margaret Kathleen McGuire

Respondent (Respondent in Appeal)

COUNSEL:

Joseph Gordon, in person

Kate Bennett, for the respondent

HEARD: November 19, 2010

On appeal from the judgment of Justice C. Perkins of the Superior Court of Justice dated January 12, 2010.

APPEAL BOOK ENDORSEMENT

[1] The decision of Perkins J. refusing to extend time to appeal the decision of Curtis J. was a final Order and is properly before the court.

[2] We see no basis to interfere with the decision of Perkins J. Perkins J. was entitled to refuse to extend time to appeal on the basis that there was no merit to the appeal. Curtis J. had jurisdiction to set aside her Order, including under R. 19.08 of the Rules of Civil Procedure in the circumstances of this case. Since she had jurisdiction, the doctrine of functus officio does not apply. Furthermore, Rule 5(1)(a) of the Family Law Rules applied in this case and Curtis J. properly found that Toronto was not the proper venue. Perkins J. was entitled to refuse to set aside an Order transferring this case to London, Ontario.

[3] Accordingly, the appeals are dismissed. Costs to the respondent fixed in the amount of $4,000 inclusive of disbursements and applicable taxes.