Simmonds v. Simmonds

Ontario Reports

Court of Appeal for Ontario,

Hoy A.C.J.O., Feldman and Simmons JJ.A.

July 16, 2013

117 O.R. (3d) 479 | 2013 ONCA 479

Case Summary

Appeals — Jurisdiction — Final or interlocutory order — Order dismissing motion for finding that respondent was in contempt of court being interlocutory as it was made by motion judge and was not binding on trial judge.

The appellant appealed an order dismissing his motion for a finding that the respondent was in contempt of court.

Held, the appeal should be dismissed for lack of jurisdiction. [page480]

The order in question was interlocutory, not final, as it was made by a motion judge and was not binding on the trial judge. An appeal did not lie to the Court of Appeal.

Pimiskern v. Brophey, [2013] O.J. No. 505, 2013 ONSC 572 (S.C.J.), not folld

Other cases referred to

Simmonds v. Simmonds, August 3, 2012, Mossip J.

APPEAL from the order of Tzimas J. of the Superior Court of Justice dated January 22, 2013 dismissing a contempt motion.

Peter M. Callahan, for appellant.

Orlando da Silva Santos, for respondent.

[1] Endorsement BY THE COURT: -- The appellant appeals the January 22, 2013 order of the motion judge dismissing his motion for a finding that the respondent was in contempt of court because she had failed to comply with the August 3, 2012 order of Mossip J. requiring her to provide specified disclosure in respect of her income loss claim arising from the motor vehicle accident that occurred in 2004.

[2] The motion judge reviewed the materials that had been provided and found that the respondent had complied with the order of Mossip J. and provided all relevant disclosure.

[3] The appellant relies on Pimiskern v. Brophey, [2013] O.J. No. 505, 2013 ONSC 572 (S.C.J.) to argue that an order dismissing a motion for contempt is a final order.

[4] The respondent concedes that an order finding contempt is a final order but argues that because the motion judge dismissed the motion for contempt, the motion judge's order is interlocutory and not binding on the trial judge, and that an appeal accordingly does not lie to this court.

[5] We agree with the respondent and reject the conclusion reached in Pimiskern.

[6] This appeal is accordingly dismissed for lack of jurisdiction. Costs are fixed in the amount of $3,500, all inclusive.

Appeal dismissed.

End of Document