Court of Appeal for Ontario

Date: 2018-05-28

Docket: M49037 (C64491)

Judges: Doherty and LaForme JJ.A. and Himel J. (ad hoc)

Between

Mark Kowalsky Applicant (Respondent in Appeal) Responding Party (Moving Party on Motion)

and

Denise Asselin-Kowalsky Respondent (Appellant in Appeal) Moving Party (Responding Party on Motion)

Counsel

Kim S. Kieller and Ainsley Hunter, for the moving party, Mark Kowalsky

Patrick Kraemer, for the responding party, Denise Asselin-Kowalsky

Heard: May 25, 2018

Appeal Book Endorsement

[1] The orders under appeal are final orders. This court has jurisdiction. The real question is whether this court should exercise its discretion and delist the appeal pending the outcome of outstanding matters in the Superior Court: Gray v. Gray, 2017 ONCA 100.

[2] There are arguments for and against proceeding with the appeal (scheduled for June 7, 2018), as opposed to sending the matter back to the trial court. It may be that even if the appeal proceeds and the appellant is successful, the matter will still have to go back to the Superior Court for determination of issues such as spousal support and child support.

[3] On balance, and for the reasons identified by Rouleau J.A., we think the appeal court is the appropriate forum in which to address at least the fundamental issue on appeal – should the order made in the absence of the appellant stand?

[4] The appeal should proceed as scheduled.

[5] The responding party is entitled to costs on a partial indemnity basis. The issues on the motion were straightforward. Much of the preparation will also apply to the appeal. Costs of the motion fixed at $3,000, inclusive of taxes and disbursements.