Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2023-05-11 Docket: M54087 & C70320

Before: Trotter, Sossin and Copeland JJ.A.

Between: Ousseynou Gueye, Applicant (Appellant/Responding Party) And: Anna DiNino, Respondent (Respondent/Moving Party)

Counsel: Julie A. Layne and Anusha Gunarajah for the respondent/moving party Ousseynou Gueye, acting in person

Heard: May 9, 2023

Reasons for Decision

[1] By letter from Legal Counsel of the court, dated December 16, 2022, the parties were alerted that there may be an issue regarding this court’s jurisdiction to hear this appeal.

[2] The moving party/respondent in the appeal, Anna DiNino, subsequently brought a motion to quash the appeal on the basis that this court lacked jurisdiction to hear the appeal. After hearing submissions, we granted the motion and ordered the appeal transferred to the Divisional Court, pursuant to s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), with reasons to follow. These are our reasons. For simplicity, we refer to the parties as the appellant and the respondent.

[3] The appeal is from the order of the trial judge, dated January 5, 2022, dismissing the appellant’s motion for contempt relating to an access order, and ordering the parties and their child to attend therapy and counselling.

[4] We agree with the respondent that this court lacks jurisdiction to hear the appeal.

[5] The order appealed from has two components. The first is the dismissal of the contempt motion. The second is the order for therapy and counselling. Neither component of the order is properly appealed to this court.

[6] With respect to the order dismissing the contempt motion, the appellant argues that because this court has held that orders making a finding of contempt are final orders for purposes of an appeal, orders dismissing a motion for contempt are also final orders. We do not agree.

[7] This Court has held that orders making findings of contempt are final orders: Bush v. Mereshensky, 2007 ONCA 679, 229 O.A.C. 200, at paras. 9-10; Mantella v. Mantella, 2009 ONCA 194, 246 O.A.C. 386, at para. 17; see also Leeming v. Leeming, 2016 ONSC 1835, 78 R.F.L. (7th) 120 (Div. Ct.), at para. 16.

[8] However, an order dismissing a contempt motion is not necessarily a final order. This is because not all orders which dismiss contempt motions finally determine the rights of the parties. Whether an order dismissing a contempt motion is a final or an interlocutory order must be assessed on a case-by-case basis. Orders dismissing a contempt motion are final only where there are no ongoing proceedings and the party seeking the order has no other means of obtaining relief arising out of the failure to abide by the terms of the order: Wang v. Li, 2023 ONCA 119, at paras. 15-16; Chirico v. Szalas, 2016 ONCA 586, 132 O.R. (3d) 738, at paras. 36-49; Overtveld v. Overtveld, 2022 ONCA 269, at para. 7.

[9] In the circumstances of this case, the order dismissing the contempt motion is an interlocutory order. The order of the trial judge expressly provides for any further motions in relation to parenting time or contempt to be brought to the Superior Court (with a leave requirement if brought prior to July 4, 2022, and no leave requirement after that date). Thus, this is not a case where the appellant has no other means of obtaining relief in relation to access rights. As such, the dismissal of the contempt motion in this case is not a final order. Because the order dismissing the contempt motion is interlocutory, this court does not have jurisdiction over the appeal.

[10] The portion of the order requiring that the parties and their child attend therapy and counselling is a final order of a judge of the Family Court “made only under a provision of an Act or regulation of Ontario.” Specifically, this portion of the order is made under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. As an order of the Family Court made only under an Act or regulation of Ontario, an appeal lies to the Divisional Court, pursuant to s. 19(1)(a.1) of the CJA.

[11] For the reasons we have explained, this court does not have jurisdiction over the substantive aspects of this appeal; rather, any appeal rights are to the Divisional Court. The costs order is ancillary to the orders dismissing the contempt motion and ordering the parties to attend therapy and counselling, and thus, is also within the jurisdiction of the Divisional Court.

[12] The respondent agreed that if we were to find that the appeal was not within the jurisdiction of this court, it would be appropriate to transfer the appeal to the Divisional Court, pursuant to s. 110 of the CJA. We agree that it is appropriate in the circumstances to transfer the appeal to the Divisional Court.

[13] The motion is granted and the appeal is transferred to the Divisional Court. The appellant shall pay costs of the motion to the respondent in the amount of $3,500, inclusive of disbursements and applicable taxes.

“Gary Trotter J.A.” “L. Sossin J.A.” “J. Copeland J.A.”