Court of Appeal for Ontario

Date: 2025-07-10
Docket: M56004 (COA-24-CV-0752)
Panel: Thorburn, Copeland and Monahan JJ.A.

Between

Leona Duffy
Applicant (Respondent/Moving Party)

and

Michael Paul Duffy
Respondent (Appellant/Responding Party)

Counsel:
Francine Sherkin and Susan Zakaryan, for the moving party/respondent
Robert A. Fernandes and Stephanie Tadeo, for the responding party/appellant

Heard: 2025-07-07

Reasons for Decision

[1] The respondent moves to quash the appellant’s appeal of the motion judge’s order (the “Subject Order”) on the basis that the Subject Order was interlocutory rather than final.

[2] The Subject Order declared that the parties’ matrimonial home had been sold to the respondent through a validly exercised right of first refusal (“ROFR”) that had been agreed to by the respondent in a March 31, 2023 consent order (the “Consent Order”). The Consent Order resolved all outstanding issues arising out of the parties’ matrimonial dispute. The parties agree that the Consent Order is a final order. The Consent Order directed the sale of the matrimonial home and the process for the sale. The terms in the Consent Order for the sale included that the respondent could purchase the appellant’s interest in the property by matching any “realistic offer”, with “realistic” being defined as “any offer that the parties’ real estate agent recommends that the parties accept.”

[3] The parties were unable to agree on a single real estate agent and therefore agreed to each select a realtor and engage the two realtors as co-listing brokerage agents.

[4] The parties received an offer to purchase the matrimonial home for $675,000 on October 2, 2023 (the “Offer”). The realtor selected by the respondent recommended acceptance of the Offer, but it was disputed as to whether the realtor selected by the appellant had also recommended acceptance. On October 4, 2023, the respondent decided to exercise the ROFR by matching the Offer, but the respondent refused to recognize the exercise of the ROFR as valid.

[5] The motion judge found that the realtor selected by the appellant had either recommended acceptance of the Offer or had abdicated her responsibility to make a recommendation, in which case the only recommendation that existed was that made by the agent selected by the respondent. In either case, the Offer was a “realistic offer” since it had been recommended by either one or both of the real estate agents, with the result that the respondent had validly exercised the ROFR in accordance with the terms of the Consent Order.

[6] The respondent argues that the Subject Order was interlocutory and thus an appeal from the Order lies to the Divisional Court with leave rather than to this court, in accordance with s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). She argues that the substantive rights of the parties with respect to the matrimonial home had previously been determined through the Consent Order, and the Subject Order merely enforced or implemented the terms previously agreed to.

[7] The appellant argues that the Subject Order is a final order since it determines “an issue” relating to the disposition of the matrimonial home, and the motion judge was required to make findings of fact in her determination. He relies on Rule 2(1) of the Family Law Rules, O. Reg. 114/99, which defines a “final order” as including “an order that decides a party’s rights, in an issue between the parties.”

[8] We agree with the respondent that the appeal should be quashed.

[9] The mere fact that an order determines “an issue” that is in dispute does not make such an order “final” for purposes of the CJA; if such were the case, virtually all orders would be final. Rather, final orders are those determining “the very subject matter of the litigation” as opposed to collateral or subsidiary matters: Hendrickson v. Kallio, [1932] O.R. 675, at pp. 678. Moreover, orders that merely resolve issues arising in the implementation or enforcement of a final order have been deemed to be interlocutory, since they are collateral to the substantive rights of the parties: see Mertec Resource Development Ltd. v. Multi-Minerals Ltd., 129 D.L.R. (3d) 558 (Ont. C.A.), para. 13; Goft v. 1206468 Ontario Ltd., [2002] O.J. No. 3659 (Div. Ct.), para. 4, citing McCart v. McCart and Adams, [1946] O.R. 729 (C.A.), pp. 731-32.

[10] The Subject Order merely required the appellant to comply with the terms of the Consent Order, which had previously determined the parties’ entitlements with respect to the matrimonial home. As such, the circumstances here are distinguishable from those in Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L. (6th) 15, where the motion judge granted a right of first refusal which had not previously been agreed to by the parties.

[11] The Subject Order is therefore deemed to be interlocutory rather than final for purposes of the CJA. We also decline to transfer the appeal to the Divisional Court pursuant to s. 110 of the CJA since the respondent would be prejudiced by further delay, and the appellant has been aware for almost a year that jurisdiction was being disputed and took no steps to transfer the appeal.

[12] The appeal is quashed. The respondent is entitled to costs on a partial indemnity basis in the amount of $7,500, all inclusive.

Thorburn J.A.
J. Copeland J.A.
P.J. Monahan J.A.