COURT FILE NO. 1410
DATE: 20041118
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: MYDIYEH JAHANGRI-NAVANEH (APPELLANT)(APPLICANT) AND SEID-KEMAL TAHERI-ZEGEKANI (RESPONDENT)
BEFORE: Justices THEN, MATLOW, PIERCE, JJ.
COUNSEL: Hamoody Hassan, for the Appellant
Alfred A. Mano, for the Respondent
HEARD: November 15, 2004 (London)
E N D O R S E M E N T
MATLOW J.
[1] At the conclusion of the hearing of this appeal, the president of this panel endorsed the appeal book on behalf of the court transferring this appeal to the Court of Appeal pursuant to section 110 of the Courts of Justice Act and stating that written reasons for our decision would follow. We then heard submissions regarding costs and reserved our decision. What follows are those reasons and our disposition regarding costs.
[2] It is our view that this appeal does not fall within our statutory jurisdiction which is set out in section 19(1)(a) of the Courts of Justice Act. The issue arises in the context of the wording of the appellant’s claim and the disposition reflected by the order in appeal which was a summary judgment dismissing the claim of the appellant with costs fixed at $3,500.00 plus G.S.T.
[3] The appellant’s claim, as imperfectly set out in the originating document, the application, is for;
An Order that the Respondent pay lump sum and/or periodic spousal support to the Applicant pursuant to s.15.2 of the Divorce Act, R.S.O. 1995 c.3 and/or s.34 of the Family Law Act R.S.O. 1990, c.E.23.
An Order that the Respondent pay a retroactive lump sum and/or periodic spousal support to the Applicant pursuant to s.15.2 of the Divorce Act R.S.O. 1995 c.3 and/or s.34 of the Family Law Act R.S.O. 1990, c.E.23.
An Order that the Respondent be restrained from molesting, annoying, harassing or communicating with the Applicant pursuant to s.46 of the Family Law Act R.S.O. 1990, c.E.23.
An Order that the Respondent pay a lump sum of $24,000.00 to the Applicant pursuant to s.34 of the Family Law Act R.S.O. 1990. c.E.23 pursuant to a written marriage contract between the parties.
[4] The statutory source of our jurisdiction is section 19(1) of the Courts of Justice Act which reads, in part, as follows;
19 (1) Divisional Court jurisdiction – An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice,
(i) for a single payment of not more than $25,000.00 exclusive of costs,
(ii) for periodic payments that amount to not more than $25,000.00 exclusive of costs, in the twelve months commencing on the date the first payment is due under the order,
(iii) dismissing a claim for an amount that is not more than the amount set out in subclause (i) or (ii), or
(iv) dismissing a claim for an amount that is more than the amount set out in subclause (i) or (ii) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in subclause (i) or (ii).
[5] Accordingly, in the circumstances of this case, it becomes necessary to examine the claim of the appellant, as set out in the application, to determine whether it falls within subclause (iii), the only provision applicable. If this cannot be determined solely by the words used to describe the claim, this court would have no jurisdiction to hear this appeal.
[6] It is apparent that the appellant has not set out the monetary amounts of the claims made except for the claim for $24,000.00 made in paragraph 4. It follows, therefore, that if all of her claims are added together, it cannot, as a matter of logic, be determined whether or not her claim, in its totality, falls within subclause (iii).
[7] The appellant, therefore, cannot demonstrate that this court does have jurisdiction to hear this appeal. If this court does not, the only other court that might is the Court of Appeal. Accordingly, we have determined that it should be transferred there so that it might be reviewed on its merits rather than be dismissed on a technical point, as we would be obliged to do.
[8] The respondent is entitled to the costs of the appearances in this court, fixed at $1,000.00 in the cause of this appeal.
THEN, J.
MATLOW, J.
PIERCE, J.
DATE: November 18, 2004