Elgner v. Elgner

103 O.R. (3d) 588

2010 ONSC 3512

Ontario Superior Court of Justice,

Divisional Court,

Herold, Jennings and Lederman JJ.

September 9, 2010

Family law -- Divorce -- Appeal -- Leave to appeal -- Section 19(1)(b) of Courts of Justice Act not inconsistent with ss. 21(1) and 21(6) of Divorce Act -- Leave to appeal temporary order under Divorce Act required -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1) -- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 21(1), 21(6).

The respondent brought a motion for a declaration that he was entitled to appeal, without leave, an order awarding temporary spousal support to the applicant under the Divorce Act or, alternatively, for leave. The motion judge ruled that leave to appeal was required and dismissed the leave motion. The respondent appealed, arguing that ss. 21(1) and 21(6) of the Divorce Act render the provisions of s. 19(1)(b) of the Courts of Justice Act inapplicable to the extent that they conflict with each other.

Held, the appeal should be dismissed.

Per Herold J. (Lederman J. concurring): Section 19 of the Courts of Justice Act is not inconsistent with the provisions of s. 21 of the Divorce Act. It does not take away a substantive right of appeal; it merely sets out the procedure for asserting and enforcing that right. Accordingly, leave to appeal a temporary order under the Divorce Act is required.

Per Jennings J. (concurring in the result for differing reasons): The motion judge was correct in holding that she was bound by the decision of the Divisional Court in Kral v. Kral, which determined that leave was required to appeal an order for interim relief under the Divorce Act. The decision in Kral was not wrongly decided.

APPEAL from an order dismissing a motion for a declaration that the appellant was entitled to appeal a temporary support order without leave or, alternatively, for leave to appeal.

Cases referred to 792266 Ontario Ltd. v. Monarch Trust Co. (Liquidator of), 1996 4016 (ON CA), [1996] O.J. No. 3913, 94 O.A.C. 384, 30 B.L.R. (2d) 219, 66 A.C.W.S. (3d) 825 (C.A.); Bajzat v. Bajzat, 1991 12848 (ON SCDC), [1991] O.J. No. 1452, 52 O.A.C. 25, 35 R.F.L. (3d) 59, 28 A.C.W.S. (3d) 925 (Gen. Div.); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Colletta v. Colletta (1992), 1992 7658 (ON CA), 10 O.R. (3d) 464, [1992] O.J. No. 1746, 95 D.L.R. (4th) 298, 57 O.A.C. 283, 42 R.F.L. (3d) 227, 35 A.C.W.S. (3d) 329 (C.A.); De Fehr v. De Fehr, [2002] B.C.J. No. 2365, 2002 BCCA 577, 117 A.C.W.S. (3d) 273; Elgner v. Elgner, [2009] O.J. No. 5269, 2009 68827 (S.C.J.); Elgner v. Elgner, [2010] O.J. No. 562, 2010 ONSC 794 (Div. Ct.); Elgner v. Elgner (2010), 99 O.R. (3d) 687, [2010] O.J. No. 1139, 2010 ONSC 1578 (Div. Ct.); Ferguson v. Imax Systems Corp. (1982), 1982 3245 (ON SCDC), 38 O.R. (2d) 59, [1982] O.J. No. 3389, 134 D.L.R. (3d) 519, 28 C.P.C. 290, 14 A.C.W.S. (2d) 140 (Div. Ct.); GM v. FL, 2009 QCCA 649; Goldberg v. Goldberg (1989), 1989 4211 (ON SC), 68 O.R. (2d) 124, [1989] O.J. No. 191, 33 C.P.C. (2d) 30, 14 A.C.W.S. (3d) 23 (H.C.J.); Haigh v. Haigh, 1987 2616 (BC CA), [1987] B.C.J. No. 1541, 15 B.C.L.R. (2d) 375, 7 A.C.W.S. (3d) 357 (C.A.); K. (H.) v. S. (D.), 1988 CarswellQue 48 (C.A.); [page589] Kerr v. Danier Leather Inc., [2007] 3 S.C.R. 331, [2007] S.C.J. No. 44, 2007 SCC 44, 286 D.L.R. (4th) 601, 368 N.R. 204, 231 O.A.C. 348, 36 B.L.R. (4th) 95, 48 C.P.C. (6th) 205, 160 A.C.W.S. (3d) 910, J.E. 2007-1969, EYB 2007-124711, affg (2005), 2005 46630 (ON CA), 77 O.R. (3d) 321, [2005] O.J. No. 5388, 261 D.L.R. (4th) 400, 205 O.A.C. 313, 11 B.L.R. (4th) 1, 144 A.C.W.S. (3d) 370 (C.A.); Kotelmach v. Mattison, 1987 4632 (SK CA), [1987] S.J. No. 641, 61 Sask. R. 207, 11 R.F.L. (3d) 56, 7 A.C.W.S. (3d) 63 (C.A.); Kral v. Kral, [1994] O.J. No. 3982, 68 O.A.C. 188, 48 A.C.W.S. (3d) 365 (Div. Ct.); Loewen, Ondaatje, McCutcheon & Co. v. Sparling, 1992 38 (SCC), [1992] 3 S.C.R. 235, [1992] S.C.J. No. 88, 97 D.L.R. (4th) 616, 143 N.R. 191, J.E. 92-1625, 51 Q.A.C. 49, 36 A.C.W.S. (3d) 362; Pollak v. Pollak, 1993 16080 (ON SC), [1993] O.J. No. 1312, 48 R.F.L. (3d) 56, 40 A.C.W.S. (3d) 923 (Gen. Div.); Potts v. Potts (1993), 1993 8510 (ON SC), 13 O.R. (3d) 284, [1993] O.J. No. 866, 63 O.A.C. 175, 47 R.F.L. (3d) 82, 39 A.C.W.S. (3d) 1003 (Div. Ct.); R. v. Chatwell, 1998 784 (SCC), [1998] 1 S.C.R. 1207, [1998] S.C.J. No. 51, 161 D.L.R. (4th) 65, 227 N.R. 1, J.E. 98-1416, 110 O.A.C. 374, 125 C.C.C. (3d) 433, 16 C.R. (5th) 324, 38 W.C.B. (2d) 426; Rimmer v. Adshead, [2003] S.J. No. 129, 2003 SKCA 19, 224 D.L.R. (4th) 372, 232 Sask. R. 68, 30 C.P.C. (5th) 97, 34 R.F.L. (5th) 137, 121 A.C.W.S. (3d) 593; Silver v. Imax Corp., 2009 72342 (ON SC), [2009] O.J. No. 5573, 66 B.L.R. (4th) 222 (S.C.J.) Statutes referred to Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 249 [as am.] Court of Appeal Act, 2000, S.S. 2000, c. C-42.1 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19 [as am.], (1), (b) [as am.] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 21, (1), (2), (3), (6) Family Law Act, R.S.O. 1990, c. F.3 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4)

Julie Hannaford, Harold Niman and Golnaz Emam, for applicant (responding party). Charles Beall and Jennifer Herzog, for respondent (moving party).

[1] HEROLD J. (LEDERMAN J. concurring): -- In 1993, Justice Lane in Pollak v. Pollak, 1993 16080 (ON SC), [1993] O.J. No. 1312, 48 R.F.L. (3d) 56 (Gen. Div.) had occasion to deal with the question of whether or not an interlocutory (now referred to as a temporary) order under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) could be appealed to the Divisional Court without leave or whether leave was required. Justice Lane in Pollak, supra, made reference to the judgments of Steele J. in Goldberg v. Goldberg (1989), 1989 4211 (ON SC), 68 O.R. (2d) 124, [1989] O.J. No. 191 (H.C.J.); of Granger J. in Bajzat v. Bajzat, 1991 12848 (ON SCDC), [1991] O.J. No. 1452, 35 R.F.L. (3d) 59 (Gen. Div.); of Finlayson J.A. in Colletta v. Colletta (1992), 1992 7658 (ON CA), 10 O.R. (3d) 464, [1992] O.J. No. 1746 (C.A.); and of Carruthers J. in Potts v. Potts (1993), 1993 8510 (ON SC), 13 O.R. 284, [1993] O.J. No. 866, 47 R.F.L. (3d) 82 (Div. Ct.). Justice Lane noted that two judges sitting as single judges had concluded that no leave is required, but that a judge [page590] in the Court of Appeal in obiter and a judge sitting as a single judge in the Ontario Court of Justice (General Division) had concluded that leave was required. Lane J. said, at paras. 4 and 5:

The resulting situation is unsatisfactory. Goldberg has been followed since 1989. Potts contains persuasive argument but the main authority relied on is an obiter statement. Both are decisions of single judges, as is Bajzat, which simply followed Goldberg. Guidance is required. If I decide this issue, I simply add to the list of decisions of single judges without resolving the conflict.

Accordingly, this is a suitable case to refer the motion to a full panel under the authority of s. 21(4) of the Courts of Justice Act and I so order with respect to the proposed appeal from the spousal support order.

[2] Seventeen years later, the matter arrived, not in Pollak, supra, but in Elgner v. Elgner, before this panel of the Divisional Court -- no one was able to ascertain what became of Pollak, supra.

[3] The tortuous route which the issue took to get before us is interesting, and to some extent disconcerting, but not entirely relevant for our present purposes, and I will simply provide the barest background information which is required.

[4] On November 19, 2009, Justice Greer heard the applicant's motion for temporary spousal support and reserved her judgment. On December 2, she released an endorsement awarding temporary support to the applicant [[2009] O.J. No. 5269, 2009 68827 (S.C.J.)]. On December 9, 2009, the respondent moved for alternative relief, returnable before a single judge of the Divisional Court on February 23, 2010, seeking first an order that he was entitled to file as of right and without the necessity of obtaining leave a notice of appeal of Justice Greer's order of December 2, and in the alternative, if leave was found to be required, leave to do so. The respondent also moved before a single judge of the Divisional Court for a stay of Justice Greer's order until his appeal had been dealt with.

[5] On January 29, 2010, Justice Swinton dismissed the respondent's motion [[2010] O.J. No. 562, 2010 ONSC 794 (Div. Ct.)] for a stay and on February 17, Justice McCombs heard a motion by the applicant to dismiss the respondent's appeal or motion for leave to appeal because he was in default of the order of Justice Greer. Justice McCombs gave Mr. Elgner an opportunity to remedy the situation, an opportunity which he accepted, and Mr. Elgner's motion for a declaration that he was entitled to appeal without leave, or alternatively for leave, was heard by Justice Sachs on March 5, 2010. On March 17, 2010, Justice Sachs released reasons for her decision ((2010), 99 O.R. (3d) 687, [2010] O.J. No. 1139, 2010 ONSC 1578 (Div. Ct.)) [page591] that leave to appeal is required and dismissing the motion for leave to appeal.

[6] An unrelated skirmish took the parties to the Court of Appeal when the respondent sought leave to appeal the order of Justice McCombs, but it appears that by the time that motion got before Justice LaForme, it was moot. In any event, on March 19, 2010, the respondent delivered what is described as a "Revised Notice of Motion" in which he sought

. . . an Order setting aside or varying the Order of the Honourable Justice Sachs dated March 17, 2010, in which her Honour dismissed Mr. Elgner's motion for an Order that he was entitled to file his Notice of Appeal, attached as Schedule "A", as of right without seeking leave to appeal, and held that leave to appeal is required to appeal an interim order made under the Divorce Act, R.S.C. 1985, c3 (2nd Supp.)[.]

[7] The argument before Justice Sachs was very similar to the argument which was made before us, namely, that based on the paramountcy doctrine the provisions of ss. 21(1) and 21(6) of the Divorce Act render the provisions of s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 inapplicable to the extent that they are in conflict with one another. In a nutshell, it was the position of the respondent before Justice Sachs and before us that s. 21(1) of the Divorce Act provides the respondent with an "unfettered" (his word) right to appeal.

[8] The respondent also brought to Justice Sachs attention the decision of the Supreme Court of Canada in Loewen, Ondaatje, McCutcheon & Co. v. Sparling, 1992 38 (SCC), [1992] 3 S.C.R 235, [1992] S.C.J. No. 88, referred to as the Kelvin Energy case, and a decision of a panel of the Divisional Court rendered after Kelvin Energy, namely, Kral v. Kral, [1994] O.J. No. 3982, 68 O.A.C. 188 (Div. Ct.).

[9] Sachs J. went on to consider Kral's reference to the obiter remarks of Finlayson J.A. in Colletta, supra, and the very comprehensive reasons of Carruthers J. in Potts, supra, both of which were also referred to by the Divisional Court in its reasons in Kral, supra. Sachs J. was completely aware of the fact, relied on by counsel for the respondent before us, that there is some disagreement amongst courts across the land with respect to whether or not leave to appeal is required for temporary orders under the Divorce Act. It would appear that in Quebec, Saskatchewan and British Columbia, the opinion is that leave is not required, whereas Justice Carruthers in Potts, supra, and the Divisional Court in panel in Kral, supra, concluded that it was and Justice Sachs, having considered all of the issues, went in the direction in which Kral, supra, and Potts, supra, had [page592] taken her. She said, at para. 8, "I consider Kral, supra, to be binding upon me."

[10] A great deal of time and energy was devoted to the question of whether or not the decision in Kral, supra, was per incuriam, and in argument before us, whether it may also have been obiter. The latter argument arose as a result of documents only served and filed by counsel for the respondent on the day prior to the hearing of this matter, and by some comments in the endorsement in Kral, supra, which seemed to make it clear that the question of leave or no leave was not squarely before the panel, the panel taking the position for reasons not clearly explained that leave had already been obtained. Much time and energy was also expended dealing with the principle of stare decisis and such interesting questions as to whether the comments of Finlayson J.A. in Colletta, supra, being clearly obiter were binding on judges of the Superior Court, whether a decision of a panel of the Divisional Court in Kral, supra, was binding on a single judge of the Divisional Court when Justice Sachs made her ruling, and whether the decision of the panel of the Divisional Court in Kral, supra, was binding on us, as opposed to simply being persuasive, for reasons including the fact that it too may have been obiter. All of these issues were interesting but dispositive of nothing and I will leave a discussion of them for another day when the result turns on such discussion.

[11] The relevant subsections of s. 21 of the Divorce Act are as follows:

21(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim rendered or made by a court under this Act. @7 . . . . .

(6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.

[12] The relevant paragraph of s. 19 of the Courts of Justice Act, provides:

19(1) An appeal lies to the Divisional Court from, . . . @7 . . . . . (b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court[.]

[13] It is common ground that if the provisions of the Ontario statute are inconsistent with the provisions of the federal statute, by virtue of the doctrine of paramountcy the provisions of [page593] the Divorce Act will apply. It is also common ground that subsections (2) and (3) of s. 21 are not applicable. Counsel for the respondent argues that the words in s. 21(1), "an appeal lies to the appellate court . . .", creates an unfettered right of appeal. He further argues, and this does not appear to be disputed, relying on authorities such as 792266 Ontario Ltd. v. Monarch Trust Co. (Liquidator of), 1996 4016 (ON CA), [1996] O.J. No. 3913, 30 B.L.R. (2d) 219 (C.A.) and R. v. Chatwell, 1998 784 (SCC), [1998] 1 S.C.R. 1207, [1998] S.C.J. No. 51, that a right to appeal is a substantive right and not merely a question of procedure. Finally, he argues that the words "an appeal lies" in s. 21(1) fit within the opening words of s. 21(6), "Except as otherwise provided by this Act . . .".

[14] However, the provision in the same section of the Divorce Act at s. 21(6) provides that "an appeal under this section shall be asserted . . . according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed".

[15] Many recent judgments have had occasion to remind us of what is now referred to as the modern approach to statutory interpretation. The very useful summary of the current state of the law in this regard is provided by Justice van Rensburg in her judgment in Silver v. Imax Corp., 2009 72342 (ON SC), [2009] O.J. No. 5573, 66 B.L.R. (4th) 222 (S.C.J.), beginning at para. 287. Justice van Rensburg summarizes portions of the very useful analysis done by Laskin J.A. in Kerr v. Danier Leather Inc. (2005), 2005 46630 (ON CA), 77 O.R. (3d) 321, [2005] O.J. No. 5388 (C.A.), affd [2007] 3 S.C.R. 331, [2007] S.C.J. No. 44, 2007 SCC 44. Laskin J.A. reminds us, at para. 82, that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".

[16] The analysis goes on to refer to the judgment of Justice Iacobucci in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43 and references, at para. 27, the famous quote of Professor John Willis that "words, like people, take their colour from their surroundings".

[17] Bearing this in mind, it is my view that s. 21(1) of the Divorce Act cannot be read other than in conjunction with s. 21(6) and in the context of the policy considerations which may well be said to have led to these enactments.

[18] Counsel for the moving party argues that policy considerations and context are only to be used to inform the decision when the words themselves are ambiguous. He argues that the words of s. 21(1) are perfectly clear in that they guarantee an unfettered right to appeal and one may only ask, rhetorically, [page594] what is not ambiguous about a section or combination of subsections which has caused so much confusion, conflicting interpretations in various provinces, pleas for clarification for at least 17 years and much spilled ink?

[19] Sachs J. in her reasons, at para. 10, said:

As a policy matter, our courts have echoed the view that, generally, appeals from interim orders in family law matters are to be discouraged. They cause additional expense and emotional anguish to the parties and delay what is really needed -- resolution through a trial. Interpreting the legislation in question in the way that the Divisional Court did in Kral furthers this very legitimate policy objective.

[20] Counsel for the applicant pointed out in submissions the anomalous situation which would result if the moving party's position is accepted in the event that there was a motion and a ruling by the same judge on the same day dealing with interim support under the Divorce Act and interim exclusive possession which would have to be sought under the Family Law Act, R.S.O. 1990, c. F.3. If the unsuccessful party intended to appeal, he or she could appeal the interim support award without leave and would require leave to appeal the interim exclusive possession award. Although it was not argued, it also seems to me that if the position of the moving party is accepted, the aggrieved litigant could also launch an appeal to the Ontario Court of Appeal without leave using a similar argument, and the first time a gatekeeper function could be exercised would be at the Supreme Court of Canada.

[21] Permitting interlocutory matters to be appealed without any gatekeeper function to and through the Court of Appeal would result in the most inappropriate situation wherein the interim motion tail was wagging the litigation dog and he or she with the deepest pockets or the inclination and ability to argue motions and appeals without counsel could eventually wear the opponent down. The gatekeeper function is becoming more and more necessary and acceptable in our judicial system and it is, in my respectful view, within that context that s. 21 of the Divorce Act must be considered.

[22] Requiring an aggrieved litigant to pass some preliminary test before he or she can exercise his or her right of appeal is, in my view, no different than ruling that appeals may be dismissed for failing to comply with such things as filing requirements, timelines, etcetera. The substantive right of appeal always exists; the manner in which it is to be asserted and processed is the subject matter of procedures which follow "the ordinary procedure governing appeals to the appellate court from the court rendering judgment or making the order being appealed". [page595]

[23] Reading the sections within this context, I have not the slightest hesitation in concluding that s. 19(1) of the Courts of Justice Act is not inconsistent with, and it is in fact pursuant to the provisions of s. 21 of the Divorce Act; it does not take away a substantive right to appeal; it merely sets out the procedure for asserting and enforcing that right. Accordingly, the substantive right to appeal an interlocutory order of a judge of the Superior Court of Justice shall be exercised with leave as provided for in the [Rules of Civil Procedure, R.R.O. 1990, Reg. 194], and the respondent's motion to vary or set aside the order of The Honourable Justice Sachs dated March 17, 2010 must be, and will be, dismissed. I should note that I have not ignored Kelvin Energy; it played no significant role in my analysis, because there is no section in the Canada Business Corporations Act, R.S.C. 1985, c. C-44 similar to s. 21(6) in the Divorce Act.

[24] At the conclusion of argument, counsel for the applicant/responding party suggested that an award of costs in the amount of $15,000, all inclusive of disbursements and taxes, would be appropriate. Counsel for the respondent/moving party suggested a figure of $10,000, plus assessable disbursements, plus applicable taxes. In the final analysis, their proposals are not that far apart, and I would, therefore, order that the respondent/moving party shall pay to the applicant/responding party her costs of this motion fixed in the amount of $13,500, all inclusive.

[25] JENNINGS J. (concurring in the result for differing reasons): -- I have had the opportunity to read the reasons of Herold J., with which Lederman J. concurs. I agree with the disposition of this appeal as proposed by my colleagues, but I regret that I cannot agree with their reasons for doing so.

[26] The simple issue raised in this appeal is whether leave is required to appeal an order for interim relief made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The order in question was clearly temporary or, as called, formerly, interlocutory.

[27] Sachs J. held that, sitting as a single judge of this court, she was bound by the decision of a panel of this court in Kral v. Kral, [1994] O.J. No. 3982, 68 O.A.C. 188 (Div. Ct.), which determined that leave was required. I do not share the opinion of my colleagues set out, in para. 10 of their decision, that the principle of stare decisis is "interesting but dispositive of nothing". Applying the principle, Sachs J. disposed of the motion before her by dismissing it. In my opinion, she was entirely correct in so doing. [page596]

[28] Similarly, in my opinion a panel of this court ought not to hold differently on this issue from what was decided by the panel in Kral, absent a clear finding that the decision in Kral was per incuriam. Although for the reasons that follow I have serious reservations about the correctness of the decision in Kral, I cannot conclude on the material before this court that it was wrongly decided. Accordingly, I agree that the appeal must be dismissed but solely because of the principle of stare decisis.

[29] I share the concern of Lane J. expressed by him in Pollak v. Pollak, 1993 16080 (ON SC), [1993] O.J. No. 1312, 48 R.F.L. (3d) 56 (Gen. Div.) that the conflicting opinions on whether leave is or is not required creates an unsatisfactory situation on which appellate guidance would be welcome. That concern is caused by the state of the jurisprudence on s. 21 of the Divorce Act, which I will briefly review. Although the relevant section of the Divorce Act has been set out in para. 11 (supra), for convenience I will repeat it here:

21(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim rendered or made by a court under this Act. @7 . . . . .

(6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.

[30] Section 21 appears to have first received judicial attention in 1987 in the case of Kotelmach v. Mattison, 1987 4632 (SK CA), [1987] S.J. No. 641, 11 R.F.L. (3d) 56 (C.A.). The issue before the court was whether leave was required to appeal an interim support order made under the Divorce Act. The Court of Appeal Act, 2000 of Saskatchewan, S.S. 2000, c. C-42.1 required leave for the appeal of an interlocutory order. After reviewing s. 21 of the Divorce Act, Tallis J.A., sitting in chambers as a single judge of the Saskatchewan Court of Appeal, said about s. 21:

In my opinion this provision prevails over any provision in our Court of Appeal Act dealing with leave. Accordingly, leave to appeal is not necessary with respect to interim orders in a divorce action.

[31] In the same year, Lambert J.A., sitting in chambers as a single judge of the British Columbia Court of Appeal, had before him precisely the same issue in Haigh v. Haigh, 1987 2616 (BC CA), [1987] B.C.J. No. 1541, 15 B.C.L.R. (2d) 375 (C.A.). At para. 2 of his reasons, Justice Lambert stated:

I understand the correct constitutional principle to be that where an Act of the Parliament of Canada directly conflicts with the Act of the Legislature of British Columbia, the Act of the Parliament of Canada prevails. It seems to [page597] me that the automatic right of appeal granted by the Divorce Act, 1985, must therefore prevail over the leave provisions in the Court of Appeal Act. That being the case, I refuse the application for leave to appeal as being unnecessary.

[32] The issue was before a full panel of the Quebec Court of Appeal in K. (H.) v. S. (D.), 1988 CarswellQue 48 (C.A.). After reviewing s. 21 of the Divorce Act, the court held in part:

The respondent contends that because s. 21(6) requires that interim orders made pursuant to the 1985 Divorce Act must be asserted according to the regular procedure which applies to appeals that come before the court, and noting that the regular rules of procedure applicable to appeals before the court against interlocutory injunctions before the court require a prior leave when one turns to article 511 of the Civil Code, the respondent concludes that interim orders pursuant to the 1985 Divorce Act cannot be made the subject of an appeal without prior authorization.

The respondent's proposition is ill-founded. Section 21(6) which deals with appellate procedure, should not be interpreted so as to restrain the rights of appeal conferred by s. 21(1) and making appeals against interim orders made pursuant to the 1985 Divorce Act subject to the conditions of article 29 of The Code of Civil Procedure and subject to discretion conferred on judges by the first paragraph of article 511. These provisions would restrict the general right to appeal granted by s. 21(1).

[33] The next year, the matter came before the Divisional Court in Goldberg v. Goldberg (1989), 1989 4211 (ON SC), 68 O.R. (2d) 124, [1989] O.J. No. 191 (H.C.J.). The issue was once again whether leave was necessary to bring an appeal from an interlocutory order pronounced under the Divorce Act. Steele J. referred to Haigh (supra) and Kotelmach (supra), noting that they held that s. 21 of the Divorce Act prevailed over the provisions of the provincial legislation requiring leave to appeal. He also referred to Ferguson v. Imax Systems Corp. (1982), 1982 2038 (ON SC), 38 O.R. (2d) 59, [1982] O.J. No. 3389 (Div. Ct.), where the Divisional Court held that provincial legislation could not impose a requirement for leave to appeal where there was no such limitation under the Canada Business Corporations Act, R.S.C. 1985, c. C-44. He concluded that no leave to appeal the interlocutory order made under the Divorce Act was required. With respect to s. 21(6) of the Divorce Act, he held that the appeal should be to the Divisional Court and not the Court of Appeal by reason of the provincial procedural requirements for the hearing of appeals from interlocutory orders.

[34] Goldberg was followed in 1981 by Bajzat v. Bajzat, 1991 12848 (ON SCDC), [1991] O.J. No. 1452, 35 R.F.L. (3d) 59 (Gen. Div.), where Granger J., applying Goldberg (supra), held that an appeal to the Divisional Court lay as of right. [page598]

[35] That appears to have been the state of the jurisprudence when, in 1993, the same issue came before Carruthers J., sitting as a single judge of the Divisional Court, in Potts v. Potts (1993), 1993 8510 (ON SC), 13 O.R. (3d) 284, [1993] O.J. No. 866, 47 R.F.L. (3d) 82 (Div. Ct.). Carruthers J. referred to the decisions in Goldberg, Haigh, Kotelmach and K. (H.) v. S. (D.) but declined to follow them. In his opinion, those cases ignored the effect of s. 21(6) of the Divorce Act, which, Carruthers J. held, limited the absolute right of appeal given under s. 21(1) by importing the Ontario legislation and rules regarding the necessity of obtaining leave to appeal interlocutory decisions. Carruthers J. found support for his conclusion in the obiter statement of Finlayson J.A. in Colletta v. Colletta (1992), 1992 7658 (ON CA), 10 O.R. (3d) 464, [1992] O.J. No. 1746 (C.A.), to which my colleagues have referred. Carruthers J. candidly admitted that not only were the comments of Finlayson J.A. obiter but they were made without apparent consideration of the cases to which I have referred in these reasons.

[36] Finally, the decision in Potts v. Potts was confirmed by a panel of this court in Kral v. Kral (supra). Counsel for the appellant in the case before us helpfully filed copies of the facta filed on the hearing of Kral which made it quite clear that the issue of whether leave was required to appeal an interlocutory order made under the Divorce Act was never before the court in Kral. In Kral, the Divisional Court acknowledged that leave to appeal had been granted. Nevertheless, and apparently in the absence of submissions from counsel, the court proposed to clarify the situation because of conflicting decisions as to whether leave was or was not required. The court in three paragraphs of its very brief endorsement agreed without significant analysis with the reasons of Justice Carruthers in Potts; that is, that s. 21(6) modified the absolute right to appeal granted by s. 21(1) by importing the provincial legislation requiring that there could be no appeal without leave.

[37] Neither the Divisional Court panel in Kral, nor Mr. Justice Carruthers in Potts, was referred to the decision of the Supreme Court of Canada in Loewen, Ondaatje, McCutcheon & Co. v. Sparling ("Kelvin Energy"), 1992 38 (SCC), [1992] 3 S.C.R. 235, [1992] S.C.J. No. 88. In that decision, the Supreme Court of Canada held that similar language as employed in s. 21 of the Divorce Act, in s. 249 of the Canada Business Corporations Act, gave an absolute right of appeal from an order made under that Act which could not be limited by provincial rules or legislation.

[38] Since Kral, the Court of Appeal of Saskatchewan has confirmed its interpretation of s. 21, without reference to either Kral or Potts, in Rimmer v. Adshead, 2003 SKCA 19, [2003] S.J. No. 129, 224 D.L.R. (4th) 372 (C.A.). [page599] The Court of Appeal of British Columbia has done the same in De Fehr v. De Fehr, [2002] B.C.J. No. 2365, 2002 BCCA 577, as has the Court of Appeal of Quebec in GM v. FL, 2009 QCCA 649.

[39] We were not referred to any decisions which support the analysis in Potts, as confirmed in Kral. The analysis in Potts appears to turn on the opinion of Carruthers J. that s. 21(6) of the Divorce Act is devoid of meaning unless it is interpreted to permit provincial legislation and rules to limit the general right of appeal granted in s. 21(1). In my opinion, that reasoning ignores the referencing in s. 21(6) to "the ordinary procedure governing appeals to the appellate court from the court rendering the judgment" (emphasis added). It is conceded that a right of appeal is a substantive right and not a matter of procedure. With respect, Carruthers J. appeared to have ignored the reasoning of Steele J. in Goldberg that interprets s. 21(6) to apply to the procedure by which the general right of appeal is to be exercised. That appears to me to be precisely what the clear and unambiguous language in s. 21(6) provides. All procedural matters, i.e., what is to be filed and when it is to be filed, to which court the appeal is brought, and how the appeal is to be perfected and brought on for hearing are to be governed by provincial requirements.

[40] With great respect to my colleagues, I cannot agree with what they say in para. 22 of their reasons. One cannot have a substantive right of appeal if one has to apply for leave, which is not to be granted unless the conditions set out in rule 62.02(4) are met. Simply showing that the decision from which leave to appeal is sought is wrong is clearly insufficient. That is quite incompatible with the granting of an absolute right to appeal and certainly is not comparable with the provision "that appeals may be dismissed for failing to comply with such things as filing requirements, timeliness, etc.". In my opinion, a right to apply for a right to appeal is not a right of appeal as provided in s. 21.

[41] The weight of judicial authority on the interpretation of s. 21 of the Divorce Act appears to be contrary to the conclusion in Potts. That authority appears to me to be consistent with the plain language in the section.

[42] I conclude by making it clear that I totally agree with the opinion of Sachs J., and other judges who have commented on the issue, that appeals from interlocutory orders in family procedures are to be discouraged for sound policy reasons. That said, if Parliament has granted an absolute right of appeal, I do not believe courts can do other than permit that right to be exercised. If the right to an appeal is to be made subject to preconditions being met, it is up to Parliament to say so. [page600] Conclusion

[43] I agree that the appeal must be dismissed. However, in the light of what I believe to be persuasive jurisprudence holding that Kral does not correctly interpret the effect of s. 21(6) of the Divorce Act, I echo the concern of Lane J. that appellate guidance is needed.

Appeal dismissed.