In Elgner v. Elgner, the Ontario Court of Appeal addressed the issue of whether an interim spousal support order issued under the federal Divorce Act can be appealed as a right or only with leave, as is the case with other interlocutory orders issued by Ontario Superior Courts. The Court held that in Ontario, unlike in BC, Saskatchewan and Quebec, such appeals do require leave.
At issue were ss. 21(1) and 21(6) of the federal Divorce Act and s 19(1) of the Ontario Courts of Justice Act. Section 21(1) of the Divorce Act states that “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”, which Mr. Elgner argued gives him a right to appeal. However, s 19(1) of the Ontario Courts of Justice Act provides that an appeal to the Divisional Court from an interlocutory order by a judge at the Superior Court of Justice is permitted only with leave. Mr. Elgner argued that these two issues are in direct conflict and that federal paramountcy must apply. Gillese J.A., however, ruled that the two sections were not in conflict because Section 21 (6) of the Divorce Act provides that the right to appeal must be asserted according to the usual provincial procedures.
June 29, 2011
Link to Decision
Mary Phan
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