



COURT OF APPEAL FOR ONTARIO

CITATION: Destefano v. Gerry, 2018 ONCA 701

DATE: 20180827

DOCKET: M49180 (C64771)

Sharpe
, Juriansz and Roberts
    JJ.A.

BETWEEN

David Anthony Destefano
    and Francesca Destefano

Applicants
(Respondents in the Appeal)

and

Heather Anne Gerry

Respondent
(Appellant in the Appeal)

Angelo P. Fazari, for the applicants

Heather Gerry, acting in person by teleconference

Heard and released orally: August 17, 2018

REASONS FOR DECISION

[1]

We are not prepared to adjourn this motion as requested by the
    appellant. We are sympathetic to the medical problem she faces. However, the
    motion deals with a narrow legal issue, namely, whether this court has
    jurisdiction to entertain the appeal. The motion was served and listed some
    time ago and the appellant has filed no factum in response. The trial of this
    matter is scheduled to begin on October 7, 2018 and it is imperative that the
    narrow legal issue raised by this motion be resolved forthwith.

[2]

The respondent moves to quash this appeal on the ground that the orders
    under appeal are interlocutory in nature and that this court has no
    jurisdiction to entertain the appeal.

[3]

We agree with the respondent.

[4]

The orders under appeal do not determine the real matter in dispute
    between these parties. As the costs order was made in relation to an
    interlocutory order, it is also interlocutory. Any appeal lies to the
    Divisional Court with leave and not to this court:
Courts of Justice Act
s. 19(1).

[5]

The appellants notice of motion sought orders varying interim access,
    that the child receive a mental health assessment, and that consents be
    provided for medical records and participation in relation to an intake meeting
    with a counsellor. Those matters are collateral to the custody dispute and do
    not resolve it. The motion judge granted some of the relief relating to the
    mental health referral but denied the other relief requested.

[6]

The respondent promptly took the position that any appeal was to the
    Divisional Court and that leave to appeal was required. On a motion to settle
    the terms of the order, the motion judge stated that order is temporary in
    nature and that is apparent from the terms of the order.

[7]

This court has no jurisdiction to entertain appeals as of right from
    temporary or interlocutory orders.

[8]

As we have noted, the trial in this matter is scheduled to commence in
    early October 2018. We entirely agree with the motion judge that this parental
    conflict must end for the sake of the children and that this can only be done
    by proceeding as soon as possible to a trial and having a final order made.

[9]

For these reasons the appeal is quashed. Costs to the moving party, the
    respondent to the appeal, fixed in the amount of $2,500 inclusive of taxes and
    disbursements.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


