





CITATION:
Gray v. Rizzi, 2011
          ONCA 436



DATE: 20110607



DOCKET: C52222



COURT OF APPEAL FOR ONTARIO



Doherty, MacFarland JJ.A. and Hoy J. (
Ad hoc
)



BETWEEN



Nadine Ellen Gray



Applicant (Respondent in Appeal)



and



Mario Rizzi



Respondent (Appellant)



Peter Cozzi, for the appellant



Hugh MacKenzie, for the respondent



Heard and released orally:
May 13, 2011



On appeal from the order of Justice R. Cary Boswell of the
          Superior Court of Justice dated May 18, 2010.



ENDORSEMENT



[1]

The facts are not in dispute and are set out in the
    reasons of the motion judge.

[2]

The appellant moved before Boswell J. for an order
    changing and setting aside the orders of Loukidelis J. of November 1, 2005, and
    Nelson J. of March 15, 2006, pursuant to Rule 25(19
)(
b)
    of the
Family Law Rules
.  While the appellant did not frame his motion
    as it relates to the order of Loukidelis J. as a request to set aside a default
    judgment, Boswell J. considered whether, had he done so, the judgment
    would be set aside. Boswell J. focussed on the fact that the appellant
    delayed four years before challenging the order of Loukidelis J.

[3]

The appellant argues that Boswell J. failed to take the
    contextual approach required by
Scaini

v.

Prochnicki

on
a  motion
to set aside a default judgment.
    This argument can only apply to the order of Loukidelis J.
as
the order, of
    Nelson J., which is in fact the operative order was made on notice.  Moreover, applying a contextual approach on
    the record before him Boswell J. was correct on this issue.

[4]

The appellant further argued before the motion judge
    that the mistake in the order of Loukidelis J. was that the issues of spousal
    and child support had already been decided by the early order of Salmers
    J.  He says, because the Salmers order
    had not been issued and entered, Salmers J. remained seized of those matters
    and accordingly Loukidelis J. was without jurisdiction when he made the order
    he did on November 1, 2005.

[5]

Without passing on the merits of those arguments, they
    go to the correctness of the order  arguments which can only be made on
    appellate review.  They are not the type
    of mistakes contemplated by Rule 25(19
)(
b).  We agree with Boswell J. when he said:

The Rule was not, in my view, intended to apply to
    cases of alleged legal errors, such as the suggestion that the court exceeded
    its jurisdiction in making the order. Mistakes, or errors, in law are appealable
    errors and are not subject to correction under Rule 25(19).

[6]

He dismissed the appellants motion and properly so in
    our view.  The appeal is dismissed.

[7]

The costs of the appeal are to the respondent fixed in
    the sum of $6,000.00 inclusive of disbursements and applicable taxes.

Doherty
    J.A.

J.
    MacFarland J.A.

Alexandra
    Hoy J.
ad hoc



