



COURT OF APPEAL FOR ONTARIO

CITATION: Wachsberg v. Wachsberg, 2018 ONCA 508

DATE: 20180531

DOCKET: C64843 & M49061

Juriansz, Benotto and Fairburn JJ.A.

BETWEEN

Charles David Wachsberg

Applicant
(Appellant)

and

Allyson Anne Wachsberg

Respondent
(Respondent in Appeal)

George Karahotzitis and
    Patrick D. Schmidt, for the appellant

Harold Niman and Kristen
    Normandin, for the respondent

Heard and released orally: May 28,
    2018

On appeal from the order of
    Justice E.R. Kruzick of the Superior Court of Justice dated, December 18, 2017.

REASONS FOR DECISION

[1]

In 2015, the parties signed a separation agreement which limited the husbands
    income for purposes of support calculations to $1 million per year. The
    agreement also provided that neither party has any obligation to inform the
    other of changes in either partys financial position. In response to a divorce
    application by the husband, the wife moved to set aside the agreement.

[2]

The motion judge ordered the husband to disclose his income tax returns for
    the three years surrounding the time of the negotiation of the agreement and to
    provide a sworn financial statement.

[3]

The husband appeals this order. The wife moves to quash the appeal on
    the basis that the order is interlocutory and the appeal lies to the Divisional
    Court with leave.

[4]

The appellant submits that the order is final because it implicitly
    disposes of the substantive issue in the action: his rights under the
    separation agreement not to disclose his financial position. He submits the
    underlying order finally and irrevocably determines the enforceability of the
    non-disclosure term.

[5]

We do not agree.

[6]

This court in
Hendrickson v. Kallio
, [1932] O.R. 675, at p. 678
    provided that an interlocutory order is one:

which does not determine the real matter in dispute between
    the parties  the very subject matter of the litigation, but only some matter
    collateral. It may be final in the sense that it determines the very question
    raised by the application, but it is interlocutory if the merits of the case
    remain to be determined.

[7]

The order in question on this appeal does not finally determine or
    decide the subject matter of the litigation between the parties, namely, the
    enforceability of the separation agreement. The motion judges analysis makes
    it clear that he did not determine the validity of the separation agreement.
    Instead the motion judge made a procedural order for disclosure  the most
    basic requirement under the Family Law Rules. It remains open to the trial
    judge to accept the husbands position on the validity of the agreement.

[8]

The order is clearly interlocutory and the appeal is therefore quashed. The
    appellant shall pay to the respondent her costs of the appeal and the motion to
    quash, fixed in the amount of $25,000 all inclusive.

R.G. Juriansz J.A.

M.L. Benotto J.A.

Fairburn J.A.


