Elgner v. Elgner ONCA 2011

This Ontario Court of Appeal case arose from an interim support order from the Ontario Superior court.  The Superior Court had awarded the respondent wife interim spousal support of $110,000 a month and ordered the applicant husband to pay nearly 3.4 million dollars in arrears.  The most important issue the court of appeal had to deal with in this case was whether or not the applicant had an appeal-as-of-right to the interim order, or whether individuals were required to seek leave from the court in order to appeal such orders.

While, traditionally, the rule was that leave to appeal was necessary when dealing with any interlocutory order, other Court of Appeals had found otherwise.  The British Columbia Court of Appeal had recently stated that appeal as of right was available on interim orders. The Ontario Court of Appeal, however, maintained the more traditional stance.  The Court of Appeal came to this conclusion by interpreting Section 21(1) and 21(6) of the Divorce Act:

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.

(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.

The Court interpreted these two provisions and determined that Section 21 (1) was to be interpreted in accordance with the ordinary procedures for appeals.  The Court then stated that the ordinary procedure was not appeal-as-of-right for interlocutory matters.  Rather, in order to be appealed they required leave from the court.

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