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In the mater of Smith v. Smith, the Applicant Mother and Respondent Father were married in North Carolina in 2000 and separated in 2009.  There are two children of the marriage, born in 2002 and 2005.  Following the separation, the Applicant Mother maintained residence in North Carolina, while the children resided with the Respondent Father in Ontario.  The Respondent Father obtained a final order for custody of children in Ontario Court of Justice.  The order granting the father final custody for the children also awarded costs against mother in that proceeding.

The mother brought emergency motion, without notice, seeking to compel father to bring the child to the hospital.  The latter motion was ultimately dismissed by Justice Gordon.  Again, costs were awarded against mother and the order for costs clearly required that the costs be payable forthwith.

On January 29, 2010, the mother brought an application for the return of the children pursuant to Hague Convention on the Civil Aspects of International Child Abduction, 1980 before Madam Justice MacPherson.  In response to the mother’s application, the father brought a successful motion to stay application on basis of non-payment of costs ordered against the mother.

The mother brought application for leave to appeal the order of Madam Justice MacPherson.  However, the mother’s application was dismissed.   In reaching his decision, Justice Harris went through the test for granting leave to appeal to the Divisional Court from an interlocutory order of a single judge of the Superior Court of Justice is set out in r. 62.02(4).  In particular, the following factors were considered:

  1. Is there a conflicting decision by another judge or Court in Ontario or elsewhere on the matter involved in the proposed appeal and is it desirable that leave to appeal be granted; or
  2. Is there good reason to doubt the correctness of the Decision and does the proposed appeal involve matters of such importance that leave to appeal should be granted?

Under the first strand of the test, Justice Gordon decided that although the applicant provided several cases which are purported to be examples of conflicting decisions, these cases were not examples of conflicting decisions.  Instead, it was determined that the provided cases demonstrated exercises of discretion, which lead to different results on different facts.  With respect to the second tier of the test, it was determined that this case did not concern matter of sufficient public importance that the Divisional Court was required to hear it.