Hi all,
My ex-wife and I have a final order (made after a trial) which states that we share joint custody (although she has stopped the children from coming for a long time - unfortunately).
She filed a new application asking for sole custody. I oppose this, of course, for reasons too numerous to mention.
We had a case conference last Monday, March 12th. The judge made an order that the matter go to a summary judgment trial on April 16th.
My understanding is that it is unlawful to do such a thing at a case conference, so I believe that I need to appeal.
Nevertheless, I believe that this is considered an "interlocutory" order, and I believe that the following statutes and regulations apply, from the Courts of Justice Act and the Rules of Civil Procedure, respectively.
The Courts of Justice Act states:
B
My ex-wife and I have a final order (made after a trial) which states that we share joint custody (although she has stopped the children from coming for a long time - unfortunately).
She filed a new application asking for sole custody. I oppose this, of course, for reasons too numerous to mention.
We had a case conference last Monday, March 12th. The judge made an order that the matter go to a summary judgment trial on April 16th.
My understanding is that it is unlawful to do such a thing at a case conference, so I believe that I need to appeal.
Nevertheless, I believe that this is considered an "interlocutory" order, and I believe that the following statutes and regulations apply, from the Courts of Justice Act and the Rules of Civil Procedure, respectively.
The Courts of Justice Act states:
Divisional Court jurisdiction
19. (1) An appeal lies to the Divisional Court from,
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; [bold mine]
Now, I believe that when it says "as provided in the rules of court", they are referring to the Rules of Civil Procedure, which states:19. (1) An appeal lies to the Divisional Court from,
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; [bold mine]
MOTION FOR LEAVE TO APPEAL TO DIVISIONAL COURT
Notice of Motion for Leave
61.03 (1) Where an appeal to the Divisional Court requires the leave of that court, the notice of motion for leave shall,
(a) state that the motion will be heard on a date to be fixed by the Registrar;
(b) be served within 15 days after the making of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and
(c) be filed with proof of service in the office of the Registrar, within five days after service. [bold mine]
So, if I understand it correctly, I have 15 days to file the motion. If anybody interprets that differently, or if they know of how something else applies, I would appreciate the feedback very much. (I know that normally an appeal from an interlocutory order needs to be filed within 7 days, but I believe that is only where leave is not required.)Notice of Motion for Leave
61.03 (1) Where an appeal to the Divisional Court requires the leave of that court, the notice of motion for leave shall,
(a) state that the motion will be heard on a date to be fixed by the Registrar;
(b) be served within 15 days after the making of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and
(c) be filed with proof of service in the office of the Registrar, within five days after service. [bold mine]
B
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