David Palombi v. Angela Elizabeth Van

(Ontario) (Civil) (By Leave)


Family law - Custody, Courts - Family law — Custody and access — Courts — Jurisdiction — Superior Court of Justice (Family Court) making final order in a proceeding brought under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and Children’s Law Reform Act, R.S.O. 1990, c. C.12 — Divisional Court dismissing motion to transfer appeal to Court of Appeal and dismissing appeal for want of jurisdiction —Court of Appeal refusing leave to appeal — What is the proper jurisdiction for an appeal from a final order of the Ontario Superior Court Justice in Family Court where the amount in dispute is less than $50,000.00 exclusive of costs? — Whether a single justice sitting as a motion judge in Divisional Court has jurisdiction to dismiss an appeal of a final order on the grounds that the appeal has no merit — Whether a justice should dismiss a motion to transfer an appeal to the Court of Appeal when the parties have consented to the transfer — Whether the Divisional Court exercised its discretion judicially and correctly in law in applying the three part test in Dunnington v. 656956 Ontario Ltd. (1992), 9 O.R. (3d) 124 — Whether the Divisional Court erred in dismissing the appeal as being without merit when the justice did not read the appeal books and other material inasmuch as they were not before him.


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The parties were married and had two children together. They separated in 2010. A number of issues went to trial, after which the trial judge issued a final order on custody, access, child support and related matters. The applicant filed an appeal in the Divisional Court and, later, a motion to transfer his appeal to the Court of Appeal. The Divisional Court dismissed his motion and his appeal. The Court of Appeal refused leave to appeal.