When Heading to the Court of Appeal is Not So ‘Appealing’

Overtveld v Overtveld, 2022 ONCA 269

The Ontario Court of Appeal recently released a decision which saw the Court decline to grant any of the relief sought. The appeal stems from an application made by adult children seeking a declaration that their father is incapable of managing property or making personal care decisions. It seems the Respondents of that application lost a series of motions that resulted in the following orders: an order dismissing a contempt motion, an order dismissing a motion to strike out all or part of a pleading, a refusal to make changes to access to the incapable, an order dismissing a motion to remove a solicitor of record, and a refusal to order payment of the accounts submitted by the attorneys. The Respondents appealed to a higher court (literally)—trying to take another kick at the can, so to speak. The Court of Appeal correctly declined to rehash the outcomes of the motions brought before the lower court as the Appeals Court lacks the necessary jurisdiction to do so.

The Court of Appeal cannot weigh-in on interlocutory matters. Put another way, where an underlying proceeding is ongoing, one cannot turn to the Court of Appeal to undermine the power and jurisdiction of a motion or application judge. Appellant courts consider errors of law, and even then, the threshold for a successful appeal can be high. In estate matters, orders granted by a motion or application judge are a dime-a-dozen. These orders help push litigation along, and can even provide the necessary stepping-stones to settlement. Knowing the correct venue to deal with these orders is important, and Overtveld is a good example of where not to go when a motion doesn’t go your way. The Respondents left the Court of Appeal empty handed with nothing more than costs consequences.

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Rebecca Betel

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