Carey-Patel v. Carey
Because the trial judge adjourned the balance of the trial to allow the guardians to resolve care and expressly reserved the right to make a final determination, the challenged order did not determine the very subject matter of the litigation and was interlocutory; the appeal was therefore quashed.
Source-derived case information.
- Citation
- 2019 ONCA 144
- Parties
- Appellant: Lydia Carey-Patel; Appellant: Robert Patel; Appellant: Davie Aello; Respondent: Jennie Carey; Respondent: Arthur Carey; Respondent: Douglas Carey; Respondent: The Office of the Public Guardian and Trustee
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 February 2019
- Procedural Posture
- Family Law; Guardianship; Power of Attorney / Appeal From Interlocutory Superior Court Order; Motion to Quash Appeal
- Outcome
- Appeal quashed.
- Legal Topics
- Interlocutory Order, Appealability, Power of Attorney, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lydia Carey-Patel
Appellant
Robert Patel
Appellant
Davie Aello
Appellant
Jennie Carey
Respondent
Arthur Carey
Respondent
Douglas Carey
Respondent
The Office of the Public Guardian and Trustee
Respondent
Procedural Posture
Family Law; Guardianship; Power of Attorney / Appeal From Interlocutory Superior Court Order; Motion to Quash Appeal
Legal Issues
- 1 Whether the order appealed from is interlocutory and therefore not appealable
- 2 Whether the appeal should be quashed
- 3 Whether the trial judge's adjournment and reservation of the final determination left the subject matter outstanding
Ratio Decidendi
Because the trial judge adjourned the balance of the trial to allow the guardians to resolve care and expressly reserved the right to make a final determination, the challenged order did not determine the very subject matter of the litigation and was interlocutory; the appeal was therefore quashed.
Court Disposition
Appeal quashed.
Orders
- Appeal quashed.
- Costs of the motion payable by the appellants in the all-inclusive sum of $5,000.
Full Case Text
Judgment text and source record
1 paragraphs
Carey-Patel v. Carey Collection Decisions of the Court of Appeal Date 2019-02-22 Neutral citation 2019 ONCA 144 Docket numbers C65824, M49728 Judges Hourigan, C. William; Benotto, Mary Lou; Huscroft, Grant Subject Family Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Carey-Patel v. Carey, 2019 ONCA 144 DATE: 20190222 DOCKET: M49728 (C65824) Hourigan, Benotto and Huscroft JJ.A. BETWEEN Lydia Carey-Patel, Robert Patel, and Davie Aello Appellants (Applicants) (Respondent party) and Jennie Carey, Arthur Carey, Douglas Carey, and The Office of the Public Guardian and Trustee Respondents (Moving Party) Matthew R. Harris and Yonatan Lipetz for the appellants Richard Watson, for the respondents Heard and released orally: February 21, 2019 ENDORSEMENT [1] The respondents move to quash the appeal on the basis that the order appealed from is interlocutory. [2] The application in the Superior Court involved a family dispute about the care of a 91 year old woman suffering from dementia. Following a five-day trial, Kurz J. made several orders regarding her physical and financial care, including a change of the power of attorney. He specifically said: “I adjourned the balance of this trial to November 16, 2018 in order to allow the guardians to work together on plans for Jennie’s personal care and property.” He added that if they are unable to do so, “I reserve the right to make the final determination.” [3] As far back as Henderson v. Kallio, 1932 OR 675 at 678, this court has held that an interlocutory order is one that does not determine the very subject matter of the litigation. The subject matter here is the care of a 91 year old. The plain meaning of the trial judge’s order discloses that the issue remains outstanding. [4] The order appealed from is interlocutory. The appeal is therefore quashed. Costs of the motion payable by the appellants in the all-inclusive sum of $5,000. “C.W. Hourigan J.A.” “M.L. Benotto J.A.” “Grant Huscroft J.A.”