Interim
Continued From Page 1
our practice, which from a
policy basis alone is very
important to any family law liti-
gant or lawyer.”
Simaei suggested that per-
mitting automatic appeals of
interim orders under the
Divorce Act — including child
and spousal support, custody
and access — would create
anomalies and inequality. For
example, married spouses
would be able to appeal such
interim decisions as-of-right,
whereas common-law spouses,
whose proceedings are under
the provincial Family Law Act,
would have to seek leave.
For interim child support,
“this would be inconsistent with
both the federal and provincial
Child Support Guidelines” whose
objectives are to ensure consistent treatment of spouses and
children who are in similar circumstances, Simaei observed.
In their decision, Justices
Eileen Gillese, Eleanore Cronk
and Jean MacFarland held that
“when ss. 21(1) and ( 6) of the
Divorce Act are given their ordin-
ary meaning and read in their
entire context, harmoniously with
the scheme of the Act, the object
of the Act and the intention of
Parliament, it is clear that the
right of appeal given by s. 21(1) is
to be exercised in accordance with
the ordinary procedures gov-
erning appeals of that nature.
“It can be assumed that Parliament, when enacting
s. 21( 6) was aware of the ordinary procedure in
place in Ontario. It follows that Parliament could
have inserted a provision that excluded the leave
requirement. It did not.
away a substantive right to
appeal—it merely sets out the
procedure for asserting and
enforcing that right. This accords
with s. 21( 6) of the Divorce Act
which stipulates that “except as
otherwise provided by this Act or
the rules or regulations, an appeal
under this section shall be asserted,
heard and decided according to
the ordinary procedure governing
appeals to the appellate court from
the court rendering judgment or
prescribing and regulating any
other matter considered expedi-
ent to attain the ends of justice
and carry into effect the pur-
poses and provisions of the Act.
that an appeal under s. 21(1) is to
be ‘asserted, heard and decided
according to the ordinary pro-
cedure governing appeals,’ Par-
liament dictated that the provin-
cial rules are to be followed
when exercising the appeal right
given by s. 21(1),” she reasoned.
“Section 19(1) of the CJA was
operative when s. 21( 6) of the
Divorce Act was enacted. It was
the ‘ordinary procedure’ in
Ontario for asserting an appeal
from an interlocutory order. It
can be assumed that Parliament,
when enacting s. 21( 6) was
aware of the ordinary procedure
in place in Ontario. It follows
that Parliament could have
inserted a provision that
excluded the leave requirement.
It did not. Instead, it chose to
cede to the provinces the right to
govern the procedure on appeal.”
She said this interpretation
also accords with the aims of the
Divorce Act to shorten and sim-
plify the divorce process. n
Reasons: Elgner v. Elgner, [2011] O.J. No.
3040.
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Findlay feels very comfortable with
her party’s tough-on-crime approach
Secretaries
Continued From Page 3
ent than what I have done in the
past 27 years as a litigator, but
it’s every bit as important. And
it’s a different way of helping
people and making society a bet-
ter place to live.”
However unlike when he was
practising, as an MP “instead of
your being able to sit there and
concentrate on anything for an
hour, you are lucky if you get 10
minutes before you go on to the
next task. It’s very, very acceler-
ated,” he said.
After years of applying the
law, Goguen said he relishes the
prospect of helping make law.
“It’s a very exciting challenge,”
he enthused.
Despite past accusations from
prominent Conservative politicians, including Prime Minister
Stephen Harper, that the judiciary
is too activist under the Charter
and too lenient in sentencing, both
Goguen and Findlay were generally laudatory of the Bench.
“I think the courts have been
very even-handed. I think they’ve
applied the Charter as they’ve
seen to interpret it,” commented
Goguen. “I don’t see anything
that’s completely out of whack.
We have the brightest minds in
the courts and certainly they have
a role to play.”
Remarked Findlay, “I believe
fundamentally in the independ-
ence of the judiciary and I think
our system is one of the best in the
world, if not the best.” She said she
is “very comfortable” with her
party’s tough-on-crime approach.
“I believe the focus is correct which
is the protection of the public, and
to spend more energy and focus on
protection of the public than per-
haps we’ve seen historically.”
To that end, mandatory min-
imum sentences are sometimes
justified, she said. “Having said
that there is still a lot of discretion
in the judiciary and I respect the
exercise of that.”
Findlay said her goal as parlia-
mentary secretary is to help
achieve “a greater confidence in
the judicial system in the public,
which I think is brought about by
a better balancing between the
rights of the accused and the con-
cerns of victims and their families
and I think we can do that.”
Asked whether she will fight
for the rights of the accused as
well, Findlay replied “abso-
lutely—of course, because our
system— which is what makes it
great—is based on being [pre-
sumed] innocent until proven
guilty so it’s very, very important
that we safeguard the rights of the
accused, but that we also balance
it with the public’s need to have
confidence in that system.” n
