Refusal of stay would not have effect of precluding dispute of jurisdiction

Mother and father were married in September 2001 and had child in 2004 before separating in August 2005 and divorcing in December 2006. Parties executed Separation Agreement (SA) in 2008 and amended SA in 2013 agreeing that custody and access conflicts would be subject to mediation and or arbitration process. Child was now 12 and lived primarily with mother in Burlington while father lived in Toronto. Mediation under SA was unsuccessful. Mother brought application for child support and other corollary relief. Father answered with allegations of parental alienation by mother, claiming custody and access. Motion judge dismissed mother’s motion for order staying father’s claims, granted in part father’s motion for order that mediation arbitration provision of SA be disregarded and that mother’s motion be dismissed, and ordered that child attend counselling and assessment under s. 30(1) of Children’s Law Reform Act. Mother appealed. Appeal dismissed. Motion judge’s order was interlocutory in nature. Order did not come within exception to general rule that order granting stay was final, but order refusing one was interlocutory. Refusal of stay in this case did not have effect of precluding defendant from disputing court’s jurisdiction.

McClintock v. Karam (2017), 2017 CarswellOnt 4552, 2017 ONCA 277, R.G. Juriansz J.A., P. Lauwers J.A., and C.W. Hourigan J.A. (Ont. C.A.).