“The appellant submits that the order is final because it implicitly disposes of the substantive issue in the action: his rights under the separation agreement not to disclose his financial position. He submits the underlying order “finally and irrevocably determines the enforceability of the non-disclosure term”.
We do not agree.
This court in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, at p. 678 provided that an interlocutory order is one:
…which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.
The order in question on this appeal does not finally determine or decide the subject matter of the litigation between the parties, namely, the enforceability of the separation agreement. The motion judge’s analysis makes it clear that he did not determine the validity of the separation agreement. Instead the motion judge made a procedural order for disclosure – the most basic requirement under the Family Law Rules. It remains open to the trial judge to accept the husband’s position on the validity of the agreement.”