DATE: 20060606

DOCKET: C44980

COURT OF APPEAL FOR ONTARIO

RE:

JOHN HUGH DALGLEISH (Applicant (Appellant in Appeal)) – and – CHERYL MAUREEN DALGLEISH (Respondent (Respondent in Appeal))

BEFORE:

SIMMONS, CRONK AND JURIANSZ JJ.A.

COUNSEL:

Dani Z. Frodis

for the appellant

Cheryl Maureen Dalgleish

in person

HEARD & RELEASED ORALLY:

May 30, 2006

On appeal from the final order of Justice Craig Perkins of the Superior Court of Justice dated December 19, 2005.

E N D O R S E M E N T

[1] The main issue before Perkins J. was whether an error was made in Minutes of Settlement executed on May 30, 2005 by Ms. Dalgleish and Mr. Dalgleish’s trustee in bankruptcy. In particular, it was Mr. Dalgleish’s position that, through inadvertence, a term agreed upon by Ms. Dalgleish and the trustee was omitted from the Minutes of Settlement. The term was that Ms. Dalgleish would release her claim for future spousal and child support. Ms. Dalgleish’s position was that there was no agreement to include such a term in the Minutes of Settlement.

[2] Neither party was represented by counsel on the motion before Perkins J. On our review of the record, the evidence tendered on the motion was unclear and conflicting. Given these circumstances, in our respectful view, the motion judge erred by determining the issue and by failing to direct the trial of an issue.

[3] Accordingly, the appeal is allowed in part, the order of the motion judge dismissing those aspects of Mr. Dalgleish’s motion(s) that relate to the Minutes of Settlement is set aside, and an order is substituted directing the trial of the issues whether an error was made in relation to the Minutes of Settlement and, if there was such an error, the effect of the error on the Minutes of Settlement as a whole.

[4] The trial of these issues is to be expedited. For that purpose, the matter is to be listed before a case management judge within 14 days of the date on which this endorsement is formally released and Court of Appeal staff are directed to fax a copy of this endorsement to the Regional Senior Judge for Central East Region. If his schedule permits, the trial of the issues that we have directed should be listed before Nelson J. as case management judge and a trial date set as soon as possible.

[5] In light of the circumstances underlying this appeal, there will be no order as to the costs of the appeal.

“Janet Simmons J.A.”

“E. A. Cronk J.A.”

“R. G. Juriansz J.A.”