COURT OF APPEAL FOR ONTARIO
DATE: 20060721
DOCKET: C40432
RE: JENNIFER ROSEMARY DUBOURDIEU (Respondent/ Appellant) – and – COLIN DUBOURDIEU (Applicant/ Respondent)
BEFORE: GILLESE, LANG and MACFARLAND JJ.A.
COUNSEL: Michael E. Freeman for the appellant
G. Charles S. Morison, amicus curiae for the respondent
HEARD & ENDORSED: July 20, 2006
On appeal from the order of Justice Hugh R. McLean of the Superior Court of Justice dated June 24, 2003.
A P P E A L B O O K E N D O R S E M E N T
[1] The order of McLean J. dated June 24, 2003, is set aside. Ms. Dubourdieu’s motion to set aside default judgment is hereby granted. In making these orders, we note:
Before McLean J. it was said that Ms. Dubourdieu’s failure to contest the motion for spousal support and equalization of matrimonial property was for “inadequate” reasons. This, in our view, is not a correct characterization of her position. She was “paralyzed” by depression. That is an adequate reasons to explain why she did not act. The motion judge cannot be faulted for failing to find the delay adequately explained when her own counsel told him the reason for failing to act was “inadequate”.
There is fresh evidence before this court which is very material: Mr. Dubourdieu is now dead.
[2] There is an inadequate record before this court to be able to resolve the problems that this case presents. Clearly, a judge of the Superior Court needs to consider this whole matter afresh. Our order is intended to create that opportunity. We have not been given any authority for the other orders that Ms. Dubourdieu’s counsel requests. We are unable to even determine a process by which he might achieve his stated goals which include a fresh determination of the questions of equalization of property, child support, spousal support, and related relief such as the possible lifting of Writs of Execution.
[3] Accordingly, the Motion for Continuation is granted, the appeal is allowed and the matter remitted to the Superior Court.