DATE: 20010904 DOCKET: C35747

COURT OF APPEAL FOR ONTARIO

RE:

ELIZABETH WOOLF (Petitioner/Appellant) –and– RODNEY WOOLF (Respondent)

BEFORE:

FINLAYSON, WEILER and LASKIN JJ.A.

COUNSEL:

Joel Skapinker, for the appellant

Herschel I. Fogelman, for the respondent

HEARD:

August 29, 2001

RELEASED ORALLY:

August 29, 2001

On appeal from the judgment of Justice Mary Lou Benotto dated January 3, 2001.

E N D O R S E M E N T

[1] The appellant appeals from the order of Benotto J. finding her in contempt of court and ordering her pleadings to be struck out, declaring there to be no child support arrears, and directing the release of funds to the respondent and awarding him costs of $25,000.

[2] The appellant does not contest the finding of contempt but submits that the sanction ordered is overly broad. The appellant concedes that the court was entitled to strike her pleadings insofar as they relate to her claim for spousal support and division of property.

[3] The appellant submits, however, that the court ought not to have struck the claim for child support as this is a claim that is in the best interests of the children. The appellant also submits that the costs awarded are excessive.

[4] At present, the appellant is receiving interim support payments for the children pursuant to an order made in April 2001 and these will continue.

[5] The respondent submits that the children may make a direct claim for support under s. 33(2) of the Family Law Act, R.S.O. 1990, c.F.3 and that the Children’s Lawyer may be appointed as litigation guardian for the children under the Rules of Civil Procedure if the court deems it desirable.

[6] The appellant has not purged her contempt and has shown a complete disdain for orders of the court. In our opinion, the appeal from the contempt order should be dismissed.

[7] The respondent has counter-petitioned for divorce. We note that s. 11(1)(b) of the Divorce Act, R.S.C. (1985) c.3 as amended requires the court

… to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the guidelines and, if such arrangements have not been made to stay the granting of the divorce until such arrangements are made.

The respondent must therefore provide financial disclosure. The appellant may be a witness on behalf of the children and give evidence respecting the husband’s income and the children’s extraordinary expenses at a trial.

[8] Moreover, in the difficult and unusual circumstances of this case, we would ask that a copy of our order be served on the Children’s Lawyer forthwith so that, if so minded, the Children’s Lawyer may apply for appointment as litigation guardian to represent the children before the trial on the husband’s counter-petition.

[9] Finally, we would not interfere with the order of Benotto J. respecting costs. Therefore, we dismiss this appeal with costs.

Signed: “G.D. Finlayson J.A.”

“K.M. Weiler J.A.”

“John Laskin J.A.”