DATE: 20030320

DOCKET: C38825

COURT OF APPEAL FOR ONTARIO

RE: RICHARD ALAN GABEL (Petitioner (Husband) (Respondent)) – and – BRENDA JOAN GABEL (Respondent (Wife) (Appellant))

BEFORE: ABELLA, MACPHERSON and ARMSTRONG JJ.A.

COUNSEL: J. Irwin

for the petitioner (husband)

Gene Colman

for the respondent (wife)

HEARD: March 12, 2003

On appeal from the order of Justice N. M. Karam dated August 30, 2002 made at Cochrane, Ontario.

E N D O R S E M E N T

Released Orally: March 12, 2003

[1] In our view, the motions judge erred in concluding that the appellant would be entitled to seek originating corollary relief notwithstanding the existence of a final divorce judgment which addressed the corollary relief issues.

[2] He did not address the three part test for setting aside the noting of pleadings closed. We are satisfied that that test has been met in this case. The respondent concedes that the motion was timely. The record is clear that the appellant had a persistent intention to defend and that there is merit to the appellant’s claims for corollary relief.

[1] We would therefore allow the appeal, set aside the order of Karam J. and the noting of pleadings closed, as well as paragraphs 2, 3 and 4 of the default divorce judgment. Costs are payable to the appellant in the amount of $1,750 for the motion, and $10,000 inclusive of disbursements and G.S.T. for the appeal.

“R.S. Abella J.A.”

“J. C MacPherson J.A.”

“Robert P. Armstrong J.A.”