DATE: 20050418

DOCKET: C42666

COURT OF APPEAL FOR ONTARIO

RE:

ANDREW DUMNY also known as ANDREW GEORGE DUMNY also known as ANDREW GEORGE DUMNY also known as ANDREW G. DUMYN and the ANDREW G. DUMYN FAMILY TRUST (Appellants/Defendants) – and – GRAZINA SOPHIA DUMYN (Respondent/Plaintiff)

BEFORE:

SHARPE, BLAIR, MacFARLAND JJ.A.

COUNSEL:

Granville N. Cadogan

for the appellants/defendants

John P. Mullen

for the Plaintiff/respondent

HEARD & RELEASED ORALLY:

April 15, 2005

On appeal from the judgment of Justice Van Melle Dated October 20, 2004.

E N D O R S E M E N T

[1] In our view, this was not a case for summary judgment. There are significant contested issues of fact including:

(1) whether or not the respondent took the requisite steps under paragraph 9 of the Separation Agreement to trigger the appellant’s liability to fund the purchase of the house;

(2) whether by conduct or otherwise the respondent waived strict compliance with the Separation Agreement; and

(3) whether the appellant fundamentally breached the Agreement.

[2] Accordingly, we set aside the summary judgment. In accordance with the agreement of the parties, costs both here and below are reserved to the trial judge.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”