DATE: 20051007

DOCKET: C43256

COURT OF APPEAL FOR ONTARIO

RE:

ASQUITTE MONTAGUE (Respondent) – and – YVONNE MONTAGUE (Appellant)

BEFORE:

LASKIN, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Yvonne Montague in person

Asquitte Montague in person

HEARD:

August 30, 2005

On appeal from the judgment of Alison Harvison Young of the Superior Court of Justice dated February 22, 2005.

E N D O R S E M E N T

[1] The appellant appeals from the order of Justice Harvison Young dated February 22, 2005, made in divorce proceedings between the parties.

[2] The appellant says she did not receive the notice of motion. However, it was sent by ordinary mail to her address for service recorded in the court file which remained her residence, though the appellant says she was not staying there at the time. The appellant did not persuade us that we should interfere with the motion judge’s finding that she was properly served.

[3] However, we are satisfied that to the extent that the formal order does more than sever the divorce from the corollary issues, grant a divorce, and allow the respondent to amend his petition for divorce to include an order that the matrimonial home be sold, it must be set aside. In that regard, we note that, by letter dated February 24, 2005, the respondent’s solicitor served the amended petition upon the appellant asking for the relief in relation to the sale of the matrimonial home indicating that those issues remain to be decided.

[4] The motion judge had jurisdiction to make the orders severing the divorce from the corollary issues, granting the divorce, and allowing the respondent to amend his petition for divorce. However, we are of the view that the corollary relief relating to the sale of the house should not have been granted until the petition had been amended and served upon the appellant.

[5] Consequently, the appeal is allowed to the extent that paragraphs 4, 5, 6, 7, and 8 of the order below are set aside.

[6] As both parties appeared in person, there will be no costs of the appeal.

“J.I. Laskin J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”