COURT OF APPEAL FOR ONTARIO

DATE: 20051201

DOCKET: C42617

RE: ANGELA COSTABILE (Respondent) –and- MARIO COSTABILE (Appellant)

BEFORE: LASKIN, SHARPE and MACFARLAND JJ.A.

COUNSEL: George B. Callahan for the appellant Andrew Feldstein and Sanja Curie for the respondent

HEARD & ENDORSED: December 1, 2005

On appeal from the judgment of Justice Perkins of the Superior Court of Justice dated October 12, 2004 made at Newmarket, Ontario.

A P P E A L B O O K E N D O R S E M E N T

[1] We decline to interfere with Perkins J.’s order for two reasons.

[2] First, he found that the appellant’s disclosure was not reasonable, and then he exercised his discretion to strike the appellant’s pleading. That finding and that exercise of discretion are entitled to deference and we decline to interfere with either.

[3] Second, and perhaps more important, Perkins J. contemplated that the appellant would have the right to move to set aside the default and try to persuade a family court judge that his disclosure and efforts in providing disclosure justified reinstating his pleading. We think that this was a sensible resolution of the matter. Moreover, given the broad discretion under the Family Court Rules, we also think that a family court judge had jurisdiction to make such an order.

[4] To make clear that the appellant has this right, we amend para. 1 of the order of October 12, 2004 to provide:

“The respondent’s answer/claim is hereby struck out but he shall have the right to move to set aside the default by showing that his disclosure and efforts at making disclosure justify reinstating his pleadings.”

[5] The appeal is otherwise dismissed with costs fixed at $5,000 inclusive of disbursements and GST.

[6] The $2,500 currently in Mr. Feldstein’s trust account as security for the costs of the appeal may be applied towards this court’s costs order.