DATE: 20060418

DOCKET: C44423

COURT OF APPEAL FOR ONTARIO

RE: Aurora Caldwell (Applicant/Respondent in Appeal) v. Edward Bruce Caldwell (Respondent/Appellant)

BEFORE: Doherty, Goudge and Rouleau JJ.A.

COUNSEL: G.S. Joseph for the appellant Barry L. Evans for the respondent

HEARD & ENDORSED: April 13, 2006

On appeal from the judgment of Justice D. Salmers of the Superior Court of Justice dated October 7, 2005.

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

[1] We will assume that the appellant has standing to bring this appeal despite the order of Wood J. (never appealed) that because of the appellant’s non-compliance with various orders, he could not participate in the proceedings.

[2] We agree with the submission that counsel for the respondent owed a duty of candour to the court in the proceedings in which the appellant was not represented. We find nothing to suggest counsel did not fulfil this duty.

[3] We reject the contention that Salmers J. was obliged to test the merits of the position advanced by the appellant in his “answer” despite the fact that the answer had been struck. That is not to say that he was not obliged to consider the claim on the merits. We have no reason to think he did not.

[4] The appeal is dismissed. Costs to the respondent in the amount of $7,500 “all in”.