DATE: 2006-09-13

DOCKET: C44764

COURT OF APPEAL FOR ONTARIO

RE:

HAIG MGRDICHIAN (Applicant) - and - MARTA MGRDICHIAN (Respondent / Respondent in Appeal) - and - BERG MESROP, HAIG INVESTMENTS INC. AND 637263 ONTARIO LIMITED, ARA HAIKAS MESROB AND MARKAR HAIKAZ MESROB (Added Parties / Appellants)

BEFORE:

LASKIN, MACPHERSON AND CRONK, JJ.A.

COUNSEL:

Joseph P. Maggisano

for the appellants

Francine C. Sherkin, Charles Wagman and Robert A. Klotz

for the respondent

HEARD & RELEASED ORALLY:

August 28, 2006

On appeal from the order of Justice Nancy L. Backhouse of the Superior Court of Justice dated December 23, 2005.

E N D O R S E M E N T

[1] The appellants, the added parties, ask to adjourn this appeal and to have it heard at the same time as the husband’s appeal from the judgment of Rivard J. We decline to do so. Instead, we dismiss the appeal of the added parties on either of two grounds.

[2] First, in our view, the appeal is moot. On December 23, 2005, Backhouse J. struck out the added parties’ pleadings for “wilful failure to obey the court orders.” Justice Backhouse indicated that “the wife shall obtain a date for an uncontested hearing with the trial coordinator.” From Backhouse J.’s reasons and the Family Law Rules, the added parties must be taken to have known that the respondent could proceed to trial without any notice to them. See rule 10(5) of the Family Law Rules.

[3] The respondent did proceed to trial. Although the appellants appealed Backhouse J.’s order, they delayed in perfecting their appeal, and more important, did not seek a stay of the order. The respondent went to trial in April 2006 and obtained a final judgment. The appellants’ appeal is now moot. See Hornstein v. Gardena Properties Inc. (2006), 23142 (Ont. C.A.) at para. 10.

[4] Second, in the alternative, we dismiss this appeal on the basis of the appellants’ failure to comply with many court orders despite having been given numerous opportunities to do so. In the light of their ongoing and deliberate refusal to comply, we exercise our discretion to dismiss the appeal. See Brophy v. Brophy (2004), 2004 25419 (ON CA), 45 R.F.L. (5th) 56 (Ont. C.A.).

[5] Accordingly, on either ground, the appellants’ appeal is dismissed with costs fixed in the amount of $20,000.00, all inclusive.

“John I. Laskin J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”