Court File and Parties

CITATION: Vogl v. Vogl, 2007 ONCA 303

DATE: 20070423

DOCKET: C46239 & C46240

COURT OF APPEAL FOR ONTARIO

LABROSSE, WEILER and GOUDGE JJ.A.

BETWEEN:

KIM MARY VOGL

Applicant (Respondent)

And

STEVEN WAYNE VOGL

Respondent (Appellant)

John Pichelli, for the Appellant

Howard E. Katz, for the Respondent

Heard in-writing: April 20, 2007

On appeal from the orders of Justice Danielle M.M. Genesee of the Superior Court of Justice dated May 26, 2006 and July 20, 2006.

ENDORSEMENT

[1] The parties have agreed to have these appeals considered in writing.

[2] The appellant’s appeals are based on his argument that the application judge erred in refusing him an opportunity to participate in the hearing and in striking out his pleadings, thereby allowing the respondent to obtain relief on an uncontested basis. The respondent concedes the grounds of appeal.

[3] In our view, since the appellant had complied with the disclosure order by the time the order of May 26, 2006, was made, there was no basis for the application judge to strike the appellant’s answer and to order the matter to proceed by affidavit as an uncontested trial.

[4] For this reason, we would allow the appeals and set aside the order of May 26, 2006. It flows from this that the Final Order of July 20, 2006, should also be set aside, as specified below, because that order was granted without the participation of the appellant. The parties have agreed that this is the appropriate disposition of the appeals.

[5] The parties have agreed, as set out in these reasons, that the support issues must be returned for a new hearing, but that other issues determined by the July 20, 2006 order shall remain in effect.

[6] Specifically, paragraphs 1, 2, 6 and 7 (custody, access, life insurance and arrears of child support) of the Final Order of July 20, 2006 will remain in effect, subject to the proviso that paragraph 6 will be an interim order only and the respondent will not enforce the arrears set out in paragraph 6 until June 19, 2007, subject to any other order of the Superior Court providing otherwise.

[7] Paragraphs 3, 4 and 9 of the July 20, 2006 order, which deal with child and spousal support, will remain in effect as an interim order only pending the disposition of this action and subject to any other order made by the Superior Court in the meantime.

[8] Paragraph 5 of the order dealing with lump sum spousal support will be set aside.

[9] The parties have entered into Minutes of Settlement setting out the appellant’s disclosure obligations and in which they have agreed that the appellant will not rely on the reported Minutes of Settlement of January 31, 2006. In our view, this is a correct disposition of the issue surrounding the Minutes of Settlement of January 31, 2006 because the respondent entered into those Minutes of Settlement on the basis of incomplete information from the appellant.

[10] In the result, an order will go in terms of this endorsement.

[11] The costs awarded below are varied, also by agreement of the parties, to provide that the appellant will pay the respondent’s costs of $7,500, inclusive of GST and disbursements, which the parties agree shall be enforceable pursuant to the Family Responsibility Support and Enforcement Act.

[12] There will be no costs of this appeal.

“J.-M. Labrosse J.A.”

“K.M. Weiler J.A.”

“S.T. Goudge J.A.”