Court of Appeal for Ontario

CITATION: DeMarco v. DeMarco, 2008 ONCA 543

DATE: 20080704

DOCKET: C48234

BEFORE: FELDMAN, MacPHERSON and CRONK JJ.A.

BETWEEN:

KANDY LYNN DEMARCO now known as KANDY LYNN MEIXNER

Respondent (Applicant)

and

MARK DEMARCO

Appellant (Respondent)

COUNSEL:

George B. Callahan, for the appellant

Malte von Anrep, Q.C., for the respondent

HEARD: July 4, 2008

On appeal from the order of Justice Thomas R. Lofchik of the Superior Court of Justice, Family Court Branch, dated December 20, 2007.

APPEAL BOOK ENDORSEMENT

[1] In our view, this appeal must be dismissed.

[2] The appellant sought leave of the court to bring a motion to enforce the terms of an alleged settlement agreement entered into by the parties on September 7, 2007. Leave was required for the appellant’s motion under the terms of the order of J.R. Turnbull J. of the Superior Court of Justice dated July 24, 2006. On December 20, 2007, T.R. Lofchik J. of the Superior Court of Justice denied the appellant’s leave motion.

[3] Justice Lofchik held that the appellant had shown a flagrant and persistent disregard for court orders. For example, by order of Henderson J. dated January 15, 2003 and again by order of Turnbull J. dated July 24, 2006, the appellant was ordered to give the respondent exclusive and vacant possession of the four properties at issue. The appellant failed to do so. These are but two of many examples documented in the record of the appellant’s failure to abide by court orders.

[4] Although the appellant claimed on his leave motion that the alleged settlement agreement between the parties superseded his obligations under the court orders men-tioned above, there was conflicting evidence before the motion judge on the issue of the finality of the agreement and the intentions of the parties. It was therefore unclear whether a binding final settlement agreement had been entered into.

[5] In these circumstances, we see no basis on which to interfere with the discretionary order of Lofchik J.

[6] We agree with the submissions of both counsel, however, that this protracted litigation should be brought to an end. All that remains, we understand, is for the original trial judgment to be enforced.

[7] The appeal is dismissed with costs to the respondent fixed at $8,000, inclusive of disbursements and GST.