Ketelaars v. Ketelaars, 2011 ONCA 349

DATE: 20110504

DOCKET: M39888, C52114 & C52115

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Blair and Epstein JJ.A.

BETWEEN

Beverley Maria Ketelaars

Applicant (Respondent in Appeal)

and

William Peter Ketelaars

Respondent (Appellant)

Michael J. Stangarone and Vanessa Lam for the appellant

D. Smith for the respondent

Heard & released orally: April 29, 2011

On appeal from the orders of Justice C. William Hourigan of the Superior Court of Justice dated March 4, 2010 and of Justice Sandra Coats of the Superior Court of Justice dated April 22, 2010.

ENDORSEMENT

[1] Mr. Ketelaars seeks to appeal the order of Hourigan J., dated March 4, 2010 granting Mrs. Ketelaars judgment following an uncontested trial. The trial was uncontested because Mr. Ketelaars’ statement of defence had been struck for failure to comply with various disclosure obligations. He has not appealed the order striking out his statement of defence.

[2] He also seeks to appeal a vesting order granted by Coats J. on April 22, 2010, in the same uncontested proceeding.

[3] Both of these orders are in the nature of default orders.

[4] The respondent moves to quash the appeal. Two issues arise in connection with this. The first relates to the appellant’s alleged continued failure to disclose and to comply with support obligations. The second relates to the jurisdiction of this Court to hear the appeal.

[5] It is not necessary to deal with the compliance issue, because, as this Court has said, an appellant from such an order “must exhaust his [or her] remedies in the court of first instance before an appeal lies to this Court: Silvonen et al, Trustees of the Estate of Halow v. Halow, Sr. (2002), 2002 41790 (ON CA), 59 O.R. (3d) 211 (C.A.) at para 7. There are procedures available in the Superior Court to change, vary or set aside such a default order. To the extent Gray v. Rizzi, 2010 CarswellOnt 7120 (S.C.J) suggests to the contrary, we disagree.

[6] Accordingly, the appeal is quashed, without prejudice to the appellant’s right to pursue whatever remedies may be open to him in the Superior Court.

[7] Costs to the respondent are fixed in the amount of $20,000 inclusive of applicable taxes.

“D. O’Connor A.C.J.O.”

“R.A. Blair J.A.”

“Gloria Epstein J.A.”