Court of Appeal for Ontario

CITATION: Cook v. Cook, 2012 ONCA 333

DATE: 20120518

DOCKET: C54545

O’Connor A.C.J.O., Feldman and Ducharme JJ.A.

BETWEEN

Lesley-Jean Cook

Plaintiff (Respondent)

and

John David Cook

Defendant (Appellant)

Counsel:

Joseph H. Kary, for the defendant (appellant)

Elizabeth Mourao, for the plaintiff (respondent)

Heard and released orally: May 16, 2012

On appeal from the order of Justice Klowak of the Superior Court of Justice, dated September 27, 2011.

ENDORSEMENT

[1] Given the history of the proceedings, the motion judge was entitled to exercise her discretion and refuse the appellant’s request for an adjournment.

[2] We are of the view that it was within the motion judge’s discretion to strike the pleadings. We note that in her reasons, the motion judge found:

... no efforts have been made by counsel for the respondent to address the matters in my order of that date [August 16, 2011], specifically, the cost order of $3,500 which were to be paid forthwith. In addition to that, there has been a lack of attention or diligence paid to disclosure by the respondent. Tax returns and Notices of Assessment have not been provided, only a one-page summary for ‘07, ‘08 and ‘09. There is no documentation to support of the respondent’s financial statement and he has not provided an appraisal of his cottage property in Minden.

[3] Moreover, we note that respondent’s counsel sent at least seven letters to appellant’s counsel before the hearing of the motion in an effort to avoid having to proceed with the motion. These efforts were to no avail. Further, the appellant did not agree that the costs award of August 16 could be paid from monies being held in trust by the real estate lawyer.

[4] In the result, the appeal is dismissed.

[5] The appellant shall pay the respondent’s costs fixed in the amount of $8,500, inclusive of disbursements and applicable taxes.

“D. O’Connor A.C.J.O.”

“K. Feldman J.A.”

“E. Ducharme J.A.”