COURT OF APPEAL FOR ONTARIO

CITATION: Eustace v. Eustace, 2016 ONCA 9

DATE: 20160106

DOCKET: C60567

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Emerencia Yamuna Eustace

Applicant (Respondent)

and

Ernest Jeyaprakash Eustace

Respondent (Appellant)

Counsel:

Ajay Duggal, for the appellant

No one appearing for the respondent

Heard and released orally: January 4, 2016

On appeal from the order of Justice Lorna-Lee Snowie of the Superior Court of Justice, dated May 11, 2015.

ENDORSEMENT

[1] This appeal is unopposed. The appellant is the respondent to a family law application seeking custody of the one child of the marriage, spousal support, equalization of net family property and child support.

[2] At a trial management conference held December 19, 2014, Price J. ordered the appellant to make disclosure of certain matters and with the consent of the parties, scheduled a trial for the sittings beginning May 11, 2015.

[3] On May 11, 2015, a further trial management conference was held before the judge below. The appellant appeared with a new lawyer and sought an adjournment of the trial. The applicant’s counsel complained that disclosure on financial issues had still not been made and advised that on April 14, 2015, he had brought a Form 14B motion seeking an order striking the pleadings of the appellant on financial issues because of his failure to make disclosure as ordered. He told the court the motion had been refused, but could not advise the case conference judge the reason why it had been refused. In fact, Price J. on April 14, 2015, had rejected the motion because his earlier order had given the applicant leave to bring a motion to strike pleadings and had not permitted an ex parte motion. He said the motion had to be served. The applicant did not bring the motion back on notice.

[4] The case conference judge granted an adjournment of one week. However, on her own initiative, she included in her disposition an order striking the appellant’s pleadings on financial issues. That order must be set aside. There was no motion to strike pleadings before the case conference judge. As well there was procedural unfairness. The case conference judge did not indicate to the parties she was considering striking the pleadings and the parties had no opportunity to make submissions about the matter.

[5] The applicant has leave to renew her motion to strike pleadings if any disclosure ordered by Price J. of December 19, 2014 remains outstanding.

[6] As the appeal was unopposed, there will be no order as to costs.

“R.G. Juriansz J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”