Court of Appeal for Ontario

Date: 2018-01-16 Docket: C64119

Judges: Feldman, Pepall and Huscroft JJ.A.

Between

Gerard Peter Dunn Applicant (Appellant)

and

Marianna Murton Dunn (one and the same as Marianna Marton Dunn) Respondent (Respondent)

Counsel

Andreus Snelius, for the appellant

Kevin Caspersz, for the respondent

Heard and released orally: January 11, 2018

On appeal from: the order of Justice Michael Gibson of the Superior Court of Justice, dated June 28, 2017.

Reasons for Decision

[1] The appellant husband appeals the order of the motion judge striking his pleading in a matrimonial proceeding relating to the equalization of assets of significant value. The pleading was struck for non-compliance by the husband with part of a consent order regarding disclosure.

[2] In his reasons the motion judge listed a number of obligations in the consent order with which the appellant had not complied, and which the trial judge identified as "central to the material issue in this case".

[3] Unfortunately, that list included four items not in the consent order and not referred to in the record. Apparently, these items were raised in argument before the motion judge. By relying on matters not in the order or the evidence, the trial judge made a palpable and overriding error requiring this court to set aside the order.

[4] The appellant shall have one more chance to comply with the consent order of Miller J., in particular para. 2c relating to an accounting of the $300,000 in cash that the appellant removed from the XL bank account between 2013 and 2015. He shall have 30 days to do so.

[5] Thereafter, we understand that the parties will be in a position to move this matter on for settlement or, if necessary, for trial.

[6] In the circumstances, there will be no costs of the appeal.

K. Feldman J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.