Court of Appeal for Ontario

Date: 2018-01-26 Docket: C63757

Judges: Pepall, Hourigan and Brown JJ.A.

Between

Jayne Andrews Applicant (Respondent in Appeal)

and

Douglas Allen Andrews Respondent (Appellant in Appeal)

Counsel

Anthony Semaan, for the appellant

Luigi Di Pierdomenico, for the respondent

Heard and released orally: January 26, 2018

On appeal from: the judgment of Justice Renee Pomerance of the Superior Court of Justice, dated April 28, 2017.

Reasons for Decision

[1] This appeal is part of a lengthy and acrimonious family law proceeding. The appellant appeals the order of the motion judge dismissing his motion. The motion judge found that he did not have standing before the court as a result of his non-compliance with an earlier order made by Hebner J.

[2] For the reasons that follow, we dismiss the appeal.

[3] Hebner J. ordered that as a condition precedent of the appellant taking part in the proceedings he was to pay the sum of $17,803 by December 31, 2016, to bring his child support ordered by King J. into good standing, failing which his Answer and affidavits would be struck. The appellant was also ordered to make disclosure regarding proof of his income and to pay costs of the motion in the amount of $1,750. The appellant did not pay the required amount by December 31, 2016, nor did he appeal the order of Hebner J. Instead, he brought a motion to set aside that order before Pomerance J.

[4] The appellant submits the motion judge erred in not considering the appropriate test for striking pleadings in a family law proceeding. There is no merit in this submission. The motion judge did not strike the appellant's Answer; Hebner J. ordered it struck. That order is not under appeal. In any event, Hebner J. carefully considered the evidence and determined that the appellant purposely breached the order of King J. That finding was open to her on the evidence, and she properly applied the test for striking pleadings. There is no basis for appellate interference with the order of Hebner J.

[5] Justice Hebner also afforded the appellant an opportunity to continue to participate in the proceeding. The appellant did not avail himself of that opportunity by the deadline in her order and did not appeal the order. The motion judge properly found in these circumstances that the appellant had no standing in the proceeding.

[6] The appeal is dismissed, with costs to the respondent in the amount of $7,500, inclusive of disbursements and all applicable taxes.

"S.E. Pepall J.A."

"C.W. Hourigan J.A."

"David Brown J.A."