Court of Appeal for Ontario

Date: 2018-01-31

Docket: C64157

Judges: Simmons, Roberts and Nordheimer JJ.A.

Between

Graziano Anthony Galati Applicant (Appellant)

and

Wendy Dale Galati Respondent

Counsel

Mary Ann Cummings, for the appellant

No one appearing for the respondent

Hearing

Heard and released orally: January 17, 2018

On appeal from: The Order of Justice R. Wildman of the Superior Court of Justice (Family Court Branch), dated July 27, 2017.

Reasons for Decision

[1] At a hearing at which the appellant husband sought to proceed with an uncontested trial, the presiding judge severed the husband's divorce claim and made orders for substantive relief in favour of the wife. The orders for substantive relief included a requirement that the husband make arrangements to have the husband's share of a pension divided at source and a conditional, alternative order for an extension of the limitation period under s. 7(3) of the Family Law Act.

[2] At the time of the hearing, the wife had not filed an answer and may have been deemed, under an earlier order, to have been noted in default. While it was open to the court to impose terms to attempt to secure the wife's participation before proceeding on an uncontested basis, it was not open to the court to grant substantive relief in favour of the wife that had not been sought.

[3] The order dated July 27, 2017 is set aside and the matter is remitted to the court below to a different judge. Costs of the appeal are to the appellant on a partial indemnity scale fixed in the amount of $7,500 inclusive of disbursements and applicable taxes.

"Janet Simmons J.A."

"L.B. Roberts J.A."

"I.V.B. Nordheimer J.A."