COURT FILE AND PARTIES

COURT FILE NO.: 2450/12
DATE: 2012-10-25
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VICTORIA FAITH ELLS, Applicant

AND:

CRAIG RALPH CHERRY, Respondent

BEFORE: MURRAY J.

COUNSEL:
Geoffrey J. Carpenter, Counsel for the Applicant
Alisa P. Williams, Counsel for the Respondent

HEARD: October 24, 2012

ENDORSEMENT

[ 1 ] The respondent asked for a declaration that the application was not validly issued. I find that any irregularities are merely technical and are not fatal to the validity of the application.

[ 2 ] The application was issued on April 23, 2012 and service of the application was made on the respondent on or about June 11, 2012. The respondent Craig Ralph Cherry has not filed an answer.

[ 3 ] The application by the respondent for a change of venue is denied. The respondent has not complied with an outstanding order of Justice Gray dated August 2, 2012 requiring financial disclosure.

[ 4 ] The respondent seeks leave to file an answer in this case and asks for certain other relief. The main outstanding issue in this litigation relates to the equalization of net family property and there is a further question of whether all child support obligations have been met. Issues of custody and access have already been determined by arbitration.

[ 5 ] Given that the respondent has not made the required financial disclosure as ordered by Mr. Justice Gray on August 2, 2012, I am not prepared to grant leave to the respondent to file an answer at this time without imposing a condition on the respondent that he comply with the order of Justice Gray.

[ 6 ] The respondent shall comply with the order of Justice Gray within 30 days from the date of this order, that is by the close of business on Friday, November 23, 2012.

[ 7 ] If the parties are in agreement that the respondent has complied with the order of Justice Gray dated August 2, 2012, then the respondent will have satisfied the condition and shall be granted leave to file an answer and the parties shall advise the court in advance that the respondent's motion for leave to file an answer will not be proceeding.

[ 8 ] If there has been non-compliance with the order of August 2, 2012 or if there is a disagreement whether compliance has occurred, then the motion on November 29, 2012 will proceed. The motions judge on November 29 will determine, on the basis of the material before him/her, whether to grant leave to the respondent to file an answer.

[ 9 ] Therefore, the respondent's motion for leave to file an answer is adjourned to November 29, 2012.

[ 10 ] The applicant is entitled to costs for this motion the amount of $750 inclusive of taxes and disbursements.

MURRAY J.

Date: October 25, 2012