



COURT OF APPEAL FOR ONTARIO

CITATION: Galati v. Galati, 2018 ONCA 93

DATE: 20180131

DOCKET: C64157

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Graziano Anthony Galati

Applicant (Appellant)

and

Wendy Dale Galati

Respondent

Mary Ann Cummings, for the appellant

No one appearing for the respondent

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 husbands 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 husbands 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 wifes
    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.


