





CITATION:
Ketelaars v. Ketelaars, 2011
          ONCA 349



DATE: 20110504



DOCKET: M39888, C52114 & C52115



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Blair and Epstein JJ.A.



BETWEEN



Beverley Maria Ketelaars



Applicant (Respondent in Appeal)



and



William Peter Ketelaars



Respondent (Appellant)



Michael J. Stangarone and Vanessa Lam for the appellant



D. Smith for the respondent



Heard & released orally:
April 29, 2011



On appeal from the orders of Justice C. William Hourigan of
          the Superior Court of Justice dated March 4, 2010 and of Justice Sandra Coats
          of the Superior Court of Justice dated April 22, 2010.



ENDORSEMENT



[1]

Mr. Ketelaars seeks to appeal the order of Hourigan J.,
    dated March 4, 2010 granting Mrs. Ketelaars judgment following an uncontested
    trial.  The trial was uncontested because
    Mr. Ketelaars statement of defence had been struck for failure to comply with various
    disclosure obligations.  He has not
    appealed the order striking out his statement of defence.

[2]

He also seeks to appeal a vesting order granted by
    Coats J. on April 22, 2010, in the same uncontested proceeding.

[3]

Both of these orders are in the nature of default
    orders.

[4]

The respondent moves to quash the appeal.  Two issues arise in connection with
    this.  The first relates to the
    appellants alleged continued failure to disclose and to comply with support obligations.  The second relates to the jurisdiction of
    this Court to hear the appeal.

[5]

It is not necessary to deal with the compliance issue,
    because, as this Court has said, an appellant from such an order must exhaust
    his [or her] remedies in the court of first instance before an appeal lies to
    this Court:
Silvonen et al, Trustees of
    the Estate of Halow v. Halow, Sr.
(2002), 59 O.R. (3d) 211 (C.A.) at para
    7.  There are procedures available in the
    Superior Court to change, vary or set aside such a default order.  To the extent
Gray v. Rizzi
, 2010 CarswellOnt 7120 (S.C.J) suggests to the
    contrary, we disagree.

[6]

Accordingly, the appeal is quashed, without prejudice
    to the appellants right to pursue whatever remedies may be open to him in the
    Superior Court.

[7]

Costs to the respondent are fixed in the amount of
    $20,000 inclusive of applicable taxes.

D. OConnor A.C.J.O.

R.A. Blair J.A.

Gloria Epstein J.A.


