Court of Appeal Sets Aside 10-Year Old Uncontested Family Trial Decision

July 6, 2018

Mark Feigenbaum

The Ontario Court of Appeal recently examined an appeal of an order from an uncontested family trial that occurred over ten years prior. At the time of the original trial in November 2007, the wife did not appear or participate. In 2018, the wife sought to set aside the trial decision and submit fresh evidence that she was incapable of attending the trial and her motion.

What Happened?

The parties had been married for 22 years when they separated in 2003. There were two children of the marriage, which resulted in the examination of child and spousal support in the original family trial.

In 2005, the husband brought an application seeking an equalization of property, including sale of the matrimonial home. The wife countered with a claim involving custody, child and spousal support. The parties were granted a divorce in 2006.

However, the wife did not appear at the trial. Instead, her brother attended the court as an observer and informed the court that she would not attend the trial due to her health.

As a result, the original trial judge awarded the husband exclusive possession of the matrimonial home to prepare for sale, ordered that the wife pay the husband an equalization payment of $117,500.31,  and dismissed the wife’s claims for spousal and child support. To make matters worse, the trial judge also  awarded a $40,000 cost against the wife.

After the trial, the husband sold the matrimonial almost 7 years after the trial and kept the entire proceeds of the sale for himself. He also waited for the wife’s mother to pass away before garnishing the proceeds from the deceased mother’s estate. The husband remarried, purchased a new home in Costa Rica, and proceeded to live a luxurious lifestyle.

When the wife commenced her appeal of the original trial decision and motion, the parties had been separated for almost 15 years and their children were in their 30s.

The Parties’ Position

It was the wife’s position that she had been unable to attend the original trial or her motion because she was mentally and physically incapable of doing so. The wife sought to admit fresh evidence with her appeal, which included an affidavit that set out her medical history, including notes and records of health practitioners, an affidavit of a psychologist, the history of the proceedings, various financial statements, and an affidavit of a chartered accountant.

The husband did not dispute that the wife suffered various physical and mental disabilities during the time of the original trial; however, he argued that did have the mental capacity to attend the trial and motion.

It was his position that during that time, there had been no formal opinion of incapacity by a qualified capacity assessor and no evidence that she was a “special party” under the Family Law Rules.

The Court of Appeal Decision

The Court determined that the wife’s fresh evidence was unavailable at the time of the original trial. The Court noted that within days of the trial, the wife was incapable as she was brought into a hospital by police for a mandatory assessment under the Mental Health Act. She was involuntarily submitted to the hospital and remained there for over a month and a half.

While she was in the hospital, she became aware of the final trial order and initiated a motion to set it aside. The court found that the original trial judge had been unaware that the wife had been hospitalized soon after the uncontested trial had been completed.

The Court also found that the psychiatric assessment, which was part of the fresh evidence that the wife had submitted, was compelling.

Dr. Jones, a psychologist, diagnosed the wife with Posttraumatic Stress Disorder and Major Depressive Disorder. The wife’s chronic pain symptoms are also characterized as a Somatic Symptom Disorder Persistent with Predominant Pain.

Dr. Jones continued to state that it’s likely the wife has been chronically impaired from as early as 1995 and remains highly impaired as a result of these conditions. As a result, Dr. Jones explained in his affidavit that it was highly probable that the wife was in no state to understand the basic rules of the court and what was required to protect her interests, including seeking spousal and child support, and the equalization of the matrimonial home.

Dr. Jones concluded that even if she had a rudimentary understanding of these rules, her paranoid defence system and fear of confronting the husband who she perceives as abusive may have prevented her from taking such necessary legal steps.

The Court held that the wife lacked capacity to prepare for and attend the original trial and motion. The uncontested trial and motion had, “disastrous financial consequences,” for the wife.

It was the Court’s view that the outcome would have been dramatically different had the wife attended the trial and motion and had the opportunity to challenge the husband’s evidence.

Upon examining the outcome of the original trial and motion, the Court also noted that, “there is also a serious question as to whether the [husband] gained an unfair advantage in both purchasing the matrimonial home at a greatly discounted value and receiving an award that the [wife] pay for repair costs.”

When considering these factors in totality, the Court set aside the final trial order and order stemming from the wife’s original failed motion. The Court also held that the garnishment order must also be set aside and that the garnishment monies, plus interest, be paid back to the wife.

However, the Court determined that they were unable to address the issues of equalization, child and spousal support, and that a new trial would need to be ordered to conduct findings of fact.

Mark Feigenbaum brings together years of litigation, corporate law, tax law, and accounting experience. He applies this multi-faceted experience to family law disputes with the ultimate goal of helping you move forward following the breakdown of a relationship while retaining as much financial stability as possible. The firm represents clients in Toronto and across the GTA, including in Thornhill, Vaughan, and Markham.

Speak to Mark team for effective, knowledgeable, strategic guidance and representation leading up to and throughout your divorce. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.


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