Stepanova v. Selivanov, 2010 ONCA 605

1The appellant appeals from the order of Rogers J. dismissing her various claims, except for a claim for child support which was to be addressed if jurisdiction could be established. The essence of the appellant’s claim before Rogers J. was an attempt to set aside or vary the order of Gilmore J. dated September 28, 2009 on the basis that the order had been obtained by fraud, contains a mistake or was made without notice.

2As a result of the order of Gilmore J., the appellant was required to make an equalization payment of $32,211.11. A review of the record shows that there was proper service and that the appellant had notice. We can see no basis for interfering with Rogers J.’s determination in that respect.

3The appellant submits that the respondent’s claim that he owed a debt of $48,000 as shown on the statement of Net Family Property was unsubstantiated and it was this debt, as well as her ownership of the Egyptian property, that led to her having to make an equalization payment to the respondent. However, this issue was raised for the first time on appeal. It was not raised before Rogers J. and, in any event, the appellant has produced no evidence that this debt was not legitimate or that the order of Gilmore J. was obtained by fraud or mistake. To the contrary, as the respondent`s counsel points out, what information there is in the record shows that the debt was incurred by the respondent to finance the matrimonial home. The debt, which was originally $100,000, had been paid down at the rate of $2,000 per month and so stood at the sum of $48,000 on valuation day.

4The appellant complains that she has been improperly deprived of her share of the matrimonial home because Rogers J. failed to take into account that the respondent was allowed to use $50,000 from the proceeds of the sale of the matrimonial house to finance the down-payment on his new house. The appellant misapprehends the effect of Rogers J.’s order. She simply ordered that the proceeds of the sale were to be disbursed in accordance with the order of September 28, 2009, except that the proceeds payable to the appellant were to be held in trust pending an order re costs. The order of September 28, 2009 provided for an equal division of the proceeds of the sale of the matrimonial home, except that the equalization payment of $32,211.11 was to be paid out of the appellant’s share. That was an appropriate disposition given that there was nothing to indicate that the appellant had any other assets in Ontario from which the equalization payment could be made.

5Accordingly, the appeal is dismissed with costs fixed at $3,000 inclusive of disbursements and applicable taxes.