Kutlesa v. Kutlesa, 2013 ONCA 549

Court of Appeal for Ontario

Citation: Kutlesa v. Kutlesa, 2013 ONCA 549 Date: 2013-09-09 Docket: C55926

Before: Cronk, Blair and Strathy JJ.A.

Between:

Maryann Kutlesa Applicant (Respondent in Appeal)

and

Jozo Kutlesa Respondent (Respondent in Appeal)

Counsel: Michael Wilson for John Kotsiou Tibor Sarai for Maryann Kutlesa No one appearing for Jozo Kutlesa

Heard and released orally: September 5, 2013

On appeal from the order of Justice M.D. Parayeski of the Superior Court of Justice, dated July 24, 2012.

Endorsement

1Mr. Kotsiou purports to appeal an order of Parayeski J. dated July 24, 2012, vesting in Maryann Kutlesa title to a cottage property on Browning Island in Lake Muskoka, near Bracebridge.

2The order was made as part of the disposition of the Family Law Act proceeding between Ms. Kutlesa and her husband, Jozo Kutlesa. It was based on the evidence presented to the trial judge demonstrating that the cottage property was owned by a numbered company of which Mr. Kutlesa was the sole shareholder and officer. That evidence was based on a property parcel register search that was dated about a month before the trial occurred.

3Mr. Kotsiou asserts, however, that between the date of that search and the date of trial, he purchased a 50% interest in the cottage property from Mr. Kutlesa and the numbered company for the sum of $300,000. Mr. Kutlesa, the respondent in the Family Law Act proceedings, did not attend the trial, and – understandably, since Ms. Kutlesa’s counsel was not aware of it – the trial judge was not advised of this development. Mr. Kotsiou asserts that the trial judge erred in law in vesting in Ms. Kutlesa the 50% interest in the cottage property that her husband did not own or control and therefore could not convey to her and that he is entitled in law to attack the order, which affects his interests.

4In separate proceedings – having discovered the pre-trial transfer of the property – Ms. Kutlesa has commenced a new action against both Mr. Kutlesa and Mr. Kotsiou under the Fraudulent Conveyances Act, seeking to set aside the transfer of the 50% interest in the property to Mr. Kotsiou. That action is still pending.

5There is a threshold problem today, however: Mr. Kotsiou was not, and is not, a party to the Family Law Act proceeding between the Kutlesas from which this purported appeal springs. He has taken no steps in Superior Court to be added as a party or to set aside or vary the order of Parayeski J., although a motion to stay that order was brought before another judge and dismissed on the basis that it should be brought before Parayeski J. A renewed stay before Parayeski J. has not been pursued to date.

6Accordingly, Mr. Kotsiou has no standing to bring the appeal and there is no appeal properly before us.

7The purported appeal is therefore dismissed, but without prejudice to any steps that may be open to Mr. Kotsiou in Superior Court to address the vesting order, whether in the context of the Family Law Act proceeding or the Fraudulent Conveyances Act proceeding, or otherwise.

8The respondent is entitled to her costs of this proceeding, fixed in the amount of $2500, inclusive of disbursements and all applicable taxes.