COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Benotto JJ.A.
BETWEEN
Suzanne Mackey
Applicant/Mother Respondent in this Appeal
and
Richard Rerrie
Respondent/Father Appellant in this Appeal
Counsel:
Steven Benmor, for the appellant
Paul C. Buttigieg, for the respondent
Heard: July 5, 2016
On appeal from the order of Justice Meredith Donohue of the Superior Court of Justice, dated April 16, 2015.
ENDORSEMENT
1Mr. Rerrie appeals the order of Donohue J. which dismissed his motion to set aside an uncontested order.
2In October 2012, the respondent commenced an action for divorce, custody, support and equalization of net family property. The appellant did not participate in the proceedings. He filed no answer, no financial documentation, failed to attend case conferences, fell into arrears of support and was noted in default. The trial proceeded on an uncontested basis before Seppi J. on September 17, 2014.
3Seppi J. granted custody of the two children to the respondent with access to the appellant. She also awarded the respondent child support, equalization and a vesting order of the matrimonial home.
4When the appellant learned of the order of Seppi J., he moved before Donohue J. to set it aside. On this motion, the appellant did not file a financial statement. The motion judge concluded that there was no evidence before her to indicate that the result before Seppi J. would have been different. With respect to custody, she said that it would not be in the best interests of the children (now age 15 and 9) to re-open the action.
5The appellant’s attack on the motion judge’s decision rests in part on unsworn financial information filed for the first time on appeal. This information purports to set out the value of the parties’ assets, and, he alleges demonstrates inaccuracies in the respondent’s financial statement on which the uncontested order was based.
6The most fundamental obligation of a party to a family law action is to make early, complete financial disclosure. The appellant has never filed a financial statement. It is not open to him now to rely on unsworn financial information that was not part of the record before the motion judge.
7The appellant further submitted that the problem was with his previous lawyer, not with him. However, no properly constituted claim for ineffective assistance has been advanced before us. The appellant’s previous counsel does not appear to have been given notice of this claim or an opportunity to respond.
8The motion judge based her decision on the evidence before her. She correctly applied the law. We see no basis for appellate intervention.
9The appeal is dismissed with costs in the amount of $5,000, inclusive of disbursements and HST. The costs may be enforced by the Family Responsibility Office as part of support.
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
“M.L. Benotto J.A.”