Barbalata v. Barbalata, 2015 ONSC 2964

CITATION: Barbalata v. Barbalata, 2015 ONSC 2964

Divisional Court File No. 729

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N

BIANCA GIZELLA BARBALATA

Appellant

• and –

DANIEL LIVIU BARBALATA

Respondent

PRESIDING JUSTICES

THE HONOURABLE JUSTICE CORBETT

THE HONOURABLE JUSTICE HARVISON YOUNG

THE HONOURABLE JUSTICE O'MARRA

AT THE DURHAM REGION COURTHOUSE,

150 BOND ST. E., OSHAWA, ONTARIO,

ON MARCH 4, 2015

REASONS FOR JUDGMENT

APPEARANCES:

B. Barbalata Did not Attend

E. Goldstein Counsel for the Respondent

MARCH 4, 2015

Neutral Case Citation Number

REASONS FOR JUDGMENT

CORBETT, J. (Orally)

The appeal before us in the matter of Barbalata vs. Barbalata came on for hearing today.

Ms Barbalata did not appear. Counsel advised us that Ms Barbalata’s vehicle, which is licenced to Mr. Barbalata, was found by police in Niagara Falls near the border with the United States and information suggests that Ms Barbalata may have crossed over into the United States on foot.

There is some evidence that her credit card has been used in the United States.

The Registrar of the Court attempted to contact Ms Barbalata and had left messages on her voicemail about today’s hearing but did not hear back from her.

The Court thinks it is likely that Ms Barbalata did not know of today’s schedule for the appeal as a result of having left her home and disappeared. There’s no evidence that there’s any foul play involved Ms Barbalata’s departure from her home.

In all of the circumstances, it appears to us that Ms Barbalata has abandoned this appeal. Nonetheless, we choose to make some comments about the merits of the appeal since the underlying substantive issue that was the subject matter of the appeal remains as a live issue for the trial which is scheduled for later in 2015.

Nicholson, J., the motions Judge, declined to order sale of the matrimonial home and left that issue for trial. Justice Nicholson gave comprehensive handwritten reasons in which he cited the controlling authorities, considered the pertinent factors and exercised his discretion to leave this issue for the trial Judge.

This appeal could not be brought without leave because Justice Nicholson’s order is an interlocutory one. None was sought or granted and so the appeal would be dismissed for that reason. Trial is scheduled for the spring 2015 sittings. If it is not reached in the spring, the trial should proceed in the fall sittings of 2015.

Given the proximity of the trial even if leave was granted now, the appeal would not be heard before trial. We would not extend the time to bring a motion for leave to appeal in the circumstances. We appreciate the Appellant is self-represented, that she suffers from mental health issues and that she feels particularly vulnerable and alone in these proceedings.

Nonetheless, the ordinary rules must apply to her as they apply to every litigant. The Respondent has been put to expense to defend this appeal which was completely without merit. He is entitled to his costs.

However, in recognition of the Appellant’s situation and with the agreement of the Respondent, we would order that the costs be paid from the Appellant’s share of family assets upon equalization at trial.

We fix the costs today at $5,000 inclusive. The Appellant is urged to take the steps necessary to be fully prepared to conduct this trial when it is called for trial in the spring or fall. No one would benefit from delaying the trial. Those words may fall on deaf ears since the Appellant is not here but should she resurface, I would ask that counsel provide a copy of the endorsement to her so that she can read our exhortation for her to be prepared and ready to proceed when the trial is called.

I have endorsed the back of the motion record; dismissed for oral reasons given by D.L. Corbett, J. Costs of $5,000 inclusive payable by the Appellant to the Respondent, payable from the Appellant’s share of matrimonial assets upon equalization at trial.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Deborah Tinmouth, certify that this document is a true and accurate transcript of the recordings of Barbalata vs. Barbalata in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2812-201-20150304, which has been certified in Form 1.

April 7, 2015 electronic signature_____

Deborah Tinmouth, C.C.R.