Desai v. Desai, 2019 ONSC 5848

CITATION: Desai v. Desai, 2019 ONSC 5848

DIVISIONAL COURT FILE NO.: DC-19-28

DATE: 20191015

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kiteley, Ducharme, and Pomerance JJ.

BETWEEN:

Jigna Dhaval Desai

Self-represented Appellant

Appellant

– and –

Dhaval Jayantilal Desai

Howard E. Staats, Q.C., Counsel for Respondent

Respondent

HEARD at Hamilton: October 9, 2019

KITELEY J.

1The Appellant filed an Application dated December 17, 2018 in which she asked for a divorce, for an equalization of net family properties, for an order freezing assets and for costs and prejudgment interest. On February 25, 2019 the Respondent filed an Answer. On February 27, 2019 the Appellant filed an affidavit for uncontested trial. On February 28, 2019 she filed a case conference brief and on March 7, 2019 the Respondent filed his case conference brief. On March 13, 2019 a consent order was made for a bifurcated trial to be held to determine the date of separation and an order was made for pretrial questioning of both parties.

2The settlement conference was scheduled for June 6, 2019. The material filed on this appeal includes the settlement conference briefs of the parties. In the Respondent’s conference brief, dated May 29, 2019, the Respondent provided copies of the documents referred to, emphasizing the occasions in the Ontario Court of Justice, in which the Appellant had proposed that they had separated on “the 12 September, 2008”. In his settlement conference he asked for a final order “fixing the date of separation”. On June 6, 2019 Ramsay J. made the following Endorsement:

This matter may be dealt with summarily on the basis of court records. The Applicant seeks equalization and divorce. She has not claimed spousal support and the one child of the union is grown. Child support was ordered some years ago by the Ontario Court: the order of G. Edward J. dated December 17, 2009. The Respondent may move to vary it in that court if he wishes.

The Applicant moved to change the Ontario Court order in a motion dated November 22, 2012 on the basis that the Respondent’s income had changed.

She then was saying that the parties were separated 11 months after the Reconciliation/Compromise Purshish signed in India in 2011, and more than 6 years before the present Application, which was dated on December 17, 2018.

The claim for equalization is barred by the limitation period in the Family Law Act. The divorce can proceed on affidavit evidence uncontested.

No order as to costs.

3On July 3, 2019, Justice Arrell granted the divorce judgment.

The Appeal

4The Appellant asks for an order setting aside the order of Ramsay J. and an order finding the date of separation to be November 4, 2017 such that her claim for equalization, spousal and child support can be determined; an order granting her equalization claim totaling $15,972 for equalization; an order repealing the divorce order; and an order to “freeze” the Respondent’s accounts until the equalization claim is resolved. Based on all of the materials she filed, the key issue for the Appellant is that she asks that the order finding her claim for an equalization payment be statute barred be set aside so that a trial of the date of separation/valuation date can be heard.

Jurisdiction

5On the basis of the claim to an equalization payment of $15,972, we are satisfied that this court has jurisdiction pursuant to s. 19(1) and (1.2) of the Courts of Justice Act.

Standard of Review

6Based on our review of all of the material, the issue is whether the Settlement Conference Judge had jurisdiction to make an order that the claim for an equalization of net family property was statute barred.

7Mr. Staats concedes that the Settlement Conference Judge did not have jurisdiction to make that order. He submits, however, that Rule 2(2) of the Family Law Rules justifies the order on the basis that making an order in the face of apparently inconsistent prior statements in court proceedings by the Appellant is in the interests of justice. We disagree.

8When read as a whole, the Family Law Act and in particular Rules 1(7.1), (8) and (8.1) make clear that judges may make orders at any time in the process including at a settlement conference, where those orders are made to promote the overarching purposes of fairness and proportionality. Key to such a finding at a Settlement Conference is that notice was given. [Burke v. Poitras, 2018 ONCA 1025]

9In this case, the Respondent gave notice in his Settlement Conference Brief that he would ask for an order “fixing the date of separation”. However, the Settlement Conference Judge went beyond that and found that the Appellant’s claim was statute barred. No notice was given as to that request.

10It is in the interests of justice that the Appellant have her day in court. Accordingly, an order will be made setting aside paragraph 1 of the order of Justice Ramsay. Paragraph 2 of that order provided that the divorce could proceed. Indeed, the divorce has been granted and this court has no jurisdiction to make any order in relation to the divorce.

ORDER TO GO AS FOLLOWS:

11Submissions heard on the appeal by Ms. Desai from the order of Ramsay J., dated June 6, 2019. For oral reasons given the appeal is granted and paragraph 1 of that order is set aside.

12The matter is returned to a case conference or trial management conference to set a date for the bifurcated trial referred to in the order dated March 13, 2019.

13No costs of the appeal.

Kiteley J.

I agree

Ducharme J.

I agree

Pomerance J.