DATE: 20010220

DOCKET: C34502

COURT OF APPEAL FOR ONTARIO

RE:

MARIA MAURICI (Appellant) –and– ANTONIO MAURICI (Respondent)

BEFORE:

FINLAYSON, BORINS and FELDMAN JJ.A.

COUNSEL:

Maria Maurici, the appellant in person

Gary S. Joseph, for the respondent

Brian Todd, for The Office of the Children’s Lawyer

HEARD:

January 19, 2001

On appeal from the judgment of Mr. Justice Hugh M. O’Connell dated June 12, 2000.

E N D O R S E M E N T

Facts

[1] This is an appeal from the judgment of The Honourable Mr. Justice O’Connell in which he dismissed the appellant’s application for an equalization of family assets and awarded her a lump sum payment of $50,000 for spousal support. There were also orders relating to child support that are not in issue in this appeal. The respondent cross-appeals the order for spousal support.

[2] In his decision, the trial judge chronicled the lengthy matrimonial litigation between these parties and presented a detailed outline of all prior litigation. While it is not necessary for this court to recite the entire chronology, certain of the important dates and events highlighted by the trial judge are worth reproducing:

[4] The parties were married in 1960. They have two sons: Frank, born in 1961, and Paul, born in 1964. Paul has Down’s Syndrome, and Mrs. Maurici continues to be his primary caregiver. The parties were separated in 1978, and Mr. Maurici petitioned for divorce in 1981. A decree nisi was granted in October 1981.

[11] Mr. Maurici commenced a petition for divorce in 1981, in which he acknowledged the 1978 child support order made by the Provincial Court. The petition did not seek any corollary relief. Mrs. Maurici did not file any answer or counter-petition, nor did she request spousal support. A decree nisi was granted in October 1981 and the decree absolute was granted on February 3, 1982. The decree nisi was silent on the issue of spousal support.

[12] In 1981, Mrs. Maurici commenced a notice of application in which she requested, inter alia, spousal and child support, and to vary the terms of the decree nisi. On September 24, 1985, Pennell J. made an order dismissing the application for variation in child and spousal support. [emphasis added]

[13] On October 22, 1985, McKinlay J. directed that the issues of child and spousal support be directed to trial.

[14] In January 1987, Mrs. Maurici attempted to obtain spousal support by way of motion. Campbell J. adjourned the file, including the motion, concluding that it was “hopeless.”

[17] Another application, commenced in September 1990, was dismissed by Walsh J. on November 19, 1990. Shortly thereafter, Mrs. Maurici commenced two new proceedings, both of which involved claims for division of property and other relief.

[18] Coo. J. first heard all outstanding claims in June 1991. According to a transcript of the motion argued on June 18, 1991, Mr. Justice Coo told Mrs. Maurici that she was “going to have great difficulty” in making a claim for spousal support.

[19] Coo J. rendered final judgment on August 11, 1992. He dismissed all outstanding litigious processes that were before the court, and ordered Mr. Maurici to make limited financial provisions for Paul Maurici. In his reasons for judgment, Coo J. said that the equalization issue had long ago been dealt with by Dupont J. On the issue of spousal support, he stated that there was “no suggestion of any kind of change in circumstances on which I would be prepared to rely in regard to issues of support for the wife.” [emphasis added]

[3] It is also noteworthy that O’Connell J. found that the respondent was less than forthcoming about his financial circumstances and was neglectful in meeting the modest orders required of him by the court. This court made similar findings about the respondent in its judgment of August 9, 1996 with respect to non-compliance with orders made by Coo J.

Analysis

[4] As indicated, the litigation has been both lengthy and contentious and it is difficult to determine what disputes were ultimately disposed of by the court. However, it is clear, as found by O’Connell J., that the claim for equalization was disposed of and cannot be further litigated. The appeal is therefore dismissed.

[5] In terms of the cross-appeal related to spousal support, the problem faced by O’Connell J. was to determine, if possible, the judicial history of the protracted proceedings between the appellant and the respondent which commenced over 20 years ago. O’Connell J. is to be commended for his diligence in setting out the chronology of events, since the file in this case has repeatedly been described as a “mess” by courts below. We are satisfied that he did the best he could in preparing his chronology on the basis of the materials which were in the record before him. However, it is apparent from his analysis of the appellant’s claim for spousal support that he was uncertain whether he was dealing with a variation of a spousal support order under s. 17 of the Divorce Act, or whether he was dealing with an application for support under s. 15.2(1) of the Act. Whether under s. 17 or s. 15.2(1), O’Connell J. was satisfied on the evidence before him that the appellant was entitled to lump sum spousal support in the amount of $50,000.

[6] We are in no better position than was O’Connell J. as to the precise judicial history that preceded the application which he decided. Therefore, we see no reason to interfere with the judicial chronology developed by O’Connell J. and his inability to come to a finding in respect to the determination of previous claims for spousal support made by the appellant.

[7] The respondent has taken no issue with the amount of spousal support awarded by O’Connell J., whether pursuant to s. 17 or s. 15.2(1) of the Act. His only submission was that there was no legal basis on which the award could be made. However the respondent was unable to provide any orders or judgement that might clarify, or amplify the chronology developed by O’Connell J.

[8] We acknowledge that the circumstances of this case are very unusual and that it is highly unlikely that there will be other cases in which it is impossible for the parties to reconstruct the judicial history of a case. In light of this observation, we are not prepared to interfere with the judgment of O’Connell J. awarding spousal support.

[9] Accordingly, the cross-appeal is also dismissed.

[10] There will be no costs of the appeal or cross-appeal.

Signed: “G.D. Finlayson J.A.”

“S. Borins J.A.”

“K. Feldman J.A.”