DATE: 20060706

DOCKET: C44258

COURT OF APPEAL FOR ONTARIO

RE:

GREGORY MARVIN WALTERS (Applicant (Appellant))

– and – TONIA IRENE HALINE WALTERS (Respondent (Respondent))

BEFORE:

SIMMONS, ARMSTRONG AND LAFORME JJ.A.

COUNSEL:

Peter F. Burnet

for the appellant

Wendy J. Elliott

for the respondent

HEARD & RELEASED ORALLY:

June 28, 2006

On appeal from the order of Justice W. J. Lloyd Brennan of the Superior Court of Justice dated August 31, 2005.

E N D O R S E M E N T

[1] In our view this appeal must be allowed.

[2] The order under appeal was made in a divorce proceeding in which the appellant also claimed an order enforcing the provisions of several agreements between the parties relating to their property. Up until the opening of trial both parties were unrepresented. On the day the trial began, new counsel appeared for the respondent and confirmed that the respondent would be seeking an equalization of net family properties and for the first time produced a financial statement for the respondent.

[3] The pleadings were not amended to reflect the respondent’s equalization claim and, in particular, it was not made clear that the respondent was seeking to have the agreements on which the appellant relied set aside based on unconscionability and lack of capacity. When the appellant asked for time to prepare and file a financial statement and net family property statement, the trial judge discouraged him from advancing that request.

[4] Particularly because the appellant was unrepresented, it was unfair to discourage the appellant from preparing proper documents and to require him to proceed without prior formal notice of, and without an explicit statement of, the claims being advanced by the respondent. Proceeding with a trial in this fashion amounted to a denial of natural justice and a new trial is required for that reason.

[5] Although it is unnecessary that we do so in order to dispose of this appeal, we also note that in his reasons the trial judge set aside the agreements relied on by the appellant based on a finding that the respondent “was in no condition” to enter into the agreements. However, the trial judge did not advert to or make any findings concerning the tests articulated in s. 56(4) of the Family Law Act. Further, the trial judge made no findings concerning the parties’ net family property; rather, he made orders relating to the division of their property on an asset by asset basis. Finally, the trial judge failed to adjudicate on the appellant’s claims for a divorce and custody of the parties’ child.

[6] Based on the foregoing reasons the appeal is allowed, the judgment below is set aside and a new trial is ordered. Both parties are directed to deliver proper pleadings and may conduct discoveries as deemed appropriate.

[7] Given the circumstances, there will be no order as to costs of this appeal.

Signature: “Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”