Court of Appeal for Ontario

Citation: Green v. Green, 2010 ONCA 866

Date: 2010-12-17

Docket: C50600

Before: Sharpe, Blair and Rouleau JJ.A.

Between:

Arthur Duncan Green

Petitioner/Applicant/Husband/Appellant

and

Suzanna Dobson Green

Respondent/Wife

Counsel:

Leonardo A. Mongillo, for the appellant

Michael F. Smith, for the respondent

Heard & endorsed orally: December 10, 2010

On appeal from the final order of Justice Victor Paisley of the Superior Court of Justice dated May 14, 2009.

ENDORSEMENT

[1] This appeal arises from a prolonged and bitter matrimonial proceeding. The trial judge ordered the appellant to make an equalization payment to the respondent, dismissed the appellant’s claim for a constructive trust with respect to the respondent’s property, made a restraining order against the appellant, required that a vexatious litigant determination be made before the appellant could undertake any further litigation and awarded substantial indemnity costs against the appellant.

[2] The appellant was self-represented at trial. He applies to admit the report of an audiologist as fresh evidence in support of his contention that he had a hearing impairment that interfered with his ability to understand the proceedings below and present his case. That application, filed on the eve of this hearing, was linked to a last minute notice of constitutional question whereby the appellant sought to raise Charter issues related to his ability to present his case at trial, and which was not pursued in oral argument.

[3] In our view, the material proffered as fresh evidence does not meet the test for admissibility and there is no merit in the Charter claims. There is no affidavit to support the audiologist’s report and, in any event, that evidence does not meet the test for admissibility of fresh evidence. Even if the other criteria for admissibility of fresh evidence were satisfied, this evidence would not affect the result. There is nothing in the record or in the fresh evidence that persuades us that the appellant was denied a fair trial. Our review of the record at trial satisfies us that any problem the appellant had in presenting his case was not the product of any hearing deficiency. He appeared to hear everything that was said, he demonstrated a familiarity with legal proceedings and the trial judge endeavoured to assist him with explanations as to how to proceed.

[4] The appellant, who has considerable experience as a litigant, was strongly advised by a judge on a pre-trial motion to retain counsel for the trial. He refused to follow that advice. The trial judge made considerable efforts to explain the proceedings and the relevant rules. The trial judge did not err in rulings made during the course of the appellant’s cross-examination of the respondent’s expert and the respondent. The trial judge merely insisted that the cross-examinations focus on matters relevant to the issues raised and that the appellant respect the rules for the admissibility of evidence.

[5] The appellant’s difficulties arose from the fact that he had no evidence to support the claims he was advancing that the gold mine, at the heart of the dispute over equalization, had a value of some $360 million and that he was the beneficiary of a constructive trust in relation to shares and property owned by the respondent. The appellant has included in the appeal book material that was not tendered or admitted at trial as evidence. Even if that material were to be considered, it does not support his exaggerated contention as to the value of the mining property or indeed any value of the shares as of valuation date.

[6] On this record, we would not disturb the trial judge’s finding that the shares in KPM and KPM’s property had no value at valuation date. However, it follows from that finding that the two receivables from KPM totalling $362,980 included in the appellant’s valuation date assets should be given no value. If the company had no value, it was highly unlikely that the receivables were collectable. The equalization payment ordered should be adjusted accordingly and reduced by $181,490 from the $225,840 that, but for a mathematical error, the trial judge should have ordered. This yields an equalization award of $44,350.

[7] The agreed statement of facts identifying the issues to be tried did not mention a request for a restraining order or an order qualifying the appellant’s right to bring further proceedings. Accordingly, we would strike paragraphs 3 and 6 of the judgment.

[8] Finally, we would not interfere with the trial judge’s order as to the costs of trial. With respect to the costs of the appeal, we award $10,000 to the respondent inclusive of disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”