COURT OF APPEAL FOR ONTARIO

CITATION: Wodzynski v. Wodzynski, 2012 ONCA 272

DATE: 20120430

DOCKET: C54005

Feldman and Hoy JJ.A. and Spence J. (Ad Hoc)

BETWEEN

Anna Wodzynski

Applicant (Appellant)

and

Krzysztof Wodzynski

Respondent (Respondent)

Michael Czuma, for the appellant

Cezary Paluch, for the respondent

Heard: February 15, 2012

On appeal from the order of Justice Allan R. Rowsell of the Superior Court of Justice, dated November 27, 2009.

Spence J. (Ad Hoc):

[1] The appellant asks that the order of Rowsell J. dismissing the application of the appellant be set aside. The application sought an order to transfer property and an order for child support. The appellant requests that the matter be sent back to be heard by a different judge, with permission to provide further material.

[2] The issues on the appeal concern the conduct of the trial and the disposition made by the trial judge of the issue as to the effect of the agreement allegedly made between the parties on April 23, 2001 (the “Separation Agreement”). In her amended application, the appellant asked the court to uphold the provision of the Separation Agreement under which she submits she is entitled to acquire the property owned jointly by the parties at 73 Ontario Street, Oshawa. In the reasons for judgment the trial judge determined that the court could not give effect to the Separation Agreement.

The Conduct of the Trial

[3] The appellant represented herself.

[4] The appellant objects that at the outset of the trial, the judge did not ask her if she wished an adjournment. However, the appellant did nothing to indicate that she was not ready to proceed or to suggest that she did not wish to proceed. She told the court that she had her other witness in court. She told the court that it was not her choice to represent herself but that she had been left without representation two months earlier and had been unable to find another lawyer. There was no reason to construe these remarks as indicating a wish for further time to seek a lawyer.

[5] The appellant objects to the court’s having accepted the document books of the respondent for filing as exhibits at the outset of the trial. The judge asked the appellant if she had any objection to their filing and she said she did not.

[6] The appellant said that she had other documents that were not included in the document books filed by the respondent. The judge said that the court would deal with any such documents as and when it became appropriate to do so. It does not appear that the judge acted inappropriately in regard to these documents of the parties.

[7] The appellant objects to the court having accepted exhibits 6 and 7 for filing as exhibits when they were only documents prepared by counsel for the respondent. However, the court made it clear that it was prepared to receive them only for the purpose of any assistance they might provide in understanding and assessing the evidence. The exhibits were filed with descriptions that they were only documents prepared by counsel for the assistance of the court. In effect, they were filed as exhibits merely for identification and ease of reference.

[8] In the factum of the appellant, she objects that the judge allowed her presentation of her evidence to become nearly incomprehensible. The appellant did not seek to stop the presentation of evidence. Apart from the matter considered below relating to the Separation Agreement, there is no suggestion as to what in particular the judge ought to have done to assist the appellant in the presentation of her evidence or that the appellant was prejudiced by not having received such assistance.

[9] The appellant objects that the judge did not explain what was involved in making final submissions in advance. However, the judge did so prior to the lunch break on the day on which the submissions were to be made and, without being requested to do so, extended the lunch break period until 2:30 p.m. The appellant made her final submissions after the break. There is no submission as to what the appellant would have said that she had not already said if she had received further instruction from the judge. There was nothing unsatisfactory about the way the judge dealt with the transition to the final submissions.

[10] With respect to the Separation Agreement, the appellant objects that the judge did not ask the son of the appellant, when he was giving his evidence, whether his mother and father had signed the Separation Agreement as the appellant said they had done. The appellant could have put that question to the witness herself. If she had done so, and his answer had been affirmative, that evidence would have been relevant although, for the reasons set out below, it would not have been determinative. The respondent might well have objected to the judge putting that question on the basis that it would amount to assisting the appellant leading evidence as to the merits of her case. The evidence of the witness might not have been favourable to the appellant or it might have opened an avenue for cross-examination that could have led to unforeseeable results. Whether or not to ask such a question in such circumstances can only be a matter for the exercise of discretion of the trial judge. There is no reason to find that the judge acted inappropriately in this regard.

[11] The appellant objects to the judge having told her that he did not think she needed to call as a witness a lawyer, Ms. Krystkowicz. The appellant had taken the Separation Agreement to Ms. Krystkowicz for her notarial seal. The trial judge suggested that the lawyer was not going to assist the court because the notarial seal was not an issue.

[12] The trial judge made this comment at the end of a series of questions and answers that occurred towards the end the cross-examination of the appellant. The appellant had earlier concluded the evidence in chief without calling the lawyer as a witness. Counsel for the respondent asked her whether she was planning on calling the lawyer as a witness. The question was asked with reference to the fact that a name, address, and telephone and fax numbers purporting to be those of the lawyer appeared on the Separation Agreement together with what appears to be a signature and a notarial seal. The appellant said the judge had to say whether the lawyer should be called. The judge said it was for the appellant to decide what evidence she was calling. The appellant said that the lawyer was not on the witness list. The series of questions and answers continued as follows:

THE COURT: Okay. So – what is she going to say in any event?

A. Pardon me?

THE COURT: What’s she going to say? She didn’t see anybody sign this agreement; did she? That was your evidence; right? That this document was signed before?

A. We were there and we sign it.

THE COURT: Okay. But I want to be clear; where was this document signed?

A. When?

THE COURT: Where?

A. Where? This document was signed in April 25th, 2001, in – oh, because we sign it, this document, I sign it, he sign it and witnesses and after we went to … .

THE COURT: Okay. And where did that take place?

A. In 59 Daines Drive.

THE COURT: Right. All right. So Ms. Krystkowicz can only say somebody brought this to me and I put my seal on it; right?

A. Yes.

THE COURT: So I don’t think that helps anybody; does it?

MR. JAGIELSKI: No.

A. I don’t know. I don’t know but we went there.

THE COURT: M’am, do you understand …

A. Yes, I understand.

THE COURT: … just a minute. With regard to a separation agreement?

A. Yeah.

THE COURT: There are some specific legal requirements. Having a lawyer put a notarial seal on a document after it’s been signed doesn’t make the document any more or less valid, so I don’t think you need to call this lawyer with regard to this agreement because she’s not going to assist the court. Do you understand that?

A. Yeah.

THE COURT: Okay.

A. Then agreement is not valid?

THE COURT: I didn’t say that.

A. Okay.

THE COURT: That’s a matter for argument and I want to hear from both parties with regard to that. I’m not going to decide on this document at this point but the fact that the lawyer’s sealed doesn’t make it any more or less valid; right?

A. Yeah, okay. Yeah, yeah, okay.

THE COURT: I don’t think we need to worry about that. [Emphasis added.]

[13] What is important here are the parts of the exchange that are emphasized above.

[14] Based on the answer given by the appellant as to the facts that the lawyer could testify to, there was nothing objectionable in the advice the judge gave the appellant.

[15] The respondent denied signing the Separation Agreement or attending at Ms. Krystowicz's office. After the respondent testified, the judge asked the appellant if she had any additional evidence that she wished to call in reply to any issues raised by the respondent. The appellant declined to call any evidence in reply.

[16] The appeal book and compendium contain a copy of an affidavit purportedly sworn by Ms. Krstowicz on December 4, 2009, close to a month after the trial. There was no evidence before this court about this document. There was no motion before the court for the introduction of fresh evidence.

[17] The appellant objects that during the tendering of the evidence, the trial judge said that the Family Law Act required the property to be sold because it was jointly owned. No objection is taken to the statement as a matter of law concerning the treatment of jointly-owned property generally under the Family Law Act. The trial judge did not make the comment during the presentation of the evidence of the appellant. It was said later, about halfway through the cross-examination of the appellant. The trial judge made the remark while he was seeking to clarify whether the respondent was seeking an order for the sale of the property. It was relevant to seek this clarification because counsel for the respondent had directed a series of questions to the appellant about the value of the property and the judge sought to determine how the value of the property could be relevant if the order which the respondent sought was for sale. At the end of the exchange on this subject, the judge concluded that the value of the property was not the issue.

[18] In the course of the exchange on this subject the appellant interjected, without having been asked any question, that she wanted to keep the property. The point of the remark of the judge was that that was not an option in respect of family property that was jointly-owned. The judge was not directing his remark to the separate question whether the Separation Agreement was enforceable. In her final submissions, the appellant relied upon the Separation Agreement as she had done before. There is no evidence to suggest that the appellant considered that the remark of the judge had foreclosed her doing so.

[19] In summary, from my review of the transcript, the trial judge attempted throughout the trial to assist the appellant, as needed, and to ensure that the trial was conducted in a manner that was fair to both parties.

[20] For the above reasons the objections of the appellant with respect to the conduct of the trial are without merit.

The Decision about the Separation Agreement

[21] The decision about the Separation Agreement must be understood and assessed in the context of the application of the appellant and the evidence and the submissions in the course of the trial.

[22] In paragraph 8c of her amended application, the appellant characterized the Separation Agreement as a separation agreement and asked the court to uphold the Separation Agreement. In her initial submissions to the court the appellant characterized the Separation Agreement as a separation agreement and she did so again in cross-examination.

[23] The Separation Agreement, which is dated April 23, 2001, does not meet the requirements for a separation agreement under s. 54 of the Family Law Act, R.S.O. 1990, c. F.3. That provision requires that the parties to a separation agreement must, at the time of entering into it, be living separate and apart. The judge found that the date of separation was January 1, 2002, and not January 1, 2001 as the appellant had submitted. That finding is not challenged.

[24] Moreover, it is apparent from the terms of the Separation Agreement, which provides that its disposition of property is to apply “in case of separation and divorce”, that it was not made after the parties had separated, but rather beforehand.

[25] The appellant objects that the court wrongly ended its analysis with a conclusion that amounted only to saying that the Separation Agreement was not a valid separation agreement when the court should instead have continued the analysis to determine whether the Separation Agreement was valid as a marriage contract under s. 52 of the Family Act. Section 52(1) provides as follows:

52(1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their affairs.

[26] The appellant did not make any submissions at trial that her use of the term “separation agreement” was meant to refer, not only to a separation agreement under s. 54 of the Act, but also to a marriage contract under s. 52. Nor did the trial judge have any reason from the materials before the court to address the possibility. The term “Separation Agreement” was used in the amended application of the appellant. The appellant said throughout the trial that the separation date was January 1, 2001, which was consistent with her claim that the Separation Agreement dated April 23, 2001 was a separation agreement.

[27] In the reasons for judgment the judge did not restrict his consideration only to matters which related to the status of the Separation Agreement as a separation agreement. The judge gave other reasons for his conclusion that “the purported Separation Agreement is not a valid Agreement.”

[28] In particular, the judge found that the appellant had not paid the $100,000 amount that the Separation Agreement provided was to be paid to the respondent in order for the appellant to be entitled to acquire the assets mentioned in the Separation Agreement.

[29] This finding was important because the contention of the appellant at trial was that she had paid the $100,000 and she was therefore now entitled to acquire 73 Ontario Street. The appellant was unable to provide details of how she had paid the $100,000 to the respondent. The finding is not raised as an issue in the notice of appeal or in the factum of the appellant. Counsel for the appellant made no submission about it. Accordingly, the finding, with which I in any event agree, cannot be disturbed. That means that even if the Separation Agreement otherwise constituted a valid marriage contract, the court could not grant the relief that was sought by the appellant in her application.

[30] In her evidence the appellant appeared to concede that she knew that the Separation Agreement may not be valid.

[31] The appellant testified that she wrote the Separation Agreement. It provides that the respondent will accept $100,000, and will leave all assets (including both properties owned by the parties and the delicatessen operated by the parties) to the appellant. The $100,000 amount appears to have been determined without regard to the value of the parties' assets and liabilities.

[32] According to the appellant, when they took the Separation Agreement to Ms. Krystkowicz, Ms. Krystkowicz told them that she would have to prepare a "legal" agreement. She subsequently did so, and advised the parties to obtain independent legal advice. The appellant testified that the respondent refused to sign the agreement drafted by Ms. Krystkowicz. Also according to the appellant, the two different lawyers who represented her in this matter were aware of the Separation Agreement. In her words, "Nobody wanted to show."

[33] Moreover, the appellant’s conduct was inconsistent with the existence of a binding agreement. While the Separation Agreement also provides that the respondent will not be required to pay child support, the appellant sought and, on February 1, 2005, obtained an order requiring the respondent to pay child support. The respondent paid child support for some four years and ten months before the appellant took the position at trial that the Separation Agreement was valid.

Conclusion

[34] For the reasons set out above, I would dismiss the appeal. At the hearing, it was agreed that the successful party would be entitled to costs in the amount of $5,000. The respondent is therefore entitled to costs in the amount of $5,000, inclusive of disbursements and HST.

Released: Apr. 30, 2012

“KF” “Spence J. (ad hoc)”

“I agree K. Feldman J.A.”

“I agree Alexandra Hoy J.A.”