COURT OF APPEAL FOR ONTARIO

CITATION: Stupka v. Stupka, 2013 ONCA 365

DATE: 20130604

DOCKET: C55236

Laskin, Gillese and Pepall JJ.A.

BETWEEN

Dana Stupka

Applicant (Respondent in Appeal)

and

Vit Stupka

Respondent (Appellant in Appeal)

Darrell S. Waisberg and Jennifer Greenwood, for the appellant

Jacqueline Mills, for the respondent

Heard and released orally: May 24, 2013

On appeal from the order of Justice J. Patrick Moore of the Superior Court of Justice, dated February 16, 2012.

ENDORSEMENT

[1] There is no basis for the appellant’s argument that the trial was unfair. The court must look at the totality of the evidence to determine whether the appellant’s hearing impairment was an impediment to him or affected the outcome of the trial.

[2] It is clear from the record that the trial judge provided assistance to the appellant who was self-represented and that he also accommodated the appellant’s hearing impairment.

[3] The trial judge concluded that the appellant had failed to make full disclosure and the respondent did not understand the nature or consequences of the marriage contract. As a result, he exercised his discretion to set it aside. Based on the record before him, it was open to the trial judge to make that determination. The respondent had limited English, attended before a lawyer who had worked for the appellant and who did not explain her rights, and the appellant had made no written or documentary disclosure. The trial judge’s decision is entitled to deference.

[4] The fresh evidence is admitted for the purposes of understanding the appellant’s arguments relating to his hearing impairment. However, the appeal is dismissed.

[5] The appellant shall pay the respondent’s costs fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

John Laskin J.A.

E.E. Gillese J.A.

S.E. Pepall J.A.