COURT OF APPEAL FOR ONTARIO

CITATION: Mackey v. Rerrie, 2016 ONCA 541

DATE: 20160706

DOCKET: C60492

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Suzanne Mackey

Applicant/Mother Respondent in this Appeal

and

Richard Rerrie

Respondent/Father Appellant in this Appeal

Counsel:

Steven Benmor, for the appellant

Paul C. Buttigieg, for the respondent

Heard: July 5, 2016

On appeal from the order of Justice Meredith Donohue of the Superior Court of Justice, dated April 16, 2015.

ENDORSEMENT

[1] Mr. Rerrie appeals the order of Donohue J. which dismissed his motion to set aside an uncontested order.

[2] In October 2012, the respondent commenced an action for divorce, custody, support and equalization of net family property. The appellant did not participate in the proceedings. He filed no answer, no financial documentation, failed to attend case conferences, fell into arrears of support and was noted in default. The trial proceeded on an uncontested basis before Seppi J. on September 17, 2014.

[3] Seppi J. granted custody of the two children to the respondent with access to the appellant. She also awarded the respondent child support, equalization and a vesting order of the matrimonial home.

[4] When the appellant learned of the order of Seppi J., he moved before Donohue J. to set it aside. On this motion, the appellant did not file a financial statement. The motion judge concluded that there was no evidence before her to indicate that the result before Seppi J. would have been different. With respect to custody, she said that it would not be in the best interests of the children (now age 15 and 9) to re-open the action.

[5] The appellant’s attack on the motion judge’s decision rests in part on unsworn financial information filed for the first time on appeal. This information purports to set out the value of the parties’ assets, and, he alleges demonstrates inaccuracies in the respondent’s financial statement on which the uncontested order was based.

[6] The most fundamental obligation of a party to a family law action is to make early, complete financial disclosure. The appellant has never filed a financial statement. It is not open to him now to rely on unsworn financial information that was not part of the record before the motion judge.

[7] The appellant further submitted that the problem was with his previous lawyer, not with him. However, no properly constituted claim for ineffective assistance has been advanced before us. The appellant’s previous counsel does not appear to have been given notice of this claim or an opportunity to respond.

[8] The motion judge based her decision on the evidence before her. She correctly applied the law. We see no basis for appellate intervention.

[9] The appeal is dismissed with costs in the amount of $5,000, inclusive of disbursements and HST. The costs may be enforced by the Family Responsibility Office as part of support.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”