Court of Appeal for Ontario

Date: 2017-01-23 Docket: C60402

Judges: Simmons, Brown and Roberts JJ.A.

Between

Angela De Cruz-Lee Appellant

and

Larry Lee Respondent

Counsel

Ravinder Sawhney, for the appellant

No one appearing for the respondent

Heard

January 16, 2017

On Appeal

On appeal from the order and judgment of Justice Antonio Skarica of the Superior Court of Justice, dated March 27, 2015 and April 17, 2015 respectively.

Endorsement

[1] Following the appeal hearing, we dismissed the wife's appeal for reasons to follow. These are our reasons.

[2] The issues on appeal relate to the trial judge's findings concerning the proper disposition of the proceeds of sale of the matrimonial home in the amount of approximately $53,000.

[3] Following a nine-day trial, the trial judge found that the husband was the sole owner of the matrimonial home as the wife had gifted her interest in the home to him for the purpose of avoiding creditors.

[4] The trial judge also found that the wife's claim for an equalization of the net proceeds of sale of the matrimonial home was statute barred (he fixed the date of separation at December 21, 1996; the wife's application was issued in August 2010). In the alternative, he found that an equal division of the sale proceeds would be unconscionable due to the wife's reckless depletion of family property, the fact that the husband paid 100% of the acquisition costs and expenses related to the home and the wife's abusive and controlling behaviour throughout the marriage toward both the husband and the child.

[5] The wife was unrepresented at trial. On appeal, she has counsel. The husband was represented at trial but is unrepresented on appeal and did not attend the appeal hearing despite receiving notice of same.

[6] The wife's counsel submits that the trial judge erred in failing to admit an expert report indicating the wife suffers from post-traumatic stress disorder, or, in the alternative, erred in failing to appoint an expert under rule 20.1 of the Family Law Rules, O. Reg. 114/99, to inquire into the wife's psychiatric condition.

[7] On behalf of the wife, counsel also argues that the trial judge erred in failing to find that the date of separation was in 2010, when the parties physically separated, and that her equalization claim was therefore within the limitation period.

[8] Counsel further argues that the trial judge made unreasonable factual findings or misapprehended the evidence due to his failure to inquire into the existence of battered wife syndrome and the wife's psychiatric issues.

[9] We do not accept these submissions. The appellant did not give notice of her intention to rely on a psychiatric report in advance of the trial. Counsel acknowledges that the trial judge did not misstate the evidence in making the findings of fact that support his key conclusions concerning the date of separation and ownership of the matrimonial home. Instead, counsel contends that the appellant made misleading statements in her evidence due to her condition and required counsel and a psychiatrist to assist the court in assessing her evidence. However, the psychiatric report the appellant sought to have admitted at trial is premised largely on the appellant's self-reporting of events and does not purport to assess her evidence. Nor is there fresh evidence before us, either from a psychiatrist or the appellant and a psychiatrist, to support the argument that other psychiatric evidence would somehow have assisted in the assessment of the appellant's evidence.

[10] In response to a question from the panel, counsel confirmed that he does not assert that the appellant was mentally incapable at trial such that she required a litigation guardian. In the face of this acknowledgement and in the absence of fresh evidence concerning the appellant's psychiatric condition and how it impacted her evidence, we do not accept that the trial judge was under any obligation to appoint counsel for the appellant or an expert to assess her condition under rule 20.1.

[11] In our view, the appellant has failed to demonstrate palpable and overriding error in the trial judge's findings concerning the date of separation. Counsel acknowledges that the trial judge did not misstate the test for determining the date of separation. Instead, he points to various factors that he claims should have led the trial judge to a different result – for example, the fact that the parties lived together, albeit separately, under the same roof for a long period; that they continued to conduct a business together and that the wife home-schooled the child. However, such an argument does not demonstrate palpable and overriding error. The trial judge was aware of these factors but nonetheless concluded, for other reasons, that the parties had separated soon after they purchased the matrimonial home.

[12] Nor did the appellant demonstrate palpable and overriding error in the trial judge's findings concerning ownership of the matrimonial home.

[13] The appeal is therefore dismissed. As the respondent did not file material or attend, we make no order as to costs.

Janet Simmons J.A.

David Brown J.A.

L.B. Roberts J.A.