Court of Appeal for Ontario
Date: 2019-09-30 Docket: C66560
Judges: Juriansz, Benotto and Miller JJ.A.
Parties
Between
Angela Marin – formerly Baiu Applicant/Respondent in Appeal
and
Lucian Baiu Respondent/Appellant in Appeal
Counsel:
- Lucian Baiu, self-represented
- Angela Marin, self-represented
Heard & Released Orally: September 26, 2019
On Appeal From: The judgment of Justice H. McGee of the Superior Court of Justice, dated January 21, 2019.
Reasons for Decision
[1] The parties have been involved in matrimonial litigation for eight years. On January 13, 2014, Justice Gilmore released reasons for judgment following a five-day trial. The judgment dealt with custody, support and equalization.
[2] The husband's appeal from the judgment was dismissed on April 21, 2015. His application for leave to appeal to the Supreme Court was dismissed on April 29, 2015. His motion for reconsideration was filed with the Supreme Court but not accepted. He then failed to pay the equalization of $134,808.00 plus interest plus costs. The wife filed a writ of seizure and sale.
[3] On March 14, 2016, the husband filed a Motion to Change to vary custody, terminate support and reduce the equalization payment. Various motions, orders and appeals followed. The parties discussed settlement. Just when it was thought that the litigation was over, the husband brought another Motion to Change, essentially asking for the same relief, except now he was seeking spousal support.
[4] The motion was heard by Justice McGee on January 11, 2019. She concluded that:
she had no jurisdiction to adjust equalization payment;
she had no jurisdiction to "change" the spousal support to award spousal support to the applicant since: i) there was no request in the originating process; and ii) there was no order for support to change;
she required her husband to pay the outstanding cost order before proceeding with the motion to change child support;
the wife's request to have the husband declared a vexatious litigant be dismissed because there was no such motion before her.
[5] The husband appeals.
[6] We do not accept the appellant's submission that rule 59.06(2)(a) of the Rules of Civil Procedure applies with respect to subsequently discovered facts. The cases relied on by the appellant were not family law cases, and only the Family Law Rules, which have the objective of finality in family law matters, apply.
[7] In any event, the fresh evidence the appellant sought to file could not have affected the result because the court below had no jurisdiction to vary equalization.
[8] The husband's appeal is essentially seeking a new trial on all issues. There is no basis to set aside the order of the motion judge as there is no mistake of fact or law articulated. There is a high degree of deference owed to all matters of family law at the first instance, but in any event, we agree with the motion judge's conclusions.
[9] The appeal is dismissed.
[10] The in-person respondent did not establish that she had incurred any cost for the appeal clause. There will be no costs of the appeal.
"R.G. Juriansz J.A."
"M.L. Benotto J.A."
"B.W. Miller J.A."