Court of Appeal for Ontario

Date: 2021-12-03 Docket: C69660

Before: van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)

BETWEEN

Zoltan Csizmazia Applicant (Respondent)

and

Anita Csizmazia Respondent (Appellant)

Counsel: Eli Karp, for the appellant Taylor Johnson as agent for Sean D. Heeley, for the respondent

Heard: November 23, 2021

On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated April 22, 2021.

Reasons for Decision

[1] The appellant Anita Csizmazia appeals the order of Ramsay J. (the “review judge”), refusing to set aside the final order of Whitten J., that was made after an uncontested trial.

[2] The parties have been engaged in family law proceedings that were commenced in October 2017. In January 2020, as a result of the appellant’s non‑compliance with various court orders, including the requirement to pay an interim equalization payment and various costs awards, her pleadings were struck in relation to all issues in the proceedings except for custody and access. Eventually, Chappel J. ordered that the uncontested trial be adjourned to the sittings commencing November 16, 2020 and, recognizing that under r. 1(8.4) of the Family Law Rules, O. Reg. 114/99, the court has the discretion to permit a party whose pleadings are struck to participate in a more limited manner, she required the respondent to serve a copy of her endorsement on the appellant.

[3] The uncontested trial proceeded before Whitten J. on December 1, 2020. Whitten J. made a final order dealing with the issues of equalization, child support, s. 7 expenses and costs. In particular, with respect to equalization, Whitten J. ordered that $37,100 be payable to the respondent by the appellant’s pension provider in full satisfaction of his one-half claim to the appellant’s pension during the course of the marriage, and that the appellant pay the respondent the sum of $79,348.59 by way of equalization. The appellant did not attend the uncontested trial.

[4] After she received a copy of Whitten J.’s endorsement, the appellant brought a motion under r. 25(19) of the Family Law Rules, seeking to change the final order “on the ground of misrepresentation and concealment of facts by [Mr. Csizmazia], and on the ground that the order [would] cause significant miscarriage of Justice”. Rule 25(19) provides for a motion to change an order that, among other things, (a) was obtained by fraud; or (d) was made without notice. The respondent brought a cross-motion for an order that the appellant be prohibited from filing further motions.

[5] The motions were heard in writing. The review judge dismissed the appellant’s motion. He rejected the appellant’s evidence that she was not aware of the date of the uncontested trial, accepting instead the evidence that she had been served personally with a copy of Chappel J.’s endorsement. He also noted that the property issues were moot because the appellant was bankrupt. He granted the respondent’s motion and ordered that the appellant was prohibited from bringing any further motions on the financial issues in the proceedings until all costs orders against her were paid in full, or with leave of the court.

[6] The appellant makes one argument in this appeal: that the reasons of the review judge are inadequate to permit appellate review. The appellant contends that the review judge failed to address her submission that Whitten J.’s findings and ruling were based on fraud committed by Mr. Csizmazia at the uncontested trial.

[7] In her affidavit sworn December 23, 2020 in support of the review motion the appellant stated, at para. 14:

…[Mr. Csizmazia] made several amendments to his equalization claims radically different to the position he pleaded at the time my pleadings were struck off. [He] therefore had a new case on Equalization upon which the court has not given me opportunity to defend.

[8] At para. 15 the affidavit lists some of the changes the respondent was alleged to have made when he filed a revised net family property (“NFP”) statement before trial that, according to the appellant, showed different amounts for items such as the parties’ respective premarital deductions. The record on appeal contains what appears to be a copy of Mr. Csizmazia’s NFP sworn in October 2020, but does not contain any other documents in support of an allegation of fraud, or for that matter in support of the allegations in paras. 14 and 15 of the appellant’s affidavit.

[9] During the hearing of the appeal, the panel requested and was provided with copies of the parties’ written submissions that were before the review judge. Although the bulk of her submissions dealt with her alleged lack of notice of the uncontested hearing, the appellant asserted that paragraphs 14 and 15 of her affidavit “made specific allegations of misrepresentation of facts, which amounted to fraud [and] those paragraphs were uncontradicted by [Mr. Csizmazia]”. According to the appellant’s counsel on appeal (who was not her counsel in the court below), the issue of fraud was clearly before the review judge, whose reasons are deficient because he failed to deal with it.

[10] We disagree. In our view the reasons of the review judge are sufficient and clear. Contrary to the appellant’s argument, the review judge did not overlook her assertions about the respondent’s changes to his NFP statement, which she had characterized as fraud in her written argument. Rather, he observed that the financial issues were moot, because of the appellant’s bankruptcy.

[11] The appellant filed for bankruptcy on March 18, 2020. The effect of the bankruptcy is that the appellant’s property, including her equalization claims in the family law proceedings, vested in her trustee, and she has “cease[d] to have any capacity to dispose of or otherwise deal with” such property: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”), ss. 21 and 71. By order dated September 15, 2020, Bale J. lifted the stay of proceedings pursuant to s. 69.3 of the BIA to permit the respondent to establish the value of his claim against the appellant, and prohibited the enforcement of the claim without further order, except in relation to the division of the appellant’s pension for the purposes of equalization. This order is in the appeal record, and was before the review judge, having been attached as an exhibit to the appellant’s December 2020 affidavit.

[12] It was unnecessary for the review judge to address the appellant’s specific allegations about the changes to the respondent’s NFP before the uncontested trial when her property, including her property claims in the litigation, had vested in the trustee upon her bankruptcy, and she had no further rights with respect to equalization – whether by asserting or defending an equalization claim.

[13] For these reasons the appeal is dismissed. The appellant shall pay the respondent’s costs of the appeal on a partial indemnity basis fixed in the inclusive amount of $2,500.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“E. Ria Tzimas, J. (ad hoc)”