Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20220214 DOCKET: M52933 (C69381)
Feldman, Pepall and Tulloch JJ.A.
BETWEEN
Iryna Antonyuk Applicant (Appellant/Moving Party)
and
Mykhaylo Antonyuk Respondent (Respondent/Responding Party)
Counsel: Iryna Antonyuk, acting in person Igor Yushchenko, for the respondent/responding party
Heard: in writing
Reasons for Decision
[1] This is a post-appeal motion under rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appeal from the decision of the trial judge was decided by this court by reasons dated October 25, 2021. [1] This court upheld the trial judge’s decision that, under s. 22 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the divorce of the appellant and respondent pursuant to a divorce decree granted in Ukraine dated October 23, 1998 is valid and recognized for the purposes of determining the marital status of the parties in Canada, and therefore, there was no basis to grant a Canadian divorce decree under the Divorce Act.
[2] Following the release of this court’s reasons, the appellant moved under r. 59.06(2) to set aside the order of this court and to give effect to a divorce order made under the Divorce Act, dated February 19, 2019, which was set aside by order dated March 22, 2019.
[3] The panel considered this motion in writing. The moving party requested an oral hearing, but the panel determined that one was not necessary: Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, 81 B.L.R. (5th) 191, at para. 14, leave to appeal to S.C.C. refused, 38507 (May 2, 2019); and 806480 Ontario Limited v. RNG Equipment Inc., 2014 ONCA 796, at para. 9. The panel reviewed all the materials filed on the motion, including the parties’ motion records; the moving party’s factums including the third “reply” factum, which states that it is intended to replace the factums previously filed on the motion; the responding party’s factum; and the responding party’s brief of authorities.
[4] Rule 59.06(2) provides:
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
[5] The appellant argues that this court’s order should be set aside on the basis of fraud or facts arising or discovered after it was made. The affidavit the appellant filed on this motion alleges no new facts or fraud discovered after the order was made. The issue of fraud in obtaining the Ukrainian divorce was addressed by the trial judge. The trial judge specifically found that the appellant had not alleged fraud, and that there was no evidence of fraud.
[6] The trial judge also confirmed that the appellant was not seeking any relief other than a divorce, and that if the foreign divorce was valid, the issue would be solved. She stated at para. 66 of her reasons:
[66] At the outset of trial, I specifically asked the Applicant if she was seeking any relief beyond the divorce. She told me she was not. The Applicant gave no evidence that any of her legal rights were impacted by the foreign divorce other than her ability to remarry. She acknowledged that if I made an Order finding that the foreign divorce was valid, that issue would be solved.
[7] The appellant relies on a recent decision of the Supreme Court of British Columbia, Kootenay Savings Credit Union v. Brar, 2021 BCSC 2027, in support of her motion. This decision, which relates to the characterization of a fraudulent conveyance of a residential farm property, was not a motion to set aside or vary an order and is not relevant to the appellant’s request to set aside this court’s order.
[8] The motion under r. 59.06(2) is dismissed with costs to the respondent of $2,500, inclusive of disbursements and HST.
“K. Feldman J.A.”
“S.E. Pepall J.A.”
“M. Tulloch J.A.”