Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220527 DOCKET: C69593

Benotto, Zarnett and Copeland JJ.A.

BETWEEN

Stewart Wilson Respondent (Appellant)

and

Sara Fatahi-Ghandehari Applicant (Respondent)

Counsel: Paul Robson, for the appellant Jerald Mackenzie, Jerald Mackenzie and Rocco G. Scocco, for the respondent

Heard: May 13, 2022

On appeal from the order of Justice William M. LeMay of the Superior Court of Justice, dated May 26, 2021.

Reasons for Decision

[1] Since their separation in 2014, Ms. Fatahi-Ghandehari and Mr. Wilson have been embroiled in multiple actions in family, corporate and bankruptcy law. There are at least nine reported decisions, multiple interim decisions in two jurisdictions, and four appeals to this court. They were assigned three sequential case management judges: Price J., Daley J., and LeMay J.

[2] Because Mr. Wilson failed to comply with orders in the family law proceedings, Ms. Fatahi-Ghandehari commenced contempt proceedings before Price J. in 2016. She also requested an order requiring Mr. Wilson to preserve property. Mr. Wilson opposed the preservation order, arguing that it was unnecessary because the outstanding marriage contract eliminated her entitlement to equalization.

[3] On November 3, 2016, Price J. ordered preservation of Mr. Wilson’s property. He found that the marriage contract was not applicable:

The marriage contract deals with a house and a corporation that the parties no longer own. Additionally, I find that the Marriage Contract is not applicable…

[4] On October 17, 2017, Price J. found that Mr. Wilson had deliberately and willfully breached court orders. He was found in contempt and subsequently sentenced. Both decisions were appealed. Timelines and conditions were not met, so the appeals were not heard, and the underlying orders became no longer appealable.

[5] In 2018, Price J. struck Mr. Wilson’s pleadings in the family law action for failure to abide by court orders. The undefended trial took place before LeMay J. in 2021 and orders, including for support and equalization, were made.

[6] Justice LeMay continued to case manage the other actions in which Mr. Wilson sought to raise the existence of the marriage contract. Justice LeMay permitted the parties to file written submissions as to the validity of the marriage contract.

[7] Mr. Wilson contended that the issue remained outstanding. Justice LeMay found otherwise. He concluded that the issue of the marriage contract was an integral part of Price J.’s reasons, and in any event the disposition of the family law proceedings (which granted relief inconsistent with the marriage contract) finally disposed of that issue. He said this at para. 20:

There are consequences that flow from my finding that the marriage contract was clearly raised by the pleadings in the matrimonial litigation. It was an issue between the parties in the matrimonial litigation and, even if Price J.’s decision is not dispositive of the issue, the striking of Mr. Wilson’s pleadings and the subsequent disposition of the matrimonial litigation is dispositive of any claims Mr. Wilson may have with respect to the marriage contract. In other words, the issue is subsumed into the disposition of the family law case.

[8] He also found that it would be an abuse of process to allow the marriage contract to be raised, at para. 32:

The reason that abuse of process is the doctrine that is most applicable to this case has to do with the circumstances of this case. The litigation in this case is complex. Permitting issues that are central to one part of the case to be re‑litigated in another related proceeding by a party that lost the issue the first time is the essence of an abuse of process. Similarly, allowing a party to continually change their position on an issue during the course of litigation depending on what motion was before the Court would also be an abuse of process. There must be finality in litigation.

[9] Consequently, he concluded that Price J.’s finding that the matrimonial contract is of no force or effect continues to apply to all the litigation between the parties.

[10] On appeal, the appellant submits that the validity of the marriage contract was determined in the context of the contempt proceedings, and he did not contemplate that Price J. would determine the issue which therefore should remain open.

[11] We do not accept his submissions.

[12] We agree with the case management judge that it would be an abuse of process to raise the issue of the marriage contract in the remaining proceedings. The appeal to this court of the Price J. order of November 3, 2016, was abandoned. The undefended trial judgment was not appealed. If Mr. Wilson were allowed to raise the marriage contract at this point, it would effectively be an end-run around the consequences of the contempt order and the disposition of the family law proceedings. Mr. Wilson is bound by his decisions concerning an appeal.

[13] The appeal is dismissed with costs payable to the respondent in the amount of $12,000 plus HST.

“M.L. Benotto J.A.”

“B. Zarnett J.A.”

“J. Copeland J.A.”