CITATION: Iturriaga v. Iturriaga, 2024 ONSC 3731
DIVISIONAL COURT FILE NO.: DC-24-1547-00
DATE: 20240702
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Fitzpatrick, O’Brien and Cullin JJ.
B E T W E E N:
MARY ANN ITURRIAGA
A Feldstein, for the Applicant/Respondent on Appeal
Applicant/Respondent on Appeal
- and -
JAIME E. ITURRIAGA
M. Tubie, for the Respondent/Appellant on Appeal
Respondent/Appellant on Appeal
HEARD: June 26, 2024
Fitzpatrick J. (Orally)
[1] This appeal arises from a family law matter. The Appellant, Jamie E. Iturriaga, (Jamie) appeals the decision of Justice D. A. Jarvis dated November 10. 2023 (the “Decision”). The Decision granted summary judgment to the Respondent Mary Ann Iturriaga (“Mary Ann”) for the amount of $193,596.50 together with related relief.
Background
[2] Jamie and Mary Ann were married for twenty-three years. They had two children who were both adults by the time the matter came on before Jarvis J. and therefore played no part in the Decision. The parties separated in April 2010. The parties executed a separation agreement in January 2011.
[3] Following the execution of the separation agreement there were disputes between the parties about division of their assets. Mary Ann commenced an application in 2015 to deal with various disputes. The litigation went through a series of conferences. The history of the litigation was particularized in the Decision in paragraph 3. On this appeal Jamie admits the facts as set out by Jarvis J. at paragraph 3 of the Decision.
[4] By the time the matter was placed before Jarvis J. on motion for summary judgment Mary Ann sought an order related to only one issue. It was the matter of the division of a joint TD Waterhouse Account (the Account).
[5] On this appeal, Jamie admits Mary Ann was entitled to an equalization of the Account. However, Jamie takes exception with the Decision as he argues there was a genuine issue for trial as to the quantum to which Mary Ann was entitled for the Account. Jamie argues that as the result of Rule 16(7) of the Family Law Rules he was entitled as of right to a trial of the issue of the quantum of Mary Ann’s entitlement.
[6] I disagree.
[7] The Decision arose from a motion for summary judgment. Summary judgment procedure is governed by the provisions of Rule 16 of the Family Law Rules. Rule 16(6) provides;
(6) if there is no genuine issue requiring a trial of a claim or a defence, the court shall make a final order accordingly. (emphasis added)
[8] In the course of the application, and the procedures leading to the motion for summary judgment, Mary Ann had served a request to admit on Jamie. It is undisputed that Jamie failed to respond to the request to admit.
[9] There were a number of paragraphs of the request to admit that Jarvis J. referred to in making the Decision. In my view, one paragraph is particularly significant. It was paragraph 40 which read;
- The value of the TD Waterhouse Account #7W3772 as of January 17, 2011 was $387,193.01. Ms. Iturriaga, as a joint owner of the account at the time the TD Agreement was signed, is entitled to 50% of the value of same, being the sum of $193,596.50.
[10] The Decision relied on Rule 22 of the Family Law Rules in respect to the impact of a request to admit. Rule 22(4) provides;
(4) The party on whom the request to admit is served is considered to have admitted for the purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response within 20 days.
[11] Despite taking the position on the motion that he may not have been served, counsel on this appeal admits Jamie was indeed properly served with the Request to Admit. The other arguments made by Jamie on this appeal concerning the impact of the Request to admit, fail to address the central fact admitted by Jamie; that Mary Ann was entitled to half of the Account at the date of separation and as per paragraph 40 of the Request to Admit that amount was $193,596.50.
[12] The appellant argued, relying upon the decision in Furgiuele v. Don Casselman Global Enterprises, 2013 ONSC 7032 that he was not obliged to respond to the request to admit. I disagree and find that decision is distinguishable from the circumstances present in this case.
[13] The Decision found that when the parties signed their Separation agreement there was $387,193.01 in the Account. It was a joint account. By operation of law, in addition to the provisions of the Family Law Act providing spouses with an entitlement to equalize their property, Mary Ann as joint owner was entitled to half of what was in the account. Half of that amount was $193,596.50. As a result, Jarvis J. found at paragraph 19 of the Decision;
“There is no genuine issue; the husband owes the wife $193,596.50 from and after December 31, 2010”.
[14] This is an important finding on a motion for summary judgment. It was amply supported by the evidence, including an NFP statement that clearly showed $130,000 of the Waterhouse Account being attributed to Mary Ann, for the purpose of the equalization calculation and her evidence that she did not receive these funds following the signing of the agreement.
[15] If there is no genuine issue for trial Rule 16(6) allows the Court to grant judgment.
[16] The Appellant argues that, pursuant to Rule 16(7) of the Family Law Rules, Jarvis J. was required to refer this issue for trial as the only genuine issue in dispute was the amount to which the respondent was entitled. He submits that Jarvis J. committed an error of law in the statement in paragraph 20 which says:
- Even if there should be a genuine issue for trial, no trial is warranted. The evidence is that for years, the husband has delayed dealing with the wife's complaints that she was never paid the equalization payment to which the parties agreed, and, in essence, she was compelled to bring two Applications to enforce her contractual and ownership rights. It is not an unreasonable inference that the husband has done procedurally little to set aside the Kaufman Order because that serves his financial interests. He is not credible. He complains, for example, about service of the Request when the evidence is clear and uncontradicted that valid service was made on his lawyer of record. He had his brother- in-law approach the wife to release her interest in the Waterhouse account in circumstances where the court suspects that the husband took advantage of the wife's uncontradicted evidence of her historical reliance on his handling of the parties' family finances. The document she signed did not properly disclose the name of the account. He misrepresented the purpose for the release.
[17] The Appellant submits this indicates a mindset of the Court that is confused and throws into question the primary decision in paragraph 19 of the Decision that there was no genuine issue for trial.
[18] In my view what Jarvis J. was doing in paragraph 20 was engaging not in an error of law, but rather in the second step of the process mandated by Hryniak v. Mauldin 2014 SCC 7 (Hryniak) That process requires the judge to determine if they are able to use their powers to assess credibility and the evidence to determine if a trial can be avoided. This process also involves a consideration if the use of these powers are not against the interests of justice. The use will not be against the interests of justice if they lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (para 66 of Hryniak).
[19] Further, at paragraph 19 of his decision, Jarvis J. had already concluded there was no genuine issue for trial at the first step of the Hryniak analysis. This conclusion was well-founded considering the request to admit and other evidence before the court. In all the circumstances, this argument of the Appellant must fail.
[20] The court will intervene on an appeal from an order of a judge only where the judge made an error of law or a palpable and overriding error of fact or mixed fact and law. (Housen v. Nikolaisen, 2002 SCC 33). Where a judge has made an order in the exercise of judicial discretion, the court will intervene only if the exercise of the judge’s discretion was based on a wrong principle, a failure to consider a relevant principle, or a misapprehension of the evidence: Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, 118 O.R. (3d) 81, at para. 30.
[21] The case was a straightforward one that was appropriately, efficiently and effectively dealt with by the motions judge.
[22] In my view, Jarvis J. made no error of law or any palpable and overriding error of fact or mixed fact and law in the Decision. The appeal is dismissed with costs payable forthwith by Jamie to Mary Ann fixed in the amount of $14,000 inclusive of HST and disbursements as agreed by the parties.
Fitzpatrick J.
I agree
O’Brien, J.
I agree
Cullin, J.
Released: July 2, 2024
CITATION: Iturriaga v. Iturriaga, 2024 ONSC 3731
DIVISIONAL COURT FILE NO.: DC-24-1547-00
DATE: 20240702
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Mary Ann Iturriaga
Applicant/Respondent on Appeal
- and –
Jaime E. Iturriaga
Respondent/Appellant on Appeal
ORAL REASONS FOR DECISION
Fitzpatrick J.
Date of Reasons for Judgment: June 28, 2024
Date of Release: July 2, 2024