COURT FILE AND PARTIES

COURT FILE NO.: FS – 13 - 00387154

DATE: 20140821

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Darren Kwik, Applicant

AND:

Theresa Occhiuto, Respondent

BEFORE: Kiteley J.

COUNSEL:
Alison Book, for the Applicant

Jennifer A. Treloar, for the Respondent

HEARD: August 21, 2014

ENDORSEMENT

[1] On December 16, 2013, the wife and her counsel and the husband without counsel attended at a settlement conference with Czutrin J. They entered into a written agreement which was incorporated into a court order that was final in respect of financial issues and on an interim basis with respect to access.

[2] This is a motion by the husband for various orders of which the key relief sought is for an order that paragraph 9 of the consent order of Czutrin J. dated December 16, 2013 be set aside pursuant to rule 59.06(2) of the Rules of Civil Procedure. Paragraph 9 is as follows:

On a final basis, the Respondent will pay to the Applicant the sum of $116,369.70 in full and final satisfaction of all claims either party may have to an equalization of their net family properties, including any interest the Applicant may have in the matrimonial home located at 35 Westholme Avenue, Toronto, Ontario, M6P 3P9. The Respondent shall pay the above equalization amount to the Applicant on or before January 30, 2014.

[3] The wife made that payment as required.

[4] The husband does not attack paragraph 10 of that order but it will become relevant below. It is as follows:

On a final basis, the Applicant will cooperate in obtaining a Family Law Value of the Respondent’s pension. The Respondent shall pay an amount equal to one quarter of the Family Law Value of the Respondent’s pension, less 20% notional income tax, to the Applicant and transfer an equal amount to an RESP for Damian.

[5] On May 22, 2014, the wife paid to the husband the sum of $18,778.52 pursuant to paragraph 10.

[6] The court may set aside a consent order on the grounds of fraud or facts that arose or were discovered after the order was made, or on the same grounds as setting aside a contract. In order to set aside a judgment on the basis of fraud, the husband must prove fraud on a balance of probabilities; the proven fraud must be material; the evidence of fraud must not have been known at the time of trial to the party seeking to rely on it; the party alleging fraud must have exercised due diligence; delay will defeat a motion to set aside a judgment. An order pursuant to rule 59.06 of the Rules of Civil Procedure is discretionary. Finck v. Henry [1999] O.J. No. 2757.

[7] The husband challenges various elements of the net family property statement that was the basis upon which the equalization payment was established. First is the value of the matrimonial home. I am not persuaded that the husband has established fraud or intentional misrepresentation with respect to the matrimonial home. The husband now says that the value was higher. As the email in December 2012 indicates, he had formulated a view as to the value of the matrimonial home. He took steps to inform himself as to the value of the jointly owned home. He failed to fulfill his obligation to demonstrate due diligence.

[8] Second is the value of the condominium. In 2005, the wife signed an agreement to purchase a condominium unit. Prior to marriage in 2008, she had paid a deposit of $15000 but title had not yet transferred to her. The closing of the agreement of purchase and sale took place in March 2010. The statement of adjustments indicates that the purchase price was $219,990. Later in March 2010, she entered into an agreement to sell her unit. When it closed, the sale price was $312,750. The parties separated in November 2012. For purposes of attributing a value to her interest in the unit at July 2008, the wife made certain investigations. Her affidavit explains the basis upon which she believed that the value of $67,900 was reasonable. I am not persuaded that the husband has established fraud or intentional misrepresentation with respect to the matrimonial home.

[9] Third is the promissory note. The husband had resisted acknowledging that debt but, following further disclosure from the wife in her affidavit sworn August 18, 2014, as of his counsel’s submissions today, it is accepted.

[10] Fourth is the Cantech debt in the amount of $12,300. The husband continues to resist that that debt has been documented. I agree that the documentation is less formal than one would expect for a debt of that amount. However, the husband’s conjecture and suspicion with respect to this debt does not establish fraud or intentional misrepresentation.

[11] Fifth is the value of the Honda civic. The wife had provided auto trader comparables in a range of $12000 to $16000 and she relied on $12000. In her affidavit she explains why she relied on the lower values. In the case of the car, the husband’s email makes it clear that in December 2012 he had made his own inquiries and therefore had knowledge of a value higher than $12,000. His failure to pursue a higher value on an item with which he would be expected to have such knowledge and did have knowledge means that the wife asserting a value of $12000 is not fraud or intentional misrepresentation.

[12] Sixth is the missing bank accounts. It is the case that the wife omitted three bank accounts in the net family property statement: $6.61; $4.31; and $3224.18. However, she had disclosed each of them in her disclosure brief. In reply submissions, counsel for the husband conceded that the failure to include them in the NFP statement was a mistake. I observe that even that mistake represented less than 1% of her net family property.

[13] Last is the household contents. The consent order is silent on contents. The evidence of the parties differs as to whether the husband had removed items at the time of his departure from the home. In her affidavit sworn August 18, 2014, the wife deposed that at the time of the consent order, she had agreed that he would have the armoire and the dining rooms chairs and she has since tried to get him to come by and pick them up and he has not done so. There is no basis to challenge the consent order.

[14] In summary, the husband has failed to establish the elements of fraud with respect to any of the items in the net family property statement that he challenges. As indicated above, the court has discretion whether to grant relief under rule 59.06. In this case, there are two reasons not to exercise that discretion. The first is that the husband waited until the day after he had received the second payment to which he was entitled before launching this motion. His notice of motion and affidavit are dated May 23, 2014. He received the payment on account of the pension pursuant to paragraph 10 on May 22nd. Having received the first payment in January, if he then began his investigations and inquiries about the consent order, he had a duty to inform the wife and not wait until he had received all of the benefits of the agreement before challenging it. Second, the husband challenges the disclosure by the wife; but his disclosure was lacking. He failed to comply with the order made by Horkins J. dated July 29, 2013. At the time of the consent order, he had not disclosed a value for his own company yet he now indicates the value at $40,000, an amount which has a material impact on the equalization calculation. The motion by the husband pursuant to rule 59.06 is dismissed.

[15] As an alternative, the husband asks for an order pursuant to rule 25(19) of the Family Law Rules changing paragraph 9 of the consent order by substituting different numbers and leaving the wife being required to pay him $69506.85. Having dismissed the motion pursuant to rule 59.06(2), I need not deal with that alternate request. However, I would not have granted that part of the motion in any event because counsel for the husband agreed that it would be premature to make such an order before other steps (including an appraisal of the matrimonial home) which I also will not order.

[16] Having dismissed the key element in the amended notice of motion, and counsel having agreed with respect to the RESP, I dismiss the entirety of the motion.

[17] Ms. Treloar asks for costs on a substantial indemnity basis in the amount of $9916. Ms. Book does not challenge the amount of time spent by Ms. Treloar. She takes the position that the husband does not have the ability to pay given that he is paying child support in an amount that she says exceeds the guidelines. She also points out that Ms. Treloar has included $350 on account of an adjournment request that the husband made in July that was granted.

[18] I agree that the costs should be reduced by the attendance on the adjournment. However I see no reason to otherwise modify the request for costs. Very serious allegations of fraud and intentional misrepresentation were made and were not found to be proven. In that circumstance, costs on a substantial indemnity are often the case. I see no reason to depart from that norm. As indicated above, in the last 8 months, the husband has received substantial amounts of money and consequently he had the ability to pay such costs at least at the time when he launched this motion in May.

[19] As indicated above, the consent order dated December 16, 2013 is interim with respect to access. And the order for child support is subject to a motion for change. I would not expect any outstanding costs order to be an impediment to other such proceedings.

ORDER TO GO AS FOLLOWS:

[20] The motion by the husband is dismissed.

[21] The husband shall pay costs fixed in the amount of $9600.

[22] The order as to costs is not an impediment to any motion which the husband might bring with respect to access or child support.

Kiteley J.

Date: August 2014