Da Costa v. Da Costa, 2015 ONSC 215

COURT FILE NO.: FS13-388590

DATE: 20150113

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Manuel Augusto Da Costa, Applicant

AND:

Jacinta de Araujo Da Costa, Respondent

BEFORE: Justice F. McWatt

COUNSEL: Jan D. Weir, for the Applicant

Avy Jordan Ben-zvi, for the Respondent

HEARD: January 8, 2015

ENDORSEMENT

[1] Manuel Da Costa brings a motion for summary judgment to dismiss the Respondent wife’s claim for Corollary Relief. The Applicant/husband makes the assertion that Mrs. Da Costa has provided no evidence of a single undisclosed asset before separation and has provided no evidence that particular assets were undervalued so as to have created a fraud prior to her signing of the separation agreement. Therefore, she is not entitled to set aside the separation agreement the parties entered into on August 12, 2010.

[2] The motion cannot proceed today for the following reasons.

[3] The parties were married May 28, 1977. They separated August 30, 2008. The couple’s two children are independent and self-supporting. In March, 2010, the parties agreed to mediate then arbitrate all outstanding issues in the court proceedings. Mr. Stephen Grant was appointed mediator / arbitrator.

[4] Three mediation sessions were held on April 20, April 21 and August 12, 2010 before the separation agreement was reached.

[5] The Respondent/wife claims she was not treated fairly during the arbitration process and the arbitrator failed to act in accordance with the Family Law Act.

[6] She claims that soon after the separation agreement was signed, she discovered that the applicant was using large amounts of money from their company, Viana Roofing, to do renovations at a newly purchased property which true value, she holds, was not disclosed at the time of signing the separation agreement. She has gone on to make other allegations about other properties which she accuses her husband of undervaluing at the time of their settlement.

[7] Mr. Da Costa takes the position, first, that the wife has presented no evidence of her estimate of the value of the assets she claims are undervalued other than her own statements. Second, she has not shown one property owned by the husband before separation that is not disclosed in the list of properties set out in the separation agreement.

[8] On August 7, 2013, Mr. Da Costa filed an application for divorce. Mrs. Da Costa filed the Answer to set aside the separation agreement. She contested the divorce.

[9] Mr. Da Costa proceeded by way of two motions. First, on May 29, 2014, he sought an Order pursuant to the Family Law Rule 12(6) to split his claim for the divorce from the corollary issues raised by his wife in her Answer and claim. A second motion, the one before me today, was scheduled for August 12, 2014 to deal with Mrs. Da Costa’s claims of fraud by way of summary judgment.

[10] On May 29, 2014, Justice Paisley refused to sever the divorce from the corollary issues.

[11] On August 12, 2014 Mrs. Da Costa sought an adjournment in order to file an amended Answer on the grounds there was a fraudulent concealment on her husband’s part. Mr. Da Costa opposed the adjournment, but the Motions Court judge granted her request on the condition the divorce application was severed from the summary judgment motion. The wife appealed to the Divisional Court.

[12] Justice Then granted leave to appeal the severance on November 27, 2014 because there was no evidence on the record that the Motions Court judge considered Rule 12 (6) of the Family Law Rules.

[13] There is no date set in the Divisional Court as yet for the hearing of the appeal.

[14] I am unable to determine whether the divorce is severed or not until the appeal is decided.

[15] Rule 16(2) of the Family Law Rules clearly states that if a claim includes a divorce, it may not be decided at a summary judgment motion. This motion cannot proceed before the Divisional Court ruling on the issue of the validity of the severance ordered on August 12, 2014.

[16] In order to get something accomplished today, counsel and I agreed to conduct a case conference. The wife has filed a motion, today, for disclosure from the husband. Counsel believe they are able to reach a Consent about that motion and about future procedure in this case.

[17] The parties may consider me seized of this matter, for now, to ensure a more streamlined procedure to final resolution or result. I am to be consulted about any upcoming motions, case conferences or issues to be resolved between the parties. I have given counsel my email address for this purpose. All communications shall be copied by counsel and placed in the court file.

[18] The parties shall book a return case conference before me to update the Court on: 1) The Divisional Court Ruling of the August 12, 2014 Motions Court decision to sever the divorce from the corollary relief; 2) Ongoing issues which I may help to resolve.

[19] Costs of today’s motion shall be dealt with at the summary judgment motion or, if there is no motion, on a return date agreed to by the parties.

McWatt J.

Date: January 13, 2015