NEWMARKET COURT FILE NO.: FC-18-55276
DATE: 20210419
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Maryna Hutsul Applicant
– and –
Dmitri Kostikov Respondent
Alexandra Abramian, for the Applicant
Dmitri Kostikov, Self-Represented
HEARD: April 1 and 9, 2021
SUPPLEMENTARY REASONS FOR JUDGMENT
MCKELVEY J.:
[1] Since release of my Reasons for Judgment in this application, both parties requested the opportunity to make submissions concerning errors that were made in my Reasons for Judgment. In a formal motion brought by the respondent, he seeks the following two orders:
- An Order to dismiss the Applicant’s Application with costs based on the fact provided in the supporting Affidavit or an order for a new Trial due to the errors and a need for corrections according to the supporting Affidavit
- Such further and other relief as this Honourable Court may deem just.
[2] Rule 25(19) provides that the court may, on motion, change an order that,
(a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[3] In my original Judgment, I noted that if there were any issues arising out of those Reasons for Judgment, I might be spoken to.
[4] The first issue raised by the applicant was how the net equity in the family home and the property located at 15 Michael Power Place was to be established. In response to this issue, I have ordered both parties to provide further information and documentation with respect to the MPAC assessment of the properties as well as details with respect to the encumbrances on the properties. A copy of my Endorsement in this regard is attached to these Reasons. I will hear further submissions in due course with respect to the net equity in each of these properties.
[5] The applicant also sought clarification of the amount to be deducted from the equity in the home at 15 Michael Power Place. At para. 42 of my original decision, I noted that the equity in the home at 15 Michael Power Place should be deducted from what the respondent owes to the applicant on account of the applicant’s interest in the other properties. However, it was my intention that the applicant would be entitled to 35% of the value for all the properties that were accumulated during the relationship including the property at 15 Michael Power Place. Thus, the amount of the deduction for the net equity in the home at 15 Michael Power Place should be 65% which will leave 35% in the equity of the home at 1 Michael Power Place in the hands of the applicant.
[6] There is also an error in my Reasons which is found at para. 40 where I state in relation to the home at 118 The Queensway North in Keswick that the down payment on closing of $70,650 was financed by a loan which was taken out from Mr. Kostikov’s line of credit and which was secured against the family home on Cherry Hills Road. I accept the respondent’s submission that there was no evidence at trial to support this assertion and I accept that the down payment for this property came from the respondent’s savings account as well as an unsecured line of credit as per his Affidavit on this motion at para. 14. Having said that, this does not lead me to change my conclusion that the applicant is entitled to a 35% interest in the proceeds of sale from 118 The Queensway North, Keswick as well as the other properties acquired during their relationship.
[7] This is because my decision was based on a joint family venture which does not depend on a finding of a direct contribution to the acquisition or maintenance of a property. The absence of a direct or indirect financial contribution to the 118 The Queensway North property does not lead me to alter my conclusion that there was an unjust enrichment in this case, nor does it lead me to alter my conclusion that there was a joint family venture. Finally, this mistake on my part does not cause me to alter my conclusion that the applicant should be entitled to a 35% interest in the properties accumulated during the relationship.
[8] My Reasons for Judgment already reflect the very modest contribution made by the applicant to the properties acquired generally. At paragraph 70 of my Reasons for Judgment, I noted that the respondent was mainly responsible for payment of the down payment on the family home, and was also primarily responsible for payment of the mortgage and property taxes on the family home. I also noted that the respondent was solely responsible for the down payment on the other properties as well as payment of the mortgage and property taxes. The fact that the property at 118 The Queensway North was not financed with a loan that was secured to the family home is in the overall context a very minor issue.
[9] The balance of the issues raised by the respondent on his motion do not satisfy me that a change in my Order is appropriate.
[10] In his supporting affidavit, many of the paragraphs reiterate arguments that were made in the final submissions at trial. For example, the respondent refers to the applicant’s financial statement where she failed to disclose her interest in the condominium at 15 Michael Power Place. This issue was addressed in my original Reasons at paras. 15-17 where I conclude that, “This lack of candor on the part of Ms. Hutsul caused me concern.”
[11] Numerous other paragraphs attempt to introduce new evidence and documents that were not before me at the time of my decision. There is no suggestion, however, that any of this information or documents were not available at the time of trial.
[12] For example, Mr. Kostikov sought to introduce evidence and documentation from his employer at Bruce Power in Kincardine with respect to the period of time that he was working in Kincardine. This evidence would have been available to him at the time of trial and I do not have any acceptable explanation as to why this evidence was not adduced during the course of trial.
[13] For the above reasons, I see no reason to vary the conclusions I reached in my original Judgment. The respondent’s motion to dismiss the applicant’s application and to make an order for a new trial is therefore dismissed.
Justice M. McKelvey
Released: April 19, 2021
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Maryna Hutsul Applicant
– and –
Dmitri Kostikov Respondent
SUPPLEMENTARY REASONS FOR JUDGMENT
Justice M. McKelvey
Released: April 19, 2021