COURT FILE NO.: FS-21-99557-00
DATE: 2025-02-11
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
Mirelica Skrak, Applicant
– and –
Branko Skrak, Respondent

Martine Ordon, for the Applicant
Renata Kirszbaum, for the Respondent

HEARD: February 10, 2025

ENDORSEMENT
Ranjan K. Agarwal

I. INTRODUCTION

1In March 2024, I released reasons in the trial of this application. See Skrak v. Skrak, 2024 ONSC 1574. The respondent Branko Skrak now moves for two further orders that he says arise from my judgment. First, the parties sold the matrimonial home. Their lawyer is holding $15,000 from the sale proceeds in trust. Branko argues that he’s entitled to most of these funds. Second, there was a safe in the matrimonial home. Branko says all of the contents, which have since been moved to a safety deposit box, belong to him.

2The applicant Mirelica Skrak says that I’m functus to hear this motion. Alternatively, Mirelica argues that she’s entitled to all the monies in trust and half of the contents of the safe.

3For the reasons discussed below, I find that I have jurisdiction to hear this motion. But, for the reasons discussed below, I can’t decide it on the trial record or the affidavit evidence filed for the motion. Instead, the parties will have to start a fresh proceeding to resolve these two issues.

II. BACKGROUND

A. Facts

4One of the issues at trial related to a joint line of credit. Branko acknowledged that he withdrew $30,000 from the LOC after separation. He agreed to repay this amount. I made an order accordingly. See Skrak, at para 30(f).

5Another issue was whether Mirelica was refusing to return Branko’s jewelry and cash, which Branko says was stored in a safe in the garage. This issue was litigated as a net family property deduction. I found that Branko failed to prove that he owned this jewelry or cash on the separation date. See Skrak, at paras 60-61.

B. Litigation History

6In August, the parties came to court for settlement of the order. Branko sought terms related to the issues before the court. I found that the issues raised by Branko were not mistakes or undecided issues. They were issues that arose after the trial. See Skrak v. Skrak, Court File No FS-21-9557 (23 August 2024), at para 6. As a result, I settled the order without the two terms, and the registrar signed and entered it.

7That said, I gave directions to Branko: if he believed there were grounds under the Family Law Rules, r 25(19), to change the order, he could bring a motion. I directed the motion be heard by me. The parties don’t object to me remaining seized of the matter.

C. Preliminary Issue: Is the Court Functus?

8At common law, trial judges have a broad discretion to rectify a mistake on “outcome-determinative matters” in an order. See SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675, para 69.

9After the order is entered, trial judges can only amend the order if “authorized by statute, to correct a drafting slip-up or error in expressing their manifest intention, or if the matter has not been heard on its merits”. See Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, para 33.

10The Family Law Rules expressly state that a court may change an order for fraud, mistake, or lack of notice. See Family Law Rules, r 25(19). The wording of the rule presumes that the order has been signed and entered. That said, rule shouldn’t be used to empower the court to “revisit, reopen and reargue a case” or allow the court to hear an appeal of its own decision. See NS v. RM, 2020 ONSC 3359, para 38.

11Together, I read and understand the caselaw and rule 25(19) to mean as follows:

• before the order is signed, the trial judge can rectify mistakes on outcome-determinative matters
• after the order is signed, any judge can change an order if there’s evidence of fraud, a mistake that undermines the order’s “manifest intention”, there was a lack of notice, or the court didn’t deal with an outcome determinative matter that was before the court

12Branko concedes that none of the grounds under rule 25(19) apply here. But he argues that the primary objective of the rules (to deal with cases justly) is met by me deciding these two issues now.

13At first, Mirelica argued that I’m functus. Branko agrees. Instead, he’s invoking the court’s case management powers. Mirelica says that I shouldn’t exercise my discretion in this way.

14As I explain below, I can’t determine either of the substantive issues on the record before me. But I agree with Branko. The primary objective is promoted through active case management. See Family Law Rules, r 2(5); DG v. AF, 2015 ONCA 290, paras 11-15. The issues, at least facially, arise from my trial reasons. In different circumstances, by seizing myself of the case, I may have been able to ensure that the parties had “reasonably quick access to justice before a judge who is familiar with the relevant facts and with the parties”. See DG, at para 15.

III. ANALYSIS AND DISPOSITION

A. Issue #1: Whether Branko Is Entitled to Most of the Trust Funds?

15On the date of separation, there was $15,224.26 owing on the LOC. After separation, Branko withdrew $30,000. Branko paid the minimum interest on the LOC. At trial, the parties agreed that he was liable for this amount. I wasn’t asked to make an order regarding the rest of the balance. The parties agree that since it’s a joint LOC, they’re each liable for half of the remaining balance ($7,612.13).

16After my reasons were released but before the matrimonial home was sold, TD Bank debited $26,716.33 from the LOC to pay property tax arrears to the City of Mississauga.

17When the matrimonial home was sold in August 2024, the parties had to pay off the LOC (including the amount owing at separation, Branko’s debit, and the property tax arrears). The parties each paid half of the outstanding balance of the LOC ($33,960.61) from the sale proceeds. The parties left $15,000 in the lawyer’s trust account for resolution of this issue.

18Branko argues that but for the tax arrears, he would owe $15,000 to Mirelica (she, in effect, paid half of the $30,000 he withdrew after separation). But he submits that she’s liable for the tax arrears. Paragraph 14 of the final order states: “Mirelica’s claims for a restraining Order, Mirelica’s claim that Branko pay half of the carrying costs of matrimonial home and Branko’s claim for occupation rent are hereby dismissed.” At paragraph 97 of my reasons, I dealt with Mirelica’s claim for reimbursement for the carrying costs:

In her closing submissions on occupation rent, Mirelica argues for half of the carrying costs of the matrimonial home, including property taxes, insurance, repairs, and utilities. This claim wasn’t made in Mirelica’s application or her draft order. No submissions were made on the amount being claimed. As a result, I dismiss this claim.

19Branko argues that these paragraphs are a finding that Mirelica is liable for the property taxes.

20To this, Branko adds $2,283.79 in interest. From 2019 until the LOC was closed in June 2024, Branko paid all of the outstanding interest. He says that Mirelica now owes him interest on her half of the balance at separation.

21As a result, he concludes that he should get $14,090.83 from the monies held in trust.

22In response, Mirelica submits that: (a) Branko, as a beneficial owner of the matrimonial home, is liable for half of the property taxes; (b) she paid a disproportionate amount of interest on the LOC; and (c) Branko’s calculations don’t make sense.

23Branko and Mirelica separated in October 2019. He was charged with a criminal offence. He was barred from the matrimonial home until August 2020. He never moved back. Mirelica remained in the matrimonial home until it was sold in August 2024. She paid all of the home’s carrying costs, including the property taxes.

24At trial, for the first time in closing submissions, Mirelica argued that Branko should pay half of the carrying costs. I dismissed this claim because it wasn’t pleaded and there was no evidence or submissions about the amount of damages. Mirelica made this argument in response to Branko’s claim for occupation rent.

25Paragraph 14 of the order and paragraph 97 of my reasons aren’t a finding that Mirelica is liable for the property taxes on the matrimonial home. I made no findings of fact or conclusions about whether Mirelica was liable for all of the carrying costs of the matrimonial home. This issue, simply put, wasn’t before the court.

26Given that this issue wasn’t before the court at trial, and this motion was argued on affidavits (without out-of-court cross examinations or oral evidence), I can’t now decide whether Mirelica should be liable for all of the property taxes. On one hand, she paid the taxes for several years. I infer that she did so, in part, because her position was that Branko had no interest in the home. And the property taxes were in arrears—if Mirelica had been paying them when they came due, this issue wouldn’t have arisen. On the other hand, Branko sued for a 50 percent interest in the home, and has now received half the sale proceeds. The sale price was informed, in part, by Mirelica’s maintenance and upkeep over the last few years. At trial, the parties accepted that they were jointly liable for the balance of the LOC debt.

27As a result, the parties will have to start a fresh proceeding. Though I appreciate that this decision will delay final resolution of this matter and increase the parties’ costs, it would be unfair for me to decide this issue on the record before me.

28As for the interest, this issue could’ve been raised in the case. But Branko never sought reimbursement of the interest. It’s not open for him to revisit issues on a post-trial motion. The parties will have to litigate this issue fresh.

B. Issue #2: Whether Branko Is Entitled to the Contents of the Safe?

29At trial, Branko argued that his jewelry and cash were in a locked safe in the home’s garage. Mirelica’s evidence was that she never opened the safe because she didn’t know the combination. Branko responded that Mirelica had access to the safe because she also stored jewelry there. Mirelica denied doing so.

30Branko argued that Mirelica’s valuation date assets included $50,000 for his jewelry. He maintained that the jewelry belonged to him, but that it should be valued as part of Mirelica’s property because it was locked away in the matrimonial home and he couldn’t access it.

31After judgment, the parties opened the safe, inventoried the contents, and put them into a joint safety deposit box. The parties agree that it was all Branko’s jewelry in the safe. Branko seeks an order that he’s entitled to all the safe’s contents. Mirelica’s position is that she’s entitled to half the contents or their value.

32Branko argues that the jewelry is his, so it should be returned to him. He acknowledges that he didn’t seek an order for access to the safe before trial because he assumed that Mirelica would empty the safe despite a court order. But now that the safe has been opened, he submits that he’s proven his claim for the jewelry.

33Mirelica responds that the jewelry has to be subject to equalization, whether that’s through an equalization payment or division of the jewelry. She argues that if Branko’s position is accepted, then the value of the jewelry should have been added to his valuation date assets, which would increase her equalization payment by one-half of that value. Branko responds that I am functus to revisit the equalization payment order.

34I can’t decide this issue on a motion. First, I don’t have any evidence about the contents or their value. Second, there’s an evidentiary dispute about whether Mirelica accessed the safe after the trial judgment.

35Further, I didn’t hear any substantive submissions on the relationship between equalization and the post-trial discovery of an asset. On one hand, if the jewelry is Branko’s property on the valuation date, there’s some appeal to Mirelica’s submission that the equalization regime still applies. On the other hand, Branko may have defences, including that the issue is res judicata or a limitation period.

36Like with the LOC, the parties will have to start a fresh proceeding to determine this issue.

IV. CONCLUSION

37I still believe that the family court can and should resolve post-trial issues arising from the interpretation or enforcement of a final order, especially where the issues arise because of the trial judge’s judgment. But, here, the issues are only tangentially connected to the order. They are otherwise new issues arising on fresh evidence.

38The parties will engage in meaningful discussions and negotiations respecting the costs of this trial. If they can’t resolve costs, any party seeking costs will serve, file, and upload to Case Centre costs submissions (1000 words), any relevant offers to settle, and their bill of costs by February 14, 2025, 4pm. The other party’s responding submissions (1000 words) will be served, filed, and uploaded to Case Centre by February 19, 2025, 4pm.

Ranjan K. Agarwal