Most people would consider it a relief to be awarded a decision on their behalf due to an uncontested trial. However, as one Ontario man recently discovered, an uncontested trial might not be the end of the road in all cases. The Ontario Court of Appeal ruled that after more than ten years following a divorce from his former wife, a new trial would be ordered.

The husband and wife involved in the case were separated in 2003 after 22 years of marriage. At the time of the separation they had two children who were not yet adults. When their divorce proceedings began in 2005 the husband sought an equalization of property and wanted to pursue the sale of the matrimonial home. The wife countered his application, seeking custody of their children as well as child and spousal support. The couple was divorced in 2006, but the couple’s claims for support, custody and equalization of property were not to be heard in court until 2007.

The 2007 and 2008 decisions

The wife failed to appear at the 2007 trial. Her brother, who attended the trial, told the court that the wife’s health prevented her from attending. The trial continued, and based on the evidence before the court, the judge awarded the husband exclusive possession of the matrimonial home in order to sell it. The wife was also ordered to make an equalization payment of $117,500.31. The judge also dismissed the wife’s child and spousal support claims. Lastly, the judge a costs award  totaling $40,000.

The wife brought a motion to set aside the final trial order, but it was dismissed when she failed to appear in court four months later, on March 27, 2008. The husband sold the matrimonial home seven years after the trial, keeping the proceeds of $538,000. He also garnished proceeds from his wife’s deceased mother, amounting to another $248,609.

It wasn’t until over ten years later that the wife filed for appeal of the original decision. She submitted that her mental and physical health made her incapable of attending. She asked for the court to set aside the final order of the 2007 decision and either rule on the issues or order a new trial.

The court had to determine three issues: whether fresh evidence should be admitted; whether the wife was incapable of attending the trial and her motion; and whether the court could issue a new decision on the issues, or issue a new trial.

The Fresh Evidence

The wife was looking to present evidence around her medical and financial history, including notes from her, her physicians and affidavits from a doctor and accountant. The court determined all of the evidence should be admitted because it satisfied the required criteria, namely:

  1. It could not have been provided before the trial
  2. It is credible
  3. It is conclusive of the main issue on appeal

The husband submitted that the only issue at trial should be whether the trial judge and motion judged erred in not adjourning the proceedings. However, the court disagreed, emphasizing that the previous judges involved could not have known about the fresh evidence.

Was the wife incapable of attending the 2007 and 2008 trials?

 The wife submitted that both mental and physical issues kept her from trial. Her physical disabilities were not contested. She has been unable to work since 1999 as a result of scoliosis and back surgeries. During the original proceedings, the husband showed evidence that the wife threw randomly splattered paint over the walls of the matrimonial home. He also completed forms seeking to have the wife’s mental health assessed in a hospital. However, he argued that she was not incapable of attending the earlier proceedings.

The wife’s doctor assessed that she suffered from Posttraumatic Stress Disorder (PTSD) as well as Major Depressive Disorder, Recurrent Severe. He testified that she was unable to understand what was at stake during the original trial, stating

“It is highly probable that she was in no state to understand the basic rules of the court and the steps she should have taken to protect her interests, including seeking spousal and child support and the equalization of net family property.  And even if she was able to maintain a rudimentary understanding of those rules, despite having PTSD, her paranoid defense system and her fear of confronting and standing up to the man whom she perceives as abusive could also have been powerful enough to emotionally paralyze her and prevent her from taking steps necessary to protect her interests.”

The court noted that the wife’s main income following the trial was her long-term disability pension (ranging from $1,664-$2,989n monthly) as well as her Canada Pension Plan, valued at $905-$1,253 monthly. Meanwhile, the husband kept $538,000 from the sale of the matrimonial home, owned two properties (one being a condo in Costa Rica), and drove two Mercedes as well as a BMW motorcycle. He also obtained $248,609 from the estate of the wife’s deceased mother (with whom she had lived) and was seeking an additional $100,000.

In looking at the financial and medical situations of both the husband and wife, the court concluded that the trial judge’s decision would likely have been dramatically different had the wife been present at the trial.

The court ruled that the wife was incapable of attending the earlier trials, and the orders from those trials should be set aside.

Which court should determine the issues?

The Court of Appeal ordered a new trial, stating they were not in a position to determine the issues of equalization, child support, or spousal support. The issues, which required credibility assessments and findings of facts must be determined at a new trial.

The court ordered the husband to return $248,609 that had been garnished from the wife, plus interest. The wife was also awarded $80,000 in costs.

The lawyers at Borden Family Law have been helping their clients with family law needs for over 17 years. In this time we’ve had the chance to see it all, and bring our experience and knowledge to the table to help you through your family law issues. Please call us at 905+597-6090 or reach us online to talk today. Please remember to ask about our bundled services and flat fees.