Jaskot Willer Gill LLP

The Might of the God’s – A Warning Regarding Uncontested Family Trials, Jonathan R. Luna

“slow but sure moves the might of the gods” — Euripides

All parties deserve finality in their legal proceedings. It’s a basic principle derived not only from precepts of natural law but is firmly grounded in the practical realities of moving forward with one’s life after the chambers of the court house have cleared and all decisions have been rendered.

Yet what happens if you achieve your dream result at an uncontested trial only to the subjected to a crippling appeal judgment 10 years later? This is exactly the circumstances faced by Mr. Kowalsky (“Husband”) in Kowalsky v Asselin-Kowalsky (2018) ONCA 539.

I. Basic Facts

The parties were married for over 22 years when they separated in 2003. There were two children of the marriage (both of whom are now over 30 years old) in which child and spousal support were important and substantial issues for trial at that time.

The Husband brought an application seeking an equalization of property, including sale of the matrimonial home. In response, Ms. Asselin-Kowalsky (“Wife”) countered with a claim of her own including custody, child and spousal support.

Yet when it came time for trial on November, 2007, the Wife was no where to be found. Instead her brother attended court only as a mere observer and to inform the presiding Justice Kruzick that she would not be attending trial due to the state of her health.

As such, the wheels of justice conveniently continued to turn in favour of the Husband as was reported in the trial decision of Kowalsky v. Asselin-Kowalsky (2007) CanLII 53240. Based upon the evidence before the court, Justice Kruzick awarded him exclusive possession of the matrimonial home to ready for sale, the Wife pay an equalization payment of $117,500.31 and a complete dismissal of her spousal and child support claims. The icing on the cake was a $40,000 cost award against her.

Following trial, the Husband cautiously proceeded with collecting his spoils of victory. He eventually sold the matrimonial home almost 7 years later after trial for $538,000 (in which he kept the entire proceeds of sale) and waited for the Wife’s mother to die before garnishing proceeds from the deceased mother’s estate for a further $248,609.

Things seemed good for Mr. Kowalsky. He remarried, purchased a condo in a gated community in Costa Rica, enjoyed driving a fleet of luxury cars and appeared to continue enjoying success within his family law practice.

II. Issues

1. Should the court admit fresh evidence on appeal?

2. Was the appellant incapable of attending the trial and her motion to set aside the trial decision?

3. Should the merits of the family law proceeding be determined by the Court of Appeal or at a new trial?

III. Position of the Parties

The Wife argued that the reason she never showed up for trial or her motion to set aside the trial decision was because she was mentally and physically incapable of doing so at the time.

It was never in dispute that the Wife suffered from both physical and mental health issues. In fact, the Husband brought his own motion to have her assessed and to appoint the Public Guardian and Trustee as her litigation guardian. Nine months before trial, he bought another motion seeking that the Wife submit to a mental examination by one or more health practitioners pursuant to section 105 of the Court of Justice Act.

The Husband disputes that the appellant lacked the capacity to attend trial or her motion. He correctly pointed out that there was no formal opinion of incapacity by a qualified capacity assessor or any evidence that she was a “special party” under the Family Law Rules

IV. Decision of the Court

The Ontario Court of Appeal had no difficulties in admitting the Wife’s fresh evidence, including her assessment report prepared by her physician:

“We admit the appellant’s fresh evidence on appeal because it satisfies all of the criteria for its admission: it could not have been provided before trial; it is credible; and it is conclusive on the main issue on this appeal, namely, whether the justice of the case requires that the orders under appeal be set aside, in order to prevent an unjust result: Sengmueller v. Sengmueller, 1994 CarswellOnt 375, at para. 34.”

According to her assessor, the Wife suffered from Post-traumatic Stress Disorder (PTSD), Major Depressive Disorder, and Paranoid Personality Disorder. In the physician’s opinion, the Wife’s estimated level of functioning was only 45-50 on a scale of 100.

Given the fact that the appellant was mentally unable to attend due to her mental incapacity, the underlying merits of the trial decision were held to be “largely irrelevant” (para. 9)

The Court further disagreed with the respondent’s submission that the appellant should be denied relief on the basis that there was no formal opinion of incapacity by a qualified assessor or was a “special party,” under the Ontario Family Law Rules. (para. 17-27)

To this, the Court pointed out that while her inability to attend trial must “obviously be serious” to reasonably explain her absence, there is no requirement that she prove a certain level of “incapacity” as defined under the Substitute Decision Act which generally includes some inability to necessarily understand relevant information to make a decision or be able to appreciate the reasonable consequences of the decision (or lack of) (para. 18)

The critical point for the Court of Appeal was the fact that the appellant was found to be incapable within days of the trial as she was admitted to hospital by the police for mandatory assessment under the Mental Health Act. When in hospital, she became aware of the final trial order and commenced a motion to have it set aside. (para. 20)

The Court was also moved by the findings of the Wife’s assessment report which described her inability to deal with the stresses of family litigation:

“It is highly probably that she was in no state to understand the basic rules of the court and the steps she should have taken to protect her interest, 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 defence system and her fear of confronting and standing up to the man whom she perceived as abusive could also have been powerful enough to emotionally paralyze her and prevent her from taking steps necessary to protect her interest.” (para. 22)

In the end, the Ontario Court of Appeal ordered that the Husband’s garnishment of $248,609 plus interest from the appellant be repaid to the Wife with interest within 14 days, partial indemnity costs in the amount of $80,000.00 and further ordered a new trial to determine the issues of equalization, child and spousal support.

V. Final Thought

The most unique aspect of this decision is that this appeal was granted more than 10 years after the original trial decision and dismissal of motion to set aside the judgment.

It will be interesting to see how the trial judge handles the rehearing of this matter assuming it doesn’t settle beforehand. After all, its not every day you have to wake up and face the prospects that you’re now required to return over $328,000 and literally relive the entire trial experience over again.

This case does helps demonstrate the harsh reality that the passage of time will not hinder the Court’s willingness to exercise its discretion in ordering a new family trial should it find that there was more to the story than initially presented, especially if was not possible to hear all the facts given the circumstances. Great caution should be exercised when approaching such trials, especially involving mental health issues, to determine what steps can or should be undertaken before proceeding with such matters.

Jon is a family lawyer practicing exclusively in all areas of family law with Jaskot Family Law in Burlington, Ontario.


Legal Disclaimer

This article is intended for informational purposes only. It does not constitute legal advice nor form a client/solicitor relationship. For more information or require legal assistance, please contact us at www.jaskotfamilylaw.ca for more information