



COURT OF APPEAL FOR ONTARIO

CITATION: Hilton v. Hilton, 2021 ONCA 29

DATE: 20210119

DOCKET: C68243

Tulloch, Miller and Paciocco
    JJ.A.

BETWEEN

Marlene
    Dale Hilton

Applicant (Respondent)

and

Charles Mark Hilton

Respondent (Appellant)

Michael J. Stangarone and Stephen P. Kirby,
    for the appellant

Dale A. Turner, for the respondent

Heard: November 18, 2020 by video conference

On
    appeal from the order of Justice Paul Nicholson of the Superior Court of
    Justice, dated February 24, 2020.

REASONS FOR DECISION


Background

[1]

The respondent initiated divorce proceedings in
    September 2018. The appellant had not filed an Answer by the time of the first
    case conference on March 21, 2019. The respondent brought a motion for an order
    for an uncontested trial. At the case conference, Fryer J. noted the appellant
    in default and ordered him to deliver his Answer, disclosure, and financial statements
     including Notices of Assessment  within 30 days. She held the respondents
    motion for an uncontested trial in abeyance until the 30-day period expired. If
    the appellant delivered the materials as required, the noting in default would
    be set aside and the motion for an uncontested trial would be dismissed. If not,
    the uncontested trial would proceed.

[2]

The appellant did not comply with the order. By the
    second case conference on June 19, 2019, he had still not filed an Answer or any
    materials. Accordingly, Fryer J. confirmed the appellants noting in default
    and scheduled the uncontested trial for September 23, 2019. She also ordered the
    partition and sale of the matrimonial home.

[3]

The uncontested trial was ultimately held on
    November 22, 2019 before Fryer J. She made orders providing the respondent with
    exclusive possession of the matrimonial home, facilitating the sale of the
    matrimonial home and the division of the sale proceeds, and granting the
    respondent temporary spousal support. The determination of final spousal support
    and child support were left to a continuation of the uncontested trial. The
    continuation has not yet taken place.

[4]

Thereafter, in February 2020, the appellant
    brought a 14B motion seeking the following relief: setting aside all orders
    made to date; granting leave to serve and file an Answer and financial statements;
    and granting leave to dispense with the requirement to serve and file his
    Notices of Assessment, which he stated were unavailable due to the actions of
    the respondent. The motion was heard in writing by Nicholson J., who dismissed
    the motion. Although Nicholson J.s handwritten endorsement is brief, his reason
    for the dismissal appears to be that the appellant had not appealed any of Fryer
    J.s orders.

[5]

The appellant now appeals Nicholson J.s dismissal
    of the 14B motion and requests this court set aside Nicholson J.s order. The
    appellant also requests that this court set aside all of Fryer J.s previous
    orders, grant the appellant 30 days to file his Answer and financial statements
    without the Notices of Assessment, and order the parties to proceed to another
    case conference on the substantive issues. In the alternative, the appellant
    requests this court order the 14B motion be determined by another judge of the
    Superior Court of Justice via an oral hearing. Finally, he requests costs of
    this appeal. For the reasons set out below, we allow the appeal in part.

Analysis

[6]

The appellant argues that the 14B motion before
    Nicholson J. was brought under r. 25(19) of the
Family Law Rules
, O.
    Reg. 114/99, although he did not specify that rule in the Notice of Motion. He
    makes his argument on the basis that the respondent had committed a fraud on
    the court through misrepresentations and material omissions in her evidence at
    the hearing of the uncontested trial. That is, the appellant argues there were
    things the respondent knew that she did not disclose, and things she said that
    she knew were not true. This resulted, the appellant argues, in an interim
    support order that was too high and an unfair division of the proceeds from the
    sale of the matrimonial home.

[7]

Nicholson J. did not address the substance of
    the motion to dismiss prior orders on the basis of fraud. He dismissed the
    motion on the basis that Fryer J.s November 22, 2019 and previous orders could
    not be set aside because the appellant had not appealed any of those orders.

[8]

The appellant argues that the only route for him
    to challenge the November 22, 2019 order was to bring a motion to change under r.
    25(19). An appeal would have been premature:
Ketelaars v. Ketelaars
, 2011
    ONCA 349, 2 R.F.L. (7th) 296;
Gray v. Gray
, 2017 ONCA 100, 137 O.R.
    (3d) 65. This court held in
Gray
that r. 25(19) provides a more
    effective way to correct orders in its ambit and de-listed an appeal pending a
    decision at the court of first instance.

[9]

We agree with this submission to some extent. However,
    some of the orders the appellant seeks to set aside were made on the basis of
    his own failure to provide required disclosure. Nicholson J. was correct that
    an appeal would be required to set aside those orders. However, to the extent
    that the relief sought by the appellant was on the basis of the respondents
    misrepresentations at trial, those assertions ought to have been decided on the
    merits.

[10]

By failing to comply with the
Family Law Rules
and the orders of Fryer J., the appellant is the author of much of his
    misfortune. When a party does not participate in the process, things tend to not
    go well. Nevertheless, the appellants allegations of the respondents misrepresentations
    and material omissions must still be determined on the merits.

[11]

We allow the appeal in part and direct that the
    allegations of the respondents misrepresentations and material omissions be
    returned to the Superior Court for a determination of the merits under r. 25(19)(a).
    We offer no opinion on the merits of that motion.

[12]

It remains for the trial judge to determine the
    extent of the appellants participatory rights at the continuation of the trial,
    including whether the appellant will be permitted to advance any reliable and
    credible evidence that the respondent is misleading the court.

DISPOSITION

[13]

The appeal is allowed and the matter is returned
    to the Superior Court of Justice for a new hearing of the r. 25(19)(a) motion,
    based on the written record that was before Nicholson J. Costs of the appeal
    are fixed at $15,000 inclusive of HST and disbursements. These costs are to be awarded
    to the party that is successful on the r. 25(19) motion. However, if the
    appellant abandons the r. 25(19) motion, the costs of this appeal will be
    payable to the respondent, subject to any contrary order by the Superior Court
    of Justice.

M.
    Tulloch J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


