



COURT OF APPEAL FOR ONTARIO

CITATION: Csizmazia v. Csizmazia, 2021 ONCA
    865

DATE: 20211203

DOCKET: C69660

van Rensburg and Roberts JJ.A.
    and Tzimas J. (
ad hoc
)

BETWEEN

Zoltan Csizmazia

Applicant (Respondent)

and

Anita Csizmazia

Respondent (Appellant)

Eli Karp, for the appellant

Taylor Johnson as agent for Sean D.
    Heeley, for the respondent

Heard: November 23, 2021

On appeal from the order of Justice James
    A. Ramsay of the Superior Court of Justice, dated April 22, 2021.

REASONS FOR DECISION

[1]

The appellant Anita Csizmazia appeals the order of Ramsay J. (the
    review judge), refusing to set aside the final order of Whitten J., that was
    made after an uncontested trial.

[2]

The parties have been engaged in family law proceedings that were
    commenced in October 2017. In January 2020, as a result of the appellants non‑compliance
    with various court orders, including the requirement to pay an interim
    equalization payment and various costs awards, her pleadings were struck in
    relation to all issues in the proceedings except for custody and access.
    Eventually, Chappel J. ordered that the uncontested trial be adjourned to the
    sittings commencing November 16, 2020 and, recognizing that under r. 1(8.4) of
    the
Family Law Rules
,
O. Reg.
    114/99,

the court has the discretion to permit a
    party whose pleadings are struck to participate in a more limited manner, she
    required the respondent to serve a copy of her endorsement on the appellant.

[3]

The uncontested trial proceeded before Whitten J. on December 1, 2020.
    Whitten J. made a final order dealing with the issues of equalization,
    child support, s. 7 expenses and costs. In particular, with respect to
    equalization, Whitten J. ordered that $37,100 be payable to the respondent by
    the appellants pension provider in full satisfaction of his one-half claim to
    the appellants pension during the course of the marriage, and that the
    appellant pay the respondent the sum of $79,348.59 by way of equalization. The
    appellant did not attend the uncontested trial.

[4]

After she received a copy of Whitten J.s endorsement, the appellant
    brought a motion under r. 25(19) of the
Family Law Rules
,
    seeking to change the final order on the ground of misrepresentation and
    concealment of facts by [Mr. Csizmazia], and on the ground that the order
    [would] cause significant miscarriage of Justice. Rule 25(19) provides for a
    motion to change an order that, among other things, (a) was obtained by fraud;
    or (d) was made without notice. The respondent brought a cross-motion for an
    order that the appellant be prohibited from filing further motions.

[5]

The motions were heard in writing. The review judge dismissed the appellants
    motion. He rejected the appellants evidence that she was not aware of the date
    of the uncontested trial, accepting instead the evidence that she had been
    served personally with a copy of Chappel J.s endorsement. He also noted that
    the property issues were moot because the appellant was bankrupt. He granted
    the respondents motion and ordered that the appellant was prohibited from
    bringing any further motions on the financial issues in the proceedings until
    all costs orders against her were paid in full, or with leave of the court.

[6]

The appellant makes one argument in this appeal: that the reasons of the
    review judge are inadequate to permit appellate review. The appellant contends
    that the review judge failed to address her submission that Whitten J.s findings
    and ruling were based on fraud committed by Mr. Csizmazia at the uncontested
    trial.

[7]

In her affidavit sworn December 23, 2020 in support of the review motion
    the appellant stated, at para. 14:

[Mr. Csizmazia] made several amendments to his equalization
    claims radically different to the position he pleaded at the time my pleadings
    were struck off. [He] therefore had a new case on Equalization upon which the
    court has not given me opportunity to defend.

[8]

At para. 15 the affidavit lists some of the changes the respondent was
    alleged to have made when he filed a revised net family property (NFP) statement
    before trial that, according to the appellant, showed different amounts for
    items such as the parties respective premarital deductions. The record on
    appeal contains what appears to be a copy of Mr. Csizmazias NFP sworn in
    October 2020, but does not contain any other documents in support of an
    allegation of fraud, or for that matter in support of the allegations in paras.
    14 and 15 of the appellants affidavit.

[9]

During the hearing of the appeal, the panel requested and was provided
    with copies of the parties written submissions that were before the review
    judge. Although the bulk of her submissions dealt with her alleged lack of
    notice of the uncontested hearing, the appellant asserted that paragraphs 14
    and 15 of her affidavit made specific allegations of misrepresentation of
    facts, which amounted to fraud [and] those paragraphs were uncontradicted by
    [Mr. Csizmazia]. According to the appellants counsel on appeal (who was not
    her counsel in the court below), the issue of fraud was clearly before the
    review judge, whose reasons are deficient because he failed to deal with it.

[10]

We
    disagree. In our view the reasons of the review judge are sufficient and clear.
    Contrary to the appellants argument, the review judge did not overlook her assertions
    about the respondents changes to his NFP statement, which she had
    characterized as fraud in her written argument. Rather, he observed that the
    financial issues were moot, because of the appellants bankruptcy.

[11]

The
    appellant filed for bankruptcy on March 18, 2020. The effect of the bankruptcy
    is that the appellants property, including her equalization claims in the
    family law proceedings, vested in her trustee, and she has cease[d] to have
    any capacity to dispose of or otherwise deal with such property:
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3
    (BIA), ss. 21 and 71. By order dated September 15, 2020, Bale J. lifted the
    stay of proceedings pursuant to s. 69.3 of the BIA to permit the respondent to
    establish the value of his claim against the appellant, and prohibited the
    enforcement of the claim without further order, except in relation to the
    division of the appellants pension for the purposes of equalization. This
    order is in the appeal record, and was before the review judge, having been
    attached as an exhibit to the appellants December 2020 affidavit.

[12]

It
    was unnecessary for the review judge to address the appellants specific
    allegations about the changes to the respondents NFP before the uncontested
    trial when her property, including her property claims in the litigation, had
    vested in the trustee upon her bankruptcy, and she had no further rights with
    respect to equalization  whether by asserting or defending an equalization
    claim.

[13]

For
    these reasons the appeal is dismissed. The appellant shall pay the respondents
    costs of the appeal on a partial indemnity basis fixed in the inclusive amount
    of $2,500.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.

E.
    Ria Tzimas, J. (ad hoc)


