



COURT OF APPEAL FOR ONTARIO

CITATION:
Wodzynski v. Wodzynski, 2012
    ONCA 272

DATE: 20120430

DOCKET: C54005

Feldman and Hoy JJ.A. and Spence J. (
Ad Hoc
)

BETWEEN

Anna Wodzynski

Applicant (Appellant)

and

Krzysztof Wodzynski

Respondent (Respondent)


Michael Czuma, for the
    appellant

Cezary Paluch, for the respondent

Heard:  February 15, 2012

On appeal from the order of Justice Allan R. Rowsell of
    the Superior Court of Justice, dated November 27, 2009.

Spence J.
    (
Ad Hoc
):

[1]

The appellant asks that the order of Rowsell J. dismissing the
    application of the appellant be set aside. The application sought an order to
    transfer property and an order for child support. The appellant requests that
    the matter be sent back to be heard by a different judge, with permission to provide
    further material.

[2]

The issues on the appeal concern the conduct of the trial and the
    disposition made by the trial judge of the issue as to the effect of the
    agreement allegedly made between the parties on April 23, 2001 (the Separation
    Agreement). In her amended application, the appellant asked the court to
    uphold the provision of the Separation Agreement under which she submits she is
    entitled to acquire the property owned jointly by the parties at 73 Ontario
    Street, Oshawa. In the reasons for judgment the trial judge determined that the
    court could not give effect to the Separation Agreement.

The Conduct of the Trial

[3]

The appellant represented herself.

[4]

The appellant objects that at the outset of the trial, the judge did not
    ask her if she wished an adjournment. However, the appellant did nothing to
    indicate that she was not ready to proceed or to suggest that she did not wish to
    proceed.  She told the court that she had her other witness in court.  She told
    the court that it was not her choice to represent herself but that she had been
    left without representation two months earlier and had been unable to find
    another lawyer. There was no reason to construe these remarks as indicating a
    wish for further time to seek a lawyer.

[5]

The appellant objects to the courts having accepted the document books
    of the respondent for filing as exhibits at the outset of the trial. The judge
    asked the appellant if she had any objection to their filing and she said she
    did not.

[6]

The appellant said that she had other documents that were not included
    in the document books filed by the respondent. The judge said that the court
    would deal with any such documents as and when it became appropriate to do so.
    It does not appear that the judge acted inappropriately in regard to these
    documents of the parties.

[7]

The appellant objects to the court having accepted exhibits 6 and 7 for
    filing as exhibits when they were only documents prepared by counsel for the
    respondent. However, the court made it clear that it was prepared to receive
    them only for the purpose of any assistance they might provide in understanding
    and assessing the evidence. The exhibits were filed with descriptions that they
    were only documents prepared by counsel for the assistance of the court. In
    effect, they were filed as exhibits merely for identification and ease of
    reference.

[8]

In the factum of the appellant, she objects that the judge allowed her presentation
    of her evidence to become nearly incomprehensible. The appellant did not seek
    to stop the presentation of evidence. Apart from the matter considered below
    relating to the Separation Agreement, there is no suggestion as to what in
    particular the judge ought to have done to assist the appellant in the
    presentation of her evidence or that the appellant was prejudiced by not having
    received such assistance.

[9]

The appellant objects that the judge did not explain what was involved
    in making final submissions in advance.  However, the judge did so prior to the
    lunch break on the day on which the submissions were to be made and, without
    being requested to do so, extended the lunch break period until 2:30 p.m.  The
    appellant made her final submissions after the break.  There is no submission
    as to what the appellant would have said that she had not already said if she
    had received further instruction from the judge. There was nothing unsatisfactory
    about the way the judge dealt with the transition to the final submissions.

[10]

With
    respect to the Separation Agreement, the appellant objects that the judge did
    not ask the son of the appellant, when he was giving his evidence, whether his
    mother and father had signed the Separation Agreement as the appellant said
    they had done.  The appellant could have put that question to the witness
    herself.  If she had done so, and his answer had been affirmative, that
    evidence would have been relevant although, for the reasons set out below, it
    would not have been determinative. The respondent might well have objected to
    the judge putting that question on the basis  that it would amount to assisting
    the appellant leading evidence as to the merits of her case. The evidence of
    the witness might not have been favourable to the appellant or it might have
    opened an avenue for cross-examination that could have led to unforeseeable
    results.  Whether or not to ask such a question in such circumstances can only
    be a matter for the exercise of discretion of the trial judge. There is no
    reason to find that the judge acted inappropriately in this regard.

[11]

The
    appellant objects to the judge having told her that he did not think she needed
    to call as a witness a lawyer, Ms. Krystkowicz. The appellant had taken the
    Separation Agreement to Ms. Krystkowicz for her notarial seal. The trial judge
    suggested that the lawyer was not going to assist the court because the
    notarial seal was not an issue.

[12]

The
    trial judge made this comment at the end of a series of questions and answers that
    occurred towards the end the cross-examination of the appellant. The appellant
    had earlier concluded the evidence in chief without calling the lawyer as a
    witness. Counsel for the respondent asked her whether she was planning on
    calling the lawyer as a witness. The question was asked with reference to the
    fact that a name, address, and telephone and fax numbers purporting to be those
    of the lawyer appeared on the Separation Agreement together with what appears
    to be a signature and a notarial seal. The appellant said the judge had to say
    whether the lawyer should be called. The judge said it was for the appellant to
    decide what evidence she was calling. The appellant said that the lawyer was not
    on the witness list. The series of questions and answers continued as follows:

THE COURT:        Okay.  So  what is she going to say in any
    event?

A.

Pardon me?

THE COURT:        Whats she going to say?  She didnt see
    anybody sign this agreement; did she?  That was your evidence; right?  That
    this document was signed before?

A.

We were there and we
    sign it.

THE COURT:        Okay.  But I want to be clear; where was this
    document signed?

A.

When?

THE COURT:        Where?

A.

Where? This document was signed in April 25
th
, 2001, in  oh,
    because we sign it, this document, I sign it, he sign it and witnesses and
    after we went to  .

THE COURT:  Okay.  And where did
    that take place?

A.

In 59 Daines Drive.

THE COURT:        Right.  All
    right.
So Ms. Krystkowicz can only say somebody brought this to me and I
    put my seal on it; right?

A.

Yes
.

THE COURT:        So I dont think
    that helps anybody; does it?

MR. JAGIELSKI:    No.

A.

I dont know. I dont
    know but we went there.

THE COURT:        Mam, do you
    understand

A.

Yes, I understand.

THE COURT:         just a minute. 
    With regard to a separation agreement?

A.

Yeah.

THE COURT:        There are some
    specific legal requirements.
Having a lawyer put a notarial seal on a document
    after its been signed doesnt make the document any more or less valid, so I
    dont think you need to call this lawyer with regard to this agreement because
    shes not going to assist the court.
Do you understand that?

A.

Yeah.

THE COURT:        Okay.

A.

Then agreement is not
    valid?

THE COURT:        I didnt say that.

A.

Okay.

THE COURT:        Thats a matter
    for argument and I want to hear from both parties with regard to that.  Im not
    going to decide on this document at this point but the fact that the lawyers
    sealed doesnt make it any more or less valid; right?

A.

Yeah, okay.  Yeah,
    yeah, okay.

THE COURT:        I dont think we
    need to worry about that.  [Emphasis added.]

[13]

What
    is important here are the parts of the exchange that are emphasized above.

[14]

Based
    on the answer given by the appellant as to the facts that the lawyer could
    testify to, there was nothing objectionable in the advice the judge gave the
    appellant.

[15]

The
    respondent denied signing the Separation Agreement or attending at Ms.
    Krystowicz's office. After the respondent testified, the judge asked the
    appellant if she had any additional evidence that she wished to call in reply
    to any issues raised by the respondent. The appellant declined to call any
    evidence in reply.

[16]

The
    appeal book and compendium contain a copy of an affidavit purportedly sworn by Ms.
    Krstowicz on December 4, 2009, close to a month after the trial.  There was no
    evidence before this court about this document. There was no motion before the
    court for the introduction of fresh evidence.

[17]

The
    appellant objects that during the tendering of the evidence, the trial judge
    said that the
Family Law Act
required the property to be sold because
    it was jointly owned. No objection is taken to the statement as a matter of law
    concerning the treatment of jointly-owned property generally under the
Family
    Law Act
. The trial judge did not make the comment during the presentation
    of the evidence of the appellant. It was said later, about halfway through the
    cross-examination of the appellant. The trial judge made the remark while he
    was seeking to clarify whether the respondent was seeking an order for the sale
    of the property. It was relevant to seek this clarification because counsel for
    the respondent had directed a series of questions to the appellant about the
    value of the property and the judge sought to determine how the value of the
    property could be relevant if the order which the respondent sought was for
    sale.  At the end of the exchange on this subject, the judge concluded that the
    value of the property was not the issue.

[18]

In
    the course of the exchange on this subject the appellant interjected, without
    having been asked any question, that she wanted to keep the property.  The
    point of the remark of the judge was that that was not an option in respect of
    family property that was jointly-owned.  The judge was not directing his remark
    to the separate question whether the Separation Agreement was enforceable. In
    her final submissions, the appellant relied upon the Separation Agreement as
    she had done before. There is no evidence to suggest that the appellant
    considered that the remark of the judge had foreclosed her doing so.

[19]

In
    summary, from my review of the transcript, the trial judge attempted throughout
    the trial to assist the appellant, as needed, and to ensure that the trial was
    conducted in a manner that was fair to both parties.

[20]

For
    the above reasons the objections of the appellant with respect to the conduct
    of the trial are without merit.

The Decision about the Separation Agreement

[21]

The
    decision about the Separation Agreement must be understood and assessed in the
    context of the application of the appellant and the evidence and the
    submissions in the course of the trial.

[22]

In
    paragraph 8c of her amended application, the appellant characterized the
    Separation Agreement as a separation agreement and asked the court to uphold the
    Separation Agreement. In her initial submissions to the court the appellant characterized
    the Separation Agreement as a separation agreement and she did so again in
    cross-examination.

[23]

The
    Separation Agreement, which is dated April 23, 2001, does not meet the
    requirements for a separation agreement under s. 54 of the
Family Law Act
,
    R.S.O. 1990, c. F.3. That provision requires that the parties to a separation agreement
    must, at the time of entering into it, be living separate and apart. The judge
    found that the date of separation was January 1, 2002, and not January 1, 2001
    as the appellant had submitted. That finding is not challenged.

[24]

Moreover,
    it is apparent from the terms of the Separation Agreement, which provides that
    its disposition of property is to apply in case of separation and divorce, that
    it was not made after the parties had separated, but rather beforehand.

[25]

The
    appellant objects that the court wrongly ended its analysis with a conclusion
    that amounted only to saying that the Separation Agreement was not a valid
    separation agreement when the court should instead have continued the analysis
    to determine whether the Separation Agreement was valid as a marriage contract
    under s. 52 of the
Family Act
.  Section 52(1) provides as follows:

52(1)  Two persons who are married to each other or
    intend to marry may enter into an agreement in which they agree on their
    respective rights and obligations under the marriage or on separation, on the
    annulment or dissolution of the marriage or on death, including,

(a)     ownership in or division of property;

(b)     support obligations;

(c)     the right to direct the education and
    moral training of their children, but not the right to custody of or access to
    their children; and

(d)     any other matter in the settlement of
    their affairs.

[26]

The
    appellant did not make any submissions at trial that her use of the term separation
    agreement was meant to refer, not only to a separation agreement under s. 54
    of the Act, but also to a marriage contract under s. 52.  Nor did the trial
    judge have any reason from the materials before the court to address the
    possibility. The term Separation Agreement was used in the amended
    application of the appellant.  The appellant said throughout the trial that the
    separation date was January 1, 2001, which was consistent with her claim that
    the Separation Agreement dated April 23, 2001 was a separation agreement.

[27]

In
    the reasons for judgment the judge did not restrict his consideration only to
    matters which related to the status of the Separation Agreement as a separation
    agreement. The judge gave other reasons for his conclusion that the purported
    Separation Agreement is not a valid Agreement.

[28]

In
    particular, the judge found that the appellant had not paid the $100,000 amount
    that the Separation Agreement provided was to be paid to the respondent in
    order for the appellant to be entitled to acquire the assets mentioned in the
    Separation Agreement.

[29]

This
    finding was important because the contention of the appellant at trial was that
    she had paid the $100,000 and she was therefore now entitled to acquire 73
    Ontario Street. The appellant was unable to provide details of how she had paid
    the $100,000 to the respondent. The finding is not raised as an issue in the
    notice of appeal or in the factum of the appellant. Counsel for the appellant
    made no submission about it. Accordingly, the finding, with which I in any
    event agree, cannot be disturbed. That means that even if the Separation Agreement
    otherwise constituted a valid marriage contract, the court could not grant the
    relief that was sought by the appellant in her application.

[30]

In
    her evidence the appellant appeared to concede that she knew that the
    Separation Agreement may not be valid.

[31]

The
    appellant testified that she wrote the Separation Agreement. It provides that
    the respondent will accept $100,000, and will leave all assets (including both
    properties owned by the parties and the delicatessen operated by the parties)
    to the appellant. The $100,000 amount appears to have been determined without
    regard to the value of the parties' assets and liabilities.

[32]

According
    to the appellant, when they took the Separation Agreement to Ms. Krystkowicz, Ms.
    Krystkowicz told them that she would have to prepare a "legal" agreement.
    She subsequently did so, and advised the parties to obtain independent legal
    advice. The appellant testified that the respondent refused to sign the
    agreement drafted by Ms. Krystkowicz. Also according to the appellant, the two
    different lawyers who represented her in this matter were aware of the Separation
    Agreement. In her words, "Nobody wanted to show."

[33]

Moreover,
    the appellants conduct was inconsistent with the existence of a binding agreement.
    While the Separation Agreement also provides that the respondent will not be
    required to pay child support, the appellant sought and, on February 1, 2005,
    obtained an order requiring the respondent to pay child support. The respondent
    paid child support for some four years and ten months before the appellant took
    the position at trial that the Separation Agreement was valid.

Conclusion

[34]

For
    the reasons set out above, I would dismiss the appeal.  At the hearing, it was
    agreed that the successful party would be entitled to costs in the amount of $5,000.
    The respondent is therefore entitled to costs in the amount of $5,000,
    inclusive of disbursements and HST.

Released: Apr. 30, 2012

KF                                                                    Spence
    J. (ad hoc)

I
    agree K. Feldman J.A.

I
    agree Alexandra Hoy J.A.


