



COURT OF APPEAL FOR ONTARIO

CITATION: Mikhail v. Cole, 2017 ONCA 262

DATE: 20170330

DOCKET: C62690

Feldman, Sharpe, and Roberts JJ.A.

BETWEEN

Michael Mikhail

Appellant
(Plaintiff)

and

Deidre Joyce Cole o/a Deidre Marinelli, Robert
    Cole,
Mary Lou Bousfield by her Litigation Guardian Robert Cole

Respondents
(Defendants)

Michael Mikhail, in person

Aleksandar Jovanovic, for the respondents

Heard: March 27, 2017

On appeal from the order of Justice Michael R. Gibson
of the Superior Court of Justice,
dated
    August 24, 2016
.

ENDORSEMENT

[1]

The appellant appeals the dismissal of his civil action to obtain
    damages against his former spouse and her parents for alleged fraudulent
    concealment of assets. The appellant submits that the motion judge erred in
    dismissing his action as an abuse of process. He argues that he should be
    permitted to continue with his action in the interests of justice because he
    will otherwise be without recourse.

[2]

We disagree.

[3]

As the motion judge correctly found, the appellants claim for damages
    is premised on his alleged entitlement to an equalization payment, which is
    governed by the
Family Law Act
, R.S.O. 1990, c. F-3, and which
    therefore can only be pursued in family law proceedings.

[4]

The appellants claim for equalization of net family property is
    proscribed by s. 7(3) of the
Family Law Act
, which prohibits him from
    bringing such a claim after the earliest of either two years from the date of the
    September 27, 2009 divorce order or six years from the date of separation in
    early 2006. However, the appellant is not necessarily without recourse.

[5]

If the appellant can satisfy the criteria for an extension of time under
    s. 2(8) of the
Family Law Act
to bring an application for equalization
    under s. 5 of the Act, he may add the respondents as parties to the proceedings
    under r. 7 of the
Family Law Rules
, O. Reg. 114/99.  See also, for
    example,
Stone v. Stone
(1999), 46 O.R. (3d) 31; affd, (2001), 55
    O.R. (3d) 491 (C.A.), where affected parties, other than spouses, were named as
    parties in family law proceedings, in relation to the adjudication of an
    alleged fraudulent conveyance.

[6]

As a result, we see no error in the motion judges dismissal of the appellants
    action. There is no basis to interfere.

[7]

Accordingly, the appeal is dismissed.

[8]

The respondents are entitled to their partial indemnity costs of the
    appeal in the amount of $4,500 inclusive of disbursements and HST.

K. Feldman J.A.

Robert J. Sharpe
    J.A.

L.B. Roberts J.A.


