



COURT OF APPEAL FOR ONTARIO

CITATION: Kutlesa v. Kutlesa, 2013 ONCA 549

DATE: 20130909

DOCKET: C55926

Cronk, Blair and Strathy JJ.A.

BETWEEN

Maryann Kutlesa

Applicant (Respondent in Appeal)

and

Jozo Kutlesa

Respondent (Respondent in Appeal)

Michael Wilson for John Kotsiou

Tibor Sarai for Maryann Kutlesa

No one appearing for Jozo Kutlesa

Heard and released orally: September 5, 2013

On appeal from the order of Justice M.D. Parayeski of the
    Superior Court of Justice, dated July 24, 2012.

ENDORSEMENT

[1]

Mr. Kotsiou purports to appeal an order of Parayeski J. dated July 24,
    2012, vesting in Maryann Kutlesa title to a cottage property on Browning Island
    in Lake Muskoka, near Bracebridge.

[2]

The order was made as part of the disposition of the
Family Law Act
proceeding between Ms. Kutlesa and her husband, Jozo Kutlesa.  It was based on
    the evidence presented to the trial judge demonstrating that the cottage
    property was owned by a numbered company of which Mr. Kutlesa was the sole
    shareholder and officer.  That evidence was based on a property parcel register
    search that was dated about a month before the trial occurred.

[3]

Mr. Kotsiou asserts, however, that between the date of that search and
    the date of trial, he purchased a 50% interest in the cottage property from Mr.
    Kutlesa and the numbered company for the sum of $300,000.  Mr. Kutlesa, the
    respondent in the
Family Law Act
proceedings, did not attend the trial,
    and  understandably, since Ms. Kutlesas counsel was not aware of it  the
    trial judge was not advised of this development.  Mr. Kotsiou asserts that the
    trial judge erred in law in vesting in Ms. Kutlesa the 50% interest in the
    cottage property that her husband did not own or control and therefore could
    not convey to her and that he is entitled in law to attack the order, which
    affects his interests.

[4]

In separate proceedings  having discovered the pre-trial transfer of
    the property  Ms. Kutlesa has commenced a new action against both Mr. Kutlesa
    and Mr. Kotsiou under the
Fraudulent Conveyances Act
, seeking to set
    aside the transfer of the 50% interest in the property to Mr. Kotsiou.  That
    action is still pending.

[5]

There is a threshold problem today, however: Mr. Kotsiou was not, and is
    not, a party to the
Family Law Act
proceeding between the Kutlesas from
    which this purported appeal springs.  He has taken no steps in Superior Court
    to be added as a party or to set aside or vary the order of Parayeski J.,
    although a motion to stay that order was brought before another judge and
    dismissed on the basis that it should be brought before Parayeski J.
A
renewed stay before Parayeski J. has
    not been pursued to date.

[6]

Accordingly, Mr. Kotsiou has no standing to bring the appeal and there
    is no appeal properly before us.

[7]

The purported appeal is therefore dismissed, but without prejudice to
    any steps that may be open to Mr. Kotsiou in Superior Court to address the
    vesting order, whether in the context of the
Family Law Act
proceeding
    or the
Fraudulent Conveyances Act
proceeding, or otherwise.

[8]

The respondent is entitled to her costs of this proceeding, fixed in the
    amount of $2500, inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

R.A. Blair J.A.

G.R. Strathy J.A.


