



COURT OF APPEAL FOR ONTARIO

CITATION: Cruz-Lee v. Lee, 2017 ONCA 61

DATE: 20170123

DOCKET: C60402

Simmons, Brown and Roberts JJ.A.

BETWEEN

Angela De Cruz-Lee

Appellant

and

Larry Lee

Respondent

Ravinder Sawhney, for the appellant

No one appearing for the respondent

Heard: January 16, 2017

On appeal from the order and judgment of Justice Antonio
    Skarica of the Superior Court of Justice, dated March 27, 2015 and April 17,
    2015 respectively.

ENDORSEMENT

[1]

Following the appeal hearing, we dismissed the wifes appeal for reasons
    to follow. These are our reasons.

[2]

The issues on appeal relate to the trial judge's
    findings concerning the proper disposition of the proceeds of sale of the
    matrimonial home in the amount of approximately $53,000.

[3]

Following a nine-day trial, the trial judge
    found that the husband was the sole owner of the matrimonial home as the wife
    had gifted her interest in the home to him for the purpose of avoiding
    creditors.

[4]

The trial judge also found that the wife's claim
    for an equalization of the net proceeds of sale of the matrimonial home was
    statute barred (he fixed the date of separation at December 21, 1996; the
    wife's application was issued in August 2010). In the alternative, he found
    that an equal division of the sale proceeds would be unconscionable due to the
    wife's reckless depletion of family property, the fact that the husband paid
    100% of the acquisition costs and expenses related to the home and the wife's
    abusive and controlling behaviour throughout the marriage toward both the
    husband and the child.

[5]

The wife was unrepresented at trial. On
    appeal, she has counsel. The husband was represented at trial but is unrepresented
    on appeal and did not attend the appeal hearing despite receiving notice of
    same.

[6]

The wife's counsel submits that the trial judge
    erred in failing to admit an expert report indicating the wife suffers from
    post-traumatic stress disorder, or, in the alternative, erred in failing to
    appoint an expert under rule 20.1 of the
Family Law Rules
, O. Reg.
    114/99, to inquire into the wife's psychiatric condition.

[7]

On behalf of the wife, counsel also argues that
    the trial judge erred in failing to find that the date of separation was in
    2010, when the parties physically separated, and that her equalization claim
    was therefore within the limitation period.

[8]

Counsel further argues that the trial
    judge made unreasonable factual findings or misapprehended the evidence due to
    his failure to inquire into the existence of battered wife syndrome and the
    wife's psychiatric issues.

[9]

We do not accept these submissions. The
    appellant did not give notice of her intention to rely on a psychiatric report
    in advance of the trial. Counsel acknowledges that the trial judge did not
    misstate the evidence in making the findings of fact that support his key conclusions
    concerning the date of separation and ownership of the matrimonial home.
    Instead, counsel contends that the appellant made misleading statements in her
    evidence due to her condition and required counsel and a psychiatrist to assist
    the court in assessing her evidence. However, the psychiatric report the
    appellant sought to have admitted at trial is premised largely the appellants
    self-reporting of events and does not purport to assess her evidence. Nor is
    there fresh evidence before us, either from a psychiatrist or the appellant and
    a psychiatrist, to support the argument that other psychiatric evidence would somehow
    have assisted in the assessment of the appellants evidence.

[10]

In response to a question from the panel,
    counsel confirmed that he does not assert that the appellant was mentally
    incapable at trial such that she required a litigation guardian. In the face of
    this acknowledgement and in the absence of fresh evidence concerning the
    appellants psychiatric condition and how it impacted her evidence, we do not
    accept that the trial judge was under any obligation to appoint counsel for the
    appellant or an expert to assess her condition under rule 20.1.

[11]

In our view, the appellant has failed to
    demonstrate palpable and overriding error in the trial judges findings
    concerning the date of separation. Counsel acknowledges that the trial judge
    did not misstate the test for determining the date of separation. Instead, he
    points to various factors that he claims should have led the trial judge to a
    different result  for example, the fact that the parties lived together,
    albeit separately, under the same roof for a long period; that they continued
    to conduct a business together and that the wife home-schooled the child.
    However, such an argument does not demonstrate palpable and overriding error. The
    trial judge was aware of these factors but nonetheless concluded, for other
    reasons, that the parties had separated soon after they purchased the
    matrimonial home.

[12]

Nor did the appellant demonstrate palpable
    and overriding error in the trial judges findings concerning ownership of the
    matrimonial home.


[13]

The appeal is therefore dismissed. As the
    respondent did not file material or attend, we make no order as to costs.

Janet Simmons J.A.

David Brown J.A.

L.B. Roberts J.A.


