



COURT OF APPEAL FOR ONTARIO

CITATION: Antonyuk v. Antonyuk, 2022 ONCA 145

DATE: 20220214

DOCKET: M52933 (C69381)

Feldman, Pepall and Tulloch
    JJ.A.

BETWEEN

Iryna
    Antonyuk

Applicant
(Appellant/Moving Party)

and

Mykhaylo Antonyuk

Respondent
(Respondent/Responding Party)

Iryna Antonyuk, acting in person

Igor Yushchenko, for the respondent/responding
    party

Heard: in writing

REASONS FOR DECISION

[1]

This is a post-appeal motion under rule 59.06 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The appeal from
    the decision of the trial judge was decided by this court by reasons dated
    October 25, 2021.
[1]
This court upheld the trial judges decision that, under s. 22 of the
Divorce
    Act
, R.S.C., 1985, c. 3 (2nd Supp.), the divorce of the appellant and
    respondent pursuant to a divorce decree granted in Ukraine dated October 23,
    1998 is valid and recognized for the purposes of determining the marital status
    of the parties in Canada, and therefore, there was no basis to grant a Canadian
    divorce decree under the
Divorce Act
.

[2]

Following the release of this courts reasons,
    the appellant moved under r. 59.06(2) to set aside the order of this court
    and to give effect to a divorce order made under the
Divorce Act
, dated
    February 19, 2019, which was set aside by order dated March 22, 2019.

[3]

The panel considered this motion in writing. The
    moving party requested an oral hearing, but the panel determined that one was
    not necessary:
Midland Resources Holding Limited v. Shtaif
, 2018 ONCA
    743, 81 B.L.R. (5th) 191, at para. 14, leave to appeal to S.C.C. refused,
    38507 (May 2, 2019); and
806480 Ontario Limited v. RNG Equipment Inc.
,
    2014 ONCA 796, at para. 9. The panel reviewed all the materials filed on the
    motion, including the parties motion records; the moving partys factums
    including the third reply factum, which states that it is intended to replace
    the factums previously filed on the motion; the responding partys factum; and the
    responding partys brief of authorities.

[4]

Rule 59.06(2) provides:

(2) A party who seeks to,

(a) have an order
    set aside or varied on the ground of fraud or of facts arising or discovered
    after it was made;

(b)  suspend the
    operation of an order;

(c)  carry an
    order into operation; or

(d)  obtain other
    relief than that originally awarded,

may make a motion in the proceeding for the
    relief claimed.

[5]

The appellant argues that this courts order
    should be set aside on the basis of fraud or facts arising or discovered after
    it was made. The affidavit the appellant filed on this motion alleges no new
    facts or fraud discovered after the order was made. The issue of fraud in
    obtaining the Ukrainian divorce was addressed by the trial judge. The trial
    judge specifically found that the appellant had not alleged fraud, and that
    there was no evidence of fraud.

[6]

The trial judge also confirmed that the
    appellant was not seeking any relief other than a divorce, and that if the foreign
    divorce was valid, the issue would be solved. She stated at para. 66 of her
    reasons:

[66]    At the outset of trial, I specifically
    asked the Applicant if she was
seeking
any relief beyond the divorce. She told me she was not. The
    Applicant gave no evidence that any of her legal rights were impacted by the
    foreign divorce other than her ability to remarry. She acknowledged that if I
    made an Order finding that the foreign divorce was valid, that issue would be
    solved.

[7]

The appellant relies on a recent decision of the
    Supreme Court of British Columbia,
Kootenay Savings Credit Union v. Brar
,
    2021 BCSC 2027, in support of her motion. This decision, which relates to the
    characterization of a fraudulent conveyance of a residential farm property, was
    not a motion to set aside or vary an order and is not relevant to the
    appellants request to set aside this courts order.

[8]

The motion under r. 59.06(2) is dismissed with
    costs to the respondent of $2,500, inclusive of disbursements and HST.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.





[1]

Antonyuk
    v. Antonyuk
, 2021 ONCA 748.


