2010 ONSC 6519, 2010 ONSC 6519

CITATION : Middel v. Vanden Top Estate, 2010 ONSC 6519 ST. CATHARINES COURT FILE NO.: 51343/09 DATE: 2010/12/08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) CATHARINA MIDDEL (formerly Vanden Top) ) ) ) Andrew Rogerson , for the Applicant ) Applicant ) ) - and - ) ) ) ESTATE OF THE LATE CORNELIUS VANDEN TOP, by the Estate Trustee WILLIAM DUNLOP ) ) ) Richard Campbell , for the Respondent, Christopher Argiropoulos , for Harley Vanden Top ) Respondent ) ) ) ) HEARD: November 1, 2010 THE HONOURABLE MR. JUSTICE D.J.

TALIANO [ 1 ] This is a motion for an order setting aside the judgment of this court which dismissed the applicant’s claim against her former husband’s estate for support. The current motion also seeks an injunction to restrain the distribution of the estate. [ 2 ] The original judgment was released on June 16, 2010 and had not yet been taken out at the time this motion was filed. [ 3 ] The grounds for the present motion, are that: (

a) the judgment was obtained by fraud; and (

b) crucial facts discovered after the hearing and which were allegedly not available prior to the hearing, would now dictate a different result. [ 4 ] The motion is supported by a fresh affidavit from the applicant and an affidavit by Gregory Prekupec, a student at law, employed by counsel for the applicant. [ 5 ] The motion is brought under Rule 59.06(2) of the Rules of Civil Procedure . It provides: 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 . Allegations of Fraud: [ 6 ] As I understand the applicant’s submission, the fraud she alleges arises by reason of the contents of the affidavit of her son, Harley, which she claims led the court to make adverse findings of credibility against the applicant. The applicant contends that Harley’s evidence was false and that the affidavit of Mr.

Prekupec, combined with her own fresh affidavit, rebuts the evidence of Harley and should therefore prompt a different disposition of her original application. [ 7 ] At the heart of this case was the applicant’s approximate 28 year delay in asserting a claim for compensation by reason of her contribution to her former husband’s success during their marriage which ended in divorce in 1975. In her original application, the applicant’s affidavit material was not forthcoming as to what occurred during the 28 year span between her separation and divorce from her ex husband and the assertion of her claim.

She merely stated that she had received a “very poor settlement” and lost “what little she had during the 1985 recession” and turned to her former husband for assistance, which he provided. [ 8 ] After his death, she asserted a claim seeking compensation for the years she had allegedly lived in poverty. A follow-up affidavit stressed her former husband’s wealth and success. [ 9 ] Her son, Harley, filed responding affidavit material that provided many details of what had occurred during that period. It is certainly true that Harley’s affidavit weakened the applicant’s already suspect application.

However, it is not true that Harley’s affidavit alone led to adverse credibility findings against the applicant. There were several other factors that played a role, including the fact that the applicant’s material was misleading and incomplete. [ 10 ] In her fresh application, the applicant repeats previous complaints about the adequacy of the property settlement that she received from her former husband. She also takes issue with Harley’s evidence that his father’s business struggled in its early stages and that success only came later.

The applicant contends that her former husband was extremely successful both during the period they cohabited and afterwards and she details the many luxuries that she enjoyed while they were married and that her former husband enjoyed after their break-up while she was languishing in poverty. [ 11 ] Assuming that her present evidence regarding her own impoverished condition and the timing of the accumulation of her former husband’s wealth is more accurate than the evidence of Harley, her evidence would not warrant any different disposition of the applicant’s application for support because it does not alter the fact that she failed to take action against her former husband while they were still married or at any time during his lifetime, notwithstanding their allegedly widely disparate financial circumstances.

Although she offered several explanations as to why she neglected to present a claim, none of the former or current explanations, excuse the laches in this case. [ 12 ] It is also noteworthy that at no time in either the original material or in the fresh material does the applicant allege that she was prevented by her former husband from presenting her claim.

She merely states that he would have opposed it. [ 13 ] The acknowledgement by the applicant in her fresh material of the existence of a second common law relationship with Joe Thomas offers further evidence that the more probable explanation for her forbearance is that she was pursuing a lifestyle that centered on other relationships the existence of which had been exposed by Harley’s evidence. The disclosure of yet a second common law relationship which was previously undisclosed combined with the e-mails attached to the responding materials, place the applicant’s motion in an undesirable context.

These factors support the respondent’s contention that the applicant’s claim is simply a thinly disguised effort to rewrite the terms of her former husband’s will. This was not the remedial objective of the legislation in question. [ 14 ] Courts are frequently called upon to resolve conflicting and contradictory evidence. However, mere differences in the recollections of adverse witnesses, particularly when describing historical events, in and of themselves, generally, will not support a finding of fraud. Lord Herschell’s definition of fraud in Derry v.

Peek , [1889] 14 A.C. 337 (H.L.), at page 374, is applicable. He held that fraud is proved when it is shown that a false statement has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, or carelessly as to whether it be true or false. An honest belief in the truth of the statement will not support a finding of fraud. [ 15 ] In my view, fraud has not been proven by the applicant’s materials.

For the most part, the applicant has confirmed most of the contents of Harley’s evidence to be true, and where they differ, for instance on their standard of living, it is not over the assets which were owned at the time, but the value of those assets which lends itself to varying descriptions depending on the perspective of the witness. Here, we are dealing with the perspective of a young person as compared to his mother, where differences in the descriptions would be expected. In addition, even assuming the evidence of the applicant on this subject is more accurate, it would not change the result.

The applicant is still caught in the dilemma that at a point in time when she was allegedly impoverished and her former husband was well off, she did not assert a family law claim for any legally justifiable reason. [ 16 ] Accordingly, there can be no relief granted to the applicant on the basis of her allegations of fraud. Very simply, the fraud has not been proven. After Discovered Evidence: [ 17 ] I will now deal briefly with the second ground argued, that crucial facts discovered after the hearing would now dictate a different result.

[18] The fresh affidavit of the applicant makes it clear that the evidence which she currently proposes to rely upon to set aside thejudgment was, for the most part, within her knowledge at all material times and yet was withheld from the court. The words by theDivisional Court in Risorto v. State Farm Mutual Automobile Insurance Co., [2009] O.J. No. 820 are applicable: An orderly system of litigation requires that each party put his or her best foot forward. It contemplates that judgment will be renderedafter each party has done so. Litigation by instalments is not to be encouraged.

There is a strong interest in finality, which should only bedeparted from in exceptional circumstances. Parties make strategic decisions in the course of litigation, and except in narrowcircumstances they must be held to those decisions. At para. 14 of her judgment in DeGroote, supra, Lax J. quoted with approval thefollowing statements by Wilkins J. in Strategic Resources International Inc. v.

Cimetrix Solutions Inc. (1997), (ONSC), 34 O.R. (3d) 416, at p. 421: After the trial is complete and judgment is rendered, it is always a simple matter, utilizing hindsight, to go about reconstructing a bettermethod of presenting the case when one finds oneself in the sorry position of being a loser.

In the same paragraph, Lax J. noted the observation of the Court of Appeal in Becker Milk, supra, at p. 556, that “An unsuccessfullitigant, save in very special circumstances, should not be allowed to come forward with new evidence available prior to judgment whenhe was content to have the trial judge bring forward his judgment based on the record produced at a trial in which that litigant activelyparticipated.” [19] The applicant now claims that an exceptional circumstance exists in this case to warrant the reopening of the case, that being theapplicant’s frail health.

The applicant’s fresh material details a variety of health issues, which she claims interfered with her ability toproperly present her application. It is an explanation which I cannot accept. [20] Her original claim was initiated in May 2009 and affidavits were exchanged and questioning was conducted. During that wholeprocess, no mention was made of health issues impacting on the applicant’s ability to present her claim and no adjournments were soughtat any time due to health issues. The applicant has appeared regularly in court and showed no apparent signs of frail health during thoseappearances.

Now, following a judgment adverse to the applicant, she attributes her failure to properly address the issues and to truthfullydisclose what had occurred in the years between her divorce and the death of her former husband, to health issues. Although she mayhave medical ailments, she has not proven that those problems impacted on her ability to properly address the requirements of her claim. Nor has she tendered any medical or other credible evidence to support her allegation.

In addition, the time to have raised the issue thatill health was preventing her from properly presenting her application, if indeed it did, was during the process and prior to judgment, notafterwards. [21] In the final analysis, the applicant is pursuing claims that have been statute barred for many years; claims that were extinguishedby divorce; claims that even if they could have been revived following divorce, were certainly extinguished by her former husband’sdeath. At the time of the husband’s death, he was not responsible for the applicant.

Nor can what remains of his estate be heldresponsible for her now. [22] That was the conclusion that the court drew on the basis of the original filings. The fresh evidence does nothing to alter theoriginal conclusion reached by the court. [23] Accordingly, the motion to re-open this matter is denied. The injunction granted by Arrell J. is hereby dissolved. [24] The court will entertain costs submissions, if necessary, through arrangements made with the local trial coordinator’s office. ___________________________ Taliano J. Released: December 8, 2010 CITATION: Middel v. Vanden Top Estate, 2010 ONSC 6519 ST.

CATHARINES COURT FILE NO.: 51343/09 DATE: 2010/12/08

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: CATHARINA MIDDEL (formerly Vanden Top) Applicant - and - ESTATE OF THE LATE CORNELIUS VANDEN TOP, by the Estate Trustee WILLIAM DUNLOP Respondent REASONS FOR JUDGMENT Taliano J. Released: December 8, 2010