Titova v. Titov,

• Jurisdiction: Ontario
• Judge: Goudge, Rouleau and Watt, JJ.A.
• Neutral Citation: 2012 ONCA 864
• Citation: 2012 ONCA 864,(2012), 299 O.A.C. 215 (CA),29 RFL (7th) 267,[2012] OJ No 5808 (QL),299 OAC 215,299 O.A.C. 215,[2012] O.J. No 5808 (QL),(2012), 299 OAC 215 (CA)
• Date: 24 October 2012
• Court: Court of Appeal (Ontario)

Titova v. Titov (2012), 299 O.A.C. 215 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.038

Tatiana Titova (applicant/respondent in appeal) v. Boris Titov (respondent/appellant in appeal)

(C54800; 2012 ONCA 864)

Indexed As: Titova v. Titov

Ontario Court of Appeal

Goudge, Rouleau and Watt, JJ.A.

December 7, 2012.

Summary:

The parties were divorced. They had three children. At issue on this appeal was: whether the trial judge erred in: (a) awarding retroactive child support and s. 7 extraordinary expenses; and (b) transferring ownership of a life insurance policy and awarding sole custody of one of the children to the respondent wife, when neither of those orders had been sought.

The Ontario Court of Appeal allowed the appeal and substituted its own order based on the record.

Courts - Topic 561

Judges - Powers - To make order not requested - The parties were divorced - They had three children - At issue on this appeal, inter alia, was whether the trial judge erred in transferring ownership of a life insurance policy and awarding sole custody of one of the children to the respondent wife, when neither of those orders had been sought - The Ontario Court of Appeal deleted the paragraphs relating to those matters from the trial judge's order - The court stated that "Rule 2 of the Family Law Rules, O. Reg. 114/99 provides the court with great latitude to adjudicate cases fairly. There are circumstances, particularly where a party is self-represented, in which unrequested orders are appropriately made. In the circumstances of this case, however, I agree with the appellant that it was an error in law for the trial judge to make both these orders in the absence of any evidence or submissions on these issues and in the absence of any explanatory reasons." - See paragraphs 46 to 51.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - The parties were divorced - They had three children - At issue on appeal, inter alia, was whether the trial judge erred when awarding s. 7 extraordinary expenses - The Ontario Court of Appeal allowed the appeal - The trial judge considered almost none of the relevant factors - Adequacy of reasons was determined on a functional basis - The reviewing court should consider whether the reasons were sufficient given the three rationales (previously set out by the court) of public confidence in the administration of the justice system, the importance of telling the losing party the reasons for having lost, and making the right of appeal meaningful - Given the obvious issues disclosed by the record, it was an error to award all of the requested extraordinary expenses without any engagement with the test or explanation of why the award was appropriate - See paragraphs 21 to 33.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - The parties were divorced - They had three children - At issue on appeal, inter alia, was whether the trial judge erred in awarding retroactive child support - The Ontario Court of Appeal allowed the appeal - There was no discussion in the trial judge's reasons of the appropriateness of making the retroactive award - There was no mention or discussion of the factors to be weighed - The trial judge erred in principle by failing to acknowledge any of the necessary cautions associated with making a retroactive support order and failing to consider whether the older children's age was a bar to awarding retroactive support - See paragraphs 34 to 44.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See second Courts - Topic 583 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See second Courts - Topic 583 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - [See first Courts - Topic 583 ].

Family Law - Topic 4108

Divorce - Practice - Rules of court - Ontario - [See Courts - Topic 561 and Practice - Topic 8817 ].

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - The parties were divorced - They had three children - At issue on this appeal was whether the trial judge erred in: (a) awarding retroactive child support and s. 7 extraordinary expenses; and (b) transferring ownership of a life insurance policy and awarding sole custody of one of the children to the respondent wife, when neither of those orders had been sought - The Ontario Court of Appeal allowed the appeal where, inter alia, the judge's reasons were inadequate - The court granted the appellant's request not to order a new trial, but to substitute its own order based on the record instead - This was consistent with the stated primary objective of the Family Law Rules to deal with cases justly - That specifically included saving expense and time (rule 2(3)(b)) - The appellant explained that the parties' resources were limited and continuing the litigation would be detrimental to them both - The respondent did not specifically address the issue of remedy if the appeal was allowed, but she did refer many times to the toll that continuing the litigation was taking on her and the children - See paragraphs 53 and 54.

Practice - Topic 8818

Appeals - General principles - Duty of appellate court to remit to trial judge - [See Practice - Topic 8817 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 14].

McLaughlin v. McLaughlin (1998), 113 B.C.A.C. 224; 184 W.A.C. 224; 167 D.L.R.(4th) 39 (C.A.), refd to. [para. 28].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 29].

Young v. Young (2003), 168 O.A.C. 186; 63 O.R.(3d) 112 (C.A.), refd to. [para. 30].

Bodnar v. Blackman (2006), 215 O.A.C. 85; 82 O.R. (3d) 423 (C.A.), refd to. [para. 30].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 34].

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 75 (C.A.), refd to. [para. 46].

Counsel:

Aaron Franks and Michael Zalev, for the appellant;

Tatiana Titova, in person.

This appeal was heard on October 24, 2012, by Goudge, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. Rouleau, J.A., delivered the following decision for the court on December 7, 2012.