Upon marriage breakdown, it will be necessary to divide family property and assets, either by agreement of the separating spouses or by order of the court. If the separating spouses ask the court to make an order to divide family property, they must take steps to ensure the court has all relevant evidence before trial. If a party has notice but fails to file available evidence to prove their claim in advance of trial, the court will not be sympathetic to a later request for reconsideration of the division of property, even if the party was self-represented at trial.
Parties must file evidence in advance of trial to divide family property
A common-law husband in Murphy v. Szulinszky, 2016 YKCA 16 was denied a “second kick at the can” in relation to an application to divide family property and assets. He had notice of the application for summary trial to divide family property but did not file evidence that was available to him. The court ordered unequal division of family property. The common-law husband (Mr. Szulinszky) appealed, arguing that he had “fresh” evidence. The Court of Appeal found that the “fresh” evidence was actually available to him at the summary trial – he simply did not take the necessary steps to present it to the court and he had no explanation for his failure to do so. The fact that he was a self-represented litigant did not excuse him from the rules of evidence or procedure.
The facts in Murphy v. Szulinszky
In 2001, Mr. Szulinszky and Ms. Murphy moved into a mobile home on “Lot 43”, a property they held as joint tenants. In early 2015, following the breakdown of their almost 20 year common-law relationship, Ms. Murphy initiated proceedings to divide family property and assets. In particular, she sought unequal division of the jointly held Lot 43 on the basis that Mr. Szulinszky had been unjustly enriched by her contributions during the relationship. Ms. Murphy was initially self-represented, but retained legal counsel after a Chambers judge advised both her and Mr. Szulinszky to seek legal advice. Despite the Court’s recommendation, Mr. Szulinszky remained self-represented throughout the proceedings.
Summary trial to divide family property
In 2016 Ms. Murphy brought an application to divide family property by way of summary trial. At the start of the summary trial, the judge specifically asked Mr. Szulinszky whether he was asking for an adjournment of the trial, and Mr. Szulinszky replied that he was not. The judge determined that the matter could proceed by way of summary trial. After hearing submissions from the parties, the judge found Mr. Szulinszky was unjustly enriched by Ms. Murphy and ordered that title to Lot 43 be transferred from their joint names to Ms. Murphy alone. The judge also granted a restraining order against Mr. Szulinszky. (See Murphy v. Szulinszky, 2016 YKSC 18 for the application of the doctrine of unjust enrichment to divide family property.)
Appeal from decision to divide family property unequally
Mr. Szulinszky appealed the order and applied to admit “fresh evidence” in the form of a sworn affidavit setting out his version of the parties’ respective financial contributions during the relationship. He disputed most of the evidence Ms. Murphy presented at the summary trial and claimed that he paid for all the household expenses and all the assets acquired during the relationship. The Court of Appeal dismissed his application to adduce fresh evidence, dismissed his appeal on the merits, and ordered costs to Ms. Murphy.
Appeal is not a second opportunity to present evidence
The Court of Appeal was quick to shut down Mr. Szulinszky’s plea to admit “fresh” evidence:
 An appeal is neither an opportunity to have the case re-tried nor a second opportunity for the parties to present evidence. On the contrary, the admission of fresh evidence on appeal is an exceptional measure. The governing principles on this issue are well-established and were summarized, more than thirty years ago, by the Supreme Court of Canada in R. v. Palmer,  1 S.C.R. 759 at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [citations omitted.]
No “second kick at the can” if party does not diligently present their case
Mr. Szulinszky’s version of how finances were handled during his relationship with Ms. Murphy and how their assets were acquired was available to him before the matter proceeded to trial. Similarly, the documents attached as exhibits to his affidavit were in large measure in his possession or within his control when he was served with Ms. Murphy’s materials. Though Mr. Szulinszky was a self-represented litigant, he understood enough about the process to take certain steps in the litigation and he was on notice for a long period of time that Ms. Murphy was seeking an order to divide family property. He simply did not take the necessary steps to present evidence to the trial court and had no satisfactory explanation for failing to do so.
Bottom line on presenting evidence to divide family property
Separating spouses must take steps to ensure that evidence available to them is filed with the court before the court makes an order to divide family property. If a party has notice of a claim to divide family property but is not diligent in responding to it, the court will not provide a second opportunity to present evidence that was available the first time around.