CITATION: Beamer v. Beamer, 2013 ONSC 7379
COURT FILE NO.: DC-12-354
DATE: 20131128
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: Rhonda Ruth Beamer, Applicant (Respondent)
-and-
Albert Frank Beamer, Respondent (Appellant)
BEFORE: Justices Matlow, Aston & J. Donohue
COUNSEL: W. Gerald Punnett, for the Respondent (Appellant)
Kanata J. Cowan, for the Applicant (Respondent)
HEARD AT: Hamilton October 2, 2013
A M E N D E D E N D O R S E M E N T
MATLOW J.:
Disposition
[1] This appeal by the respondent, Albert Frank Beamer, is from the order of Justice Sloan dated February 16, 2012. Both counsel now agree that this appeal has become moot and should be dismissed. However, they cannot agree on the disposition of costs and have left that issue to this Court to determine. The applicant, Rhonda Ruth Beamer, seeks costs of about $15,000 and the respondent submits that there should be no order made with respect to costs.
[2] Both counsel also agree that, prior to March 5, 2012 the respondent did what was required to restore the insurance coverage to his former spouse and, as a result, he was in compliance with the orders of Justices Crane and Sloan. It follows that the respondent could not, and was not, found in contempt as contemplated by the wording of the order in appeal.
[3] Accordingly, the appeal is dismissed. In the exercise of our discretion, it is our determination that the applicant is entitled to recover the costs of this appeal, fixed at $5000, all-inclusive, from the respondent.
The issue
[4] The parties are former spouses. The order of Justice Crane dated October 26, 2009, which gave effect to minutes of settlement signed by the parties in anticipation of their divorce, provided, in paragraph 11, as follows:
- The Respondent shall name the Applicant as beneficiary on all major medical coverage so long as such is available to him through his employment at no cost to the Respondent. In the event of any cancellation of benefits by the Respondent’s employer, the Applicant shall receive 60 days notice.
[5] The respondent remarried following the parties’ divorce and appointed his new spouse as the beneficiary of the medical insurance. If he had wanted both his former spouse and his new spouse to be beneficiaries, he would have been required to pay an additional premium of $170 per month. Accordingly, he took the position that because coverage for his former spouse would no longer be available to him “at no cost”, his obligation to maintain the coverage had come to an end and he therefore terminated the coverage.
[6] The applicant then sought and obtained the order in appeal requiring the respondent to reinstate the coverage. Paragraph 1 of that order provided as follows:
- The Respondent shall forthwith register the Applicant as the beneficiary under his extended medical benefit coverage available to him through his employment and furnish proof of same to the Applicant’s counsel on or before March 5, 2012. Failing which the Respondent shall be found in contempt of Justice Crane’s Order of October 26, 2009, and the Applicant may bring the matter back to determine how the contempt should be purged.
[7] In these circumstances, by March 5, 2012, it ought to have been evident to counsel for the appellant that this appeal was bound to fail and that there was no point in proceeding with it and putting the respondent to the burden of preparing for this appeal. Similarly, the same ought to have been evident to counsel for the respondent and, rather than prepare for this appeal, she ought to have moved for an order dismissing it. Much time and expense was wasted by the oversights of both counsel.
[8] Finally, I observe that the order in appeal is not a final order that is appealable to this Court or an interlocutory order for which leave to appeal has been granted. It follows that, quite apart from the issue of mootness, this Court has no jurisdiction to entertain this appeal on its merits. We do, however, in the circumstances of this appeal have jurisdiction to dismiss it and make an award of costs.
Costs
[9] Because counsel for the applicant must share some responsibility for the futility of this appeal, we have awarded costs to the applicant but in a lesser amount than otherwise might have been granted.
A final observation
[10] The real issue between the parties was whether the order of Justice Crane required the respondent to maintain the medical insurance coverage for the applicant even after his remarriage. In our view it does. Mr. Beamer cannot unilaterally alter his obligation under the order by his own voluntary act. He must bring a motion to change the order to be relieved of that obligation.
MATLOW J.
ASTON J.
DONOHUE J.
DATE: November 28, 2013
CORRECTION NOTICE
Corrected decision: the text of the original endorsement was corrected on February ___, 2014, and the description of the corrections is appended:
neutral citation year “2012” was replaced by“2013”
page 1, paragraph [3], second line – “that he applicant” was changed to “that the applicant”
page 2, paragraph [7], third and fourth line – “the same ought to have been evident to counsel for the appellant” has been changed to “the same ought to have been evident to counsel for the respondent”