DIVISIONAL COURT FILE NO.: DC-15-792-00
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
A. Molloy, C. Horkins, and J.P.R. Howard JJ.
BETWEEN:
Tatjana Brueske Applicant /Respondent on appeal
– and –
Michael Brueske, acting in person Respondent/ Appellant on appeal
B. Walmsley, Counsel for the Applicant/Respondent on appeal Self-Represented
HEARD at Oshawa: September 13, 2016
THE COURT
1The appellant, Michael Brueske (“the husband”), appeals the final support order of Hughes J. of the Superior Court of Justice Family Court Branch. Mr. Brueske seeks to set aside the order, reimbursement for spousal support made in excess of $6200, costs for the appeal, and reimbursement of costs already paid. The respondent, Tatjana Brueske (“the wife”), seeks to dismiss the appeal with costs ordered on a substantial indemnity basis.
2Among the husband’s grounds for appeal are concerns that he has raised about the lack of procedural fairness. For the reasons explained, we find that procedural fairness was lacking, and on this basis alone, we set aside the order of Hughes J. We are making no findings on the substantive issues decided by Hughes J.
3By way of background, the parties were married for less than a year. The procedural history of this file is documented in numerous court endorsements. Initially, the husband was ordered to pay the wife spousal support on an ex-parte motion. The husband successfully moved before Hughes J. on March 10, 2014, and the court set aside the ex-parte order without prejudice to the husband’s right to bring a further motion to determine “if the spousal support should have terminated sooner.”
4The husband served a notice of motion and an affidavit in March 2014, seeking a final order on the spousal support issue. This motion was heard by Douglas J. on April 1, 2014. Douglas J. dismissed the husband’s claim for equalization and Charter damages, and ordered that all remaining issues between the parties “shall proceed to a settlement conference before Hughes J. on July 3, 2014, on consent.”
5A settlement conference was held before Hughes J. on July 3, 2014, at which time she reviewed the husband’s offer to settle. She required further information concerning arrears from the Family Responsibility Office (“FRO”), and ordered a statement of these arrears. She adjourned the settlement conference to July 23, 2014.
6On July 23, 2014, the settlement conference continued before Hughes J. The endorsement records that the FRO statement had been provided, and that the spousal support issue remained outstanding, as did the issue of spousal support arrears. The judge adjourned the settlement conference. The judge’s endorsement includes the following: “Matter is being adjourned to permit detailed submissions and facta on the issue of appropriate [spousal support] given the unique circumstances of this case. Counsel and the [husband] have been urged to review the SSAG exceptions and the [husband] has been urged to get legal assistance with his submissions, legal research, and preparation of his factum.”
7Finally, the judge made the following orders “[Order to Go]: 1. This matter is adjourned to the 20 Oct 2014 at 9:30 a.m. 2. Counsel for the [wife] to serve and file a copy of his written submissions and factum by the 19 Sept 2014; 3. The [husband] to serve and file a copy of his written submissions and factum by 10 Oct 2014; 4. Counsel for [wife] to serve and file any response on or before 15 Oct 2014; 5. The [husband’s] approval of this order is dispensed with.”
8The wife did not comply with the filing deadlines. The husband did comply and filed his written submissions and his factum. On October 20, 2014, Hughes J. recorded the wife’s non-compliance, and the husband’s compliance, and adjourned “this matter” to December 11, 2014, peremptory to both parties.
9On December 9, 2014, counsel for the wife, for the first time delivered material, specifically a factum and a substantial affidavit, by leaving the documents in the husband’s mailbox. The process server left the original documents in the mailbox in error, and returned to the mailbox on December 10. The original was still in the mailbox. The process server substituted it with a copy.
10On December 11, 2014, the husband and the wife’s counsel attended before Hughes J. Just prior to court commencing, counsel for the wife gave the husband a copy of the wife’s factum and the wife’s affidavit. The husband advised Hughes J. that he had been served with the wife’s material for the first time that morning.
11Counsel for the wife explained to the judge the problems he had experienced trying to serve the husband. The judge stated as follows, “I think it’s in everyone’s best interest that we proceed today and finalize this if Mr. Brueske is agreeable to that.” Mr. Brueske responded, “Sure.”
12The matter then proceeded before the court, and the judge made a final order dealing with spousal support. In the judge’s endorsement that was issued on February 23, 2015, and in particular at paragraph four, she stated, “This matter was heard pursuant to Rule 2(2) and (3) of the Family Law Act on consent of the parties, with the request that a final order be made by the court. Written material, including affidavits, final written submissions and factums were filed by both parties.”
13The husband believed that a settlement conference was taking place on December 11, 2014. Counsel for the wife believed that the judge was hearing the balance of the husband’s motion that he had filed in March of 2014. The precise nature of “the matter” that the judge heard on December 11, 2014 is not addressed in any of the judge’s endorsements leading up to the December 11 hearing, nor is it addressed by the judge on the record, nor in her reasons.
14There are two procedural fairness concerns:
The settlement conference judge proceeded to decide the spousal support issue without a clear consent from the parties;
The late service of a factum and affidavit on the husband without any opportunity to respond.
15Dealing with the first point, as a matter of principle, the judge that hears the settlement conference should not decide the issues between the parties without a clear consent from both parties, particularly when the settlement conference judge considers offers to settle, as happened in this case (see: B.(A) v. (N.L.) 2013 ONSC 2990; Afful v. Laing 2014 ONSC 74).
16With respect to the second concern, the wife’s late service of material, we note that the service of the wife’s affidavit was not contemplated in the judge’s earlier orders. While the judge asked the husband if he was prepared to proceed, and though he said he was, the judge first made it clear that in her view the matter should proceed. This put the unrepresented party in a very difficult position.
17Given the totality of this procedural unfairness, we are not satisfied that the husband had a fair hearing. For these reasons, the decision is set aside.
18We order as follows:
The order of Justice Hughes, dated February 23, 2015, is set aside; and
The matter is remitted to the Family Court for a new hearing to be scheduled before a different judge.
19We recommend that before a hearing is scheduled that the parties attend a settlement conference. If the outstanding issues cannot be resolved at the settlement conference, the settlement conference judge should clearly identify the remaining issues to be determined and the manner in which that will occur.
20We recommend that the wife participate by telephone conference and/or video link for any conference that is scheduled.
___________________________ A. Molloy J.
C. Horkins J.
J.P.R. Howard J.
Date of Reasons for Judgment: September 13, 2016
Date of Release: September 15, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A. Molloy, C. Horkins, and J.P.R. Howard JJ.
BETWEEN:
Tatjana Brueske Applicant /Respondent on appeal
– and –
Michael Brueske, acting in person Respondent/ Appellant on appeal
ORAL REASONS FOR JUDGMENT
THE COURT
Date of Reasons for Judgment: September 13, 2016