Court of Appeal for Ontario

Citation: Carr v. Parlee, 2010 ONCA 254 Date: 2010-04-09 Docket: C49788

Between: Virginia Nancy Anne Carr (Appellant) and A. Paul Parlee (Respondent)

Before: Gillese, Lang and Rouleau JJ.A.

Counsel: Virginia Nancy Anne Carr, acting in person Terry W. Hainsworth and Sue Noorloos, for the respondent

Heard: April 6, 2010

On appeal from the judgment dated November 21, 2008 and the costs order dated February 3, 2009 by Justice R.M. Thompson of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant challenges the trial judge’s decision in her action for negligence and breach of fiduciary duty against her former solicitor, Mr. Parlee.

[2] In the midst of the 2005 matrimonial trial, and with the advice of Mr. Parlee, the appellant entered into minutes of settlement with her former husband. Within a few months, the appellant sued Mr. Parlee alleging that he was negligent and had breached his fiduciary duty in his conduct of the matrimonial action and in the advice he gave the appellant at the time of the settlement.

[3] At the 2008 trial, Mr. Parlee admitted negligence in two respects. First, he admitted that he failed to identify that the husband’s cottage property was a matrimonial home subject to equalization at the date of separation. Second, he failed to advise the appellant about the proper range of spousal support to which she was entitled after her 24-year marriage. The trial judge rejected the numerous other claims of negligence that the appellant alleged against Mr. Parlee. In the result, the trial judge awarded the appellant damages regarding the cottage and spousal support negligence, totalling $69,684, plus prejudgment interest.

[4] As she did at trial, the appellant argues on appeal that the lawyer’s negligence went far beyond the cottage and spousal support. She alleges that the negligence permeated every aspect of her settlement with her former husband and that, as a result, every item that might have been included on a net family property statement should be reconsidered and the equalization payment calculated anew. However, we agree with the trial judge that the lawyer’s negligence and consequent damages are limited to the two particular areas of admitted negligence and did not permeate the whole of the settlement.

[5] The trial judge could have canvassed the factual basis for his rejection of the appellant’s other grounds of alleged negligence in more detail. However, he concluded that the appellant’s other attacks on the overall global settlement of $280,000 were simply attempts to re-examine or fine tune the settlement using hindsight. He did so after noting the appellant’s difficulties with her claim for constructive trust against the cottage and with the value that she placed on the matrimonial home, which would have been adversely affected by the recent discovery that it was insulated with toxic material. In our view, the trial judge’s reasons are adequate for their purpose and do not raise a reviewable error.

[6] The trial judge also rejected the wife’s claim for section 7 expenses. He did so on the basis that the claim was not substantiated by the evidence and that, in any event, it was resolved by the parties when the wife withdrew her claim in exchange for the husband agreeing to be responsible for half of the increased line of credit.

[7] The trial judge was also alert to the disposition of costs and prejudgment interest in the minutes of settlement. He took into account evidence of the husband’s intransigence on this issue as well as the improbability of the appellant achieving success at trial in obtaining this relief.

[8] We see no error in the trial judge’s rejection of these other grounds of negligence.

[9] Before us, the appellant did not pursue her submission that the trial judge was biased in favour of the respondent. Accordingly, nothing more needs to be said in relation to this ground of appeal.

[10] We turn to the remaining issue, which was the amount of damages ordered for the negligence in regard to spousal support.

[11] The trial judge’s determination of the damages related to spousal support was limited to a relatively narrow period of time. This was because the impugned minutes of settlement had provided for a review of spousal support in 2007. When the appellant sued Mr. Parlee, Mr. Parlee issued a third-party claim against the former husband. The parties then settled the issue of spousal support from July 2007 onwards, although only the fact and not the terms of that settlement were disclosed to the trial judge. In the result, the damages arising from Mr. Parlee’s negligence on the question of spousal support were restricted to the period from the date of the parties’ separation until the 2007 review date.

[12] Although the parties had separated in 2001, the wife continued to reside in the matrimonial home until the summer of 2003, initially on a full-time basis and latterly on a part-time basis. At the eventual February 2004 hearing of the wife’s claim for interim spousal support, the motion judge concluded that the wife earned approximately $34,000 annually and the husband earned an annual average income of $75,000. On this basis, he awarded the appellant interim support of $700 per month. That amount was carried forward into the minutes of settlement as ongoing support.

[13] The trial judge concluded that, had Mr. Parlee advised the appellant about the proper amount of Guidelines spousal support, she would have been awarded support of $1,500 monthly. We see no error in the damages award based on this amount of monthly spousal support.

[14] We also see no error in the trial judge’s refusal to give the appellant a separate damages award for her claimed post-separation educational costs, which he would have taken into account in his disposition of her claim regarding spousal support.

[15] In addition, the appellant challenges the trial judge’s notional start date of February 2004. She argues that the proper commencement date should have been the summer of 2003 when she initially moved out of the matrimonial home, or September 2003 when the claim was advanced for interim child support, or November 2003 when she commenced her motion for spousal support.

[16] The trial judge listed five circumstances in denying the appellant damages for lost spousal support based on a commencement date earlier than February 2004. The first factor, that the appellant was earning $34,000 annually, was not relevant, particularly in light of the evidence that the husband’s average income was $75,000. The second and fourth factors related to the parties’ living arrangements until the summer of 2003. However, those arrangements do not explain why spousal support should not begin after the appellant fully moved out of the home. The third and fifth factors relate to the wife’s increase of the parties’ line of credit by $39,000 around the time of separation. However, this increase in debt load could not be relevant to the issue of the retrospectivity of spousal support in light of the fact that responsibility for the increased debt was adjusted by the parties in satisfaction of the wife’s claim for section 7 expenses. Counsel for the respondent acknowledges that the trial judge’s reasons appear to “double account” for the increased line of credit. The $39,000 line of credit was irrelevant to the start date of spousal support. Accordingly, in our view, the trial judge erred in restricting the commencement date of spousal support to February, 2004.

[17] The starting date for child support, which was not challenged on appeal, was September 4, 2003. In our view, the circumstances at that time, as well as the fact that the appellant could reasonably have made a claim for spousal support retrospective to that date, make September 4, 2003 an appropriate notional commencement date. This commencement date would have given the appellant a further six months of spousal support or $6,210.[^1] Accordingly, we increase the spousal support damages by $6,210 and order prejudgment interest on that amount at the 4 per cent rate awarded by the trial judge. We would otherwise dismiss the appeal.

[18] The appellant achieved some limited success on the appeal on the issue of spousal support. However, the respondent was successful in resisting the weight of the appeal. In light of this result, costs to the respondent are fixed in the amount of $5,000, inclusive of disbursements and GST.

“E.E. Gillese JJ.A.”

“S.E. Lang J.A.”

“Paul Rouleau J.A.”

[^1]: $1,500 X 6 = $9,000 less 31% for income tax consequences.