Goodfellow v. Tordjman
Ontario Reports
Court of Appeal for Ontario,
R.P. Armstrong, Blair and Pepall JJ.A.
June 5, 2013
116 O.R. (3d) 46 | 2013 ONCA 376
Case Summary
Limitations — Family law — Parties separating in 1998 — Respondent commencing action in Newmarket in 1999 for child support and other relief — Applicant filing statement of defence and counterclaim in 1999 — Newmarket action dismissed for delay in 2003 — Appellant bringing application in Toronto in 2011 for spousal support and also asserting claims based on constructive trust and unjust enrichment — Motion judge on motion by appellant for interim spousal support finding that [page47 ]Toronto application was statute-barred — Appellant's appeal allowed in part — Motion judge correctly finding that transition provision in Limitations Act, 2002 was inapplicable and that application for spousal support was statute-barred — Motion judge erring in staying entire application when only issue before him was interim spousal support — Matter referred back to motion judge to resolve status of balance of relief sought — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
The parties separated in 1998. In 1999, the respondent started an action against the appellant in Newmarket for child support, custody and other relief. The appellant filed a statement of defence and counterclaim in 1999 asserting claims for spousal support, a claim described as under the "law of trusts", a claim based on unjust enrichment and claims for other relief. The Newmarket action was dismissed for delay in 2003. In 2011, the appellant commenced an application against the respondent in Toronto for spousal support and also asserted claims based on constructive trust and unjust enrichment. On a motion by the appellant for interim child support, the motion judge found that, as the appellant had commenced his action in 1999, he remained subject to the limitation period in the Limitations Act, R.S.O. 1990, c. L.15 and could not avail himself of the changes that removed a limitation period for requesting spousal support in the Limitations Act, 2002. The appellant appealed.
Held, the appeal should be allowed in part.
The motion judge correctly found that the transition provision in the Limitations Act, 2002 was inapplicable. Accordingly, the now repealed s. 50(1) of the Family Law Act, R.S.O. 1990, c. F.3, which provided that no action or application for support of a spouse could be brought two years from the date the spouses separated, applied. The claim for spousal support was statute-barred, subject to the appellant's right to bring a motion under s. 2(8) of the Family Law Act for an extension of the two-year limitation period. The motion judge erred in disposing of the entire action by way of a stay when the only issue before him was interim spousal support. The matter should be referred back to the motion judge to resolve the status of the balance of the relief sought.
The appellant's counterclaim was dismissed by the 2003 order dismissing the "application". The counterclaim fell within the definition of both "application" and "case" under s. 2 of the Family Law Rules, O. Reg. 114/99.
Cases referred to
Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10, 274 O.A.C. 1, 328 D.L.R. (4th) 577, 2011EXP-624, 411 N.R. 200, J.E. 2011-333, [2011] 3 W.W.R. 575, 64 E.T.R. (3d) 1, 14 B.C.L.R. (5th) 203, 300 B.C.A.C. 1, 93 R.F.L. (6th) 1, EYB 2011-186472; St. Jean (Litigation guardian of) v. Cheung (2008), 94 O.R. (3d) 359, [2008] O.J. No. 4862, 2008 ONCA 815, 244 O.A.C. 160, 304 D.L.R. (4th) 619, 172 A.C.W.S. (3d) 1051
Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3 [as am.], ss. 2(8), 50(1) [rep. by S.O. 2002, c. 24, Sch. B, s. 25]
Limitations Act, R.S.O. 1990, c. L.15
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], s. 24(2)
Partition Act, R.S.O. 1990, c. P.4 [as am.]
Rules and regulations referred to
Family Law Rules, O. Reg. 114/99, rules 2 [as am.], 39(11), (12) [page48 ]
APPEAL from the order of Czutrin J. of the Superior Court dated January 16, 2012 staying an application for spousal support and for other relief.
Guy Hunter, for appellant.
Michael J. Polisuk, for respondent.
BY THE COURT: --
Introduction
[1] The parties to this appeal lived in a common law relationship for 25 years. There are four adult children of the relationship. In August or September 1998, the parties separated.
[2] In August 1999, the respondent commenced an action against the appellant in Newmarket (the "Newmarket action") for child support, custody of the children and other relief.
[3] In September 1999, the appellant filed a statement of defence and counterclaim. The appellant's counterclaim asserted claims under the Family Law Act, R.S.O. 1990, c. F.3, for spousal support and other relief including a claim under the Partition Act, R.S.O. 1990, c. P.4, in respect of the family residence, a claim described as under the "law of trusts", and a claim for unjust enrichment. The claims included a request for 50 per cent of the respondent's pension and moneys accumulated by the parties prior to their separation.
[4] On November 28, 2003, the Newmarket action was dismissed for delay by administrative order. During the oral argument of this appeal, both parties agreed that such dismissal included the dismissal of the counterclaim. However, at the request of the appellant, the court agreed to receive further submissions in writing on this issue.
[5] The dismissal order did not come to the attention of the appellant until sometime in 2007. Apparently, the notice of the dismissal was sent to the wrong address for the appellant's lawyer. No steps were taken to set aside the dismissal order until 2012, when the appellant moved to set aside the dismissal of the counterclaim. The motion to set aside the dismissal of the counterclaim was dismissed and is presently under appeal to this court in separate proceedings.
[6] About 12 years after the commencement of his Newmarket counterclaim, on August 2, 2011, the appellant commenced the current application against the respondent in Toronto (the "Toronto application") for spousal support, claims for constructive trust, unjust enrichment and other relief. In his application, the applicant stated that, "[t]his same Application was brought [page49 ]in 1999 in Newmarket Court and defended but never adjudicated" (emphasis added).
The Motion for Interim Spousal Support
[7] On December 12, 2011, the appellant's motion for interim spousal support in the Toronto application was heard by Czutrin J. Counsel for the respondent raised as a preliminary issue whether the earlier Newmarket action precluded the appellant from initiating the Toronto application.
[8] The motion judge concluded that, as the appellant had commenced his action in 1999, he remained subject to the limitation period in the Limitations Act, R.S.O. 1990, c. L.15 (the "former Limitations Act"). Accordingly, he could not avail himself of the changes that removed a limitation period for requesting spousal support in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
[9] At paras. 12 and 13 of his endorsement, the motion judge stated:
Ms. Tordjman takes the position that when considering the transitional provisions of the Limitations Act at sections 24(2) and 24(3) of the Limitations Act:
There was [a] limitation period imposed by former section 50 of the Family Law Act on applications for spousal support.
A proceeding was commenced by Mr. Goodfellow in 1999. Section 24(2) of the Limitations Act governs the transitional rules of this legislation, and makes it clear that individuals will only be released from the confines of a former limitation period where they declined to commence an action before January 1, 2004. Since Mr. Goodfellow began an action in 1999, he remains subject to that former limitation period, and cannot avail himself of the changes that removed a limitation period for requesting spousal support. For this reason, the transitional rules of the Limitations Act do not govern Mr. Goodfellow's motion, and his limitation period under the former rules has expired.
Further, section 24(3) of the Limitations Act, also denies Mr. Goodfellow access to its transitional provisions since the former limitation period for his spousal support claim would have expired by January 1, 2004 anyhow. This is because the parties separated in September of 1998, when the operation of section 50 of the Family Law Act meant that the limitation period for spousal support would have expired in September of 200[0], years before the January 1, 2004 deadline provided for in the Limitations Act.
I agree with Ms. Tordjman's position. To hold otherwise would permit the commencement of a new action seeking the same relief that was disposed of under the old limitations regime.[^1]
(Footnote added) [page50 ]
The Issues on this Appeal
[10] The appellant raises a great number of issues in this appeal, many of which appear to have marginal, if any, relevance to what was decided by the motion judge. The main issues raised by the appellant are as follows:
(i) the motion judge erred in his conclusion that the Toronto application was statute-barred pursuant to the provisions of the Limitations Act, 2002;
(ii) the motion judge erred in disposing of the entire action by way of a stay when the only issue before him was interim spousal support;
(iii) the motion judge erred in failing to invoke s. 2(8) of the Family Law Act to extend the time within which the Toronto application could be brought;
(iv) the motion judge failed to consider the conduct of the respondent in respect of the following:
(a) the respondent failed to inform the appellant until 2011 that their son, Daniel, moved out of his mother's home in 2002 while she continued to collect child support from the appellant for an additional five years. She also continued to collect child support after the Newmarket action was dismissed;
(b) the respondent concealed financial information from the appellant concerning her income and assets;
(c) the respondent did not speak to the appellant since December 1997 other than through lawyers;
(d) the respondent abandoned the property located at 40 Fairfax Court, Thornhill, Ontario, which caused it to go into power of sale. Its forced sale created a loss of $49,000 to the appellant.
(v) the motion judge failed to consider the decision of the Supreme Court of Canada in Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10;
(vi) the motion judge failed to consider the merits of the appellant's claim for spousal support;
(vii) The appellant raises a number of issues that are specific to the dismissal of the Newmarket action which need not [page51 ]be addressed here as they are properly matters to be addressed in the motion to set aside the dismissal of the counterclaim;
(viii) In addition, the appellant, contrary to his earlier position during oral argument, now asserts that the counterclaim in the Newmarket action was not dismissed by the order of November 28, 2003.
Analysis
(i) Did the motion judge correctly conclude that the Toronto application for spousal support was statute-barred?
[11] In our view, the motion judge correctly determined that the transition section in the Limitations Act, 2002, was inapplicable.
[12] The claims in the Toronto application arose when the parties separated on September 1, 1998. These same claims were included in the Newmarket action commenced in August 1999. The transition section of the Limitations Act, 2002 applies only to "claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date": s. 24(2). Since the proceeding was commenced before January 1, 2004, namely in 1999, the transition section does not apply.
[13] One must then determine whether the former Limitations Act or the Limitations Act, 2002 is applicable.
[14] There is a presumption against the retroactive application of legislation. As noted in obiter by Gillese J.A. in St. Jean (Litigation guardian of) v. Cheung (2008), 94 O.R. (3d) 359, [2008] O.J. No. 4862, 2008 ONCA 815, at para. 40: "[t]o accept that the new Limitations Act applies even if a proceeding has been commenced before January 1, 2004, amounts to a retroactive application of its provisions because such an interpretation would have the effect of deeming the law to be different from what it was when the facts occurred". While procedural legislation is presumed to have immediate application, in this case, the appellant's substantive rights are affected and the impact of the Limitations Act, 2002 is not simply procedural in nature.
[15] Accordingly, the now repealed s. 50(1) of the Family Law Act is applicable. It provided that no action or application for support of a spouse could be brought two years from the date the spouses separated. As the motion judge correctly observed, the two-year limitation period found in that statute expired in September 2001. As such, the appellant's 2011 claim [page52 ]for spousal support is statute-barred, subject to the appellant's right, as discussed below, to bring a motion under s. 2(8) of the Family Law Act for an extension of the two-year limitation period.
(ii) Did the motion judge err in disposing of the entire action by way of a stay when the only issue before him was interim spousal support?
[16] In addition to spousal support, the appellant claimed the following relief in the Toronto application:
(1) A claim for a constructive trust, unjust enrichment and a tracing of the appellant's interest in furniture and the down payment made on 41 White Blvd., Thornhill. In the alternative, a value-survived equitable interest for the appellant in 41 White Blvd. under the doctrine of unjust enrichment.
(2) 50 per cent interest in the respondent's Teacher's Principal's pension for period of cohabitation.
The motion judge made no specific reference to the above claims for relief apart from a generic reference to "other relief". His analysis on the limitations issue was confined to spousal support.
[17] The appellant objects to the fact that the motion judge disposed of the "trust claim" on a motion for interim spousal support. In his factum, the appellant submits that:
Given that the Applicant moving party (Appellant) was explicit that they did not want to adjudicate the issue of a limitation period in respect of the trust claim at the hearing of the interim spousal support motion in December, 2011, was it just that His Honour Justice Czutrin essentially disposed of Mr. Goodfellow's entire application?
[18] It may well be that applying a limitation period or other analysis to the balance of the relief sought would produce the result that the application is out of time or is improperly brought. This court could presumably conduct that type of analysis. However, since only the interim motion for spousal support was before the motion judge on December 12, 2011, our view is that the better approach is to refer the matter back to the motion judge to resolve the status of the balance of the relief sought. This disposition will enable the parties to make submissions on these issues and will afford the appellant full procedural fairness. [page53 ]
(iii) Did the motion judge err in failing to invoke s. 2(8) of the Family Law Act to extend the time within which the Toronto action could be brought?
[19] Section 2(8) of the Family Law Act provides:
2(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay.
[20] As noted above, we agree with the motion judge that the two-year limitation period in s. 50(1) of the Family Law Act applies to the appellant's spousal support claim in the Toronto application. However, s. 2(8) of the Family Law Act permits a party to bring a motion to extend any time prescribed by the Act and sets out the criteria for obtaining such an extension. The same provision appeared in the Family Law Act prior to the repeal of s. 50(1) in 2002.
[21] It would be unfair to expect the appellant to have anticipated the need to bring a motion to extend the two-year limitation period under the former Act in conjunction with his motion for interim spousal support. The appellant should therefore have the opportunity to bring a motion under s. 2(8) if he so chooses.
(iv) Did the motion judge err in failing to consider the conduct of the respondent as specified above?
[22] The motion judge had before him a preliminary motion brought by the respondent in respect of the limitation issue. If he had proceeded to hear the appellant's motion for interim spousal support, some of the alleged conduct of the respondent may well have been relevant to the merits of that motion. However, having disposed of the motion by way of the preliminary issue, it was unnecessary for him to consider the alleged conduct of the respondent.
(v) Did the motion judge err in failing to consider the decision of the Supreme Court of Canada in Kerr v. Baranow?
[23] In Kerr, the Supreme Court conducted a comprehensive review of the financial and property rights of unmarried cohabiting parties on the break-down of their relationship. The issues discussed by the court have no bearing on the limitation [page54 ]issue in the case at bar. Kerr would only be relevant to a consideration of the merits of the appellant's case. In light of the preliminary disposition he ordered, the motion judge found it unnecessary to engage in the merits of the appellant's case and, in those circumstances, we find no error in his failure to consider Kerr.
(vi) Did the motion judge err in failing to consider the merits of the appellant's claim for spousal support?
[24] For the reasons already advanced above, we see no error.
(vii) Did the motion judge err in failing to address a number of issues related to the dismissal of the Newmarket action?
[25] The motion judge properly declined to address the issues involving the dismissal of the Newmarket action. He advised the appellant that the appropriate avenue of redress, if any, was to pursue a motion to set aside the 2003 dismissal order. The appellant has taken that advice.
(viii) Was the counterclaim of the appellant dismissed by the order of November 28, 2003?
[26] At the opening of the argument of the appeal, the court brought to the attention of counsel the language of the order of November 28, 2003:
No party having taken any of the steps set out in subrule 39(11) of the Family Law Rules, within 30 days after service of the notice of approaching dismissal dated June 17, 2002 . . . ,
IT IS ORDERED THAT: pursuant to subrule 39(12) of the Family Law Rules, the application is dismissed without costs.
[27] Subrules 39(11) and (12) of the Family Law Rules, O. Reg. 114/99 provide:
39(11) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or electronic mail if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule (3).
(12) A case for which a notice of approaching dismissal has been served shall be dismissed without further notice, unless one of the parties, within 60 days after the notice is served,
(a) obtains an order under subrule (3) to lengthen that time; [page55 ]
(b) files an agreement signed by all parties and their lawyers if any, for a final order disposing of all issues in the case, and a notice of motion for an order carrying out the agreement;
(c) serves on all parties and files a notice of withdrawal (Form 12) that discontinues all outstanding claims in the case;
(d) schedules or adjourns the case for trial; or
(e) arranges a case conference or settlement conference for the first available date.
[28] Under the Family Law Rules, "'application' means, as the context requires, the document that starts a case or the procedure by which new cases are brought to the court for a final order or provisional order". The term 'case' means "an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals".
[29] During oral argument, the panel asked counsel if the use of the word "application" in the order above was broad enough to include the dismissal of the counterclaim. In response, both counsel advised that it was. However, subsequent to the hearing, counsel for the appellant sent a letter to the court in which he advised that the appellant wished to make further submissions on this issue. For the sake of completeness, the panel permitted both counsel to make further submissions in writing.
[30] In his written submissions, counsel for the appellant argues that the counterclaim in the Newmarket action was not dismissed. He further argues that only the respondent's application was dismissed. This position is contrary to his initial position in response to the question raised by the court and also contrary to the motion that the appellant has brought through a different lawyer to set aside the dismissal of the counterclaim.
[31] Not surprisingly, counsel for the respondent maintains the position that the counterclaim in the Newmarket action was dismissed by the order of November 28, 2003. He submits that since neither the word "answer" nor "counterclaim" is defined in the Family Law Rules, the appellant's counterclaim falls within the definition of application.
[32] We agree with the respondent. The appellant's counterclaim falls within the definition of both "application" and "case" under s. 2 of the Family Law Rules. We also note that this issue was not raised by either party in the court below or in this court. In any event, in separate proceedings, the appellant has moved to set aside the dismissal of his counterclaim. [page56 ]
Disposition
[33] In the result, we would dismiss the appeal in respect of the stay of the claim for spousal support subject to the appellant's right to bring a motion for an extension of time under s. 2(8) of the Family Law Act. In addition, we would lift the stay in respect of the other relief sought and refer the limitation period issue and any remaining issues back to the motion judge.
[34] As success on this appeal is divided, we would make no order as to costs.
Appeal allowed in part.
Notes
[^1] All references to the "Limitations Act" in this quotation are to the Limitations Act, 2002.
End of Document