Court File and Parties

Court File No.: Toronto DFO-11-10168 Date: 2020-02-07 Ontario Court of Justice

Between:

Anna Lerus, Applicant

— AND —

Alix Vilgrain, Respondent

Before: Justice Alex Finlayson

Heard on: December 16, 2019

Reasons for Judgment released on: February 7, 2020

Counsel:

• Shawn Philbert, for the Applicant
• Dana Cohen, for the Respondent

ALEX FINLAYSON J.:

PART I: OVERVIEW

[1] This is my Judgment respecting three motions, brought by the Applicant mother, which I heard on December 16, 2019.

[2] Most of the issues in this case settled by way of Final Minutes of Settlement on March 29, 2017, which the Court incorporated into a Final Order that day. As a result of the settlement, the principal outstanding issue in this case ought to have been the apportionment of certain special or extraordinary expenses, incurred after March 29, 2017, pursuant to section 7 of the Child Support Guidelines (the "Guidelines"). In addition, it is possible that the mother's claim for sole custody of the parties' two children (versus whether the status quo of joint custody, in place for almost 10 years, ought to continue), along with the determination of a related travel issue, might have remained.

[3] But then, after March 29, 2017, this litigation drifted. Instead of just coming to Court and dealing with the remaining issue(s), the parties started either not showing up for scheduled Court dates, or they sought adjournment after adjournment.

[4] Starting in the fall of 2018, the mother sought to expand the scope of this litigation. In November of 2018, and then again in the fall of 2019, the mother served and filed her three, fresh Notices of Motion. She did so within the original Application.

[5] Pursuant to those motions, the mother now claims a plethora of relief, or permission to proceed with that relief, or permission to amend her pleadings, or a transfer of this case to the Superior Court of Justice, or some combination thereof.

[6] In her first new Notice of Motion of November 8, 2018, the mother seeks to amend her pleadings, probably to deal with spousal support only, although that is not entirely clear based on the way the Notice of Motion is written, and based on representations subsequently made to the Court. Meanwhile, in the same Notice of Motion, the mother separately asks for orders for substantive relief, not all of which would first require an amendment of the pleadings.

[7] More particularly, the mother wants to amend her pleadings to ask to set aside the parties' Separation Agreement. If the amendment is granted, she wants to set the Separation Agreement aside to seek spousal support. She wants spousal support, even though the parties' 10 years-old Separation Agreement contains a spousal support release, and even though, at no time, did she pursue spousal support after signing the Separation Agreement, up to and including the date of the Final Minutes of Settlement, and then for another 1 ½ years thereafter.

[8] Separately, the mother wants to set aside the Consent Order of March 29, 2017, to essentially revisit the terms the parties settled in their Final Minutes of Settlement.

[9] The mother seeks years of retroactive child support, too, and table child support going forward. Retroactive child support is one of the claims that settled on March 29, 2017. Her claim for table child support is also brought in the face of March 29, 2017 settlement that child support would be paid according to a different approach (there is a shared parenting arrangement in place).

[10] At one point, the mother said that her requests for child support were to be based on imputed income to the father. Then, this was abandoned during argument. And further, on the one hand, the mother says that retroactive child support must be dealt with by way of a trial. On the other hand, she says that the Court should consider it on this motion, on its merits, because of the father's alleged bad behaviour.

[11] In the not too distant past, entangled in all this, was a request, initially made by the mother, by way of two 14B Motions, and presented to this Court as a "consent", that this case should be transferred to the Ontario Superior Court of Justice. This transfer request came years after the Separation Agreement had been filed with this Court pursuant to section 35 of the Family Law Act, and about two years after the March 29, 2017 settlement had been entered in to, which resulted in the Separation Agreement being varied in part, on consent, by this Court.

[12] This request to transfer the file to the Superior Court was ill conceived from its outset. When this Court declined just to sign off on the "consent" given a complete lack of an explanation as to why the transfer was appropriate, the mother filed a third motion asking for the transfer, this time as a Form 14 Notice of Motion. In that Notice of Motion dated October 7, 2019, the mother asks for the same relief, namely to transfer the file, but she also makes a request to proceed with the other relief in her initial November 8, 2018 Notice of Motion, "in the alternative".

[13] As it turned out, the transfer ended up being contingent on a number of things first happening and ultimately, it was abandoned. There is now a complaint from the father that he did not want to become embroiled in a long motion about jurisdiction in the first place. The mother says this transfer issue is all the father's fault for raising a property issue. I was told that the Court will now be asked to determine who is responsible for costs of all this.

[14] Despite all that she put into her various Notices of Motion, leading up to the hearing on December 16, 2019, it was a moving target as to whether the mother wanted the Court to actually rule on the various claims, or to direct a trial about them, or to direct a trial on some issues and not others, or to transfer the file to the Superior Court.

[15] Before hearing the motions, the Court twice attempted to get some clarity from the mother. When the motions were eventually heard on December 16, 2019, the mother made confusing submissions about what the Court was able to hear, and what it could not. The mother's position on this front changed over time, from what she said in her materials, to what her counsel put in various Confirmation Forms, to what the Court was told at different court dates.

[16] In the end, the position she advanced on December 16, 2019 is that the case should remain in this Court, and that there should be a trial of some of the issues raised in her Notices of Motion, while others ought to be dealt with now.

[17] The primary objective of the Family Law Rules, enshrined in Rule 2(2), is to enable the Court to deal with cases justly. That requires the Court to ensure that there is a fair procedure, but also to save expense and time, to deal with the case in ways that are appropriate to its importance and complexity, and to give appropriate resources to the case while taking account of the need to give resources to other cases. See Rule 2(3). The parties and their lawyers are required to help the Court promote the primary objective. See Rule 2(4). Part of the Court's duty to manage its cases involves a consideration of whether the likely benefits of taking a step justify the cost (see Rule 2(5)(e)). As well, the Court should deal with as many aspects of the case as possible on the same occasion (see Rule 2(5)(f)).

[18] This Court will not allow that this litigation carry on in this fashion any longer. The parties have been given ample opportunity to be heard and to make submissions. The Court has scrutinized the material put before it, to determine what actually remains in issue in this case.

[19] The Court intends to decide the issues that are before it.

[20] For reasons that follow, the Court finds that each parent owes the other certain section 7 expenses. When they are all added up and apportioned appropriately, there will be a net number that one parent owes the other. With the consent of the parties, the Order for section 7 expenses that I intend to make will be a Final Order. The parties agreed that a final order for section 7 expenses would be based on the documentary record placed before the Court.

[21] However, the Court is unable to fix the number at this time. The father did not file any DivorceMate calculations at all, and while the mother did, her calculations contain inputs with which the Court does not agree. The parties need to prepare DivorceMate calculations based on the findings that I am making in this Judgment. Once that is done, the Court will then fix the amount owing. The parties are to re-attend before me with those calculations. That will not be an opportunity to re-litigate of any findings that I am making, nor the outcome respecting section 7 expenses. Any submissions will be restricted to whether the calculations to be filed are accurate and based on this Judgment.

[22] Costs will be also argued, orally, at this re-attendance.

[23] To the extent that there is actually a live issue about custody before the Court, (which remains unclear), the Court is giving directions about how that is to be addressed. If the Court's directions are not followed, then there will be no further Court dates to deal with that issue.

[24] The travel issue that the mother raised is being dealt with and dismissed in this Judgment. For the reasons I will explain, it is not worthy of a trial, nor is it deserving of any more court time.

[25] Regarding the balance of the relief claimed in the mother's three Notices of Motion:

(a) The mother's request to amend her pleadings is dismissed;

(b) The mother's request to set aside the Order of Justice Murray of March 29, 2017 is likewise dismissed;

(c) The mother's requests to vary access, prospective child support, and her claims for retroactive child support, and retroactive section 7 expenses prior to March 29, 2017, are all dismissed;

(d) The transfer motion is abandoned and so no orders are required; and

(e) The Court does not have jurisdiction to prevent the father from raising a property issue in defence to a spousal support claim, but in light of this ruling, that request by the mother is now moot.

[26] Some of the dismissals are being made on a without prejudice basis, because the mother did not follow the right procedure to advance the claims. She may do so in the future, if she sees fit, provided she does so properly. Others are dismissed with prejudice on their merits. Below I will specify which is which, and I explain why that is.

PART II: BACKGROUND AND CONTEXT

A. Background Facts Concerning the Parties and the Children

[27] The parties were married on February 13, 2002 and separated on April 1, 2010. They are not yet divorced. According to the mother they lived together for two years before marriage, and then for another 8 years following their marriage, for a total period of cohabitation of 10 years.

[28] The mother is employed as a learning and development manager for a company called Compass Group Canada. The mother's Line 150 income was $90,351.00 in 2018. The mother did not file proof of her total income for 2019, anywhere in the three volumes of material before the Court.

[29] The father works in information security. He is now employed by a company named Thycotic, based out of Washington, D.C. His income has fluctuated in the last three years for reasons that I will explain below, but his 2019 income was $122,673.00, and he estimates that his 2020 income will be $148,000.00, plus a small discretionary bonus of about $3,500.00, for total income of $151,500.00.

[30] The parties have two children, Rachel Vilgrain, born […], 2005 and Jasmine Vilgrain, born […], 2002.

[31] Jasmine is an elite soccer player. She is part of the Canada EXCEL Program. Jasmine is training to get on the Canada Soccer Women's National Team. Since the age of 10, she has dreamed of playing at the World Cup.

[32] Jasmine is currently in grade 12 at […] School in Markham. This is a specialized school that has a focus on sports. She goes to this school with the other girls on her soccer team. Jasmine has been promised full athletic soccer scholarships by three US universities, after her high school graduation.

[33] When the father swore his affidavit on November 21, 2018, Rachel was in grade 8 at […] School, in the French Immersion Program. She would now be in grade 9. I do not believe I was told which high school she attends.

B. The Separation Agreement

[34] On July 10, 2010, the parties entered into a comprehensive Separation Agreement resolving all issues arising from their marriage and its breakdown. The parties negotiated this Agreement themselves, without the assistance of counsel. This is one of the mother's grounds for now seeking to set it aside, almost 10 years later.

[35] The Separation Agreement provides the following:

(a) The parties "agree[d] upon the importance of joint decision making concerning the children" and they agreed to "use their best efforts to avoid any breakdown in communication or major disagreement". They also recognized that "the interest of the children will best be served by negotiation and compromise rather than dispute";

(b) The children reside primarily with the mother;

(c) The father has "reasonable access upon reasonable notice for reasonable times including the right to have the children overnight. However that access is then particularized further in that his access is "to include" alternate weekends from Friday at 6:00 pm to Sunday at 6:00 pm, two overnights at the beginning of each month, two days each week, one week at Christmas, and the school spring break in alternate years;

(d) Each party was at liberty "to arrange for the children to travel abroad provided that the written consent of both parties accompany the children";

(e) The parties agreed that the father's income was then $113,000 per year, and the mother's was $81,000. The father was to pay child support of $1,500 per month on the 16th day of each month commencing September 16, 2010 and child support was to "be revised yearly with a minimum increase of 2.5%". The father says that he agreed to pay table support, but I note that this monthly amount was just slightly below the table amount of child support at the time. However, it also appears in the Agreement that the father agreed to pay for more than his share of the section 7 expenses;

(f) The father agreed to pay for Jasmine's day care in full, as well as for soccer and swimming expenses, and the mother agreed to pay for guitar. Summer camp and "other future activities" were to be shared by the parents with the father paying 60% and the mother paying 40%;

(g) Regarding spousal support, the parties agreed not to seek spousal support from the other, that neither shall be required to pay support to the other, and that the spousal support terms in the Separation Agreement would not be varied;

(h) There are various property terms dealing with the parties' personal property. The parties also agreed that the matrimonial home would be sold, that the mother would be entitled to retain all of the net proceeds of sale, and that the father would pay an additional 15% of the proceeds of sale of an investment property that he then owned. Additionally, the father agreed to assume certain debts; and

(i) The father is to maintain "all existing life, health and dental insurance policies for the benefit of the children until the children are no longer children of the marriage", and for the mother's benefit too, for "as long as no divorce has occurred".

[36] Although the mother now complains that she did not have legal advice at the time the parties' signed this Separation Agreement, paragraph 13 contains the following acknowledgements, which I reproduce verbatim:

(a) each has received, or is aware of the advisability of receiving, full and independent legal advice with respect to this Agreement, and the alternatives to executing it, prior to executing this Agreement;

(b) each party understands his or her respective rights and obligations under this Agreement;

(c) each party is fully advised and informed of the estate and prospects of the other;

(d) each party has taken account of their probable living expenses; and

(e) each party executes this Agreement voluntarily without undue influence or fraud or coercion or misrepresentation whatsoever and that each has read the Agreement in its entirely, and with full knowledge of its contents has executed the Agreement voluntarily.

[37] On March 2, 2011, the father filed the Separation Agreement with this Court, pursuant to section 35 of the Family Law Act and Rule 26 of the Family Law Rules. And as I said earlier, that Separation Agreement has since been varied, in part, by this Court.

C. Overview of the Parenting and Support Arrangements since March 29, 2017

[38] Pursuant to the Final Consent Order of Murray J. dated March 29, 2017, the girls live with both of their parents pursuant to a shared parenting arrangement. They reside with the father on alternate weekends from Friday at 6:00 pm until Sunday at 6:00 pm, and two overnights each week. The exchanges take place at school or some other mutually agreeable place. The children reside with the mother at the other times. In other words, the girls live with their father during 6 out of every 14 overnights, or approximately 43% of the time.

[39] On March 29, 2017, the parents agreed to a new child support arrangement, too, based on this shared parenting arrangement. The mother failed to provide any evidence about the basis of the child support term in the Order. By contrast, I am told by the father that child support is now based on a set-off.

[40] In their Minutes of Settlement, the parents settled both retroactive and ongoing child support, and retroactive section 7 expenses, leaving only, (it appears), the determination of prospective section 7 expenses to be dealt with.

PART III: PRIOR LEGAL PROCEEDINGS

[41] Because of the way that these motions unfolded, and the various submissions made, I will review the prior proceedings in some detail in this Judgment.

A. The Pleadings

[42] This proceeding began in the Ontario Court of Justice on October 18, 2016 by way of the mother's Application. The mother was then self-represented. Her Application is partially typed, and partially handwritten.

[43] Although she was then self-represented, she was later assisted by someone named Louis Montcho at several court appearances. And then, Mr. Philbert started assisting her, including at this motion.

[44] Mr. Philbert is a lawyer licensed to practice in Ontario. Although Mr. Philbert has appeared for the mother on a number of occasions, sent correspondence on her behalf, filed 14B Motions, Form 14 Motions, and Confirmation Forms on her behalf, I am told by Mr. Philbert that he is acting as her "agent" only. At some point, the line between Mr. Philbert's limited scope retainer, and full-blown representation, became very blurred. I will come back the impact of this, as it relates to the appearance before this Court on September 17, 2019, in particular.

[45] In her Application, the mother had checked off the 'tick-boxes' indicating that she was claiming custody of the children, access, and child support for the children, other than the table amount.

[46] The body of her pleading contains only 5 short written paragraphs.

[47] Regarding custody, the mother pleads that the Separation Agreement does not "specifically provide for custody". As such, she now asks for an order for sole custody.

[48] The mother's Application goes on to say that unlike custody, there are detailed terms respecting access in the Separation Agreement. However, she says that "issues regarding access have arisen". Therefore, she asks the Court to "review the current situation and to make an appropriate order for access". She did not specify what particular order respecting access she seeks, however, in that document.

[49] The mother alleges that the father has not cooperated with her respecting the children's travel, so she wants an order to travel with the children without the father's consent. She asks for permission to get government documents for the children without the father's signature too.

[50] Regarding child support, the mother asks for an order setting the amount that the father owed her for special or extraordinary expenses "as at date on which this court makes such a determination". Citing the term of the Separation Agreement that requires a yearly review the Separation Agreement, the mother also asks for an order "setting the child support for each year for the total arrears owing".

[51] Elsewhere in the body of that paragraph of the pleading, the mother refers to the 2.5% increase clause in the Separation Agreement. Based on a reading of the Application alone, it is not entirely clear whether she was then just asking for a cost of living increase, or for some other variation of monthly child support.

[52] In his Answer, the father asks for an order for joint custody and for an order that he pay child support for the children "in an amount reflective of the joint custody parenting arrangement". He asks for an order that the mother pay her share of section 7 expenses retroactive to April 1, 2010 and in particular that she pay for a share of the children's "soccer and camping expenses", retroactive to that date. Finally, he also seeks an order requiring the mother to facilitate communication with him when the children are in her care.

B. The Various Court Attendances Up To, And Including March 29, 2017

[53] There was a first appearance on December 15, 2016. The Endorsement reveals that the mother appeared on her own on that date. The father was represented by counsel (a different lawyer than his current counsel, whom I will refer to as "former counsel").

[54] The First Appearance Clerk scheduled a case conference for February 27, 2017. The clerk also endorsed that the mother was to serve and file her 2015 tax return and "receipts" prior to the next court date. There is no mention in the First Appearance Clerk's Endorsement of any complaint that the father's disclosure was then deficient.

[55] It appears that at the case conference on February 27, 2017, the mother once again appeared on her own. The Endorsement indicates that she may have been assisted by duty counsel, but the duty counsel's name is then scratched off. Father had the assistance of his former counsel.

[56] In any case, Justice Murray made a temporary without prejudice order requiring the father to pay child support of $1,196 per month for the two children based on estimated annual income of $162,000 per annum commencing March 15, 2017. This was below the table amount of child support for two children, which suggests to the Court that one of the discretionary sections of the Guidelines, such as section 9, was at play. Murray J. then adjourned the matter to March 29, 2017 for a further conference.

[57] Again, on March 29, 2017, the parties signed Final Minutes of Settlement, resolving most of the issues in this case. Both parties were in attendance that day, and were either represented, or at least assisted by someone.

[58] Father had the assistance of his former counsel. The Endorsement indicates "Montcho" as the person in Court with the mother.

C. The Minutes of Settlement and the Final Consent Order of Murray J. dated March 29, 2017

[59] The preamble to the Minutes of Settlement dated March 29, 2017 reads, [t]he parties agree to settle the issues of "ongoing" child support, "retroactive" child support and access on the following terms.

[60] Paragraph 1 of the Minutes reads that paragraphs 3(c)(i)-(iii) of the Separation Agreement, which are the terms respecting the father's regular access, shall be varied to provide that the father would now have access on alternate weekends from Friday at 6:00 pm to Sunday at 6:00 pm, and the two overnights during the week days.

[61] Initially, there were also terms in the Minutes respecting Christmas and March break, but those are struck out from the Minutes. However, I note that the terms struck out were essentially the same as what is provided for in the Separation Agreement. The result is the same in that the holiday terms in the Separation Agreement remain in effect.

[62] Pursuant to paragraph 2 of the Minutes, the parties agreed to vary paragraphs 4(a),(b) and (c) of the Separation Agreement, to provide that the father would now pay child support of $1,200 per month commencing on March 15, 2017.

[63] Again, the father says that the amount of support in the consent was a set-off, based on this shared parenting schedule. The mother has not provided any evidence to explain its basis.

[64] Pursuant to paragraph 3 of the Minutes, the parties agreed that the father would pay $6,800 in "final and full satisfaction of any and all child support arrears and section 7 expenses to the date payable". He was to pay $3,500 within 30 days and then $300 per month for 11 months commencing April 15, 2017.

[65] I note that at that point, the father had claimed, in his Answer, various retroactive section 7 expenses from the mother. I do not know how this retroactive amount in the Consent was arrived at. While the father may have owed the mother retroactive table child support, he says that the mother owed him for her share of significant soccer expenses. It may be that the ultimate amount of arrears included credits to the father, for any amounts the mother would have owed him. However, the mother, who now seeks to set the Order aside, did not provide any evidence as to the basis for this aspect of the settlement either.

[66] On March 29, 2017, Murray J. endorsed "Order to go as per Minutes of Settlement". She then adjourned the matter to July 12, 2017 for a case conference, and directed that briefs were to be filed 2 days prior to the return date.

[67] Unfortunately, neither the Endorsement of March 29, 2017, nor the Minutes of Settlement of that date, specify what the outstanding issues in the case then were. But, where there are outstanding issues in a case, the case management practice in this Court requires a return date. As the Court had scheduled another Court date for after March 29, 2017, that means that something was still, in fact, in issue.

[68] Despite this initial lack of clarity, a subsequent Endorsement of Murray J., and a transcript of a motion later heard by Sirivar J., do shed some additional light on this.

D. The Court Appearances Between March 29, 2017 and the End of 2018

[69] Very little happened in this case between the early spring of 2017 and the end of 2018.

[70] The next date was July 12, 2017. On that date, the parties appeared before Murray J. Once again, the mother attended Court with Mr. Montcho. This time, the Endorsement indicates he was her "agent". The father was still represented by former counsel.

[71] Murray J. referred the parties to mediation at "Mediate 311". Otherwise, she adjourned the case for a combined Settlement Conference and Trial Management Conference on October 4, 2017.

[72] On October 2, 2017, two days before the next return date, the father's former counsel filed a 14B Motion asking for an adjournment to December 11, 2017 as the parties had not yet booked mediation dates. Murray J. granted the adjournment to December 11, 2017.

[73] Next, on December 7, 2017, father's former counsel filed another 14B Motion asking for a further adjournment. She advised the Court that mediation was underway. Murray J. granted a further adjournment to January 24, 2018.

[74] Then, on December 21, 2017, the father filed a Notice of Change in Representation dated December 11, 2017 indicating he would be acting in person.

[75] Next, on January 24, 2018, the mother did not attend Court, but the father did, now without counsel. On that date, Murray J. directed the parties to file "detailed briefs re: s. 7 claims at least 2 days before" the next date and she directed that both parties had to attend Court. She reserved costs of January 24, 2018 to the next date, which she set for March 28, 2018. It is this Endorsement that suggests that the only remaining issue might have been the determination of section 7 expenses.

[76] On March 28, 2018, the next Court date, the mother did not appear, again. The father did, again on his own. This time, Murray J. scheduled a motion for April 18, 2018. The Endorsement does not specify what the motion would be for.

[77] Neither parent attended on April 18, 2018. On April 18, 2018, Murray J. directed court administration to advise the parents that the case would be dismissed if no one attended next time. She then adjourned the matter to June 4, 2018.

[78] Next, on June 4, 2018, the mother was present, but the father did not appear. The mother was assisted by duty counsel. Murray J. made a scheduling order for the exchange of affidavits, and directed that the motion would proceed on July 31, 2018 regarding "argument on issues between parties".

[79] However, neither party then filed any Notice of Motion pursuant to that Endorsement. The mother did file a 4-page, handwritten affidavit sworn June 22, 2018. A number of the matters she discusses in that affidavit relate to issues that had been settled on March 29, 2017. The father did not respond to this affidavit. And the motion that Murray J. scheduled never proceeded.

[80] Instead, on July 25, 2018, the father filed a 14B Motion asking to adjourn the "case conference" scheduled for July 31, 2018 as both parents were unavailable. Murray J. granted an adjournment to October 18, 2018.

[81] By October 18, 2018, Murray J. had retired, so the matter proceeded before the new case management judge, Sirivar J. This time, the mother attended, assisted again by duty counsel. Now, it was the father who did not appear.

[82] Sirivar J. made a new scheduling order for the exchange of motion materials, and reserved costs of the October 18, 2018 attendance to the motion. She adjourned the matter to December 7, 2018. In Sirivar J.'s Endorsement of October 18, 2018, she specified that the purpose of the motion was the mother's motion to strike the father's pleading. Presumably that was to be brought, as a result of the father's recent failure to attend.

[83] At some point after this, the mother began attending Court with Mr. Philbert, and the father came with his current counsel, Ms. Cohen. Since then, the issues raised by the mother expanded. Voluminous motion materials started to get filed after October 18, 2018.

E. The Mother's First Notice of Motion dated November 8, 2018 and the Father's Response to It

[84] In the mother's Notice of Motion dated November 8, 2018, purportedly filed pursuant to Sirivar J.'s direction of October 18, 2018 that there would be a motion to strike only, the mother claims a number of new grounds of relief.

[85] While she does ask to strike the father's Answer in this Notice of Motion, the mother also asks for the following orders:

(a) At paragraph 3 of the Notice of Motion, the mother asks to set aside or vary paragraph 1 and 2 of the final Order of Justice Murray (these are the access terms and the prospective child support terms, but not the child support arrears);

(b) At paragraph 4, she asks for sole custody of the children on an interim and/or final basis;

(c) At paragraph 5, she asks for a parenting schedule in accordance with a Schedule attached as Exhibit "B" to her affidavit sworn November 8, 2018;

(d) At paragraph 6, she asks for an order imputing income to the father at $171,511.00 based on a three-year average of his income;

(e) At paragraph 7, she asks for temporary and final child support for the children based on the table amount of $2,335.00 per month commencing January 1, 2018 based on the imputed income;

(f) At paragraph 8, she asks for an order requiring the father to pay 67% of the children's section 7 expenses;

(g) At paragraph 9, she asks for an order setting aside the waiver of spousal support in the Separation Agreement and for an order for spousal support in the amount of $1,533 per month, retroactive to the date of separation. This would be about a decade of retroactive spousal support;

(h) At paragraph 10, she asks for "permission to amend the Application pursuant to Rule 8(2.1) and 11(3) of the Family Law Rules, amendments to include setting aside the applicant's waiver to spousal support, and requesting a motion to change (if required)";

(i) At paragraph 11, she asks for an order requiring the father to serve and file a financial statement; and

(j) At paragraph 12, she asks for costs.

[86] Along with this motion, the mother filed an affidavit sworn November 8, 2018, an updated Form 35.1, a financial statement and a certificate of financial disclosure.

[87] The father responded to the motion by way of an affidavit sworn November 21, 2018. Before the motion was heard, he also filed a financial statement, too. His responding affidavit mostly addresses the myriad of other claims, as opposed to just the request to strike his pleadings, which is what the motion was supposed to be about, at that point.

[88] Nowhere in the mother's motion does she say that she only intended to pursue the request to strike the father's Answer at the return of the motion, in spite of all of the other information that she filed with the Court. Nor is the Motion drafted as if the mother was only asking for permission to amend to claim new relief only at some later point, a position the mother now takes, in part. In fact, the mother's counsel told the Court that had the pleadings been struck, she would have asked the Court to order all of the above.

F. The Motion to Strike the Father's Answer Heard By Sirivar J. on January 18, 2019

[89] Indeed, the mother planned to argue her motion dated November 8, 2018 in full on its return date. However, that did not happen.

[90] When these motions eventually came back before me for argument on December 16, 2019, Mr. Philbert had in his possession a transcript of the proceedings before Sirivar J. from January 18, 2019 (as well as a transcript of one of the attendances before me on October 30, 2019). As the scope of what remains in issue in this case is a central question that must be answered now, I directed Mr. Philbert to provide a copy to Ms. Cohen, and I directed him to file a copy of those transcripts with the Court.

[91] At the outset of submissions on January 18, 2019, Sirivar J. indicated that she would only hear submissions relating to the request to strike the father's Answer, because that was the only issue for which leave to bring a motion had been granted in the first place. However, the transcript of the argument on January 18, 2019 also alludes to the very thing that is now squarely before the Court, namely that many of the issues in the mother's motions had already been resolved on a final basis.

[92] More particularly, the transcript from January 18, 2019 reveals that counsel for the father expressed surprise to have received the mother's lengthy Notice of Motion. At that time, Ms. Cohen believed that only prospective section 7 expenses remained in issue. It appears that the Court was under this impression likewise. This can be seen at pages 14, 24, 34 and 35 of the transcript.

[93] At the conclusion of the January 18, 2019 motion, for oral reasons delivered, Sirivar J. dismissed the motion to strike, but ordered the father to pay costs to the mother in the amount of $2,000 within 30 days as a result of his prior failure to come to Court. Sirivar J. then adjourned the matter to March 18, 2019 for a case conference. She directed counsel to set up a conference call with her in advance of the return date. Counsel were supposed to confer with each other prior to the call to clarify with one another what actually remained in issue in the case. There is no indication in the Endorsements record, or anywhere else in the record before me, that counsel did in fact confer, or that the conference call actually occurred.

[94] I was later told by both counsel, several more times, at the subsequent attendances over which I presided, that only section 7 expenses remained in issue, too. However, when the motions were eventually heard by me on December 16, 2019, Ms. Cohen retracted from this somewhat, indicating that "custody" and "travel" issues were "technically" still live issues before the Court.

G. The Court Appearances Between January 28, 2019 and September 17, 2019, and the 14B Motions Requesting to Transfer this File to the Superior Court

[95] The next event following the January 18, 2019 motion to strike was another case conference on March 18, 2018, this time before Sirivar J. Of course, the Court is not privy to the discussions at this case conference. But it is privy to the Endorsement.

[96] The Endorsement of March 18, 2018 reveals that Sirivar J. adjourned this matter to May 28, 2019, for a further conference. The Endorsement of March 18, 2018 also reads, "Applicant might traverse matter to Superior Court and will confirm by 14B."

[97] Regardless of what had been discussed at that case conference, it is at this point that the focus of the case shifted to the notion that the case should be sent to the Superior Court.

[98] On May 22, 2019, days before the May 28, 2018 return date, Mr. Philbert filed an undated 14B Motion asking this Court to transfer the Application to the Ontario Superior Court of Justice in Toronto. The 14B Motion was purportedly on consent. No supporting materials were filed, nor was any explanation offered in the 14B Motion as to the reason for the transfer.

[99] The 14B Motion came before me, as Sirivar J., was away. On May 27, 2019, I dismissed the 14B Motion on a without prejudice basis, indicating that there were insufficient details set out in the 14B Motion to explain the basis for the transfer. I directed that a supporting affidavit should be filed.

[100] May 27, 2019 happened to be the day before the next scheduled Court date in this matter. As I did not transfer the file to the Superior Court, that court date ought to have proceeded. Had it been respected, much of what transpired next could have been avoided. But no one came to Court on May 28, 2019. The trial coordinator re-scheduled this matter to July 26, 2019.

[101] On July 5, 2019, Mr. Philbert then re-filed the same 14B Motion, now dated July 3, 2019, again asking for the transfer. This time he filed an affidavit sworn by his law clerk.

[102] The affidavit provides little additional assistance as to the jurisdictional issues all this raised. The affidavit simply indicates that the mother is requesting to set aside the Separation Agreement to ask for spousal support from the father, "who would in turn seek equalization of net family property". As such, he said, the mother's Application had to be traversed to the Superior Court, "where jurisdiction for these relief ( sic.) properly lies." The affidavit goes on to state that the request to transfer the file was on consent.

[103] Attached to the 14B Motion materials is a Form 17F: Confirmation form indicating that the May 28, 2019 case conference (which had already come and gone without anyone attending) was to be adjourned to a date "TBD", because the mother was bringing this motion to transfer.

[104] Upon receiving this second 14B Motion, which did not address the Court's concerns as to jurisdiction, the Court did not deal with it. That means it ought to have been spoken to in Court. However, on July 26, 2019, the next Court date, only Ms. Cohen attended. Neither the mother, nor Mr. Philbert were present.

[105] Jones J. presided that day. She ordered the mother to pay $250 in costs. Jones J. then adjourned this matter back to me, to proceed on September 3, 2019.

[106] To this day, the mother has not paid this costs order. In her materials now before the Court, she argues that she does not agree with the order. Her apparent discontent with it, is due to the fact that she thought that no attendance was required on July 26, 2019, since the file would be transferred to the Superior Court. Meanwhile, she did not file any motion to set the Court order aside. As a result, it stands.

[107] Next, on August 28, 2019, the mother (via agent Mr. Philbert) sought yet another adjournment, now of the September 3, 2019 attendance before me. Mr. Philbert's law clerk's affidavit sworn August 28, 2019 in support of this 14B Motion indicated the reason for the request was that Mr. Philbert was not available on September 3, 2019, due to medical reasons. The 14B Motion very clearly reads as though Mr. Philbert sought the adjournment, so that Mr. Philbert could be present in Court.

[108] On August 29, 2019, O'Connell J. granted the adjournment request to September 17, 2019. Her Endorsement specifically states the reason for the adjournment, being Mr. Philbert's medical reasons.

[109] Next, on September 12, 2019, Mr. Philbert filed a Confirmation Form advising that the matter would proceed on September 17, 2019. He indicated that the issues to be addressed would be the transfer issue, plus he wanted to raise the issue that Jones J.'s costs order be set aside (again no motion has been filed for this). Mr. Philbert signed this Confirmation Form.

[110] Based on the 14B Motion of August 28, 2019 and the Confirmation Form of September 12, 2019, the Court was under the impression that Mr. Philbert would be in attendance on September 17, 2019. Ms. Cohen under the same impression. But Mr. Philbert did not attend on September 17, 2019.

[111] On September 17, 2019, the Court directed that the mother telephone Mr. Philbert and have him participate by telephone. When Mr. Philbert was on the phone, he proceeded to tell the Court that he is acting as the mother's agent only, that he was recovering from a recent surgery, and essentially, that he did not need to be there. At the same time, Ms. Cohen read a letter also indicating that Mr. Philbert was scheduled to be on a trial list elsewhere.

[112] I wrote an Endorsement setting out the impropriety about what transpired on September 17, 2019. I also reserved costs to the next date, to give Mr. Philbert an opportunity to make submissions about this wasted appearance.

[113] In her affidavit of October 7, 2019, filed subsequently, the mother discusses the September 17, 2019 appearance. She says that Rule 4 would have allowed her to be represent herself, but the Court "refused" to allow her to proceed with her request for the transfer, and instead called Mr. Philbert. She says that the Court "refused" to allow Mr. Philbert to speak in the middle of the telephone call when Mr. Philbert "inquired [of the Court] as to what jurisdiction the Court was relying upon to address a superior court matter such as property issues", and that she was advised to "hang up" the phone on Mr. Philbert.

[114] The Court has ordered the transcript of the October 7, 2019 appearance. It is in the Court file. Incidentally, while the mother now complains that the Court "did not" allow her to represent herself on the transfer issue, the mother had also stated to the Court that she wanted her lawyer to be present.

[115] The result of this frustrating appearance is that the matter was adjourned, once again, this time to October 30, 2019. The purpose of the next date was supposed to be for the Court to deal with the transfer issue. I directed that it proceed by way of an oral motion. The Court made a further timetable for the exchange of any further motion materials, for all motions.

[116] My Endorsement of September 17, 2019 also reads, "If by contrast the parties agree to forgo or postpone the transfer motion or any requests for other relief, they may file a 14B Motion asking that the next date be a case conference, but this must be on consent".

[117] No request for a conference was made. And following the September 17, 2019 appearance, the mother filed her second Notice of Motion reiterating the request to transfer the file, but also going beyond the scope of the transfer issue.

H. The Mother's Second Notice of Motion dated October 7, 2019, and the Attendance on October 30, 2019

[118] The mother's second Notice of Motion is dated October 7, 2019.

[119] In addition to seeking a transfer to the Superior Court, paragraph 2 of that motion also reads, in the alternative, that the mother is seeking an order allowing her to proceed with all the outstanding relief sought in her Notice of Motion of November 8, 2018, without the father "bringing his claim for equalization of the net family property".

[120] On October 23, 2019, Mr. Philbert filed a Confirmation Form to indicate that both motions would be proceeding. In the Confirmation Form, he once again indicated that the transfer issue would be argued. He also indicated an intention to argue the mother's alternative position.

[121] The October 23, 2019 Confirmation omits reference to the November 8, 2018 Notice of Motion. So on October 25, 2019, Mr. Philbert filed a second Confirmation Form. It repeats but elaborates upon the mother's alternative positions. In this revised Confirmation Form, Mr. Philbert directed the Court to read both of the mother's Notices of Motion dated November 8, 2018 and October 7, 2019.

[122] Although the discussion on September 17, 2019 centered around the transfer issue, in light of these new documents, the Court now anticipated that all the issues would be argued on October 30, 2019. But then, once again on October 30, 2019, Mr. Philbert was not prepared to proceed with all issues. Mr. Philbert made the following statements to the Court.

[123] At page 12 of the transcript:

Just for the record, 'cause I want the record to be clear, my Notice of Motion is saying to proceed in this court with the relief sought. It wasn't to proceed today. The issue, as I understood from your endorsement which was very clearly written out, is that we were supposed to come today and determine what was happening with- whether this court was going to hear the matter or not. It wasn't – it was – we weren't going to determine my motion on this day. It was either if the relief that we're seeking in the Notice of Motion can be heard in the Ontario Court, then it remain in the Ontario Court.

[124] At page 14 of the transcript:

Your Honour, the final order is the final order. We're seeking an amendment to those orders. So that's what we're seeking in that Notice of Motion due to a material change of circumstance which was plead and stated in my client's affidavit. And we never had an opportunity again because this is the first time that we revisited it because we spent most of the time dealing with this traversing issue. And I do – and I actually can submit, Your Honour, that we haven't even case conferenced those issues yet.

[125] When the Court invited Mr. Philbert to address the outstanding section 7 expenses, Mr. Philbert said, at page 16 of the transcript:

Your Honour, I'm not prepared to address that. That's not why I came here today. I'm only – I'm an agent to deal with this motion as it relates to traversing. So if you're asking now that my – because my client was in court last time and she wasn't allowed to speak because I was supposed to be there. And I'm confused now why we're talking about section 7 when I came here specifically, in accordance with your endorsement because I wanted the record to be clear, to deal with why this matter should be traversed. So I'm not in a position to put my client on the record to anything that I'm not on the record for. I'm just going with your endorsement.

[126] At page 21 of the transcript, Mr. Philbert said:

I'm glad that there's an audio of this because I just want to make sure the record is complete. The basis is stated in my client's affidavit where she clearly states that she had no legal advice, there was no disclosure, there was misrepresentation as to the - his salary. Those are – there was undue pressure – these are all clearly reasons that will have to be determine and – on its merit at that time. This is not the time. I'm saying that this is inappropriate to somehow determine the merits – this is not a summary judgment motion, this is not a mini trial. This was – and to be clear, the reason I'm here today and the reason my client is here today is based on your endorsement. So the endorsement and the Notice of Motion…

[127] It quickly became clear to the Court that the motions were not going to proceed. The motion was adjourned. The Court then had the following exchange with Mr. Philbert at page 29 of the transcript:

The Court: Do you want the section 7 expenses dealt with on the return of this motion so that it can all be heard? So I will hear the outstanding issue in the case, which is the section 7 expenses, and the other relief in your two Notices of Motion to vary, to set aside, to amend the pleading and Ms. Cohen's response to all of that. But there is an outstanding issue still in the current case that's not included as far as I can tell, which is prospective section 7 expenses. Would you like that dealt with?

Mr. Philbert: Yes, Your Honour.

The Court: Okay.

Mr. Philbert: I'd like all the matter at one time.

[128] Over the next several pages of the transcript, the Court indicated that it would deal with both parents' requests for section 7 expenses, plus all of the other issues raised in the motions. The Court ordered a new timetable for the exchange of certain materials to enable it to address the outstanding section 7 expenses, and indicated, with the consent of the parties, that it would make a final Order respecting those section 7 expenses.

[129] The motions were then adjourned to December 16, 2019 for a full day. They were made peremptory.

I. The Mother's Notice of Motion dated November 12, 2019

[130] Following the October 30, 2019 attendance, the mother filed her third Notice of Motion dated November 12, 2019, this time claiming retroactive section 7 expenses for the years 2010 through 2019, totalling $61, 238.00, in addition to ongoing section 7 expenses. This new Notice of Motion includes a claim for several years of expenses that had been settled on March 29, 2017. That goes beyond what were the outstanding section 7 expenses. I would add that those expenses include years of ski trips and other vacations.

[131] In this new motion, the mother asked to impute even more income to the father, now in the amount of $185,500, for the purposes of determining the father's proportionate share of section 7 expenses. The motion does not specify during what exact years the mother seeks to impute this level of income to the father and as I will explain, imputation ended up being abandoned when the motions were argued.

J. The Mother's New Confirmation Form

[132] Despite the lengthy discussion with counsel on October 30, 2019 and the Court's resulting Endorsement of that date that the motions would be heard on their merits, the mother then filed a Confirmation Form for December 16, 2019, in which she now took the position that the motions should proceed differently.

[133] Regarding custody and access, she indicated that her request to set aside or vary the Order of Murray J. dated March 29, 2017 could not be properly addressed on a motion, and so she would be asking that "same be determined or resolved at trial, subsequent to her being allowed to amend her Application".

[134] Regarding the request to impute an income to the father and to set aside the waiver of spousal support, she also said that these issues could not be properly addressed in a motion and so "same [should] be determined or resolved at trial, subsequent to her being allowed to amend her Application".

[135] Separately, the mother's Confirmation Form indicates that she is requesting leave to amend her Application.

[136] Inconsistently, the mother also indicated in the Confirmation Form that she intended to ask the Court to order interim support in the amount of $2,335 per month commencing October 16, 2018, based on imputed income, and to order section 7 expenses going back to 2010, at this time. She said this in the same Confirmation Form in which she otherwise said the imputation of income, and the setting aside of Murray J.'s Order of March 29, 2017 (which deals with retroactive section 7 expenses) required a trial.

K. The Mother's Position During Submissions

[137] During submissions, counsel for the mother contradicted the position further, saying that the Court should use the father's actual Line 150 income, retroactively, for each year during which the mother makes a retroactive claim. The mother filed various DivorceMate calculations using the father's Line 150 incomes as opposed to any imputed income.

[138] Counsel for the mother went on to say that most of the relief claimed in the November 8, 2018 Motion is not actually being pursued at this time. All the mother really wanted was permission to amend her pleadings so she could claim such relief at a later time.

[139] Regarding the transfer, counsel said that the mother's second motion to transfer the file to the Superior Court ultimately depended on what the father would say in response, should the amendment be allowed.

[140] And regarding the third motion, in which the mother seeks years of retroactive expenses in the face of Murray J.'s Final Order dated March 29, 2017, like in the Confirmation Forms, counsel said that this should be dealt with now, even though the actual Final Order itself could only be set aside at a trial.

PART IV: APPLICABLE LEGAL PRINCIPLES

[141] As a result of the manner in which this case has unfolded, it has become necessary to set out some basic legal principles. I do so for the benefit of the parties.

A. The Tests to Vary a Separation Agreement and a Final Order

(1) The Tests Regarding Initial Custody and Access Orders, and Variations

[142] Claims for custody and access at first instance are dealt with by way of Application under the Family Law Rules. That is so even where there are terms regarding custody and access in a pre-existing Separation Agreement. When a Separation Agreement is filed with the Court under section 35 of the Family Law Act, only the support terms, but not the parenting terms, are treated as if they are a court order.

[143] There are a number of provisions in the Children's Law Reform Act that will govern such custody and access cases at first instance. Of course, the guiding principle is that the merits of an application for custody and access shall be determined on the basis of the best interests of the child. This is set out in section 24 of the Children's Law Reform Act.

[144] But where there is a Separation Agreement containing custody and access terms, its provisions will be seriously considered. The court still has the duty to have regard to the best interests of the child and can override its terms. See sections 67 and 68 of the Children's Law Reform Act. But the terms will be weighed in the analysis.

[145] But once any custody and access claims resolve in a proceeding by way of Minutes of Settlement, which the Court incorporates into a Final Order, (as was the case here), then that aspect of the proceeding comes to an end. In other words, there is no more litigation about those parenting issues. Those terms are not subject to re-litigation, unless one party or the other moves to vary the new Order (or unless that Final Consent Order was flawed in some way, such that it should be set aside).

[146] If there is a new claim to vary the Final Order regarding any parenting terms, then generally such a variation proceeding would normally proceed by way of a fresh Motion to Change brought under Rule 15 of the Family Law Rules. In other words, a new proceeding, not a motion within the initial proceeding.

[147] That Motion to Change must be brought in the court in which the original proceeding was taken (or to a co-ordinate court in another part of Ontario). See section 71(2) of the Children's Law Reform Act. That means this Court, and not the Superior Court of Justice. See also Doherty-Mulder v. Mrowietz.

[148] The test to vary an Order for custody or access made under the Children's Law Reform Act is the well-known material change in circumstances test. Section 29 of the Children's Law Reform Act provides that a court shall not vary an order in respect of custody or access unless there has been a "material change in circumstances that affects or is likely to affect the best interests of the child".

[149] Gordon v. Goertz, 1996 CarswellSask 199 (S.C.C.) is one of the leading cases about what material change means. Although Gordon v. Goertz was a case about one parent wishing to relocate, the Supreme Court's comments about the meaning of material change are instructive.

[150] At ¶ 10-16 of Gordon v. Goertz, McLaughlin J. explained what will amount to a material change. She wrote, "[c]hange alone is not enough; the change must have altered the child's needs of the ability of the parents to meet those needs in a fundamental way"…, "[t]he question is whether the previous order might have been different had the circumstances now existing prevailed earlier"…., and, "…the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order."

[151] To that I would add, since the Final Order in this case that mother now seeks to vary was based on the parties' consent, the Court will also consider what the parties' contemplated, in determining whether the threshold of change has been met. (See L.M.P. v. L.S., 2011 SCC 64 and see the further discussion about this case below).

(2) The Test to Vary Child Support

[152] Unlike custody and access, where there exists a Separation Agreement that contains a provision for support, and that Separation Agreement has been filed with the Court pursuant to section 35 of the Family Law Act, then the support terms in the Separation Agreement may be enforced, or varied under section 37, as if it they formed part of an order of the Court.

[153] It is well established that only the Ontario Court of Justice, or the Family Court of the Superior Court of Justice in the areas of the province where family law has been unified, have jurisdiction to vary the support terms of a Separation Agreement under the Family Law Act. The Superior Court of Justice, not sitting in a family court site, does not have this jurisdiction. See Gow v. Gow, [1989] O.J. No. 1 (Gen. Div.).

[154] At first instance, such a variation proceeding is normally brought by way of a Motion to Change pursuant to Rule 15 of the Family Law Rules and sections 35 and 37 of the Family Law Act. However, where there are related claims, not otherwise dealt with by way of a Motion to Change (such as the initial custody and access claims – like in this case), then all of the claims may instead be dealt with by way of Application pursuant to Rule 8(2.1).

[155] That is how the mother commenced this proceeding.

[156] But once the support terms in the Separation Agreement have been varied by this Court on a final basis, then there is a Final Order about that too, and that aspect of the initial proceeding also comes to an end. Any further requests to vary any of those financial aspects of the case that settled would normally be addressed by way of a fresh Motion to Change, pursuant to Rule 15 and section 37 of the Family Law Act. In other words, a new proceeding is required.

[157] That proceeding would also have to be brought in this Court, not in the Superior Court.

[158] On an initial proceeding to vary the child support terms of a Separation Agreement that has been filed with the court, or on a subsequent Motion to Change a Final Order for child support (once that Separation Agreement has already been varied), an initial legal threshold must first be met in order for the Court to intervene and to grant a variation or a further variation as the case may be.

[159] Section 37(2.1) of the Family Law Act provides that there must first be a change in circumstances within the meaning of the Guidelines, or that evidence that was not available on a previous hearing, has become available. If that threshold is met, then pursuant to sections 37(2.1)(a) and (c), the Court may "discharge, vary or suspend a term of the order, prospectively or retroactively" and "make any other order for the support of a child that the court could make on an application under section 33". And in such circumstances, the Court is to make an order in accordance with the Guidelines, unless certain exceptions apply. See section 37(2.2).

[160] The Final Order of Murray J. dated March 29, 2017 does not provide for child support in accordance with a table. As such, in assessing whether the threshold of change has been met on a future variation proceeding, the Court is directed to consider section 14(2.) of the Guidelines.

[161] Section 14(2.) provides that "any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support", will satisfy the threshold. What that means has been considered in case law, including by the Supreme Court of Canada.

[162] L.M.P. v. L.S., 2011 SCC 64 concerned a variation of spousal support terms in a Separation Agreement between the parties, which had been incorporated into a court order. While the variation application proceeded under section 17 of the Divorce Act as opposed to Ontario's provincial legislation, the Supreme Court of Canada set out a number of legal principles respecting the meaning of change in the context of a variation of a consent order. The following comments equally apply respecting the variation of child support, too.

[163] At ¶ 29-36 L.M.P. v. L.S., the Court held:

(a) The Court must be satisfied that there has been a change of circumstance since the making of the prior order (or in this case the Agreement);

(b) The "change of circumstances" must be "material" meaning that "if known at the time, would likely have resulted in different terms";

(c) The focus is on the prior order (or in the case of a Separation Agreement filed pursuant to section 35 of the Family Law Act, the Agreement) and the circumstances in which it was made;

(d) The Court should not depart from it lightly. The test is whether any given change "would likely have resulted in different terms";

(e) What will amount to a material change will depend on the actual circumstances of the parties at the time of the order; and

(f) The subsequent conduct of the parties may provide an indication as to whether they considered a particular change to be material.

[164] L.M.P. v. L.S makes it clear that the existence of the underlying Agreement is not irrelevant. Parties may contemplate that a specific type of change will or will not give rise to a variation.

[165] At ¶ 39, the Court held that the degree of specificity in the terms that provide for a particular change will be evidence of whether the parties, or the Court, contemplated the situation raised on a later application for variation.

[166] Alternatively, at ¶ 40 of L.M.P. v. L.S, the Court states that a general provision, that it is subject to variation upon a material change will not give the Court any additional information as to whether a particular change would have resulted in different terms, if known at the time of that order.

[167] As such, the Court must examine the terms of the parties' agreement, and the circumstances of the parties at the time, to determine what amounts to a material change.

B. The Tests To Set Aside A Separation Agreement And A Court Order

[168] I turn now to the mother's claims to set aside, as opposed to varying, the Separation Agreement and the Final Order of March 29, 2017.

(1) The Tests to Set Aside A Separation Agreement

[169] Section 2(10) of the Family Law Act provides that a domestic contract dealing with a matter that is also dealt with in the Family Law Act prevails, unless the Family Law Act provides otherwise.

[170] A "domestic contract" is defined in section 51 of the Family Law Act as a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement.

[171] A Separation Agreement is defined in section 54 of the Family Law Act. I need not repeat what section 54 says here, as there is no dispute that the parties entered into a Separation Agreement on July 10, 2010.

[172] The Separation Agreement is a domestic contract. And it is enforceable within the meaning of section 55(1) of the Family Law Act, as it was made in writing, signed by the parties and witnessed.

[173] Pursuant to section 56(4) of the Family Law Act, the Court may set aside a domestic contract or a provision in it, (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made, (b) if a party did not understand the nature or consequences of the domestic contract, or (c) otherwise in accordance with the law of contract.

[174] In addition, pursuant to section 33(4)(a) of the Family Law Act, the Court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine an order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section, (a) if the provision for support or the waiver of the right to support results in unconscionable circumstances.

[175] Unlike the requests to vary the support terms in the Separation Agreement filed pursuant to section 35, or to vary any custody, access or support orders already made by this Court, both the Superior Court and this Court have jurisdiction to set aside the Separation Agreement.

[176] This may be so, even where the Separation Agreement has been filed for enforcement pursuant to section 35 of the Family Law Act. See Dekroon v. Dekroon, [2002] O.J. No. 2982 (S.C.J.).

[177] But at this point, the mother has chosen to proceed with this claim in the Ontario Court of Justice. And although she filed the motion to transfer, ostensibly because the father said he wants to raise a property defence (which only the Superior Court can deal with), in a very strange turn of events, she now says that she always wanted her case to remain in this Court.

(2) The Tests to Set Aside the Final Consent Order of Murray J. dated March 29, 2017

[178] Pursuant to Rule 25(19) of the Family Law Rules, the court may, on motion, change an order if one of five enumerated circumstances are engaged. These are if the order was obtained by fraud, if it contains a mistake, if the court neglected to deal with a matter that was before it but that didn't get decided, if the order was made without notice, or if the order was made in the absence of a person, who didn't attend, either due to inadequate notice, or for another reason satisfactory to the court.

[179] Decisions to set aside an order under rule 25(19) are discretionary, but the discretion may be exercised, only if one of those enumerated circumstances are first present.

[180] Prior to the Ontario Court of Appeal's decision in Gray v. Gray, 2017 ONCA 100, there was confusion in the law as to whether a court had jurisdiction to set aside an order under rule 25(19) given the rule's use of the word "change" and that the definition of "change" in rule 2(1) omits the words "set aside".

[181] However, in the result, in Gray v. Gray, the Ontario Court of Appeal held that judges may set aside or vary under rule 25(19). See ¶ 17, 18, 26-29 and 31.

[182] That said, I do not see how rule 25(19) has any application to this case. There is no suggestion, whatsoever in this case, that any one of the 5 enumerated circumstances in the rule are engaged.

[183] That may not end the set aside inquiry however. In McCowan v. McCowan, (1995), 24 O.R. (3d) 707, the Ontario Court of Appeal held, "… it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance. Evidence of non-performance may, however, be relevant to the issue whether the underlying agreement was so tainted in its formation that it should be invalidated."

[184] Thus, a consent order may be set aside on contractual grounds at common law.

[185] However, I note that the request to set aside the consent judgment in McCowan v. McCowan was made on motion pursuant to Rule 59.06 of the Rules of Civil Procedure. Rule 59.06(2) specifically allows for a motion to set aside an order and to "obtain relief other than originally awarded", among other things.

[186] There is no such wording in the Family Law Rules.

[187] In Gray v. Gray, an order had been made at a trial, in the father's absence. He had notice of the proceeding, but he also had a reason for not coming to Court. As such, the rule 25(19)(e) was engaged.

[188] At ¶32 of Gray v. Gray, the Court of Appeal held that it would be inappropriate to turn to the Rules of Civil Procedure's provisions respecting setting aside default orders. That was unnecessary, because rule 25(19)(e) of the Family Law Rules adequately covered the matter in issue.

[189] In this case, in view of the fact that none of the enumerated circumstances in rule 25(19) are engaged in relation to the request to set aside the Final Consent Order of March 29, 2017, the mother would have to rely on the ratio in McCowan v. McCowan or on some other statutory, rules-based, or inherent jurisdiction to move to set the order aside. While Gray v. Gray is distinguishable on its facts in this respect, counsel has made absolutely no submissions as to whether the Court of Appeal's comments in Gray v. Gray, about the unsuitability of the Rules of Civil Procedure, are distinguishable. It may be that resort can be had to Rule 59.06(2), but counsel did not argue this. Nor did he advise the Court that some other statutory, rules based or inherent jurisdiction to set aside the Final Consent Order in these circumstances should apply.

[190] Mr. Philbert just said that the mother wants to set aside the Final Order and there should be a trial. But counsel did not explain how the Superior Court could set aside an order of this Court, were the file to be transferred.

[191] Assuming, without deciding (given the absence of submissions on these points), that there is jurisdiction to set aside a consent order based on such other grounds and/or based on the ratio in McCowan v. McCowan, a request to set aside Murray J's Order would have to be dealt with in this Court, not the Superior Court. Certainly, rule 25(19) (which ultimately doesn't apply) would require the set aside argument to be made in this Court. In Rule 2(1) of the Family Law Rules, "court" means the court in which a case is being heard. So too does rule 59.06(2) of the Rules of Civil Procedure requires that. It says that the motion to set aside be "brought in the proceeding for the relief claimed". Likewise, any arguments about the Court's inherent jurisdiction to set aside its own orders would have to be made to the Court that made the order in the first place, which means the Ontario Court of Justice, not the Superior Court. In this context, it makes no sense why the mother would move to have this case transferred to enable the father to mount a property defence several steps down the road, when the relief she otherwise seeks must be dealt with here.

PART V: ISSUES AND ANALYSIS

A. The Request to Set Aside the Final Consent Order

(1) Procedural Issues

[192] The mother's submission, that the request to set aside the Final Consent Order is not actually before the Court at this time, does not make sense for several reasons.

[193] To be clear, in her first Notice of Motion of November 8, 2018, the mother does not state that her request to set aside the Order requires a trial. It is claimed as a prayer for stand alone relief.

[194] Second, while the mother, later on in that motion, asks for permission to amend her pleading, the request to set aside an Order is not something for which an amendment is necessary.

[195] A request to set aside an Order is not something that ought to have been pleaded in the first place. It can only arise after an Order is made.

[196] Third, and leaving aside the issue of whether a request to set aside an Order ought to have brought by way of fresh Motion to Change as opposed to by way of motion within the initial proceeding, the starting point is that a request to set aside an Order is dealt with by way of motion. That is set out in both the Family Law Rules and in the Rules of Civil Procedure. I also note that in McCowan v. McCowan, the set aside was dealt with by way of motion.

[197] Fourth, the Court rejects the mother's submission that if the Court deals with the motion to set aside the Order on its merits, that is tantamount to granting summary judgment, in circumstances where there is no motion for summary judgment from the father before the Court.

[198] This is the mother's motion. A motion is generally dealt with based on affidavit evidence. In this case, the mother as the moving party, would create the record to establish her prima facie case. If she does not meet her onus, then the motion gets dismissed.

[199] Where the Court is of the view that the motion cannot be dealt with on a paper record, then the Court might give directions for a trial or some other form of a hearing. One would have thought that it would be the responding party submitting that the set aside issues raised in the mother's motion require a trial, if for example, the father felt that there were credibility issues, or some other area where the evidence needed to be tested. It is highly unusual for the moving party to make a claim in a Notice of Motion, only to then turn around and essentially say that there is insufficient evidence before the Court and the Court requires a trial to decide the issue.

[200] It would be contrary to the primary objective of the Rules, particularly when considering how this case has proceeded to date, to direct a trial and take a 'wait and see' approach as to what additional information the mother might put before the Court, or how this set aside issue might further unfold.

[201] There is a rich body of case law respecting both setting aside orders (and agreements), none of which counsel for the mother referred to, despite her Notices of Motion. I do not intend to refer exhaustively to the case law that considers these provisions, nor will I speculate about the basis upon which the mother intends to pursue this relief, beyond that which she set out in her motion materials.

[202] It was the mother's onus to put proper information before the Court. She made the decision what to place before the Court. Based on a review of the material and upon hearing the submissions of counsel, the Court is not of the view that a trial is required. For the reasons that follow, I find that the mother has not met her onus to set the Order of Murray J. of March 29, 2017 aside.

(2) Should the Order of March 29, 2017 Be Set Aside?

[203] The request to set aside the Order of March 29, 2017 is dismissed.

[204] Although the mother talks, in more detail, about why she wishes to have the Separation Agreement set aside, there are a mere two sentences in her affidavit of November 8, 2018 that address why the Order of Murray J. dated March 29, 2017 should be set aside.

[205] First, she says that the father's "income is greater than what is purported in this order". Second, she had the assistance of Mr. Montcho, "who is not licensed to practice family law in Ontario."

[206] Regarding the mother's claims about the father's income at the time of the settlement, disclosure had been exchanged and filed with the Court before the settlement was entered into on March 29, 2017. The mother had filed her tax returns or notices of assessment for the years 2011 through to 2015, plus various pay stubs in 2016. The father had filed various Notices of Assessment or Re-Assessment for 2013 through 2015, plus pay stubs for 2016.

[207] Although the mother complains about the lack of financial disclosure at the time of the Separation Agreement, there is no complaint in the mother's current motion materials that at the time of Murray J.'s Final Order of March 29, 2017, his financial disclosure was somehow deficient. Nor do I have any evidence that such a complaint was brought to Murray J.'s attention on March 29, 2017.

[208] The Court is unable to conclude that "the father's income is greater than what is purported in this order". The mother's complaint implies that the Final Order was supposed to be based on the table, but the only evidence before the Court suggests that it was in fact based on section 9 of the Guidelines. In the absence of evidence and submissions from the mother as to on what basis the settlement was arrived at and why that settlement is flawed, the Court will not speculate.

[209] Regarding the mother's complaint about Mr. Montcho, in addition to that one sentence about him in the mother's motion materials, at the hearing of this motion before me on December 16, 2019, Mr. Philbert said that he may be an American lawyer. This is not in any sworn evidence.

[210] The Endorsements Record reveals that there was a 14B Motion, filed on October 2, 2017 (subsequent to the March 29, 2017 settlement), listing the mother's counsel (once again she calls him her "agent") as "Louis Montcho, Managing Partner, LFK Law, Agent for the Respondent, louis.montcho@lfklaw.ca".

[211] Although Mr. Montcho is referred to as having a Canadian email address, no address for his firm was given. Apart from that Canadian email address, Mr. Philbert's statement to the Court, and the mother's one sentence statement about him in her affidavit of November 8, 2018, neither the mother, nor Mr. Philbert, supplied the Court with any other information as to where Mr. Montcho practices law, or about his ability or inability to practice law in Ontario.

[212] There is no other evidence before the Court explaining who this person was, explaining his credentials or the lack thereof, or further explaining his status with the Law Society of Ontario. There is no information in the mother's affidavit about why, if Mr. Montcho is not an Ontario lawyer, would she retain him to act as her agent. But more significantly, there is no evidence before me as to how Mr. Montcho's status actually impacted the Final Consent Order, rendering it flawed in any way.

[213] Self-represented litigants regularly appear before this Court on a daily basis, and those litigants settle their cases on a daily basis, too. I do not wish my statements in this Judgment to be read as the Court approving of Mr. Montcho having acted for the mother, if he was in fact not licensed to practice in Ontario. Indeed, Rule 4(1)(c) of the Family Law Rules requires that the Court give permission for this to have happened.

[214] It may be that the mother came to Court with him, holding him out as a lawyer licensed to practice in Ontario. Or perhaps Murray J. was informed of Mr. Montcho's status and granted permission. I do not know what Murray J. was told, because none of this was put before me. In the absence of additional information about all this, none of which the mother put before the Court, this is not a basis to set aside the Order.

[215] During submissions, I inquired as to why a transcript had not been obtained of the attendance before Murray J. One would have thought that this would been important for the mother to have obtained and supplied. Mr. Philbert advised the Court that he tried to obtain the transcript, but was unable to obtain it because the appearance before Murray J. when the case settled was a case conference.

[216] It is not that a transcript from a case conference can never been obtained. To the contrary, section 2.2.11 of the Ministry of the Attorney General Court Transcripts and Procedures Manual states that transcripts of a case conference will not be produced without the consent or a court order of the presiding judicial official. Cases where a party moves to set aside an order made on consent at a conference are an example of an instance where judicial approval would likely be granted.

[217] If Mr. Philbert had difficulties obtaining the transcripts, then there were several appearances before me, where this issue could have been raised, and there were several months, leading up to the hearing of the motion during which Mr. Philbert could have filed a 14B Motion for directions.

[218] At no point was either done.

B. The Mother's Request for Custody

[219] In her Notice of Motion of November 8, 2018, the mother asks for sole custody on an "interim and/or final basis".

[220] Custody was claimed in the mother's initial Application. No amendment of the pleading is required for this claim to be dealt with.

[221] Likewise, given that she has asked for "interim", or temporary custody, then at a minimum, a request for interim custody does not require a trial.

[222] In certain circumstances, the Court can consider requests for temporary custody pending trial, provided that certain legal threshold are met.

[223] Nevertheless, although she has claimed in in her motion, the mother maintained that her request for sole custody should be left to another time.

[224] I do not agree with her position in full. But for different reasons, it may be that her custody claim will have to be dealt with in due course.

[225] First, the Court rejects the mother's statement in her Application that the Separation Agreement does not deal with custody. That is not correct. The Separation Agreement, although perhaps drafted differently than other Agreements might be drafted, provides for joint custody.

[226] The mother's evidence in support of the request for sole custody in the face of the Separation Agreement, and a 10 year status quo of joint custody is the following:

(a) The mother complains that the father registered Jasmine in a soccer and fitness program that is not conducive to her academic performance. However, she also acknowledges that Jasmine is an athletic person;

(b) The mother complains that the children are "addicted" to cell phones and Netflix. She blames this on the father, since she does not have a television in her home, and because he gave the children cell phones;

(c) The mother says that the children do not understand the value of money because the father lets them use his credit cards but does not teach them about money;

(d) The mother says the father does not communicate with her in a timely manner when he takes Jasmine to a doctor; and

(e) The mother says she has been responsible for the children's daily upkeep, basic needs, activities (but only music and skiing) and she has been the parent primarily responsible with assisting the children with their education and so forth.

[227] The father disagrees respecting the level of the mother's involvement in parenting. The father goes on to say that the mother does not support soccer and that she has never attended a game or a practice.

[228] The father drives Jasmine to all of her games and practices, five days each week. He also takes her home on the mother's days.

[229] The father agrees that Jasmine has had some academic difficulties, saying that she scored in the 60s. He tried to arrange a tutor for her, but the mother refused to allow for the tutor on her time.

[230] The difficulty with the mother putting all of this before the Court (and the father responding) is twofold.

[231] First, custody may very well be resolved.

[232] I acknowledge that the preamble to the March 29, 2017 Minutes does not refer to custody having been settled, only to access and certain financial issues.

[233] However, following that, there was an extensive period of delay, during which time neither parent pursued custody at all.

[234] Murray J.'s subsequent endorsement of January 24, 2018 reads as if the only outstanding issue in the case was prospective section 7 expenses. And on numerous occasions, both counsel told the Court that the only outstanding issue in the case was prospective section 7 expenses, but for the mother's new Notices of Motion.

[235] Second, even if the custody claim is "technically" still alive in the case, it is really not clear to the Court that there is actually a real issue relating to custody, on the merits. The thrust of the evidence put before the Court pertains to Jasmine. Jasmine is 17 years old. She will be 18 in July.

[236] Neither parent raised any issue about where Jasmine will go to school. Apart from the mother's complaint about the father's failure to share information about medical appointments, there is no information about any significant medical issue that needs to be dealt with.

[237] Mother has raised an issue about the extent to which Jasmine is involved in soccer. However, the reality is that Jasmine will be in the drivers' seat as to the extent to which she wishes to pursue soccer. If this has been a lifelong dream of hers, then it should probably be supported. Whether the parents have joint custody or sole custody will not change this.

[238] Third, even if custody had not been settled as a result of the wording of the Minutes, the Court is not satisfied that the mother has not already compromised her claim for sole custody. Again, notwithstanding the omission of the word custody in the Minutes, without the transcript of the appearances before Murray J., I do not know what the parties said to the Court. It may be that the parties told the Court, when they filed the Minutes, that all issues were resolved, but for section 7 expenses. Or perhaps they said something else.

[239] Regardless, having regard to Rule 2, the Court is not inclined to devote any more court time to this issue unless there is clarity on this point. If the mother wishes to pursue the request for sole custody, perhaps as it pertains to Rachel (although, incidentally, she will be 15 years old in April, 2020 and very little was said about her in relation to this custody dispute), then she is to obtain the transcripts of the attendances before Justice Murray on March 29, 2017 and on the subsequent dates. If it is revealed that custody was not in fact settled, then she may file a 14B Motion to request a date and I will schedule a Trial Management Conference to set a process for a hearing on this issue.

[240] To be clear to both parties, a full trial may not be appropriate to resolve this issue, if it still even exists. In any case, the Court will set the process for any final hearing on the issue of custody. The mother's 14B Motion along with the transcripts must be filed within 60 days if this is to be pursued.

[241] If they are not filed within 60 days, then there will be no further dates allocated within this proceeding to address custody. That will mean that the joint custody terms of the parties' Separation Agreement shall continue.

[242] Any further changes would have to be dealt with by way of a fresh proceeding, brought properly in accordance with the Rules.

[243] Any alleged changes in circumstances would have to be limited to those which arose after March 29, 2017.

C. The Mother's Request for A Different Parenting Schedule

[244] Access was also claimed in the mother's initial Application. No amendment of the pleading is required.

[245] And access has already settled.

[246] At paragraph 5 of the mother's Notice of Motion, the mother asks for an order that the parties' parent the children in accordance with a parenting plan attached to her affidavit of November 8, 2018.

[247] The proposed parenting plan is a 10-page document that would address the regular parenting schedule, holiday access, terms respecting travel and a series of other matters that are incidents of custody.

[248] Unlike her custody claim in the Notice of Motion, paragraph 5 of the Notice of Motion does not specify whether she seeks this relief on a temporary or on a final basis.

[249] There are already terms in the parties' Separation Agreement respecting joint custody and other parenting terms. In light of the Court's comments about how, if at all, the custody claim should be dealt with, the Court does not intend at this time to embark upon a clause by clause review of this document, as contrasted to the terms in the original Separation Agreement, to assess whether the mother has established that some or all of these new terms should be implemented.

[250] Regarding the access and holiday access terms in the proposed Parenting Plan, access has already been settled by way of the March 29, 2017 Final Order. The Court has declined to set that order aside.

[251] It is therefore inappropriate for the mother to file a new Notice of Motion within the existing proceeding to effectively ask to vary the Final Order.

[252] At this point, it appears that the mother's complaint about access is that the father is taking Jasmine to her soccer games and practices each day of the week, before returning her to the mother's home.

[253] Again, Jasmine is 17 and is focused on pursuing her dream to pursue soccer.

[254] If the mother seeks to change the access terms in the Minutes of Settlement (and any other terms in the Separation Agreement respecting access that remain in effect), then she must do so by way of a fresh proceeding, brought properly, in accordance with the Rules. Any alleged changes in circumstances would have to be limited to those which arose after March 29, 2017.

[255] Paragraph 5 of the mother's Notice of Motion is therefore dismissed without prejudice to her bringing this new proceeding, should she choose to do so.

D. Travel

[256] Travel is another area that Ms. Cohen said is still "technically" before the Court.

[257] Although there is no specific claim in the mother's Notice of Motion respecting travel, included within the multi-page proposed parenting plan, the mother seeks an order that she will be responsible for renewing an retaining the children's Canadian and US passports.

[258] The draft parenting plan says nothing of their European Union Passports.

[259] Elsewhere in the document there are a number of proposed terms about the mother being able to travel with the children without the father's consent, while the father is still required to obtain the mother's consent for his travel, proposed terms about booking vacations, and terms that would require the father to pay for Jasmine's school travel.

[260] By contrast, the Separation Agreement provides that either parent may arrange for children to travel abroad provided that both parents consent.

[261] Regarding the documents' renewals, I am told that the children are dual US and Canadian Citizens. Although not in evidence, the mother said during the motion that the children are also entitled to French (EU) Passports, as the mother is a citizen of France.

[262] When I asked, I was told that the children's Canadian and US Passports have recently been renewed. When they next expire, the children will be adults. The father consented during the motion to allow the mother to renew the children's French passports (it is not clear that the Court can even make an order that would be binding on France).

[263] Regarding travel consent, I am uncertain as to what exactly the problem has been or why the father's travel consent should be dispensed with. To the contrary, and I will come to this, the mother's section 7 expenses claimed include years of travel expenses for the children. It appears that she has travelled quite regularly and frequently with the children.

[264] It is disproportionate to carry on a case about this. The children are getting close to adulthood. There should not be any disputes about travel going forward. If there are, then this will have to be dealt with on an ad hoc basis.

E. The Mother's Request for Increased Child Support Commencing January 1, 2018, and for Retroactive Section 7 Expenses

[265] At paragraph 7 of her Notice of Motion dated November 8, 2018, the mother asks for "temporary and final child support", for both children, in the amount of $2,335.00 per month, based on imputed income of $171,511.00 per annum.

[266] In her Notice of Motion dated November 12, 2019, in which she claims retroactive and prospective section 7 expenses, the mother increased the amount of imputed income that she wants to attribute to the father, to $185,500.

[267] Unlike many of the other claims the mother has put before the Court, Mr. Philbert was content that Court should deal with this request for child support as of January 1, 2018, as well as the mother's requests for both retroactive and prospective section 7 expenses.

[268] Most of these claims are not properly brought.

[269] The mother has launched a motion for a new amount of child support within the initial proceeding, when child support was already resolved. As the Court has not set the Order of Murray J. dated March 29, 2017 aside and ongoing child support is resolved therein, this motion for increased child support as of January 1, 2018 is dismissed without prejudice.

[270] If the mother wishes to pursue increased child support covering a period of time after the date of Murray J.'s March 29, 2017 order pursuant to section 37 of the Family Law Act, then she will have to proceed by way of fresh Motion to Change.

[271] The mother's Notice of Motion for retroactive section 7 expenses spans some 10 years, capturing the years 2010 through 2019. That is dismissed in part, as most of that period of time was settled in the March 29, 2017 motion. To be clear, the dismissal of the claim for retroactive section 7 expenses up to March 29, 2017 is done on a with prejudice basis.

[272] Below, I will address the competing requests for section 7 expenses from March 29, 2017 forward and will make a Final Order respecting that, which is clearly still in issue in this proceeding.

[273] Therefore, all section 7 expenses will now be resolved on a final basis as a result of this ruling.

[274] It is worth repeating here again. The children are in a shared parenting arrange­ment. If there is to be a further Motion to Change for a different amount of monthly child support for any period after March 29, 2017, then I specifically direct the mother to consider sections 9 and 14(2.) of the Guidelines. The mother will have to put some evidence before the Court as to the basis upon which the March 29, 2017 settlement was arrived at to establish the threshold against which change is to be measured. She will also have to address all of the aspects of section 9 of the Guidelines. Changes to the father's income are only part of the equation.

F. Section 7 Expenses Commencing March 29, 2017

(1) The Mother's Preliminary Objection

[275] The father has filed an affidavit and receipts setting out the section 7 expenses that he is claiming from the mother. Nevertheless, there is a complaint before the Court that the father did not file a companion Notice of Motion asking for section 7 expenses.

[276] On October 30, 2019, the Court made it clear that it would be considering both parents' section 7 expenses. That direction, along with the father's materials that he has filed pursuant to the Court's direction, provides sufficient notice to the mother.

(2) The Parties' Incomes

[277] The father had anomalous income in 2017. His Line 150 income was $330,493 in 2017. In response to questions from the Court, the father explained that his former employer, TITUS, was bought out by another company, and so he had to exercise stock options.

[278] Then, in 2018, the father was let go from that job. His income was $185,782.00.

[279] The father found temporary work in 2019 with a company called Web Interpret. Then he found his current job with Thycotic mid-way through 2019. His 2019 income was $122,673 from these two sources.

[280] The father anticipates that going forward, his income will be $148,000 plus a small discretionary bonus. For example in 2019, he received a small bonus of $3,458. Based on this, I find that the father's income for the purposes of support going forward is $151,500.00.

[281] The mother's Line 150 income was 78,817.00 in 2017 and $90,351.00 in 2018.

[282] The mother did not file proof of her 2019 income in the record.

[283] The mother filed a factum about imputing income and then abandoned the request to impute an income during the motion.

[284] For the purposes of determining section 7 expenses, I see no reason to depart from using the parties' actual incomes in the year of the expenses being incurred.

[285] I would not impute an income to the father, or embark upon any form of averaging for the father's incomes. He has explained the fluctuations to his income in recent years were based on his work conditions.

[286] I am satisfied, based on the record before me, as to the father's income going forward in his new role.

(3) The Mother's Section 7 Expenses

[287] The mother's receipts for 2017 to 2019 largely consist of ski trips, other vacations and related skiing or vacation expenses. These are not section 7 expenses.

[288] In 2017, she claims $478 for "rec center" and "dance", in 2018 she claims $1,951 for guitar and violin expenses, and in 2019 she claims $450 for Spanish classes. There is also a school trip that the father concedes.

[289] I would allow these expenses fit within section 7(1)(d) or (f) of the Guidelines.

[290] I disallow her claim for all other expenses.

(4) The Father's Section 7 Expenses

[291] For Jasmine, the father claims the cost of her tutor in 2018 of $1,485, the cost of an SAT preparation course of $1,275 incurred in 2019, and soccer costs of $3,718.38 in 2019.

[292] The father claims the cost of Rachel's overnight camps for the years 2017, 2018 and 2019, in the total amount of $9,434.49 as well as certain track and field expenses, and karate.

[293] I would allow these expenses under sections 7(1)(a),(d) and (f).

[294] In the case of Jasmine's soccer and tutoring, in light of the evidence (ie. that she is a talented athlete, that this will lead to a university scholarship and that she needs help with her academics), I have no hesitation in requiring the parents to share these expenses.

[295] In their Separation Agreement, the parties agreed to a different method of sharing these expenses. For example, the mother agreed to pay for guitar and the father agreed to pay for soccer. They agreed to share summer camp.

[296] However, it is not disputed that there have been changes in circumstances, in that both parties' incomes have changed, child support has changed, the parenting arrangements have changed, and soccer has gotten more expensive given Jasmine's level. Jasmine now requires some educational supports as well to enable her to succeed academically. That is not disputed.

[297] I would therefore follow the usual approach and require the parents to share these expenses pro rata.

(5) A Re-Attendance Before this Court is Necessary

[298] As I said earlier, the mother filed DivorceMate calculations, but they go beyond what the Court is prepared to order in this case. The father did not file any DivorceMate calculations at all.

[299] The Court requires proper DivorceMate calculations to be filed. The DivorceMate calculations should input each parents' incomes (as I have determined above) for the years 2017, 2018 and 2019. As the mother has not provided proof of her total income for 2019, her 2018 income shall also be used for 2019 and for prospective section 7 expenses.

[300] Counsel shall input into the DivorceMate calculations only the expenses that I have allowed for each of 2017, 2018 and 2019 above. They must go into the appropriate year (ie. not be aggregated all into one year). Counsel shall ensure that any subsidies, benefits or income tax deductions or credits relating to the expenses are taken into account in the DivorceMate calculations.

[301] The parties shall reappear before me with these calculations and I shall fix the amount of the section 7 expenses owing.

[302] Counsel are directed to exchange his and her calculations in advance and they are to confer in advance as to any discrepancies between the two calculations.

[303] This should be done in advance, to narrow the argument before this matter returns before me.

(6) Prospective Section 7 Expenses and University

[304] Going forward, the parents shall share the cost of soccer, any music lessons and any tutoring pro rata to incomes. The mother's 2018 income, being the most current income information provided, shall be used, and the father's projected income of $151,500 shall be used to determine the parents' pro rata shares.

[305] The father has mentioned university expenses in his affidavit material, but I do not have evidence as to what that will cost and what scholarships and the like will be available.

[306] If the parties cannot agree about university expenses, then that will have to be reviewed.

G. The Mother's Request to Amend Her Pleadings

[307] I turn next to the mother's request to amend her pleading.

[308] Pleadings are important. They provide notice to the other side of the case that has to be met. They frame the issues for the Court. They shape the pre-trial processes, such as what the scope of pre-trial disclosure/discovery will be, and they focus the discussions at case conferences.

[309] What a litigant places in a pleading at the outset of the case is not set in stone. Pleadings may change. However, while new issues may emerge over the course of a case, when a party moves to amend pleadings this late in the day, there is a risk that any progress made during prior steps taken in the case will be undermined or unraveled.

[310] The mother requires the father's consent or a court order to amend her pleading. See rules 11(1)(2.) and 11(3).

[311] The father has not provided his consent.

[312] Contrary to what the mother has said in her affidavit of October 25, 2019, the father's request to see a draft pleading is not tantamount to his providing consent. How can the father fully consider his position as to whether to provide consent, without actually seeing the proposed document?

[313] As there is no consent, rule 11(3) applies.

[314] Pursuant to Rule 11(3) of the Family law Rules, on motion, the Court shall give permission to a party to amend an application unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

[315] A request to amend a pleading will usually be granted. The rule is mandatory, unless one of the exceptions applies.

[316] For example, I note that pleadings may be amended up to, and even during the trial itself. In Stefureak v. Chambers, Quinn J. granted a so-called 'hail mary' amendment where a party raised a claim as a last minute defence on the last day of a 20 day trial.

[317] I am also mindful that a request to amend pleadings should generally be looked at in a flexible manner, with regard to the nature of family law litigation.

[318] At ¶ 11 of Frick v. Frick, 2016 ONCA 799, Benotto J.A. held that the Family Law Rules were enacted to reflect the fact that litigation in family law is different from civil litigation. The rules provide for active case management, early, complete and ongoing disclosure, and an emphasis on resolution, mediation and ways to save time in expense in proportion to the complexity of the issues.

[319] Frick v. Frick concerned a request to amend a pleading, which the motions judge had struck on his own initiative. In so doing, the motions judge was critical of the wife's failure to plead material facts relating to the claim. The amendment was allowed on appeal. The appeal turned, in part, on that fact that the Family Law Rules do not require that all the material facts relied on to be set out at the time the case is started, as in family law, often the production of disclosure during a case will inform, or result in the discovery of those very material facts.

[320] While the particular circumstances in Frick v. Frick were such that the motions judge ought to have permitted the amendment, in my view, Benotto J.'s comments about the nature of family law litigation lead me to the opposite result in this case.

[321] In Moghimi v. Dashti, 2016 ONSC 2116, Myers J. summarized certain applicable legal principles respecting motions to amend pleadings under rule 11(3). At ¶ 26, he held that rule 11(3) requires that a motion to amend be allowed unless:

(a) The amendment would cause an unjust process that cannot be fixed by an adjournment or costs;

(b) The amendment proposed is untenable (ie. not properly pleaded and no prima facie meritorious in law); or

(c) The amendment is made in bad faith.

[322] I would resolve the mother's request to amend based on my application of the factor in (a) alone.

[323] However, the mother's motion is problematic when (b) and (c) are considered, too.

(1) Disadvantage and Costs

[324] I find that if the Court granted the mother permission to amend her Application at this point, it would disadvantage the father in a way for which costs or an adjournment could not compensate.

[325] In some cases, courts have refused to allow amendments on the cusp of a trial, because the new claim(s) had never been the subject matter of any of the prior conferences, disclosure requests or questioning.

[326] At ¶ 30 of Moghimi v. Dashti, Myers J. writes, "…[d]elay prevents the early, efficient resolution of the proceeding. Delay increases the distressing elements of litigation. In family litigation in particular, where inter-personal emotions are very substantial drivers of parties' positions and settlement, minimizing delay and preventing delay from becoming a weapon in the hands of a more moneyed or emotionally powerful litigant has its own value."

[327] In this case before me, the two-year delay between the date of the mother's pleading and the mother's request to amend her pleading, followed by the further year long delay before the motion to amend was actually heard, is prejudicial to the father in itself.

[328] As can be seen from the history of this case, this Court has already had some difficulty getting the parties to pay attention to this case. Many conferences and appearances were either adjourned or unproductive after that March 29, 2017 settlement.

[329] If the pleadings are allowed to be amended, then the parties are essentially starting all over again. There would need to be more adjournments, and more disclosure. I am not referring solely to financial disclosure, but rather more generally to all of the information relevant to the alleged bases for the request to set aside the Separation Agreement.

[330] However, it is not just the delay alone in this case that results in disadvantage to the father, but the very real impact of allowing the pleading to be amended.

[331] The parties settled most of the claims in this case. The Family Law Rules encourage active case management, an emphasis on resolution and ways to save time and money. If the pleading is allowed to be amended at this point, almost three years after the Minutes of Settlement were agreed to, the parties will be thrust back into the thick of the litigation, all over again, including potentially about issues that are resolved.

[332] The parties made very real choices in this litigation. They settled retroactive child support and section 7 expenses. The only evidence before the Court as to the basis of the March 29, 2017 comes from the father. He says that the child support was based on a set off, and that the mother owed him considerable section 7 expenses in the past.

[333] Were the mother allowed to amend and pursue spousal support, it may very well be that the child support and amount of retroactive section 7 expenses would have been different. Perhaps the father would have wanted more credit from the mother for section 7 expenses. The parties may have taken a different position about the operation of section 9 of the Guidelines. Certainly, any spousal support paid to the mother would impact the sharing of section 7 expenses.

[334] In Singal v. Singal, 2019 ONSC 2758, Shore J. refused to permit pleadings to be amended where a party had made an important concession, only for the other to ask to amend pleadings after that concession had been made.

[335] At ¶ 19, Shore J. held, "I find the facts before me similar to those before Justice Myers in Moghimi. Ensuring a fair process is part of the primary objective in the Family Law Rules (r. 2(2) and 3(a)). This includes fair notice of the case that needs to be met, as this will influence choices and actions by the parties…."

[336] In this case before me, most of case settled based on the parties' shared understanding of what was then in issue. The father is entitled to finality. It is unfair to the father to now throw more issues into the mix, after the fact.

[337] Finally, another real disadvantage to the father relates to this request to transfer the case to the Superior Court, several years into the litigation. As a result of the jurisdictional problems with the transfer request and the fact that it was ultimately abandoned, the transfer issue is now moot. But were the Court to allow the mother's pleading to be amended, the father wants to mount a property defence. As I will explain, that would have led to an unavoidable multiplicity of proceedings. I explain this in more detail below when discussing the transfer.

[338] It is not an answer in this case that the father can collect costs and get an adjournment to alleviate against the disadvantage. Costs will not fully compensate the father for any delay or further adjournment. See Moghimi v. Dashti, 2016 ONSC 2116 ¶ 30. Furthermore, the mother has made no proposal whatsoever as to how she would compensating the father for his wasted costs at this point. This factor, too, militates against allowing the amendment. See Singal v. Singal, 2019 ONSC 2758 ¶ 21. And any more delay in this case should just not be tolerated.

(2) Is the Proposed Amendment Tenable?

[339] On a motion to amend a pleading, the Court should not examine the factual merits of the proposed amendments. However, it should examine, whether as a matter of law, the amendment raises a tenable claim. It would make little sense to grant an amendment that will ultimately be challenged as legally unsound. Therefore, the Court may inquire into the merits, on a prima facie basis, to ensure that the claim is tenable. See Moghimi v. Dashti, 2016 ONSC 2116 ¶ 20.

[340] Although the father had asked the mother to deliver one, she has still not delivered a draft amended pleading (at least as of the date of her affidavit sworn October 25, 2019). No draft amended pleading was filed with the Court either for this motion. This is problematic.

[341] That said, in her affidavit of October 25, 2019, in response to the father's complaint about this, the mother says that her amended pleading will just contain what she stated at paragraphs 29, 30, and 40 to 53 of her affidavit sworn November 8, 2018. Although the wording in the Notice of Motion of November 8, 2018 is vague as to the scope of the amendment she seeks (as it would seem to leave the door open to her claiming other relief in the future if the Separation Agreement is set aside), these aspects of the mother's motion materials really focus only on spousal support.

[342] In the absence of actually having a draft pleading to review, I will examine whether the proposed amendment is tenable, based on what she has put in those paragraphs of her affidavit. The mother alleges:

(a) She did not have independent legal advice when she signed the Separation Agreement;

(b) The Separation Agreement is written in her second language. She did not have the benefit of having it translated into French. She did not understand the nature and consequence of the spousal support waiver;

(c) The waiver of support is neither fair nor reasonable given the circumstances of the dissolution of the marriage;

(d) She did not have the father's financial disclosure and he continues not to provide it;

(e) The father unduly influenced her into signing the agreement by saying that he would help out financially and the document was just administrative. She just signed and initialed the document;

(f) She entered into the agreement under duress. She was under emotional distress as the marriage was over;

(g) The father was verbally abusive during the marriage;

(h) She did not receive an equalization payment;

(i) Her child rearing responsibilities prevented her from maximizing her income potential to the father's financial benefit; and

(j) The father misrepresented his income at the time of his negotiation. He wrote down his income but never showed a paycheck or other document.

[343] The father has responded to all of these allegations.

[344] I do not intend to weigh the evidence put before me on these points.

[345] That said, from the point of view of the tenability of the claims, many of the mother's statements do not provide the necessary level of detail needed. For example, not having legal advice is not determinative that an Agreement will be set aside. Nor does the fact that the English is not the mother's first language mean that she did not understand what she was signing.

[346] Exactly what legal theory upon which the mother would rely to set the Agreement aside is also unclear. I do not know whether the mother would move under some or all of the subsections in section 56(4), or under section 33(4) of the Family Law Act, or both. To the extent that she would rely on section 33(4) of the Family Law Act, her statement that the waiver of support is "not fair and reasonable" is not the test. Section 33(4) would require the Court to consider whether the waiver results in "unconscionable circumstances". There is no statement of fact in the mother's affidavit, that if proven, would rise to this threshold.

[347] The mother has failed to fully explain in her material on what basis she claims support, whether on a compensatory, or on a needs basis, or both. Nor is there much by way of facts to explain away her 10-years long delay in seeking spousal support. Nor has she addressed the factors that would have to be considered in a retroactive spousal support claim.

[348] The Court has reservations about the tenability of the mother's claim, in light of the above. However, what the mother has said might be capable of supporting a claim to set aside an agreement, if more was provided. But the mother said in her affidavit of October 25, 2019 that she had nothing more to say. Nevertheless, I would not go so far as to say the claim is not tenable.

[349] In any case, in light of the other findings that I have made about disadvantage, permission to amend is still not being granted.

(3) Is the Proposed Amendment in Bad Faith

[350] At ¶ 33-34 of Moghimi v. Dashti, Myers J. found that the applicant had abandoned a claim at a settlement conference, bringing the case closer to settlement. Once that concession had been made, the respondent then wanted more.

[351] I find that to be similar to what has occurred here.

[352] However, Myers J. stopped short of characterizing the tactic employed in Moghimi v. Dashti as bad faith. Therefore, I will follow his approach.

[353] But in light of the other findings that I have made about disadvantage, permission to amend is still not being granted.

(4) The Father's Limitation Period Argument

[354] A court will not allow a pleading to be amended if the underlying claim sought to be added is statute barred.

[355] The father relies on F.K. v. E.A., 2019 ONSC 3707, a recent decision of Minnema J., in which he held that a claim to set aside a marriage contract under section 56(4) of the Family Law Act is subject to a two-year limitation period.

[356] In the case before me, neither counsel provided the Court with any excerpts from the Limitations Act (except to the extent that they are referred to in F.K. v. E.A). Neither really addressed in a full way the applicability of F.K. v. E.A. to the case before me. Neither made submissions about the application of the Limitations Act to a claim under section 33(4) of the Family Law Act. That is not mentioned in the F.K. v. E.A. decision. I mostly heard some brief submissions about discoverability.

[357] In the absence of proper submissions about an important issue like the applicability of a limitation period to such claims (an area of the law that is not well developed), I would not decide this case based on a limitation period.

[358] I need not in any event in light of the Court's ruling about disadvantage to the father.

H. The Transfer Issue

[359] I conclude with the transfer issue. Although it is now moot, it has consumed a disproportionate amount of the parties' energy in this case. I will address it briefly, not for that reason, but because is relevant to the disadvantage that the father would experience, if permission to amend had been granted to the mother.

[360] Pursuant to section 138 of the Courts of Justice Act, multiplicity of legal proceedings is to be avoided as far as possible.

[361] But a multiplicity of legal proceedings cannot always be avoided.

[362] In this case, based on how jurisdiction is divided between this Court and the Superior Court, if spousal support were to be pursued as proposed by the mother, there would inevitably be a multiplicity of proceedings that could not be avoided.

[363] In this case, one or the other party, or both of them, chose to file their Separation Agreement with this Court, commence a proceeding in this Court, defend that proceeding in this Court, and then settle most of that proceeding in this Court.

[364] It was six years from the time that the Separation Agreement was filed with this Court until the time of the March 29, 2017 settlement, and another 18 months until the mother actually filed her first motion, and then several more months, until the transfer issue got raised. Pursuant to section 110 of the Courts of Justice Act, where a proceeding or a step in a proceeding is brought or taken before the wrong court, the proceeding may be transferred.

[365] However, in this case, the proceeding was properly brought in this Court.

[366] While one aspect of the mother's new motions raised a request to set the Separation Agreement aside, which can be dealt with in either Court, most of the relief sought in the mother's new motions raised requests that could only be dealt with in this Court. And if there is to be a future Motion to Change, that will proceed in this Court.

[367] It was the mother's late in the day request to amend her pleading that triggered the father to say that he may want to raise equalization. It is true that equalization can only be dealt with in the Superior Court.

[368] Just because the father said he might have a property defence does not mean that the mother was under any obligation to then pursue a transfer to the Superior Court. But that is what she did, ostensibly so that the father could mount his property defence.

[369] How the mother proceeded with the transfer issue makes no sense. But all this underscores another example of disadvantage to the father on the amendment issue. As I have said, had the Court granted permission to amend, some of the outstanding issues, which I have now dealt with, the custody claim, if it is to be pursued, and any future variations, are properly in this Court. It was not possible for this file to be transferred to the Superior Court in its entirety. Meanwhile, the property defence could only be dealt with in the Superior Court.

[370] Therefore, the father would either get drawn into a multiplicity of proceedings, or he would have to decide whether to abandon a potential defence to the spousal support claim.

[371] I do not intend to canvass the other ways that the parties could have brought this case before the Superior Court, either in the past or even now, as the transfer issue is now moot. I will say, though, that this disadvantage to the father could have been avoided, had the parties started this litigation, and included all issues, including spousal support, in the Superior Court in the first place, or had they sought to transfer it there at the outset of the case before any issues got settled in a final Order of this Court, or had either parent simply commenced a Divorce Act proceeding.

[372] But now it is simply too late, years after the Separation Agreement has been filed with, and varied by this Court, to change direction by asking that the proceeding as presently constituted and resolved, be transferred to the Superior Court.

PART VI: ORDER

[373] For those reasons, I make the following orders:

(a) The mother's request to amend her pleading is dismissed, with prejudice;

(b) Despite paragraph 9 of the mother's Notice of Motion dated November 8, 2018, since the mother said that she is not actually seeking to set the waiver of spousal support in the Separation Agreement aside, and only seeking to amend her pleading to pursue that relief at some later time, I need not deal with paragraph 9 at all as permission to amend is not granted;

(c) The mother's motion to transfer this case to the Superior Court of Justice has been abandoned;

(d) The mother's motion to set aside the Final Order of Murray J. dated March 29, 2017 is dismissed, with prejudice;

(e) If the mother wishes to pursue a claim for sole custody in this proceeding, she may still do so, but only provided that custody is still actually an outstanding issue. To determine this, within 60 days, she shall obtain the transcripts of all appearances before Justice Murray, including the attendance on March 29, 2017, and subsequently. These reasons shall constitute a judge's order allowing Mr. Philbert to order these transcripts if he wants them. If this Order is for some reason insufficient, I should be contacted immediately;

(f) If she so chooses, the mother shall then file a 14B Motion, attaching all of the transcripts, and she shall file brief written submissions to satisfy the Court as to why custody remains in issue. The father may respond. The 14B Motion shall be directed to my attention;

(g) If the Court is persuaded that custody remains in issue, then I will set a date for a trial management conference to proceed before me, to organize a hearing respecting custody. That ultimate hearing shall proceed before a different judge and shall be for the purpose of deciding custody on a final basis;

(h) The mother's 14B Motion must be brought to me within 60 days;

(i) If no 14B Motion is filed within 60 days from the release of this decision, then there shall be no further dates in this proceeding to deal with custody. That means that the joint custody terms of the parties' Separation Agreement shall continue;

(j) If no 14B Motion is brought, and the mother thereafter intends to seek a new order concerning custody, she must do so by way of a fresh proceeding, brought properly in accordance with the governing legal principles and the Rules;

(k) Paragraph 5 of the mother's Notice of Motion dated November 8, 2018, insofar as it concerns custody, is therefore dealt with above;

(l) Insofar as it concerns access, paragraph 5 of the Notice of Motion dated November 8, 2018 is dismissed without prejudice;

(m) That is because access is already dealt with on a final basis in the Final Order of Murray J. dated March 29, 2017. If the mother seeks a change to any terms respecting access, then she must do so by way of a fresh proceeding, brought properly in accordance with the governing legal principles and the Rules;

(n) On consent, the mother may renew the children's French Passports, without the father's consent or signature (to the extent that this Order may waive the requirement for any signature vis a vis a foreign passport). Otherwise, any other requests respecting travel and documents are dismissed on a with prejudice basis;

(o) The mother's motion for prospective child support (as of January 1, 2018) is dismissed without prejudice. Child support is already resolved on a final basis in the Final Order of Murray J. date March 29, 2017. If the mother intends to pursue increased child support covering a period of time after the Final Order, then she will have to pursue that in a new proceeding, brought properly in accordance with the governing legal principles and the Rules;

(p) The mother's motions to impute an income to the father are dismissed with prejudice. I have determined the father's income based on his tax returns as explained in this Judgment;

(q) The mother's motion for retroactive section 7 expenses is dismissed with prejudice, up to March 29, 2017. Retroactive section 7 expenses up to March 29, 2017 are dealt with on a final basis in the Final Order of Murray J. dated March 29, 2017;

(r) Regarding prospective section 7 expenses as of March 29, 2017, the parties are to re-attend before me on a date to be fixed by the trial coordinator;

(s) At least 7 days before that date, the parties shall exchange three DivorceMate Calculations, one for each of 2017, 2018 and 2019;

(t) Each party is to prepare his and her own DivorceMate calculations for those years;

(u) The parties shall input the parents' incomes as determined above, into the calculations. In the mother's case, her 2018 income shall be used for 2019 too, as that is the most current information;

(v) The parties shall input the children's expenses that each parent paid for in 2017, 2018 and 2019, but only those that the Court has found, above, should be shared;

(w) The parties' DivorceMate calculations in each year shall ensure that any subsidies, benefits or income tax deductions or credits relating to the expenses are taken into account;

(x) If there is a discrepancy between each party's DivorceMate calculations for any year, then counsel are to confer with one another in advance of the return to Court, to attempt to narrow down, or resolve any discrepancies;

(y) Upon the return to Court, the DivorceMate calculations are to be brought to Court and filed. I will hear submissions as to the amount of section 7 expenses owing by one parent to the other based on the DivorceMates. I will fix the amount of section 7 expenses owing by one party to the other;

(z) Commencing January 1, 2020, on a final basis, the parties shall share the cost of the children's soccer, music lessons and tutoring, pro rata to their incomes;

(aa) At this point, the father anticipates his income will be $151,500 in 2020, and the most current, annual income information for the mother, is $90,351.00;

(bb) Therefore, the parties shall share those expenses on a 63% (father) – 37% (mother) basis;

(cc) The Court is unable to deal with university expenses given the unknown costs at this time. If the parties are unable to agree on his and her respective share of university expenses, then university expenses may be reviewed;

(dd) If either party seeks costs, then costs shall be argued on the return to Court;

(ee) Seven days before the return of this matter to Court, the parties shall exchange Bills of Costs, any case law, and copies of any Offers upon which either intends to rely during costs submissions; and

(ff) Those documents shall be filed with the Court when costs are argued.

Released: February 7, 2020

Signed: Justice Alex Finlayson