Reilly v. Priest, 2019 ONSC 5902

CITATION: Reilly v. Priest, 2019 ONSC 5902

DIVISIONAL COURT FILE NO.: DC-19-13

DATE: 20191015

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kiteley, Pomerance, and Myers JJ.

BETWEEN:

Paul Reilly

Self-represented Appellant

Appellant

– and –

Elaine Priest

Self-represented Respondent

Respondent

HEARD at Hamilton: October 10, 2019

BY THE COURT

Background:

[1] These parties separated in April 2007. They have been engaged in legal proceedings for 12 years. The most recent is this appeal by Mr. Reilly from the order of Lafreniere J. made February 13, 2019 when she dismissed Mr. Reilly’s Form 14 Notice of Motion. For the reasons that follow this appeal is dismissed.

[2] Following a trial in 2008, J.W. Scott J. made an order dated August 5, 2008 that the mother have custody of their daughter born April 2001. In that order, commencing June 1, 2007, the father was required to pay child support in the amount of $879 per month based on 2007 income of $100,252 as well as spousal support in the amount of $1000 per month commencing September 1, 2008. Costs were subsequently ordered to be paid.

[3] Mr. Reilly has made several efforts to vary that order including bringing a Motion to Change in December 2008 that was dismissed. On this record, it is not possible to reconstruct all of what has happened.

[4] In December 2017, Gordon J. issued an order in response to Mr. Reilly’s Motion to Change. In that order, the father’s obligation to pay child support was terminated effective January 12, 2015 because the child had been living with her father. Gordon J. made a final order changing the final order of J.W. Scott J. and ordered the mother to pay child support commencing in 2015 and ranging from $173 in 2015 to $273 in 2017 and 2018. He ordered that the payments of child support owed by the mother would be offset against the arrears owing to the mother on account of support. He fixed the arrears as of December 1, 2017 in the amount of $74,467.83. Gordon J. also ordered Mr. Reilly to pay costs in the amount of $24,307.43.

[5] Mr. Reilly appealed that order. In reasons for decision dated April 13, 2018, the Court of Appeal quashed his appeal because the appeal should have been taken to the Divisional Court. [2018 ONCA 389]

[6] Mr. Reilly did not launch his appeal to the Divisional Court.

[7] Instead, Mr. Reilly served and filed a Form 14 Notice of Motion originally returnable December 14, 2018 in which he asked for the following orders:

1. i) An Order to Stay the Order of Justice Gordon dated December 1st, 2017 ii) A declaration that the Order of Justice Gordon dated December 1st, 2017 is causing undue hardship
2. An Order terminating Spousal Support due to unjust enrichment, undue hardship, fraud, the inability to pay based on income, contempt of the Order of Justice Scott dated August 5th, 2008
3. An Order to rescind any and all arrears on the records of the Family Responsibility Office that have accrued pursuant to the Order of the Honourable Madam Justice Scott dated August 5, 2008;
4. An Order to terminate the spousal support pursuant to the Order of the Honourable Madam Justice Scott dated August 5, 2008. effective May 2009 due to abuse of process, false entitlement, unjust enrichment, fraud, bias of the court;
5. An Order for a Judicial review of all matters dealing with the motion to change but not limited to the issues raised and the conduct, unequal application of the rules, errors in law and mistakes of facts, false and misleading statements asserted as fact, miscarriage of justice, fraud by FRO and mistakes in statement of arrears, bias, charter violations, unjust entitlement to spousal support, failure to adjust child support due to income and time sharing, the biased awarding of costs to deny access to justice, the failure of the court to recognize the respondent’s disability and inability to be employed as accepted by the Canada pension plan disability benefit, the Human Rights Tribunal of Ontario, the Ford Motor Company of Canada, the Great West Life Assurance Company and the Canadian Revenue Agency
6. Any Order this court deems just
7. Costs

[8] In that Notice of Motion, Mr. Reilly checked the box indicating that a copy of the affidavit(s) in support of the motion were served with the notice. He also indicated that he was relying on the “complete continuing record” dating back to the original order dated August 5, 2008. In the affidavit of service attached to the court copy of the Notice of Motion it indicates that he had served “affidavit in support of motion including attached exhibits dated November 30, 2018” and Financial statement dated November 30, 2018”.

Order under appeal:

[9] On February 13, 2019 at a case conference, Lafreniere J. made this endorsement:

Applicant (Wife) in person Respondent (husband) in person Both decline duty counsel I have determined the Notice of Motion brought by the respondent is not a motion to change in proper form. The Court has no authority to stay the Final Order of Gordon, J., or make any declaration with respect to it. The Respondent’s motion is dismissed without prejudice to his dealing with the existing order of Gordon J. with respect to spousal support by bringing a Motion to Change in proper form. No order as to costs.

[10] Mr. Reilly served and filed this appeal. He asks that the judgment be set aside and a judgment be granted as follows:

1. The Motion to stay all enforcement towards the appellant be granted.
2. The entitlement of spousal support be terminated as an unjust enrichment and unlawful.
3. The immediate return of all spousal support deemed to be an unjust enrichment and unlawful. The immediate return of all child support paid in excess of the table amounts in relation to income and time sharing.
4. A Declaration of discriminatory treatment and application of law and the rules of law.
5. Section 24(1) remedy as per the Canadian Charter of Rights and Freedoms.
6. Costs.
7. Any order deemed just and proper by this Honourable Court.

Jurisdiction:

[11] As the Court of Appeal held in the earlier decision, the appeal of a decision of a Family Court judge is properly before the Divisional Court.

Analysis:

[12] The appeal book and compendium is deficient for several reasons. First, it does not contain key documents, namely the Form 14 Notice of Motion, the November 30, 2018 affidavit and the November 30 Financial Statement. This Court did retrieve from the Family Court a copy of the Form 14 Notice of Motion as indicated above. However, the affidavit and financial statement are not available and they would have provided the evidence before the Family Court. Second, it does contain a document that ought not to have been included, namely what is described as “Appellants Affidavit dated January 8, 2018”. That affidavit is styled in the “Court of Appeal for Ontario” and the action number is the same as that on the decision of the Court of Appeal referred to above. That affidavit is 68 paragraphs in length and has no exhibits attached. Mr. Reilly filed a separate “Exhibit Brief” containing the same affidavit attached to which are 24 exhibits. There is no indication that that affidavit was before the case conference judge and it ought not to have been included in the material filed on the appeal.

[13] Mr. Reilly filed a 28-page factum in which he referred to exhibits attached to the January 8, 2018 affidavit.

[14] Based on what Mr. Reilly did file, it is clear that he feels victimized by lawyers, judges, the Law Society, the Family Responsibility Office, and his former wife. He asserts that his income has been reduced substantially, that he is in receipt of disability income, that the outstanding final order of Gordon J. should be terminated, and that his wife should be ordered to repay him the child support and spousal support he has paid.

[15] The issue before the case conference judge was not simply whether Mr. Reilly’s Notice of Motion was Form 14 or Form 15. If that had been the case, the case conference judge could have applied the “primary objective” in rule 2 of the Family Law Rules and treated it as a Motion to Change Final Order.

[16] Mr. Reilly had on several previous occasions, including before Gordon J. launched Motions to Change Final Order. He may not have been as successful as he would have liked. But based on the, albeit inadequate, record before us, he was aware of the procedure involved in asking the Court to vary a final order such as the order of Gordon J. He had been told by the court of Appeal to take his appeal to the Divisional Court and he did not do that.

[17] Instead, as indicated above, in the relief sought in his Form 14 Notice of Motion, he asked the court to make an order for a stay of the order: the Family Court has no jurisdiction to make such an order in the absence of a Motion to Change or an existing appeal. He asked the Court for a declaration that the order was “causing undue hardship”: the Family Court has no jurisdiction to make such an order. He asked for orders terminating spousal support but the bases on which he sought those orders reflect his frustration and do not reflect the reasons for which termination of support might be warranted. Paragraph 5 of the Notice of Motion reads more like a rant than a prayer for relief.

[18] The Court has a responsibility to assist self-represented litigants. It does not have the responsibility to sift through material such as was before the case conference judge, to the extent that we can ascertain it on the record that Mr. Reilly has provided. It would not be consistent with the “primary objective” to indulge or favour an unrepresented litigant and entertain such a Notice of Motion without regard to the prejudice that might cause the responding, also unrepresented, party.

[19] Mr. Reilly’s factum does not address the standard of review that the Divisional Court must apply. The decision to dismiss the Notice of Motion is either a question of law, in which case the standard of review is correctness, or a question of mixed fact and law, in which case the standard of review is palpable and overriding error. We must dismiss the appeal because Mr. Reilly has provided no basis to challenge the order under either standard. The case conference judge had no jurisdiction to stay the order of Gordon J. in the absence of a Motion to Change or an appeal.

[20] This appeal was heard on Thursday October 10, 2019. Ms. Priest did attend. She had not filed any responding material. She did not ask for an adjournment. At the outset, she said that she just wanted it over with. During his submissions, Mr. Reilly made a similar point. At the conclusion of the hearing, the Court invited Mr. Reilly to make a formal offer to settle to Ms. Priest to explore whether all outstanding matters might be settled. The Court advised the parties that they should inform the Trial Co-ordinator by Friday October 11 at 4:00 p.m. if they had been successful in settling matters. If they so advised the Trial Co-ordinator, the Divisional Court would not release the decision. If they did not advise the Trial Co-ordinator by 4:00 p.m., then the Divisional Court would release the decision on Tuesday October 15. This decision is being released on Tuesday October 15. Although the parties have not resolved all of the issues in the time frame suggested, they should nonetheless continue to try to do so. If they do agree to an order changing the final order of Gordon J. dated December 1, 2017, the parties should determine and apply the procedure to file their consent order with the Family Court for approval and signing.

ORDER TO GO AS FOLLOWS:

[21] The appeal from the order of Lafreniere J. dated February 13, 2019 is dismissed without costs.

Kiteley J.

Pomerance J.

Myers J.

Date of Release: October 15, 2019

CITATION: Reilly v. Priest, 2019 ONSC 5902

DIVISIONAL COURT FILE NO.: DC-19-13

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Pomerance, and Meyers JJ.

Paul Reilly

Appellant

– and –

Elaine Priest

REASONS FOR JUDGMENT

Kiteley J.

Date of Release: October 15, 2019