ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-00371940
DATE: 20120417
BETWEEN:
THERESA BARKER, ESTATE TRUSTEE FOR THE ESTATE OF WALTER BARKER Plaintiff – and – DYMPNA WALSH Defendant
Domenic Saverino , for the Plaintiff
Michael N. Freeman , for the Defendant
HEARD: February 29, 2012
T. Mcewen j.
reasons for decision
Introduction
[ 1 ] The Defendant, Dympna Walsh (“Dympna”) brings this motion pursuant to rule 20.01(3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 seeking summary judgment dismissing all of the claims of the Plaintiff, Theresa Barker, Estate Trustee for the Estate of Walter Barker (“the Estate”).
Overview
[ 2 ] Theresa Barker (“Theresa”) is the Estate Trustee for the estate of her late father, Walter Barker (“Walter”). Since it is relevant for the purposes of the action and the motion for summary judgment, it is noted that Dympna is deaf and communicates by way of American Sign Language (“ASL”). Walter was also deaf and used ASL to communicate. Theresa is hearing impaired and understands ASL.
[ 3 ] According to the Estate’s Statement of Claim, Walter and Dympna were common law partners in early or mid 1998 and in or about November 1998, they purchased a house in Ajax. Housing costs, mortgage payments, and expenses were split between them.
[ 4 ] Further, according to the Statement of Claim, Walter and Dympna terminated their common law relationship and sold the house in or about March 2007.
[ 5 ] Between 2006 and the selling of the house in 2007, Walter and Dympna entered into a number of written agreements. These agreements dealt with the proceeds of the sale of the house, the proceeds from the sale of some house contents, the sale of a vehicle from Walter to Dympna, and outstanding utility costs. Even though Walter and Dympna communicated by way of ASL they were able, with assistance, to enter into these written agreements that were duly witnessed. No one disputes the validity of these agreements.
[ 6 ] Theresa, however, now asserts on behalf of the Estate that Walter and Dympna, in addition to the written agreements, entered into a verbal contract concerning common expenses when they ended their relationship. It is alleged by the Estate that in 2002, Dympna stopped working and could no longer pay her share of common expenses. The Estate alleges that as a result, Dympna entered into a verbal contract with Walter whereby he would continue to pay all of the common expenses and once she received certain disability benefits she would repay him. Walter passed away in August 2008. The Estate now claims that there is an outstanding balance with respect to these common expenses in the amount of $48,515.70 and seeks reimbursement of this amount in this action.
[ 7 ] Dympna alleges that there was never a dispute or issue, of any kind, between her and Walter with respect to those common expenses. Dympna therefore denies that there was any verbal agreement between her and Walter with respect to the repayment of common expenses.
[ 8 ] If there was such an agreement, Dympna asserts that it is unenforceable due to the provisions of the Family Law Act , R.S.O. 1990, c. F. 3.
[ 9 ] Lastly, Dympna pleads that the action is barred by virtue of the provisions of the Limitations Act , 2002 , S.O. 2002, c. 24, Sch B.
The Summary Judgment Motion
The Limitation Period
[ 10 ] Firstly, at the hearing of the motion the issue of the Limitations Act, 2002 was not raised. Even if it was, I would not have dismissed this action on the basis that it was commenced out of time under the provisions of the Limitations Act, 2002 . The underlying factual matrix is simply too complicated at this stage to determine exactly when the Plaintiff’s cause of action may have arisen and thus, whether the action is statute barred. In this regard it is worth pointing out that no cross-examinations on any of the affidavits filed were conducted. I simply cannot have a full appreciation of the issues surrounding the limitation period argument.
The Verbal Agreement
[ 11 ] I have come to a similar conclusion with respect to Dympna’s claim that the Estate’s action has no reasonable prospect of succeeding on the facts since no verbal agreement existed. It is impossible to obtain a full appreciation of the facts surrounding this assertion from the affidavits that have been filed and not cross-examined upon. Theresa asserts she was present at a meeting in 2007 where Dympna verbally confirmed her agreement to pay back one half of the common expenses for the relevant time period. She asserts that her sister Nancy Barker (“Nancy”) was also at the meeting. Nancy has not provided any affidavit evidence, however, in this proceeding. She is apparently in South Africa, although one questions why efforts were not made to either obtain the materials or seek an adjournment on such an important issue. On the other side of the coin, Dympna has sworn an affidavit stating that such a discussion never took place. Additionally, Lillian Christie (“Lillian”), the sister of the late Walter, has also sworn an affidavit supporting Dympna’s position. Lillian deposes that she was present at the meeting and there was absolutely nothing said about monies owed by Dympna to Walter with respect to common expenses.
[ 12 ] In these circumstances, it is impossible to obtain a full appreciation of the facts necessary to make a determination as to whether the promise was made. As such, I cannot conclude that there is not a genuine issue requiring a trial.
The Family Law Act
[ 13 ] The only issue left to be determined is whether the oral agreement is enforceable under the Family Law Act .
[ 14 ] The relevant provisions of the Family Law Act are as follows:
Definitions
- (1) In this Act,
“domestic contract” means a domestic contract as defined in Part IV (Domestic Contracts)
“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
55 (1) Form of contract – A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
[ 15 ] Dympna submits that since she and Walter lived in a common law relationship from 1998 to 2007, any agreement between them must comply with the provisions of section 55 of the Family Law Act . Accordingly, even if there was an oral agreement between them, it is not enforceable pursuant to the provisions of the Family Law Act .
[ 16 ] The Estate raises a number of defences to this proposition as follows:
(a) Dympna and Walter were not common law spouses. Alternatively, if they were, they ended their relationship in November 2004 and thereafter lived in the house as joint tenants until they split for good in 2007.
(b) Walter and Dympna could not have entered into an agreement in writing concerning the common expenses since they both were deaf and communicated using ASL. ASL cannot be placed into writing. As a result, the agreement they reached should be taken to be as valid as a written contract.
(c) The agreement concerning common expenses did not have to be in writing despite the provisions of the Family Law Act .
(d) Dympna failed to plead the provisions of the Family Law Act in her Statement of Defence and therefore cannot raise this defence.
[ 17 ] I will deal with each of these defences in turn.
(a) Dympna and Walter Were Not Common Law Spouses
[ 18 ] This curious allegation was first raised in Theresa’s affidavit. The allegation runs completely contrary to the Estate’s Statement of Claim with respect to the marital status of Dympna and Walter.
[ 19 ] The applicable paragraphs in the Statement of Claim read as follows:
Mr. Barker and Ms. Walsh were common law partners in early or mid-1998 before deciding to purchase a home. At the time, Ms. Walsh lived at the invitation of Mr. Barker in his home, which he owned under his own name.
Mr. Barker and Ms. Walsh sold the house and terminated the common law relationship on or around March of 2007. Mr. Barker issued verbal demands to Ms. Walsh to pay her unpaid half of the Common Expenses. Ms. Walsh confirmed her obligation under the verbal contract.
[ 20 ] In her Statement of Defence, Dympna agrees that she and Walter were common law spouses during this time frame.
[ 21 ] Theresa, however, in her January 12, 2012 Affidavit, at paragraph 12, states for the first time that “the action arises out of a friendship between my late father, Walter Barker (hereinafter Walter) and the Defendant, Dympna Walsh (hereinafter Dympna).” At paragraph 39 of her affidavit, Theresa further states “Walter and Dympna ended their relationship in or about November of 2004 and were both living in the Property as joint tenants until the house was sold in March of 2007.”
[ 22 ] After careful consideration, I cannot give any weight to these statements made by Theresa in her affidavit. They are bald statements with no supporting evidence of any kind. They are also completely opposite to what the Estate, under her control, has pleaded in the Statement of Claim, a document Theresa prepared. No attempts whatsoever have been made by the Estate to amend its pleading to accord with Theresa’s affidavit evidence. I discussed this specifically with counsel for the Estate at the motion. His response was that Theresa, being hearing impaired, was unsophisticated and since she drafted the Statement of Claim herself, it was understandable that it would contain such a mistake. I disagree. This is not a case where a self-represented party failed to appreciate some legal remedy that is contained in an Act (and I will deal with this further below when I consider Dympna’s failure to plead the Family Law Act ). Instead, Walter and Dympna’s spousal status, or lack thereof, was a simple fact that was obviously known to Theresa when she prepared the pleading on behalf of the Estate. No explanation was given in her affidavit as to why she is now of a different view than that set out in the Statement of Claim. I am also skeptical of Theresa’s claim with respect to Dympna and Walter’s marital status in light of the fact that it first arose after she had the opportunity to review Dympna’s motion materials, which included the assertion that oral contracts were not enforceable between spouses.
[ 23 ] Notwithstanding the above, no attempt was made at the motion to amend the pleading or to adjourn the motion to deal with this issue. Furthermore, neither the Estate, nor Theresa has adduced any evidence whatsoever to support Theresa’s bald allegations with respect to the spousal issue. Accordingly, I do not place any weight upon Theresa’s statements concerning the spousal status of Walter and Dympna.
[ 24 ] Dympna is entitled to bring her motion for summary judgment based on the facts set out in the Statement of Claim. These facts have not changed and the parties both agree in their pleadings that Walter and Dympna were common law spouses.
[ 25 ] In my view, the Estate’s position concerning Dympna and Walter’s marital status is not tenable.
(b) Walter and Dympna Could Not Have Entered into an Agreement in Writing Given Their Disability
[ 26 ] This defence was abandoned in argument by counsel for the Estate. This was wise given the fact that Dympna adduced clear evidence at the hearing that ASL can be translated into writing. Further, the simple fact is that Walter and Dympna entered into four written agreements in 2006 and 2007 in which they split their assets. All of these agreements were properly signed and witnessed and no one has taken any position to the effect that the agreements were invalid. This assertion, from the outset, had no merit.
(c) The Agreement to Repay Common Expenses Did Hot Have to Be in Writing
[ 27 ] Firstly, the Estate submits that the provisions of section 55(1) of the Family Law Act do not have to be complied with where a promise of payment precedes cohabitation and is designed to prompt cohabitation. In this regard, the Estate relies upon the decision of the Ontario Divisional Court in Wray v. Rubin , (1988) 1987 4370 (ON SC) , 62 O.R. (2d) 578 (Div. Ct.). The difficulty, however, with this submission is that the facts of the Wray case are entirely distinguishable from this case. In Wray , promises were made to prompt one of the parties to live with the other and were clearly made before cohabitation began. The expenses at issue were related to the costs of one spouse moving to live with the other. Those facts are entirely distinguishable from this case that deals with expenses that were incurred while Walter and Dympna were living together.
[ 28 ] The Estate maintains that, in any event, the agreement does not have to be in writing and in this regard relies upon statements made by this Court in the cases of Pastoor v. Pastoor , 2007 28331 (ON SC) , [2007] O.J. No. 2851 (S.C.) and Harris v. Harris , [1996] O.J. No. 2430 (Ont. Ct. (Gen. Div.)).
[ 29 ] Both of these cases are distinguishable from this case. In Harris , both parties were represented by legal counsel and correspondence between them demonstrated that they believed they had settled the legal issues. In Pastoor , minutes of settlement were negotiated and once again, the parties were represented by counsel.
[ 30 ] In those cases, one can fully appreciate why the courts enforced the settlements. There is good reason not to enforce the provisions of section 55(1) where litigation is commenced, the parties are represented and there is written documentation confirming an intention to settle. In this case, however, neither party was represented, the matter was not in litigation and there is no written documentation whatsoever that assists in determining the intention of the parties with respect to the common expenses.
[ 31 ] This case more closely resembles the facts of the case before the Divisional Court in Johnston v. Johnston , 1998 CarswellOnt 5042 (Ont. Ct. (Gen. Div.)). In that case, the husband tried to rely upon an oral agreement when the parties were without the benefit of legal advice. The court held that the oral agreement, even if it existed, would not qualify as a domestic contract according to section 55(1) of the Family Law Act because it was not in writing.
[ 32 ] Support for Dympna’s position in this regard can also be found in a number of other cases: see Leppek v. Leppek , 1991 12828 (ON SC) , [1991] 33 R.F.L. (3d) 66 (Ont. Ct. (Gen. Div.)); Luton v. Luton , [1998] O.J. No. 322 (Ont. Ct. (Gen. Div.)); Lalonde v. Lalonde , 2008 CarswellOnt 308 (S.C.) .
[ 33 ] Although not raised in the Estate’s factum, counsel for the estate argued that the agreement did not have to be in writing since it was not finalized at the time of Walter’s death and in essence, was an oral agreement to settle. I do not accept this argument. In my view, it is exactly these types of agreements that section 55(1) was meant to address.
[ 34 ] Accordingly, I find that the agreement to pay common expenses had to be in writing in order to be enforceable.
(d) Failure to Plead the Provisions of the Family Law Act
[ 35 ] Dympna was not represented when she prepared her Statement of Defence and she failed to plead the relevant provisions of the Family Law Act . The Estate argues that a defence based upon a statute must be specifically pleaded.
[ 36 ] The Estate relies upon the decision of Street J. in the case of Perlmutter v. Jeffery et al. , (1979) 1979 2051 (ON SC) , 23 O.R. (2d) 428 (H.C.) that provides some support for the Estate’s submissions. The difficulty is that the decision was successfully appealed to the Ontario Divisional Court: see Perlmutter v. Jeffery , 1979 CarswellOnt 1601 . The Divisional Court took a contrary view to the trial judge’s finding concerning this issue.
[ 37 ] In any event, I am in agreement with other decisions of this court that have held that a court is bound to recognize any statute, even if it is not specifically pleaded: see McDonald v. 171185135 Ontario Inc. , 2010 ONSC 6698 and 80143 Ontario Inc. v. Badurina , 2000 CarswellOnt 2756 .
[ 38 ] Furthermore, I am mindful of the fact that at the time the Statement of Defence was written and filed, Dympna was self-represented. Unlike the factual problems with Theresa’s Statement of Claim, the problem we are dealing with here is the failure to plead the provisions of a relevant statute. Also, in any event, the fact that Dympna was relying on section 55(1) of the Family Law Act was squarely before the Estate prior to the hearing of the summary judgment motion. The Estate had the opportunity to respond to this defence, and did so, both in writing and in oral argument.
[ 39 ] I therefore find that Dympna can plead and rely upon the provisions of section 55(1) of the Family Law Act.
[ 40 ] In sum, I find that all of the defences raised by the Estate concerning section 55(1) of the Family Law Act must fail. Even if there was an oral agreement in place between Walter and Dympna with respect to the common expenses, it would not be binding as a result of the application of section 55(1) of the Family Law Act .
Disposition
[ 41 ] For the reasons above, I conclude that, even if there was an oral agreement between Walter and Dympna, it is not binding since it was a domestic contract that was not made in writing, signed by the parties and witnessed. Thus, this motion for summary judgment is granted and the action is dismissed.
[ 42 ] With respect to the issue of costs, Dympna, in my view, is entitled to her partial indemnity costs for the action and the motion. I reviewed the Bill of Costs submitted by counsel for Dympna. I have reduced the amount sought for the motion attendance of December 20, 2011 since these costs have been dealt with and otherwise modestly reduced the amount sought given the rather straightforward nature of this action. I therefore order that the Estate pay Dympna fees in the amount of $15,000 plus H.S.T., along with disbursements related to today’s motion, process server expenses and mediation expenses totaling $908.13. I have not allowed disbursements with respect to the April 6, 2011 motion and subsequent fees to be paid to enforce writs which were later dispensed with given the order of Roberts J. Costs are to be paid within 60 days.
T. McEwen
Released: April 17, 2012
COURT FILE NO.: CV-09-00371940
DATE: 20120417
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
THERESA BARKER, ESTATE TRUSTEE FOR THE ESTATE OF WALTER BARKER Plaintiff – and – DYMPNA WALSH Defendant
REASONS FOR DECISION
T. McEwen J.
Released: April 17, 2012