SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-7756M
DATE: 20120620

RE: CYNTHIA NEATHERY

v.

CHRISTOPHER COTTLE

BEFORE: CONLAN J.

COUNSEL:
Lynn Burgess, for the Applicant
W. Joanne Horton, for the Respondent

SECOND SUPPLEMENTARY ENDORSEMENT

Background

[ 1 ] On May 25, 2012, this Court heard lengthy oral submissions from counsel on the Applicant’s Motion for temporary spousal support and other relief. This Court reserved its decision. A typed Endorsement was released dated May 28, 2012. After the release of that Endorsement, the Court received correspondence from counsel for the Respondent, asking for clarification of two further matters. That correspondence from Ms. Horton was dated May 30, 2012 and was copied to the Respondent and to counsel for the Applicant. Assuming that the said correspondence was a joint request for clarification put forward by both counsel, this Court issued a Supplementary Endorsement dated May 31, 2012. Subsequently, the Court received correspondence from counsel for the Applicant dated June 5, 2012, raising further issues. That correspondence was addressed to the Court and to counsel for the Respondent. As that correspondence clarified that the earlier letter from Ms. Horton was not a joint request and was sent without consultation with Ms. Burgess, to be fair to the parties, the Court invited them and counsel to attend at Court to re-address the matters of concern. On June 7, 2012, Ms. Horton (without her client) and Ms. Burgess (with her client) attended in person at Court in Owen Sound. Further submissions were made, and some case law was filed by both sides. The Court reserved.

Preliminary Issue of Whether this Court is Functus

[ 2 ] The Applicant submits that this Court is not functus and, thus, may further clarify the two earlier Endorsements. The Respondent’s counsel does not disagree with that submission, however, Ms. Horton argues that there are limits to what the Court may do at this stage.

[ 3 ] Rather than further delay the resolution of the Motion by declaring it complicated and ordering it to proceed to trial under Rule 14(7) of the Family Law Rules or ordering it to proceed on a long motions date with facta to be served and filed, both alternatives being open to the Court, I remain determined to adjudicate the issues on this Motion in a timely and fair manner. The parties deserve that, although they agree on virtually nothing. The lawyers have worked hard in ably representing their clients.

[ 4 ] As no Order embodying the two earlier Endorsements has yet been signed, I adopt the reasoning of the Honourable Justice Perkins in Church v. Church , 2003 1942 (ON SC) , [2003] O.J. No. 2040 (S.C.J.), and rule that this Court is not functus officio . I remain authorized to amend or clarify aspects of the decision and the reasons underlying it as contained in the two earlier Endorsements. Until an order is issued and entered, the judicial officer who made the order remains seized of the matter, and further, that judicial officer retains the authority to amend or revoke the order.

Should the Court now Receive and Consider Further Evidence from the Applicant?

[ 5 ] Ms. Burgess wishes to file an Affidavit of the Applicant, sworn on June 6, 2012, which contains further information about the Respondent’s finances and exhibits which include Ms. Neathery’s 2011 Income Tax Return, Dr. Cottle’s Statement of Investment Income as part of his 2010 Income Tax Return, Dr. Cottle’s 2009 Income Tax Return less the Schedules attached thereto, Dr. Cottle’s Statement of Investment Income as part of his 2009 Income Tax Return, a five-year Tax Summary for Dr. Cottle as part of his 2008 Income Tax Return, Dr. Cottle’s Statement of Investment Income as part of his 2008 Income Tax Return, Dr. Cottle’s TD Waterhouse Statement for May 2011, and Dr. Cottle’s TD Waterhouse Statement dated May 21, 2012.

[ 6 ] Counsel for the Respondent objects to the Court receiving the said further evidence. The Court has not reviewed the documentation in question, nor has it been filed.

[ 7 ] Ms. Horton relies in part on the decision of Justice Boswell in Gray v. Rizzi , 2010 ONSC 2858 () , [2010] O.J. No. 4021 (S.C.J.), affirmed by the Court of Appeal for Ontario, 2011 ONCA 436 () , [2011] O.J. No. 2563.

[ 8 ] The comments of Justice Boswell as related to Rule 25(19) of the Family Law Rules are not relevant in the case at bar. First, there is no motion before the Court to change either or both of the earlier Endorsements. Second and more important, there is no order to change. The Rules do not define the term “order”. The definitions in Rule 2(1) for “temporary order” and “final order” do not assist with understanding what an “order” is. Counsel provided no authorities to the Court on this narrow issue. Reference to the Rules of Civil Procedure does not assist as Rule 1.03 merely indicates that an “order” includes a judgment.

[ 9 ] Black’s Law Dictionary defines “order” very broadly to include “a written direction or command delivered by a court or judge”. I adopt that definition of “order” generally but not for the purpose of Rule 25 of the Family Law Rules . In my view, Rule 25 deals with formal orders and does not include the two earlier Endorsements in the case at bar. A plain reading of the various sub-rules leads to that conclusion. Thus, as of now, there is no order to be subject to Rule 25(19).

[ 10 ] Apart from Rule 25(19), however, the Court has an inherent jurisdiction to set aside or change an order to prevent a miscarriage of justice: West v. West , 2001 28216 (ON SC) , [2001] O.J. No. 2149 (S.C.J. – Perkins J.). Relying on Gray and West , Ms. Horton submits that this Court should not entertain the further evidence sought to be tendered by the Applicant as it was in existence at the time that the earlier “orders” were made. Ms. Burgess disagrees and asserts that the two earlier Endorsements are not “orders” and, thus, the sentiments of Justice Boswell at paragraph 42 of the Gray decision, which comments in turn refer to Justice Perkins’ decision in West , are not determinative.

[ 11 ] I am persuaded that Ms. Horton’s position is the correct one. The term “order” may not have the exact same meaning in all contexts. I have already indicated that, in my opinion, Rule 25 of the Family Law Rules applies to formal orders. That is not the case when interpreting the comments of Justices Boswell and Perkins, which comments I agree with. When it is stated that evidence in support of a request for a Court to exercise its inherent jurisdiction to set aside or change an “order” must not have been available to the requesting party at the time that the “order” was made, the term “order” must be given its broad and liberal meaning as set out in, for example, the Black’s Law Dictionary . It includes the earlier two Endorsements that this Court made in the case at bar. It includes any mandate or determination by a Court of an issue arising in the litigation. To conclude otherwise would be too strict a curtailment of the Court’s inherent discretion to vary or set aside an order, applying only to formal orders that have been issued and entered. That, in my view, would not be in the interests of justice.

[ 12 ] As it is clear that the further evidence sought to be tendered by the Applicant was in existence or at least reasonably discoverable by Ms. Neathery at the time that the two earlier Endorsements were made, I am not prepared to accept it at this stage.

[ 13 ] Judges are not investigators. We make decisions based on the case as presented and the evidence as filed at the time of the matter being heard. A litigant is to put her best foot forward or, if deemed necessary, ask for an adjournment. Motions for temporary orders are to be decided relatively expeditiously; otherwise, parties might as well just proceed to trial. We should be cautious about opening up Pandora’s Box and inviting continuous dialogue between the litigants, through counsel, and the Court in a process that could devolve in to seemingly interminable adjudications.

Further Clarifications to the Two Earlier Endorsements

[ 14 ] This decision must be read in the context and together with the Endorsements dated May 28 and 31, 2012.

[ 15 ] On consent, this Court orders that the $1,200.00 income from Dr. Cottle’s solar panel shall be included in his total income for the purpose of calculating the spousal support owing to Ms. Neathery.

[ 16 ] This Court orders that the $1,389.00 interest and investment income shall not be included in Dr. Cottle’s total income for the purpose of calculating the spousal support owing to Ms. Neathery, for the same reasons outlined in the Endorsement of May 28, 2012 regarding the taxable dividends and the net partnership income.

[ 17 ] On consent, this Court orders that the Department of National Defence pension of $19,345.00 shall be included in Dr. Cottle’s total income for the purpose of calculating the spousal support owing to Ms. Neathery.

[ 18 ] On consent, this Court orders that the Veterans Affairs benefits of $2,100.00 shall be included in Dr. Cottle’s total income for the purpose of calculating the spousal support owing to Ms. Neathery.

[ 19 ] On consent, this Court orders that the $28,800.00 spousal support obligation that Dr. Cottle has for his first wife shall be deducted from his total income for the purpose of calculating the spousal support owing to Ms. Neathery.

[ 20 ] On consent, this Court orders that the $5,760.00 child support obligation that Ms. Neathery has shall be deducted from her total income for the purpose of calculating the spousal support owing by Dr. Cottle to Ms. Neathery.

[ 21 ] This Court clarifies that all income items for Dr. Cottle that are part of the spousal support calculation are taxable except the $2,100.00 (Veterans Affairs) and the Royal Bank of Canada pension. Those two inputs are non-taxable and subject to gross-up.

[ 22 ] There is a dispute as to what Dr. Cottle’s self employment income should be for the purpose of calculating the spousal support owing to Ms. Neathery. This Court prefers the position of the Applicant. The most reliable and current figure is $158,000.00, the evidentiary foundation for which is at paragraph 9 of Dr. Cottle’s Affidavit sworn on May 24, 2012. This Court orders that the said figure shall be Dr. Cottle’s self employment income for the purpose of calculating his total income to compute the spousal support figure owing to Ms. Neathery.

[ 23 ] The Applicant requests an order that Dr. Cottle contribute to the taxes on the matrimonial home and the adjoining vacant lot. That relief was not specifically sought in Ms. Neathery’s Notice of Motion. Litigants ought to generally be confined to the relief sought in their pleadings: Rodaro v. Royal Bank , 2002 41834 (ON CA) , [2002] O.J. No. 1365 (C.A.). Otherwise, hearings are at risk of becoming ambushes. I disagree with Ms. Burgess that the Motion as framed reasonably includes this request within the ambit of spousal support generally or within the catch-all “such further and other relief”. This is a substantial issue that will have to be left for another day.

[ 24 ] On consent, this Court makes the following clarification to paragraph 26 of the May 28, 2012 Endorsement. This Court orders that the Respondent shall pay to the Applicant monthly spousal support in the amount calculated as per the three Endorsements, commencing June 1, 2011 (the date of separation) and on the first day of each month thereafter, with the Respondent receiving credit for payments already made in amount(s) to be agreed upon by counsel or, failing such agreement, as determined by the Court on further Motion by either party on notice to the other.

[ 25 ] Thank you counsel. I wish the parties the best moving forward. Counsel may contact the Trial Coordinator in Owen Sound to discuss any further issues. The forum for those further discussions, if any, whether in person or by teleconference or in writing, will depend on the nature of the issue(s).

[ 26 ] Costs remain as set out in the May 28, 2012 Endorsement.

Conlan J.

DATE: June 20, 2012

COURT FILE NO.: 11-7756M
DATE: 20120620
SUPERIOR COURT OF JUSTICE - ONTARIO RE: CYNTHIA NEATHERY v. CHRISTOPHER COTTLE BEFORE: CONLAN J. COUNSEL: Lynn Burgess, for the Applicant W. Joanne Horton, for the Respondent SECOND SUPPLEMENTARY ENDORSEMENT Conlan J.

DATE: June 20, 2012