SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 722/10 Guelph
DATE: 20121018

RE: CATHERINE T. FLECK

Applicant

v.

CASEY R. FLECK

Respondent

And

COURTNEY FLECK

Respondent

BEFORE: CONLAN J.

COUNSEL:
Cheryl Stelzer, for the Applicant

George Johnson, for the Respondent Casey Fleck

Robert A. Nixon, for the Respondent Courtney Fleck

E N D O R S E M E N T

[ 1 ] The Applicant, Catherine Fleck (“Ms. Fleck”), brings a Motion for, among other relief, Summary Judgment against and an Order that the Respondent, Casey Fleck (“Mr. Fleck”), pay to Ms. Fleck $4,700.00 for medical and dental expenses incurred for Ms. Fleck and Emily Fleck between May 2011 and February 2012.

[ 2 ] Mr. Fleck opposes the motion. Alternatively, he submits that Judgment ought to be granted in part only.

[ 3 ] The Summary Judgment Motion materials were not served on the Respondent, Courtney Fleck. Ms. Fleck sought an Order that service on Courtney Fleck be dispensed with as the issues raised in the motion do not affect Courtney Fleck. Mr. Fleck did not oppose that Order in his materials or submissions by counsel on his behalf. Unopposed, that Order is made .

[ 4 ] Ms. Fleck also seeks an Order that Mr. Fleck shall produce to her a brochure which explains the complete coverage available through Manulife Insurance Plan. Mr. Fleck did not oppose that Order in his materials or submissions by counsel on his behalf. In response to the motion, Mr. Fleck filed an Affidavit sworn by a secretary in his counsel’s office which attached as an Exhibit documents regarding the Manulife Insurance Plan. Unopposed, if there exists any further documentation regarding Mr. Fleck’s medical, dental, drugs and/or extended health benefits under the Manulife Insurance plan, Mr. Fleck shall produce that documentation to Ms. Fleck’s counsel within thirty days of the date of this Endorsement.

[ 5 ] Ms. Fleck also seeks an Order that Mr. Fleck provide Manulife Insurance Plan with a signed and witnessed Direction and Authorization to permit Ms. Fleck to file claims on behalf of herself and Emily Fleck directly to the Plan and receive directly from the Plan payment of the eligible claims. Mr. Fleck did not oppose that Order in his materials or submissions by counsel on his behalf. Unopposed, that Order is made.

[ 6 ] With regard to the crux of the motion as contested, the law is clear. Ms. Fleck shall serve and file affidavit or other evidence setting out specific facts which show that there is no genuine issue requiring a trial – 16(4) Family Law Rules (“ FLR” ).

[ 7 ] Mr. Fleck may not rest on mere allegations or denials but shall set out, in affidavit or other evidence, specific facts showing that there is a genuine issue for trial – 16(4.1) FLR .

[ 8 ] The Court may draw conclusions unfavourable to a party who presents evidence that is not from someone who has personal knowledge of the facts in dispute – 16(5) FLR . I accordingly place no weight on the content of page two of the Affidavit of Mr. Johnson’s secretary.

[ 9 ] If there is no genuine issue requiring a trial, the Court shall make a final order accordingly – 16(6) FLR .

[ 10 ] The Court may refer by analogy to Rule 20 of the Rules of Civil Procedure to provide some further guidance on this motion – 1(7) FLR .

[ 11 ] The civil procedure Rule is almost identical in that the Court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial – 20.04(2)(a).

[ 12 ] The burden of proof is on Ms. Fleck. The standard of proof is on a balance of probabilities.

[ 13 ] Although no case law was filed by either party, in addition to all materials provided on the motion, I have reviewed and considered the leading decision of the Court of Appeal for Ontario in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 (the “full appreciation test”), and I have reviewed and considered as well the decision of the same Court in Kallaba v. Bylykbashi , 2006 3953 (ON CA) , [2006] O.J. No. 545 (which sets out many of the general principles applicable to motions under FLR 16).

[ 14 ] Mr. Fleck challenges the arithmetic. He submits that, because many receipts included in Ms. Fleck’s motion materials are duplicated, $4,700.00 is not the correct number. The Order that I make herein will address that by directing counsel to solve the arithmetic puzzle, failing which the Court will settle the Order.

[ 15 ] Mr. Fleck challenges a couple of receipts in Ms. Fleck’s motion materials regarding massage therapy and a breath test. There is no merit to that challenge. Those receipts are proper and fall within Justice Snowie’s Final Order, made on consent and pursuant to Minutes of Settlement, dated November 29, 2011, at paragraph 21. That clause reads as follows:

Casey Fleck shall maintain Emily and Catherine Fleck on his drug, dental, medical and extended health plan for so long as he is obligated to pay support for Emily and for Catherine Fleck for so long as the Plan permits. Upon Catherine submitting receipts for repayment under Casey’s medical plan, Casey shall take immediate steps to submit said receipts to his medical plan. Immediately upon receipt of payment back from the medical plan, Casey shall remit the amount paid by the medical plan directly to Catherine but at minimum said payments shall be made to Catherine within 60 days of her presenting the receipts to Casey. If Casey fails to honour these timelines, said failure to honour the payment shall result in a Consent Judgment in the full amount of the receipts submitted by Catherine to Casey for purposes of enforcement with the Court.

[ 16 ] Mr. Fleck argues that Ms. Fleck is not entitled to Judgment regarding any receipts that pre-date November 29, 2011. That argument has merit.

[ 17 ] There is nothing in the November 29, 2011 Order which states or suggests that paragraph 21 applies to receipts submitted by Ms. Fleck for payment prior to the date of Justice Snowie’s Order. In fact, the plain wording of paragraph 21 suggests otherwise. It speaks in the future tense.

[ 18 ] There is nothing in Ms. Fleck’s supporting Affidavit on this Motion for Summary Judgment, less the Exhibits attached thereto, which states or suggests that the parties intended as of November 29, 2011 that the consent Final Order of Snowie J. would apply to receipts submitted for payment before that date, although the Affidavit certainly assumes that to be the case.

[ 19 ] At the hearing of the motion, counsel for Ms. Fleck was unable to point to anything in the November 29, 2011 Order or the evidence before the Court on the Motion for Summary Judgment which enables the Court to conclude on balance that paragraph 21 of the Order applies to receipts submitted by Ms. Fleck for payment before November 29, 2011, with two exceptions.

[ 20 ] First, the Affidavit of Ms. Fleck filed in support of this Motion for Summary Judgment includes as an Exhibit correspondence from Ms. Stelzer (counsel for Ms. Fleck) to Mr. Johnson (counsel for Mr. Fleck) dated November 16, 2011. Among other matters, the said letter is a demand that Mr. Fleck submit various receipts to his insurer for payment. Obviously, the receipts that are the subject matter of that letter pre-date the November 29, 2011 Order. The said letter is, therefore, some circumstantial evidence upon which the Court may draw an inference that paragraph 21 of the Order of Justice Snowie must have been intended to apply to receipts submitted for payment by Ms. Fleck prior to the date of the Order. But that evidence is fairly weak, in my view.

[ 21 ] Second, the Affidavit of Ms. Fleck filed in support of this Motion for Summary Judgment includes as an Exhibit correspondence from Ms. Stelzer to Mr. Johnson dated January 31, 2012. The said letter includes this sentence, in part: “I confirm that your office has agreed to hold back Five Thousand ($5,000.00) Dollars to address the medical dental benefits dating retroactively for the 2011 year…” Mr. Johnson wrote to Ms. Stelzer on January 31, 2012 stating “I undertake that of the monies owed to Mr. Fleck I will hold back $5,000.00 in my trust account until the issue of benefits are resolved”. The said items of correspondence amount to some evidence that paragraph 21 of the Order of Justice Snowie must have been intended to apply to receipts submitted for payment by Ms. Fleck prior to the date of the Order, although the words in Ms. Stelzer’s letter “for the 2011 year” could also refer to the short period of time between the date of the Order of Justice Snowie and December 31, 2011, the end of the year.

[ 22 ] The evidence is simply unclear. Ms. Fleck declined to adjourn the Motion for Summary Judgment to adduce further evidence. Quite frankly, I suspect that the parties indeed intended as of November 29, 2011 that the Order of Snowie J. at paragraph 21 would apply to receipts submitted for payment by Ms. Fleck prior to the date of the Order.

[ 23 ] My mere suspicion, however, does not rise to the level of proof on balance that there is no genuine issue for trial regarding receipts submitted by Ms. Fleck for payment before November 29, 2011. The issue is not a legal one which I can, under Rule 16 of the FLR , resolve. There is a legal aspect to it in interpreting the Order of Snowie J., but there is also a heavy factual component regarding the intentions of the parties at the time the Order was made. A trial is required to resolve what is a genuine issue of fact or at least mixed fact and law. A trial is required to gain a full appreciation of the issue. The totality of the evidence before me on this motion falls short of establishing on a balance of probabilities that there is no genuine issue requiring a trial with regard to receipts submitted by Ms. Fleck for payment before November 29, 2011. As such, the Motion for Summary Judgment is dismissed in part.

[ 24 ] I say “in part” because I am satisfied on balance that there is no genuine issue requiring a trial for the other receipts. Thus, the Motion for Summary Judgment is granted in part. Catherine Fleck shall have Judgment against Casey Fleck with respect to all receipts that she submitted for payment between November 29, 2011 (the date of Justice Snowie’s Order) and February 28, 2012 (the date referred to in the Notice of Motion for Summary Judgment), inclusive . To be clear, it is the date that the receipt was submitted for payment by Ms. Fleck that governs, not the date of the receipt itself. That is to be consistent with the wording of paragraph 21 of Justice Snowie’s Order. The date of the receipt is immaterial. Likewise, the date that the expense was “incurred” (the language used in the Notice of Motion for Summary Judgment) is immaterial.

[ 25 ] Counsel shall do the arithmetic. This Court Orders that Casey Fleck shall pay that amount to Catherine Fleck, forthwith. If a dispute remains as to the number, I will settle the Order.

[ 26 ] The Motion for Summary Judgment is otherwise dismissed. At the request of both counsel, in the event that the parties cannot settle the issue of costs, I may be spoken to through either the Trial Coordinator in Guelph or the Trial Coordinator in Owen Sound.

[ 27 ] Catherine Fleck’s Motion for Summary Judgment is granted in part. Judgment is to issue accordingly.

Conlan J.

DATE: October 18, 2012

COURT FILE NO.: 722/10 Guelph
DATE: 20121018

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Catherine T. Fleck Applicant v. Casey R. Fleck Respondent And Courtney Fleck Respondent BEFORE: Conlan J. COUNSEL: Cheryl Stelzer, for the Applicant George Johnson, for the Respondent Casey Fleck Robert A. Nixon, for the Respondent Courtney Fleck ENDORSEMENT Conlan J.

DATE: October 18, 2012