SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 3-2012SR

DATE: January 15, 2013

RE: Margaret Cunningham, plaintiff

AND:

Allan Cunningham, defendant

BEFORE: KORPAN J.

COUNSEL:
Patrick J. Murphy for the plaintiff

Mark T. Rush for the defendant

HEARD: September 19, 2012

ENDORSEMENT

[1] The plaintiff, Margaret Cunningham, and the defendant, Allan Cunningham, are husband and wife. They began living together in 1995, married in June 1999 and separated on August 31, 2010 when Mr. Cunningham was arrested and charged with three counts of assault against Ms. Cunningham.

[2] On October 1, 2010 Ms. Cunningham commenced an application in Goderich (the “application”) against Mr. Cunningham. She claimed a divorce, spousal support, equalization of net family property, exclusive possession of the matrimonial home, a non-harassment order, pre-judgment interest and costs.

[3] Eighteen months later on March 20, 2012 Ms. Cunningham commenced this action in Goderich (the “tort action”) against Mr. Cunningham for damages in the amount of $70,000 arising out of alleged assaults by Mr. Cunningham during the marriage and separation. Ms. Cunningham says that she did not commence the tort action against Mr. Cunningham until March 2012 as she did not feel psychologically ready to commence such a proceeding until that time.

[4] Mr. Cunningham brings this motion for an order that the tort action be consolidated with the application in Superior Court of Justice court file #138-2010D. Ms. Cunningham opposes the request that the proceedings be consolidated.

[5] The same law firm in Goderich represents Ms. Cunningham on both the application and the tort action, although a different lawyer in the firm is acting on the application than on the tort action. The same law firm in Georgetown represents Mr. Cunningham on both the application and the tort action.

[6] In the application, Ms. Cunningham pleads that Mr. Cunningham assaulted her on August 31, 2010 and countless other times over the course of the marriage and seeks a non-harassment order and exclusive possession of the matrimonial home. In the tort action, Ms. Cunningham pleads that Mr. Cunningham assaulted her over the course of the parties’ 15 year cohabitation and on August 31, 2010 and seeks damages. The statement of claim in the tort action repeats in support of its cause of action the allegations of fact asserted by Ms. Cunningham in her application and in her affidavit sworn on October 7, 2010 in support of her motion for temporary relief on the application. Ms. Cunningham’s pleadings in the tort action and application make virtually identical allegations of assault.

[7] Mr. Cunningham was arrested on August 31, 2010, the date of separation, and charged with three counts of assault. He denies that any assault took place. He pleaded guilty to one count of assault in the criminal court and says that although no assaults took place he concluded that the wiser course was for him to accept the plea bargain offered by the Crown than proceed to trial. He is contesting the civil allegations of assault.

[8] Mr. Cunningham’s position is that rather than commencing the tort action in a separate proceeding, Ms. Cunningham ought to have amended the application to include the claim for damages. Mr. Cunningham says that he is now faced with having to pay for the cost of defending two proceedings, being exposed to two sets of examinations for discovery, the prospect of two separate trials before two potentially different triers of fact who may reach different conclusions of fact, having to travel two hours to court and two hours back from Georgetown to Goderich on different dates for different duplicating steps in two proceedings brought in the same court by the same claimant against the same respondent, where the cause of action in the tort action arises out of facts pleaded and in issue on the application.

[9] Ms. Cunningham agrees that the application contains details about some of the alleged past abuse she suffered at the hands of Mr. Cunningham. Ms. Cunningham says these details were pleaded in the application for the purposes of obtaining a non-harassment order and an order for exclusive possession. Ms. Cunningham obtained a temporary non-harassment and interim exclusive possession order on October 14, 2010. The non-harassment order was in effect until October 14, 2012 subject to further extension by court order.

[10] Questioning has not taken place on the application. Ms. Cunningham’s counsel has no intention of questioning Mr. Cunningham on the application. The case conference in the application was completed on July 7, 2011. A settlement conference took place in the application on February 2, 2012.

[11] Ms. Cunningham says the application has almost resolved. She is hopeful that a trial will not be required in the application. Mr. Cunningham disagrees. He says that only spousal support has been settled by a final order and that the application is not close to being settled. He anticipates questioning in the application and a possible trial.

[12] The issue on this motion is whether the tort action should be consolidated with the application.

[13] Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46] states that “[a]s far as possible, multiplicity of legal proceedings shall be avoided.”

[14] Rule 6.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 gives the court discretion to order that proceedings be consolidated. It reads:

WHERE ORDER MAY BE MADE

6.01(1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.

DISCRETION OF PRESIDING JUDGE

6.02 Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.

SEPARATE HEARINGS

6.1.01 With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.

[15] In Huismans v. Black, 2000 CarswellOnt 3137 (Ont. S.C.J.), Sheppard J. heard a motion to dismiss a former husband’s claim against his former wife for damages for defamation on the basis of the doctrine of cause of action estoppel because the claim could have and ought to have been included in the family law proceedings which had earlier been resolved. In discussing the requirement that claims for damages should be adjudicated upon as part of a final determination of all claims between the parties Sheppard J. at paras. 16 to 18 and 24 said:

16 ... it would seem that Huismans, aware as he was of what he regarded as defamatory statements made by Black against him to police, could have and ought to have brought his claim for damages for defamation before the Family Court for adjudication along with the other claims, all of which arose out of the parties' conduct, the one toward the other, in the course of their marital relationship. In my view, therefore, the doctrine of cause of action estoppel applies to preclude Huismans' claim for damages for defamation and injurious falsehood.

17 Damages for assaultive behaviour have been awarded by the courts as an additional award to claims made under the Family Law Act or Divorce Act upon marriage breakdown in the following cases:

Surgeoner v. Surgeoner (December 2, 1993), Doc. ND 181185/91Q (Ont. Gen. Div.)

Harris v. Cohen (September 27, 1994), Doc. 40537/89Q (Ont. Gen. Div.)

Dhaliwal v. Dhaliwal (August 13, 1997), Doc. Ottawa 52665/96 (Ont. Gen. Div.)

18 Awards of this nature are relatively new but they appear to be increasing in number. I see no difference between a claim for damages for assault and a claim for damages for defamation, both arising out of conduct in a marital relationship. Such claim could have been combined in the Family Court proceedings.

24 ... It seems to me that it would be contrary to societal interests and contrary to public policy to allow one spouse to claim damages against the other for conduct suffered during their marital relationship following the final disposition of all claims which were or ought to have been presented to the court for resolution upon the breakdown of the marriage. Other than for changed circumstance relating to custody of children and spousal and child support, when the parties come to a settlement or a court issues a final order, each party should be free to get on with his or her life, free from any further claims based on misconduct during the marriage. Claims for damages for abuse suffered during the marriage is a developing area in the law, and if such claims exist they should be adjudicated upon as part of a final determination of all claims between the parties. A divorced or long-time separated spouse should not have to re-litigate a historical claim for damages for alleged misconduct during the marital relationship after that relationship has been terminated and all recognized claims at law finally resolved.

[16] In Wong v. Wong, 2006 CarswellOnt 8823 (Ont. S.C.J.), the husband brought a motion for an order to dismiss as an abuse of process or alternatively as frivolous and vexatious, the wife’s claim for damages for assault and battery, conspiracy, defamation, intimidation, deceit, malicious prosecution and intentional infliction of mental suffering after settlement of her family law claim under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] and the Family Law Act, R.S.O. 1990, c. F.3. Although on the particular facts of the case Granger J. did not dismiss the wife’s claim, he made the following comments at paras. 2 through 6, 17 and 42:

2 Dr. and Ms. Wong, as a result of their separation on May 12, 2001, were involved in a Family Law Act proceeding which was ultimately settled after two days of trial. The minutes of settlement are dated October 12, 2005 and the judgment of Justice Aston is dated October 13, 2005.

3 The grounds upon which the stay requested in each of the above-mentioned proceedings is that the subject matter of the litigation between Dr. Wong and Ms. Wong in all of the actions concerns alleged spousal misconduct which occurred during the marital relationship, contemporaneous with its breakdown, or during the course of the litigation of the Family Law Act application and as such, should have been dealt with in the Family Law Act application.

4 In December 2001, Dr. Wong, initiated proceedings against Ms. Wong in the Ontario Superior Court of Justice, Family Court, Court File Number #F1887/01. Dr. Wong claimed custody and child support pursuant to the Divorce Act, a restraining/non-harassment order, and equalization of the parties Net Family Properties. In addition, Dr. Wong claimed general, special and punitive damages for trespass and distress on the basis of alleged property destruction and threats made by Ms. Wong. Ms. Wong, in her Answer sought relief under the provisions of the Family Law Act. Instead of making a claim for damages against Dr. Wong in her Answer Ms. Wong retained another counsel in Orangeville Ontario to issued on July 4, 2005, in Orangeville Ontario a statement of claim, known as the "tort action" against Dr. Wong and Eunice Demelo claiming damages arising out of the alleged conduct of Dr. Wong and/or Ms. Demelo. On August 15, 2005 on consent the Orangeville action was transferred to London. After the transfer Ms. Wong continued to retain her Orangeville counsel to represent her in the "tort action". Dr. Wong retained his Family Law Act counsel to defend the "tort action" brought against him and Ms. Demelo.

5 Ms. Wong's "tort action" claims general, special, aggravated and punitive damages against Dr. Wong for assault and battery, conspiracy, defamation, intimidation, deceit, malicious prosecution, and the intentional infliction of mental suffering in the amount of two million dollars ($2,000,000.00). Similar claims, albeit for lower amounts, are made against Eunice Demelo. The claims made by Ms. Wong in her "tort action" could have been made in the Family Law action or the actions could have been heard one after the other. The factual basis as pleaded by Ms. Wong in her "tort action" is similar to the facts she relied on in her affidavits in the interlocutory proceedings in the Family Law action.

6 In early October 2005, a trial of the matrimonial action commenced before Justice Aston. After two days of trial, the action was settled. The settlement was set out in Minutes of Settlement upon which a consent judgment was based. The settlement encompassed, inter alia, equalization, the parties' debt obligations, spousal support and disposition of the jointly owned property including the matrimonial home.

17 In my view, it was incumbent on Dr. Wong and Ms. Wong and their counsel to ensure that all potential claims arising out of their relationship be brought before Justice Aston in order that he could consider the societal interests, the interests of the parties and the interests of the public in making the best use of the available judicial resources. ...

42 ... counsel at the Family Law trial ... should have insisted on consolidating the Family Law action, the "tort action" and any other outstanding claim between the parties or had them tried one after the other in order that Justice Aston could have heard and determined all of the issues between the parties. ... The fact that the "tort action" was commenced in Orangeville by another counsel ... is simply no answer to the failure to have all issues determined before Justice Aston.

[17] Citing Huismans v. Black, Granger J. addressed the issue of multiple proceedings in claims between spouses on marriage breakdown at para. 16:

16 The principle that societal interests and the administration of justice require all existing claims between spouses, arising out of the relationship be dealt with at one time has been accepted in a number of subsequent cases. The resolution of custody and access issues along with the determination of financial matters including spousal support are very difficult for spouses who are suffering emotionally from the breakdown of the marriage. The goal of any family law action is to settle these issues in one single trial and effect a clean break, as much as possible, between the parties. Also the cost of family litigation mandates that all existing claims be heard at the same time in order to minimize the costs to each party. In addition given the limited judicial resources available it is imperative that all existing claims between the parties should be heard at one trial.

[18] I agree with the principles set forth by Sheppard J. in Huismans v. Black and Granger J. in Wong v. Wong. All available claims between spouses arising out of the breakdown of their marriage ought to be dealt with at one time in one proceeding.

[19] I find that on balance the test in R. 6.01 to consolidate the proceedings has been met. Rather than commencing a separate proceeding Ms. Cunningham ought to have amended the application to include the claim for damages. Multiple legal proceedings are to be avoided as far as possible. Both proceedings involve the same parties, the same law firms and are proceeding in Goderich. Both proceedings have questions of fact in common. In both proceedings the relief claimed arises out of the same transactions or occurrences, the interactions of the parties during their marriage and separation.

[20] Ms. Cunningham should not have to advance and Mr. Cunningham should not have to defend two court proceedings arising out of the breakdown of their marriage. If the proceedings are consolidated the parties will have one set of examinations, one (more) settlement conference and one trial. Consolidating the proceedings should minimize the costs to the parties and effect a more efficient use of limited judicial resources. All of the issues between the parties will be dealt with at the same hearing so that the parties can move on from the breakdown of their marriage without facing the prospect of a second hearing with its attendant cost, emotional upset and duplication.

[21] For these reasons, I order that the tort action be consolidated with the application in Superior Court of Justice court file #138-2010D.

[22] I encourage the parties to agree on costs. If they are unable to do so, I will receive brief written submissions from the plaintiff within 20 days and from the defendant within 30 days.

“Justice Denise M. Korpan”

Justice Denise M. Korpan

Date: January 15, 2013