SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-12-378880
DATE: 20130624
RE: JANE HOWARD, Applicant
AND:
ANTHONY MICHAEL MARTIN, Respondent
BEFORE: JARVIS, J.
COUNSEL:
Sharyn Langdon, for the Applicant
Evan Chang, for the Respondent
HEARD: May 16, 2013
AMENDED ENDORSEMENT
[ 1 ] The parties separated on March 1, 2011 after a 12 year marriage. The wife left the matrimonial home alleging a history of abuse on the husband’s part. She found accommodation in a rental home nearby. There are 2 children of the marriage: Simon age 19, a first year student at Dalhousie University and Luke age 14, in grade 9 at Riverdale Collegiate. The parents signed a Parenting Agreement on October 27, 2012, which provides for joint custody with an alternate week schedule.
[ 2 ] The husband now moves to set aside the Order of Paisley, J. dated February 25, 2013. He only wishes paragraphs 18-25 set aside which order the following:
In consideration for the terms below, the wife shall release any interest she has in the matrimonial home municipally known as 213 Riverdale Avenue, Toronto, Ontario (the “matrimonial home”) on a final basis.
The husband shall refinance the current joint line of credit with approximately $389,000 owing on it and shall assume full responsibility for it. The husband will obtain a release from the bank for any liability the wife has towards this debt. In any event, the husband will indemnify the wife from the debt.
The husband shall retain the contents of the matrimonial home, with the exception of the following items which the wife shall be entitled to retrieve immediately: Kitchen table and black pine box and round coffee table in the basement, all built by the wife’s father, green vegetable rack from the wife’s grandmother, gardening tools, basement chest of drawers and any remaining personal items/clothing belonging to the wife.
The husband shall assume full responsibility for repayment of any debt or any trust interest that his father, John Martin, claims owes with respect to the matrimonial home. The wife shall assume full responsibility for any debt or any trust interest her parents claim owes with respect to the house.
The husband shall cancel or assume full responsibility for the mortgage insurance he took out in the wife’s name on the matrimonial home. The husband shall provide proof of cancellation or transfer of said mortgage insurance into his name alone prior to signing of the Separation Agreement.
If the husband chooses to retain the matrimonial home, he will pay the wife $238,604.00 by certified cheque upon signing of a Separation Agreement, no later than 10 days of an Order3 herein. This payment is the equalization payment of $105,584.00, plus $133,020.00 of adjustments as follows:
a. $105,500 to reimburse the wife for the 50% share of additional $210,000 debt the husband added to the joint line of credit in 2007 without the wife’s consent (does not include interest);
b. $500 for costs owed under the court Order of Mesbur, J. dated October 12, 2012;
c. $9,000 for estimated additional legal fees incurred by the wife since the Order of Mesbur, J.;
d. $3,300 one-half share of education costs paid by the wife for Simon at Dalhousie in 2012/2013 (after applying his bursary and student loans of about $13,000);
e. $14,720 to reimburse the children’s RESPs for money given to the husband by grandparents, but not deposited or kept in the children’s funds.
- In the event that the husband does not want to retain the matrimonial home, it shall be listed for sale on or before March 1, 2013 and the husband shall sign an irrevocable Direction before closing to the real estate lawyer directing the net proceeds to be divided as follows:
a. one-half net proceeds to the husband plus $65,703 for equalization of other assets owed by the wife to the husband, less ($67,316.77 plus any post-separation debt of the husband that requires payment from house proceeds such as his personal income taxes or property taxes) for the adjustments in paragraph 23 above owed by the husband to the wife;
- The husband shall release any interest he may have in the wife’s HOOPP pension as the value of it has been included in the equalization calculation in paragraph 23.
BACKGROUND
[ 3 ] Attempts to resolve the issues commenced June 27, 2011 but neither the husband nor counsel on his behalf responded. On September 12, 2011 the wife’s lawyer served the wife’s sworn Financial Statement and a Disclosure Brief on the husband and requested he deliver his own Financial Statement and documents. Various communication ensued between the wife’s lawyer and the husband and his various lawyers without the husband’s financial disclosure being provided.
[ 4 ] In the result, the wife moved on June 5, 2012. The first case conference was held before Penny, J. on September 14, 2012. He ordered the husband to file sworn Financial Statement by September 24, 2012 and also provide copies of specified financial documents and information. The Order further provides that the husband deliver his Answer by September 28, 2012 in order that a mutually arranged valuation of the matrimonial home at 213 Riverdale Avenue Toronto of the date of March 1, 2011 and the current value.
[ 5 ] Penny, J. also ordered “in the event that the husband fails to comply with paragraphs 1, 2, 3, 5 and 6 of this order, the wife shall be permitted to proceed with an uncontested trial of the issues.” He also ordered a further case conference to be held on October 12, 2012.
[ 6 ] On October 12, 2012 the further case conference was held before Madam Justice Mesbur. By that time the husband had failed to make full and complete disclosure (see paragraph 8 of the wife’s Factum). Madam Justice Mesbur granted an extension of the time for compliance with the Order of Justice Penny as follows:
- Husband to comply strictly with the Order of Penny J by noon Oct 26, 2012 failing which he will not be entitled to participate further in this application and wife may proceed with an uncontested trial as contemplated by Penny J’s Order.
[ 7 ] The Husband made some further disclosure on the deadline of October 26, 2012 but that did not amount to “strict compliance” in the words of Madam Justice Mesbur (see paragraph 10 of the wife’s Factum).
[ 8 ] On October 26, 2012 the Husband delivered a Financial Statement but the Commissioner’s name is not printed below the signature and that officer has never been identified bring the bona fides of the financial statement into question.
[ 9 ] The husband’s failure to comply with the disclosure orders is detailed in the wife’s Affidavit in support of an uncontested trial (paragraph 13).
[ 10 ] The trial proceeded before Mr. Justice Paisley and he granted a Judgment on February 25, 2013.
Husband’s Position
[ 11 ] The husband sites poor health and a lack of financial resources sufficient for him to retain counsel. As to his health, he sets out a number of ailments in paragraph 12 of his affidavit sworn April 19, 2013. The husband does not specifically tie any of his complaints to an inability to comply with the orders of Mr. Justice Penny and Madam Justice Mesbur. Appended to his affidavit is the report of Dr. Adnond dated April 17, 2013. I have reviewed this medical report carefully. It cannot be said to contain an opinion tying Mr. Martin’s many complaints, conditions and medications to his failure to fully comply with the orders in question. Dr. Adnond’s curriculum vitae does not appear in the record. His qualifications are not described apart from his designation as “the family physician for the aforementioned patient”.
[ 12 ] I do not consider the husband’s evidence regarding his health and the medical evidence to be of sufficient weight or relevance to justify the exercise of the court’s inherent jurisdiction in his favour.
[ 13 ] The husband also argues that the effect of the Judgment will be to eliminate his equity in the home but not crediting him with a line of credit of $100,000.00, using too great a value for the home and not providing him with credit from a loan from his father for $110,000.00. There also said to be credibility issues relating to the reasons of the separation. There are said to be “timetable issues.”
[ 14 ] The husband’s arguments amount to an assertion that other facts and other arguments might have had an effect on the result had he been notified in the proceedings and had been able to participate. One of the most important elements of the system of justice is that the courts’ orders be followed and that there be a price for failing to do so. The husband had many opportunities to make production and disclosure and his duty to do so would have been explained to him often. The Orders of Penny, J and Mesbur, J could not have been clearer in expressing the consequence of failing to comply.
[ 15 ] If there were health issues that made compliance with those Orders onerous, they ought to have been raised in advance before those judges, as he would have every opportunity to do.
[ 16 ] The husband moves to set aside the paragraphs in question setting Rule 25(19) of the Family Law Rules and he also relies on the well established inherent jurisdiction of the court where new facts have risen or been discovered or to prevent a miscarriage of justice. (See West v. West 2001 28216 (ON SC), [2001] O.J. No. 2149 para.23):
- The jurisdiction to set aside or change an order to prevent a miscarriage of justice is ancient. It goes back to the old common law writ of audita querela: see Holmested and Gale on the Judicature Act of Ontario and Rules of Practice, r. 529, s. 2; Blackstone, William, Commentaries on the Law of England (1765), vol. 3, pp. 405-6. It forms part of the inherent jurisdiction of the Court. The cases have laid down a fairly stringent test be3fore it would be exercised: see cases digested in Holmested and Gale, r. 529, s. 10, and Holmested and Watson Ontario Civil Procedure, r. 59, s. 10[5]. The evidence presented on the motion must be clear and credible; it must be of such a nature that the original order would have been different if the evidence had been available; it must not have been in existence at the time the order was made or not discoverable by diligent effort by the party asking the Court to change the order; the party must have acted with diligence once the information came to light; and the evidence must establish that action is needed to prevent a miscarriage of justice.
[ 17 ] Here the evidence was available and known to the husband. The husband was anything but diligent and in default of court imposed schedules. It hardly lies in his mouth to complain that the result might have been different had he participated. His actions were the antithesis of diligence and the motion must fail.
[ 18 ] For these reasons the motion is dismissed. I will be absent in the weeks to follow, but will accept brief written submissions regarding costs.
Jarvis, J.
Date: June 24, 2013