Mariette Matos v. David Driesman, 2013 ONSC 6230

COURT FILE NO.: FS-08-00-339461

DATE: 20131008

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY LAW LIST

BETWEEN:

MARIETTE MATOS,

Applicant,

Responding Party on the Motion

– and –

DAVID DRIESMAN,

Respondent,

Moving Party on the Motion

Michael J. Polisuk, Counsel for the Applicant

Brian Ludmer, Counsel for the Respondent

HEARD: AUGUST 27, 2013

ENDORSEMENT: GREER J.:

[1] This Motion was brought on by the Respondent, David Driesman (“the former Husband”), against the Applicant, Mariette Matos (“the former Wife”), arising out of the parties’ final Divorce Order of Madam Justice Mesbur dated April 12, 2010 granted on the consent of the parties. The parties entered into final Minutes of Settlement and Supplementary Minutes on April 7 and 9, 2010, settling all issues between them, and the terms were incorporated into the Divorce Order.

[2] The former Husband asks the Court for the following relief and Orders:

(a) An Order that the former Wife pay to him the sum of $9,270.31 for various claims set out in para. 43 of his sworn Affidavit of July 22, 2013.

(b) An Order that the former Wife pay to him the amount of $50,000, subject to adjustment, towards costs thrown away as set out in his Affidavit of July 22, 2013, subject to refinement after the preparation of Reply materials.

(c) Various Orders in accordance with the relief sought by him in his accompanying “technical” Motion to Change, which is being heard contemporaneously with the Motion on August 27, 2013 pursuant to the Order of Justice Stevenson, as a hearing based on affidavit material only.

The Small Claims Court issue

[3] The former Husband says that certain issues have arisen out of the terms of the Divorce Order that need addressing. He first tried to have heard in the Small Claims Court, various claims he says are valued at $9,270.31. He was told by the former Wife’s counsel that the Small Claims Court did not have the jurisdiction to hear such a claim.

[4] In my view, the former Husband was trying to circumvent the Family Law Rules by not bringing on a Motion to Change or Vary the terms of the final Divorce Order. Counsel ought to have known that in family law one cannot try to side-step the Court’s jurisdiction in this regard. Jurisprudence indicates that the claim ought to have been brought on the Family Law List to vary an Order. Section 21.8(1) of the Courts of Justice Act reads:

In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be hear and determined in the Family Court.

Para. 2. of the Schedule sets out what matters are heard in the Family Court. It reads, in part:

…proceedings for the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement, paternity agreement, family arbitration agreement or family arbitration award.

[5] Therefore, counsel for the former Husband should have brought on a Motion to Change the Divorce Order on the Family List in Toronto.

[6] There are two decisions of the Small Claims court on this issue. Both were decided by J.S. Winny, Deputy Judge of the Small Claims Court. They are McCrone v. McCrone, [2003] O.J. No. 3127, 2008 CarswellOnt 4869 and Lonkovic v. Lonkovic, [2009] O.J. No. 3653. In those decisions, the Deputy Judge points out that the Small Claims Court has no jurisdiction in matters involving family law statutes, which are governed by the Family Law Rules.

The Motion

[7] Given this first error, the former Husband’s counsel then tried to have the matter brought on as a regular Motion without a formal Motion to Change. Thus one of the heads of relief being asked for by the former Husband is that the relief sought in his “technical” Motion to Change is that it be heard contemporaneously with this Motion, pursuant to the Order of Madam Justice Stevenson that it could proceed on Affidavit evidence. Madam Justice Stevenson did conduct a Case Conference and allowed it to proceed in that manner.

[8] The parties’ Agreement provided that the terms of the Divorce Order, as set out in para.3 g. dealing with child support and S.7 expenses were not variable before May 1, 2015, (emphasis added) “…except for a catastrophic and unforeseen change in the parties’ respective circumstances.” On that date, the parties would then exchange income tax returns to determine if any changes should be made to these payments.

[9] The former Husband says his Motion is based on three issues, which I will refer to under the headings by which they were presented to me. One, in fact, does deal with some S.7 expenses, which are not to be varied. They are:

1. The small discrete financial issues claim

[10] These discrete matters are the ones which the former Husband tried to bring on in the Small Claims Court. They are set out in para. 43 of the former Husband’s Affidavit. These are monetary issues relating to terms of the Consent Divorce Order, for which he is now claiming a reduction in the amount that was settled upon by the parties. They include the following sums:

(a) The sum of $1,977.50 for repairs to the matrimonial home, which he says were the responsibility of the former Wife since she caused the water damage caused by a leak in the bathroom of the home.

(b) The sum of $2,249.50 as an over-payment of the children’s Kumon English tutorial classes.

(d) The sum of $1,597.85 for therapy for the children with Ms. Tamari.

(e) The sum of $1,068 for the value of contents of the home he says were withheld by the former Wife.

(f) The sum of $604.56 for damages he says were caused by the former Wife to the desk of his late father, which was left in the matrimonial home when he left the home.

(g) The sum of $236.25 relating to a session with Dr. Irving, who conducted the Assessment regarding child custody and access.

(h) The sum of $282.50, being 50% of the value of light bulbs, which the former Wife had to purchase for the matrimonial home when the renovations were done before the sale of the home.

(i) The sum of $400 attributed to the former Husband by FRO as a charge against the former Husband when he lost his driver’s licence for failing to pay the children’s S.7 expenses ordered by the Court.

All these items total $9,270.31, as now claimed by the former Husband 3 years after the Consent Order was entered into.

[11] It is the former Husband’s position that pursuant to paragraph 1c of the parties’ Divorce Order, the parties shared equally the cost of the work done to the home prior to it being listed, as they agree. It then reads, “In the event of any disagreement between the parties on the nature or cost of the said work, the parties and their counsel shall meet in an attempt to resolve the issue failing which either party may initiate a motion to the Court.” No such meeting ever took place.

[12] The former Husband says that there was work done to the home that he did not agree to, namely extra painting done by Peter Donovan. With respect to the “staging” of the home for sale by Tracey Lazare, the costs were not to exceed $850. The former Husband says that he and a friend offered to do some of this work for less than Donovan charged but it was not acceptable to the former Wife. He wants to be reimbursed for 50% of what he says is the extra painting done. He also claims the Wife delayed in getting the work done in a timely fashion.

[13] In the Order, para. 3.b. governs the S.7 child expenses. It reads as follows:

The Respondent shall secure $60,000 by no later than 7 days following the closing of the sale of the home, to be paid out at the rate of $12,000.00 for each of the years 2010, 2011, 2012, 2013 and 2014 on or before May 1^st (except for 2010) as his total contribution to the children’s private tuition schooling, Kumon and music lessons.

[14] The former Husband says that he has overpaid for these expenses because the children have not been involved in music lessons for a year. In addition, he says that the children have been enrolled in Kumon classes but when he received a note from the Instructor, it says that the children, who had previously been enrolled in both English and Math, as of May 1, 2010, were withdrawn from the English tutorial. He wants half his money back for those classes since that date.

[15] The former Husband says that the former Wife removed their daughter from the therapy “lessons” and he ended up paying an additional $1,597.85 for those, for which he asks reimbursement.

[16] He claims $1,068 for items he says that the former Wife withheld from him. They include a wheelbarrow, snowblower, soldering iron, extension cord, and 2 ladders with one being 10 feet and the other 5 feet. He says that their agreement said he was to receive, “all tools”. Although he has replaced none of these to show that he bought new ones, he has appended some Canadian Tire pictures of such items sold by that company.

[17] The former Husband says that the desk he left in the home, while the former Wife and the children occupied it, has been damaged. He has had a friend attest to the damage when it was removed when the house was sold. He says the damage is $604.56. He attaches pictures of this damage to his affidavit and an estimate to repair it. No repairs, however, were ever made to it.

[18] Dr. Howard Irving was involved in “therapy” for him and the children. He claims that the former Wife attended on Dr. Irving and he was billed for her attendance at $236.25. Attached as an Exhibit is a copy of an Invoice from Dr. Irving showing the former Wife’s attendance on April 13, 2010.

2. Costs Claim in the amount of $50,000 against the former Wife

(i) Generally

[19] The former Husband claims that the former Wife has shown “unreasonable behaviour” within the meaning of subrule 24(11) of the Family Law Rules. He ties this in with the fact that there are still funds remaining in the real estate lawyer’s trust account, which the former Husband says should totally be paid out to him.

[20] He says that the former Wife deliberately prevented him from receiving those funds because of the disagreement between them on the insurance coverage each was obliged to obtain under para.5 of the Divorce Order. The former Husband agreed to maintain a policy of life insurance in the amount of $500,000 on his life and name the former Wife as an irrevocable beneficiary in trust for the children, as long as they remain dependent children of the marriage. He was to obtain coverage and confirm within 30 days that it was in place.

[21] Para. 6 b. set out the former Wife’s obligation with respect to her life insurance, of which the children are her beneficiaries as long as they remained dependants. She was also to produce confirmation of such coverage within 30 days for $350,000, being the coverage she had through an employer.

[22] The former Wife refused to consent to the disbursement of the trust monies held by the lawyer until the former Husband’s insurance was in place. The proper proof of the insurance coverage was finally received by the former Wife 2½ years after the Divorce Order was issued.

[23] When I asked the former Husband’s counsel to provide proof of what still remained in that lawyer’s account he was trying to access, he was unable to do so. He had calculated what he thought was there but it turned out to be incorrect when I made him call the lawyer. He was told that the amount still held was “$23,000 and change”. In 2014, $12,000 will be paid out of that amount to the former Wife for the children’s S.7 expense s, pursuant to para. 3 b. of the Divorce Order. Therefore, the money was not accessible by the former Husband for any purpose other than what is set out in the Divorce Order.

[24] The former Husband accuses the former Wife of delaying the sale of the home through the staging of it and the making of the repairs needed. He says, he was therefore deprived of the use of the money he was entitled to. He says she did not pay some of the bills. He says it took her 9 months to approve of a new Parental Co-Ordinator agreement. He says she has failed to provide a “…healthy post-separation relationship” between him and the children.

[25] He points to the fact that there were 2 appearances before the Court after the Divorce Order was issued. One was before Madam Justice Macdonald on November 2, 2010 respecting the sharing of costs of the sale of the home. The second one was before Mr. Justice Jarvis on May 13, 2012 relating to child custody and access issues.

[26] He accuses the former Wife of making false allegations and making “patently false assertions in sworn affidavits.” He also has an issue respecting payments of medical and dental for the children. He says the “global settlement” requires changes so that in the event he pays for these expenses at some time in the future, the former Wife would have to pay him her share of the expenses.

[27] The Factum also covers issues the former Husband sees as outstanding, respecting Custody and Access, and the parenting co-ordinator issue. It repeats and repeats the former Husband’s evidence, as set out in his Affidavit. It also sets out his complaint against the FRO, where he says the former Wife improperly reported him as owing child support, and he received a $400 charge by FRO relating to the loss of his driver’s licence.

[28] The end of the former Husband’s Factum sets out the general rule on contempt matters and summarizes a lot of contempt case law, yet there is no Contempt Motion before the Court. A binder of 29 cases was provided by the former Husband, most of which related to contempts yet none of the cases were refused to by him.

(ii) Costs thrown away

[29] The former Husband is including in his Costs claim, Costs thrown away, on other Motions. He filed a Bill of Costs with the Court which starts as of December 7, 2010, with a “Telephone call with client” that lasted 1.10 hours at a billing rate of $375 per hour. It is 21 pages in length, mainly single-spaced, with the last entry being August 22, 2013 with 11.90 hours on the same day, spent by two law clerks. The total of the Bill, on a substantial indemnity basis is $97,047.67 inclusive of HST and disbursements.

[30] Neither Judge on the two previous Court Orders granted Costs to either party. The Order of Madam Justice Macdonald was made on the Consent of the parties and does not mention Costs. I cannot locate a copy of an Order of Mr. Justice Jarvis in 2012 but the Order of Madam Justice Stevenson made June 21, 1013 reserves the Costs of the appearance before her to be dealt with by me. In between all of this, it is my understanding that the former Husband has had a Contempt Motion against the former Wife issued, which appears not to have been heard. When the parties appeared previously before me on November 22, 2012 asking for a Consent Order with respect to dispersing some monies held by the real estate lawyer, I adjourned the Contempt Motion to December 4, 2012. Work on that Motion and some other Motion by the former Husband is detailed in his long Bill of Costs.

[31] Counsel has said that he is only seeking Costs to be fixed all inclusive, in the amount of $50,000.

The Position of the former Wife on these issues

[32] It is the former Wife’s position that this Motion should be dismissed in its entirety. She points to the fact that the Divorce Order was a “global settlement” of all the issues between the parties and that they deliberately put a clause in the agreement to prevent either party from bringing on any Motions with respect to child support and S.7 expenses before May 1, 2015. She relies on the wording of para. 3 g. that prevents such Motions unless there is “…a catastrophic and unforeseen change in the parties’ respective circumstances.”

[33] The former Wife says that if there is to be any variation to child support and S.7 expenses by way of variation, the moving party must provide an up-to-date sworn Financial Statement. None has been provided by the former Husband, yet he is asking for a Motion to Change certain S.7 payments and provide him with refunds of certain parts of the expenses.

[34] It is the former Wife’s affidavit evidence that she pays approximately $65,000 per year for S.7 expenses, including the fees for the York School, attended by the children. She therefore sees the former Husband’s payment of $12,000 for such expenses as his global contribution. The wording of para.3 b. is that the $12,000 payment made by the former Husband each year for such expenses is “his total contribution to the children’s private tuition schooling, Kumon and music lessons.” She says this wording is all-encompassing and it matters not that the children are now only taking math as opposed to English at the Kumon school.

[35] She says that the private school fees alone are $55,802.74, not including school supplies. There are extracurricular programmes that cost $5,364.45, camp fees and equipment costs. She says she is earning less than she did when the Order was signed. She says that the former Husband has consistently failed to make the payments on time to her. She says that it was understood between her and the former Husband that the nature of the children’s various programmes would change from year to year but it would not affect the settlement amount to be paid.

[36] She says the Kumon fees have been consistent throughout the children taking tutoring there. She says their son stopped taking music lessons 2 years ago but has now taken up playing the drums, simply substituting one instrument for another. She has set out in her Factum, a Chart that shows each S.7 expense and its cost, all of which total $65,361.61. The former Husband’s share is $12,000.

[37] The former Wife has carefully analyzed all of the former Husband’s claims for refunds from various expenses he paid in connection with the house and says he is entitled to none of them. With respect to the repairs to the home, the former Wife obtained 3 quotes from contractors regarding what should be done and the price. Peter Donovan was chosen to do the work. His quote is dated May 20, 2010 and was $8,900 plus tax.

[38] After three weeks, the former Husband responded to the quotes saying that none entail the entire painting of the house. After a 2-month delay in responding, the former Husband said he and his friend would do the work The Order, however, says that each party was to equally contribute to the cost of the work to be done. The Husband required that the 3 contractors, who had given quotes, provide new ones to match a list of repairs that was provided by the agent he had approached for a valuation. By September 18, 2010 the parties still had not accepted a quote.

[39] They eventually entered into a Consent Order to get things done. Mr. Donovan completed the painting in the home and the home was now ready for sale except the staging had not been done. The former Husband then refused to pay his half of the Donovan bill. Donovan, in turn, said he would put a lien on the home. It was eventually sold around June 15, 2011.

[40] Although the former Husband says he is entitled to a refund of some of the money paid to Donovan under his contract due to the former Wife’s alleged water damage on the walls and ceiling where there was damage, the Donovan quote clearly states that the painting of these areas was included in the full price. As for the light bulb issue, the Donovan quote states that certain pot lights were burnt out and the former Wife had to buy the replacements.

[41] The former Wife says that the former Husband continues to “procrastinate, delay and do other than what the Court orders him to do.” She sees this Motion as another example of his “extreme defiant behaviour,” in filing an Affidavit that is 231 paragraphs in length.

[42] The parties differ in their versions of why it took 2½ years for the former Husband to provide proof of the proper insurance coverage under the terms of the Divorce Order. It took over 30 requests by the former Wife and her counsel to ensure that the former Husband had complied with the Order. With respect to the proceeds from the sale of the home, the former Wife says she did not want to have them released until the insurance was in place. She says she relies heavily on the child support she receives from him and the insurance is critical protection for that.

[43] She also says that the reason it took so long to get the repairs done to the house is that the former Husband thought he and his friend should do them. She says that he, not her, has shown his conduct to be litigious and abusive throughout the matrimonial proceeding, and this latest Motion is just another example of that. She says there are reasons why the former Husband’s access to the children was, at first, ordered to be supervised. He now has regular access to the children since 2010. She says there is no need for any changes to it.

[44] The former Wife sets out, in her Factum, a lengthy history of the letters and calls to the former Husband to get the insurance in place. In 2012, the former Husband finally sent a copy of the policy showing that the beneficiary was his “ESTATE”. This was in complete defiance of what he was ordered to do by the Court. Finally, on October 11, 2012 of that year, there was compliance with the insurance clause in the Divorce Order.

[45] The Parenting Co-Ordinator issue was not immediately solved between the parties. They were unable to obtain the services of several they approached. The former Husband suggested Ms. Ennis as the candidate, and they signed a new closed mediation PC Agreement, with her. Ms. Ennis, in her e-mail of July 24, 2012, clarifies that both signed the agreement on the same date. She also notes that, “…whatever is said or written or determined, cannot be transferred to court documents or brought into court appearances as stipulated in the signed PC Agreement.” Despite this, the former Husband put those documents in his July 2013 Affidavit.

[46] The former Wife says that she is the one who eventually paid the PC when she received an income tax refund. The former Husband did not contribute to this.

[47] The former Husband’s claim for the value of the replacement of “tools” that he did not receive, is worth nothing because the items he claims are not tools. There are e-mails from him when he was arranging to pick up everything that was on the list. The items he now claims were not on that list. The former Wife says that the desk, when he picked it up, was in the same condition it always had been in their home. The estimate he presented is just that, as no work was done on it. She has, in her Affidavit and Exhibits, a letter from Dr. Irving saying that the expense was that of the former Husband.

[48] As for the FRO payment, the former Wife says that FRO does not take instructions from her. They follow the terms of the Order. There is nothing in that Order, she says that says the $12,000 has to be paid out of capital. When FRO took steps it was because there was $15,000 or so owing by the former Husband. The fee was for a garnishment.

The Former Husband’s Added Motion

[49] The former Husband brought on a separate Motion involving the administration of a bare Trust for the parties’ daughter, Victoria, which is administered by the former Wife. This Motion is dismissed since the former Wife has sole custody of the children and is the sole Trustee of the trust. The former Husband has no status to bring on such a Motion.

The Former Wife’s Added Motion

[50] The former Wife asks the Court to make an Order that the former Husband’s Life insurance carrier provide her with a letter once a year confirming that his life insurance policy is in good standing. She also asks for an Order that if the insurance policy is not in place at the date of the former Husband’s death while the children are still dependants, that the child support be a first lien on his Estate. Finally, she asks for an Order directing how the remaining net proceeds of the sale of the matrimonial home are to be distributed.

Analysis

[51] The former Husband’s Motion to Change is dismissed in its entirety based on the evidence before me and for the reasons which follow.

[52] None of the former Husband’s claims with respect to the small discrete financial issues are valid claims. He waited nearly three years to bring on these claims in the disguise of a Motion to Change the terms of the Divorce Order. The claim for $1,977 relates to the contract to do the repairs. The full cost of the painting of the water marked areas was included in the price of the contract. Therefore, he is owed nothing for it. The light bulb claim of $282.50 is also dismissed since each of the parties had to bear 50% of the repair costs and the contractor said the pot lights required replacement.

[53] In my view the proper interpretation of the S.7 expense clause in para.3 b. of the Order is that the $12,000 is a global amount to cover music lessons, Kumon and private schooling. Given the cost of the private schooling, even if the children were not taking Kumon tutoring and /or music lessons, the amount would simply be applied to the private schooling. Therefore, the claims for $2,249.50 and $854.16 are dismissed.

[54] The FRO charge of $400 is the former Husband’s expense, as noted on the statement provided by the FRO. That claim is dismissed.

[55] The former Wife has given a credible explanation about the therapy the children are receiving and the claim for $1,597.85 is dismissed.

[56] The former Husband has received all the items that were listed in what he took from the contents under the Order. All the articles he now claims that are missing such as the snow blower, the wheel barrow, the step ladders, extension cords and such, do not fall within the meaning of the word, “tools”. They may be adjunct items to tools when someone is working with the tools, but they are not part of the definition. The Concise Oxford Dictionary, 9^th ed. says that tools are any device or implement used to carry out mechanical functions whether manually or by machine. The articles he now claims do not fall within that definition. The claim for $1,068 is dismissed.

[57] The claim for $604.56 for damage done to the desk is dismissed. The former Wife says that the desk was in the house when the former Husband left, and it had always been there in the home. There is no evidence that the former Husband had it refinished or that the marks were recently made.

[58] The claim for $236.25 paid to Dr. Irving is dismissed based on Dr. Irving’s own e-mail that it was the former Husband’s responsibility.

[59] The former Husband’s claims, that the former Wife’s unreasonable behaviour throughout the sale of the home in causing the delays, is simply not true. The former Wife has documented each of her responses to the hiring of the contractor and the staging person to put the home into resale shape. She has provided the evidence to show that the former Husband was the unreasonable participant in causing the delay in the sale of the home and the unreasonable demands he made of her to get extra changes to contracts already submitted by his failure to promptly approve them.

[60] The issue of the house insurance dragged on for 2½ years because the former Husband simply refused to do what Court ordered him to do about the coverage and naming the former Wife as trustee for the children. That insurance policy is her only security if the former Husband should die while the children are still dependants. The problems that she had with her insurance coverage arose when she lost her job and was no longer covered by a group policy. She did obtain the appropriate insurance once she had a new job and it is properly in place.

[61] I found no evidence of the former wife making false allegations in her Affidavit. All of her assertions were backed up by documents to support what she was saying. That cannot be said for the former Husband who made these allegations. I noted in an early decision of mine in this proceeding that the former Husband does not take the steps to carry out the terms of Court Orders. I said, indeed, that he procrastinated and shows defiant behaviour. This Motion to Change arose out of an improper Small Claims Court proceeding. It was only when the parties appeared before Madam Justice Stevenson, that it was regularized into a Motion to Change. In reality, however, it was not a Motion to Change properly brought on under the terms of the Order. With respect to S.7 expenses, the Motion was premature.

[62] The Costs of $50,000 claimed by the former Husband over a three-year period is an astonishing claim, which I dismiss in its entirety. The materials which came before me, filed by the former Husband, as to why he should get Costs for work related in conjuring up the Motion is a last effort to discredit the Wife because she had held up the final distribution of the money held in the lawyer’s trust account.

[63] Although the former Wife wants me to make an Order about those funds still held, I will not do so. There was no evidence on what remained, no statement of what was paid out and no legal argument on the law as to what should be done. That Motion is for another day and another Judge.

[64] An Order shall go that the former Husband’s life insurance carrier provide the former Wife with a letter each year confirming that the insurance remains in place as per the Court Order. In the event the insurance is not in place on the death of the former Husband while the children remain dependants, their child support claims shall be a first charge on the assets of the former Husband.

Costs

[65] If the parties cannot otherwise agree on the Costs of this Motion, I will receive brief Written Submissions from them no longer than 3 pages, plus dockets and a Bill of Costs and any case law referred to. These shall be sent to me at Judges’ Administration, 1^st Floor, Court House, 361 University Avenue as follows. Since the former Wife was successful in having all aspects of the Motion dismissed, she shall serve and file her submissions within 30 days of this Order. The former Husband shall have 10 days thereafter within which to respond, and the former Wife 7 days thereafter to Reply, if necessary.

Greer J.

Released: October 8, 2013