SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FD1294/10

DATE: February 14, 2013

RE: David Harold Douglas Jones, applicant

AND:

Lisa Karen Jones, respondent

BEFORE: S.K. Campbell J.

COUNSEL:
Terry W. Hainsworth for the applicant

Malcolm Bennett for the respondent

HEARD: January 30, 2013

ENDORSEMENT

INTRODUCTION

[1] The respondent seeks an order dismissing or staying the motion to change brought by the applicant. The respondent’s motion is based on the unchallenged fact that the respondent has not paid approximately $42,000 in spousal support payments required pursuant to a separation agreement dated August 14, 2010.

BACKGROUND

[2] The parties were married to each other August 16, 1986. The parties separated on or about August 1, 2007. On August 4, 2010, the parties entered into a separation agreement. That agreement dealt with a number of issues, including spousal support. Pursuant to the agreement, the applicant was to pay to the respondent for her support the sum of $3,000 per month. Payments commenced July 1, 2010.

[3] On September 28, 2012, the applicant filed at the Superior Court of Justice in London the separation agreement executed by the parties. That same day, the applicant issued a notice to change motion seeking to vary the agreement. The first return date of that motion was November 13, 2012.

[4] The change information form states that the applicant is seeking an order varying the spousal support provisions contained in the agreement. He alleges that the respondent’s circumstances have changed as a result of her marriage and that she is now supported by her new husband. The applicant seeks an order terminating spousal support as of December 31, 2011.

[5] The respondent has filed a response to the motion to change and disputes the applicant’s motion. She seeks a variation of the child and spousal support provisions. She submits that the provisions with respect to child and spousal support ought to be set aside as the applicant did not provide proper disclosure at the time the separation agreement was negotiated and signed. She then seeks a retroactive variation of the support based on the applicant’s actual income.

[6] Subsequent to the first return date the matter has been adjourned on five occasions. A case conference has been set for March 19, 2013.

ISSUES

[7] The issues, while not simple, can be simply stated. Firstly, is the respondent’s motion one that can be brought before the case conference. Secondly, if the motion can be brought before a case conference should the court stay or dismiss the applicant’s motion for his failure to make the payments required by the separation agreement.

POSITION OF THE PARTIES

[8] The respondent, moving party, takes the position that this motion can be brought prior to the case conference. The motion does not deal with substantive issues and therefore is not prohibited by rule 14(4). She submits that the substantive issue is the variation of the agreement and whether or not the application should be stayed or dismissed for non-payment is a procedural issue.

[9] In arriving at the position the respondent argues that upon the contract being filed it effectively becomes an order of the court and rule 14(23) is engaged. In the alternative, the respondent submits the court should stay the motion pursuant to rule 1(8) of the Family Law Rules, O. Reg. 114/99 and/or s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46].

[10] The applicant takes the position that the respondent’s motion seeks substantive relief and cannot proceed prior to a case conference. Ancillary to that, he argues that the applicant’s motion does not meet the test of urgency in r. 14(4.2) or any of the exceptions in rule 14(6).

[11] If the court finds otherwise, the applicant submits that an agreement filed pursuant to Rule 35 is not the effect of making the agreement an order. He acknowledges that the agreement, once filed, has certain attributes of an order but even with those attributes it does not become an order within the meaning of rules 1(8), 14(23) or s. 106 of the Courts of Justice Act.

Is the respondent’s motion one that can be brought prior to a case conference?

[12] Rule 14 governs motions for temporary order. Subrule 4 provides:

(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.

[13] Subrule 6 provides that subrule 4 does not apply to certain types of motions. These include a motion “made without notice, made on consent, that is unopposed or that is limited to procedural, uncomplicated or unopposed matters (Form 14B).” Other subsections of subrule 6 are clearly not applicable.

[14] The effective result of granting the respondent’s motion is the applicant cannot proceed until he has paid all arrears that have accrued pursuant to the separation agreement. It is those arrears that he is seeking to expunge.

[15] In the course of argument, counsel for the respondent referred me to P.(M.L.) v. P.(G.W.), 2003 53692 (ON SC), 2003 CarswellOnt 1278, 42 R.F.L. (5th) 100 (Ont. S.C.J.) and Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. No. 486 (Ont. C.J.). Both of these cases dealt with the issue of whether or not a motion to vary should proceed without payment of arrears. I was not able to discern from reading these decisions whether or not these motions were brought before or after a case conference.

[16] I have reviewed the decisions to which the parties have referred. Additionally, I have conducted my own research to determine if I could find authority on point. In Marton v. Willinger-Marton, 2012 ONCJ 178, [2012] O.J. No. 1429, Zisman J. expressed the view that the question of whether the applicant father had “overpaid his child support” obligations was a substantive issue requiring a case conference.

[17] In Lowry v. Kushnir, [2007] O.J. No. 2012 (S.C.), Turnbull J. considered a motion for leave to appeal a decision of the case conference judge staying a motion to change until outstanding costs orders of previous proceedings were paid. In holding that the applicant’s request for leave to appeal should be allowed, Turnbull J. noted the uncertain status of an otherwise procedural order which, in effect, determines the substantive right of one of the parties. In such circumstances, the court emphasized the importance of holding a full hearing on the merits before effectively terminating the rights of one of the parties. I find Turnbull J.’s thoughtful analysis of the issues before him helpful in my consideration of this matter.

[18] In my view, the respondent’s motion deals with a substantive issue and is not procedural. The decision to dismiss the applicant’s motion or stay it on terms if not determinative of the applicant’s rights significantly impacts them.

[19] Whether the applicant’s motion to change should be stayed or not is one of the issues that can be canvassed by the parties at a case conference. As well, at that conference, the parties can obtain the input from the presiding judge and some resolution may be reached.

[20] That does not determine the matter. The respondent also argues that rule 14(4.2) is applicable. That is, the court should find that this is a situation of urgency or hardship and therefore a case conference should not be required. With respect I disagree.

[21] In reaching that conclusion I would note the arrears have accumulated over a period of 14 months. It was the applicant who filed the agreement and that was for the purpose of bringing the motion to change. I was not made aware of any prior efforts to enforce the agreement. While the affidavit of the respondent does indicate that she relies on support to support herself and the children, she does not assert any hardship. The applicant’s materials indicate that he is paying for the children’s post-secondary expenses. The children are currently enrolled in university and there is no suggestion that that arrangement is in peril.

[22] In Hood v. Hood, 2001 28129 (ON SC), 2001 O.J. No. 2918 (Ont. S.C.J.), Belch J. commented “It is my decision that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.” The evidence of the respondent does not assert that she will suffer “dire financial circumstances.” I conclude that this is not a circumstance that meets the test of urgency.

[23] In Rosen v. Rosen, 2005 480 (Ont. S.C.), Wildman J. summarized the purpose of case conferences:

The philosophy of the Family Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge.

[24] In the result, I find that before the respondent’s motion can be heard, a case conference is required to be held. None of the exceptions in rule 14.2 or 14(6) are applicable. Here, the parties and counsel need to bear Wildman J.’s remarks in mind.

Is it appropriate to stay or dismiss the applicant’s motion?

[25] Given my conclusion this motion ought not to proceed until a case conference is held, I am not required to determine the second issue. The motion should be adjourned to a motions date after the case conference.

[26] I would comment that in my view rule 14(23) does not apply. That rule refers specifically to an order made on motion and the rule generally deals with motions for temporary orders.

[27] The argument raised by counsel with respect to s. 35 and whether or not the agreement is deemed to be an order needs to be resolved. However in my view it needs to be resolved in the context of s. 1(8) of the Family Law Rules and/or s. 106 of the Courts of Justice Act.

RESULT

[28] Therefore, this motion is adjourned to a date to be fixed by the judge at the case conference.

“Justice Scott K. Campbell”

Scott K. Campbell

Justice

Date: February 14, 2013