SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: FS-13-018834
FS-12-18244

Date: 20131223

RE: maria alida ferreira
Applicant

• and -

joao (john) carlos esteireiro

Respondent

BEFORE: Justice S. M. Stevenson

COUNSEL: Jeanie DeMarco, for the Applicant

Judith M. Nicoll, for the Respondent

DATE HEARD: November 25 and 26, 2013

E N D O R S E M E N T

Introduction

[1] The respondent seeks on his motion an order for summary judgment pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 (the "FLRs") on the basis that there is no genuine issue requiring a trial. He also seeks an order that there is no legal basis upon which to permit the applicant's Amended Application, dated July 25, 2013, to proceed as he contends that all matters have been previously adjudicated. He seeks to dismiss or suspend the case as he submits that the case is a waste of time and an abuse of the court process. The respondent also seeks costs.

[2] The applicant opposes the respondent's motion. She has filed an Amended Notice of Motion wherein she is seeking directions from the court; an order granting leave to appeal the errors of law contained in the Arbitration Award of Cheryl Goldhart; an order extending the time to seek leave to appeal; if need be an order setting aside, varying or changing the order of Mesbur J. dated July 5, 2013; if need be, in the alternative, an order staying or setting aside the order of Mesbur J.; if the order of August 16, 2013 of Sachs J. is not void, a declaration that there was an automatic stay of enforcement; in the alternative, an order staying enforcement of the order of August 16, 2013 pending the final disposition of an appeal if any, and the Application to set aside the Arbitration Award. The applicant also seeks costs. The respondent seeks an order dismissing the applicant's cross-motion.

Background and History of Legal Proceedings

[3] After a marriage of approximately 9 years, the parties entered into a separation agreement, dated November 4, 2005. The agreement provided for lump sum and periodic spousal support to be paid to the applicant by the respondent. It also contained provisions that resolved the property issues between the parties. The respondent paid spousal support in the amount of $12,500 per month commencing March 1, 2006 up to and including May 1, 2012. The respondent terminated the support payments as he believed that he was no longer obligated to pay support to the applicant pursuant to the terms of the agreement. He contends that the applicant was in a "relationship resembling marriage" which, as set out in the agreement, is a terminating event and as such, he was no longer obligated to pay spousal support.

[4] The applicant commenced an Application in this Court following the termination of the spousal support payments. A case conference was held before Perkins J. on September 28, 2012. Justice Perkins stayed the applicant's Application as pursuant to the agreement, the parties were to proceed to mediation/arbitration. After much discussion regarding the choice of a mediator/arbitrator, the parties agreed that they would use Cheryl Goldhart ("Ms. Goldhart") as their mediator/arbitrator. Ms. Goldhart's name had been put forth by the applicant's counsel.

[5] The parties attended mediation in March 2013, but were unsuccessful in reaching a resolution. An arbitration subsequently took place on April 15 and 16, 2013. An Award was rendered by Ms. Goldhart on May 23, 2013. In her Award, Ms. Goldhart found that the applicant had entered into a relationship resembling marriage with two individuals ‑ first with Mr. Faissal and subsequently, Mr. Ward. She found that the applicant entered into a relationship resembling marriage with Mr. Faissal on June 30, 2010 and that as a result, the applicant owed the respondent repayment for overpaid spousal support net of tax in the sum of $143,750 which was to be paid within 60 days of her Award. Ms. Goldhart subsequently rendered an Award on July 24, 2013 granting costs to the respondent in the amount of $70,510.34.

[6] The Mediation/Arbitration Agreement (the “Agreement") specified that the Award could be appealed pursuant to section 45 (1) of the Arbitration Act, 1991, S.O. 1991, c. 17 (the "Act"). As such, the only ground of appeal was on a question of law with leave. The Agreement also provided that there was a right to review a decision under section 46 of the Act.

[7] The applicant brought a motion for leave to appeal the Award which was heard by Mesbur J. In her endorsement of July 5, 2013, Mesbur J. dismissed the motion for leave to appeal on the basis that there was no question of law alone to be determined.

[8] Subsequent to the disposition of the motion for leave to appeal, the applicant commenced an Application on July 25, 2013 seeking various relief including, inter alia, the setting aside of the Awards (both substantive and costs), a declaration that the Agreement is void and a declaration that the respondent had breached, frustrated and/or repudiated the Agreement.

[9] The respondent then brought a motion to enforce the substantive Award. Sachs J. rendered a decision on August 16, 2013 enforcing the substantive Award. The applicant sought clarification of Sachs J.'s order and the parties attended again before her on September 23, 2013. Sachs J. found the applicant's motion to be entirely inappropriate and an attempt to re-argue the motion that was previously before her. She awarded further costs against the applicant.

[10] The respondent subsequently brought a motion for an order enforcing the costs Award of Ms. Goldhart and a motion for security for costs. These motions were heard by Kiteley J. Justice Kiteley granted the order for costs, but delayed the enforcement of the order until the disposition of the respondent's motion for summary judgment.

The Issues

[11] The issues are as follows:

(i) Is there a genuine issue requiring a trial or should summary judgment be granted? Should the applicant's case be dismissed under Rule 16(12) of the Family Law Rules because the case is a waste of time or an abuse of the court process?

(ii) If there is a genuine issue requiring a trial and the applicant's case should not be dismissed under Rule 16(12), what are the next steps? Should the relief as set out in the applicant's Notice of Motion dated November 18, 2013 be granted?

Issue #1

(i) Is there a genuine issue requiring a trial or should summary judgment be granted? Should the applicant's case be dismissed under Rule 16(12) of the Family Law Rules because the case is a waste of time or an abuse of the court process?

[12] Rule 16 (1) of the FLRs allows a party to bring a motion for summary judgment. Rule 16 (6) states as follows:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[13] A Rule 16(12) motion for a summary decision of a legal issue is not the same as a motion for summary judgment under Rule 16(1) (see: Stulberg v. Batler, [2010] O.J. No. 4286 (S.C.J.)). Rule 16(12) states as follows:

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process.

[14] Amendments were made to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, expanding the powers available to a motions judge on a motion for summary judgment. No similar amendment was made to Rule 16 of the FLRs and there is conflicting case law as to whether the more expansive powers are available under the FLRs. Under Rule 20, the motions judge may weigh evidence, assess credibility and draw reasonable inferences from the evidence. As set out by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1 (C.A.), 2011 ONCA 764 at para. 50, the motions judge must ask the following question: “…can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”

[15] The issue of the difference between Rule 16 and Rule 20 was canvassed by Healey J. in Virc v. Blair, 2012 ONSC 7104. I adopt the position taken by Healey J. at paras. 11 and 12 where she stated as follows:

[11] This debate was raised but not resolved by the Ontario Court of Appeal in Kalaba v. Bylykbashi (2006), 2006 3953 (ON CA), 265 D.L.R. (4th) 320, at para. 54, where the majority wrote:

As well, no issue was raised on this appeal as to whether the test for summary judgment under the Family Law Rules is different from the applicable rule under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Therefore, we have dealt with the appeal, assuming but without deciding, that there is no difference. An analysis of the textual differences between Rule 16 of the Family Law Rules and Rule 20 of the Rules of Civil Procedure, and their significance, if any, would best await a case where the issue is raised and argued. It is worth noting that this case does not affect the children of the marriage directly.

[12] As it now stands, the majority of the existing case law upholds the view that Rule 16 is the legislative context within which summary judgment motions must be decided in the family law arena. There may well be merit to amending Rule 16 so that it mirrors Rule 20, but the legislature has not done so to this point. That being the case, it is only the provisions of Rule 16 that are relevant to this motion, and not the test set out in Combined Air. This state of the law prohibits the judge on a summary judgment motion under Rule 16 from assessing credibility, weighing evidence, or drawing factual conclusions.

[16] As stated by the Court in Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.), at para. 32, "…In ruling on a motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial."

[17] The moving party bears the onus of establishing that there is no genuine issue requiring a trial; however, Rule 16 (4.1) of the FLRs states: "In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial." Further, as stated in 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.) at p. 557, the responding party on a summary judgment motion must “lead trump or risk losing”.

[18] The applicant, in her Amended Application dated July 25, 2013, seeks various relief summarized as follows:

(i) a declaration that the "partial" Arbitration Award of Ms. Goldhart, dated May 23, 2013, and the further costs Award dated July 23, 2013 are invalid, or null and void, or should be set aside pursuant to sections 6.1 and 6.2 of the Act;

(ii) a declaration that the respondent has breached, frustrated and/or repudiated the Agreement and in the alternative, a declaration that the Agreement is void pursuant to section 55(4) of the Family Law Act, R.S.O. 1990, c. F.3;

(iii) an order removing the arbitrator pursuant to section 15(1) of the Act and quashing the partial Award and costs Award on the basis that circumstances exist that gave rise to a reasonable apprehension of bias by the arbitrator, by reason that the arbitrator does not possess the qualifications that the parties have agreed are necessary to determine the matter and the arbitrator failed to treat the applicant fairly and breached various paragraphs of the Agreement, or alternatively that the arbitrator has resigned;

(iv) in the alternative, an order setting aside the partial Award and the costs Award under s. 46 and other provisions of the Act by reason of a breach of the rules of natural justice;

(v) that the Court direct the trial of an issue and order damages for breach, frustration or repudiation of the Agreement;

(vi) an order reinstating spousal support in the amount of $12,500 per month from and after June 1, 2012;

(vii) an order changing the order of Mesbur J., dated July 5, 2013, pursuant to rule 25(19) of the FLRs on the basis that it contains a mistake and does not deal with a matter before the Court that was not decided, and directing that the applicant is entitled to appeal the Awards of the arbitrator should she wish to do so;

(viii) a stay, if there is no automatic stay, of the partial Award and the costs Award and the stay of enforcement of the order relating the costs order of Mesbur J;

(ix) if need be, an order extending the time to bring any portion of the Application; and

(x) costs on a substantial indemnity basis.

... (continues exactly as in the original decision through paragraph [54], unchanged) ...