COURT FILE AND PARTIES
COURT FILE NO.: FC-13-151
DATE: 2014/03/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MERAL APPLETON, Applicant
AND
THOMAS ROSS APPLETON, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL:
Evgeny Kozlov, counsel for the Applicant
Cecil J. Lyon, counsel for the Respondent
HEARD: March 20, 2014 (at Ottawa)
ENDORSEMENT
[1] The Applicant, Meral Appleton and the Respondent, Thomas Ross Appleton, were married on April 20, 2007. They separated in December of 2011 after a marriage of approximately four and one-half years.
[2] Family law litigation was commenced by Ms. Appleton in October of 2013. The parties entered a process of mediation and came to what both agree were final Minutes of Settlement which “resolved all issues” (see SHORT FORM MINUTES OF SETTLEMENT, tab 8, volume 1 of the Continuing Record signed by both parties on July 9, 2013). Both parties agree that the Minutes of Settlement intended to resolve all family law issues between them including the division of family property and spousal support.
[3] The relevant paragraphs of those Minutes of Settlement from which this motion and counter-motion arise are the following:
1.1 Ross and Meral attended mediation with counsel on July 9, 2013. The parties have resolved all issues including issues contained in court file number FC 13-151.
2.1 Meral will vacate the matrimonial home on or before September 1, 2013. Merel [sic, Meral] will leave all of the contents and fixtures in the matrimonial home (in accordance with the attached list) in good condition except the following items which she will take with her:
(a) 2 beds
(b) 1 living room couch
(c) Her laptop
(d) Erbu’s laptop
(e) Meral’s gold earrings (from her mother)
(f) Meral’s gold wedding band.
2.2 Ross will have exclusive possession of the matrimonial home and all fixtures and contents commencing September 1, 2013 and Meral releases her Part II Family Law Act rights.
4.1 Ross shall maintain all of the household contents except the items listed in paragraph 2.1 (a) to (f) above. If Meral has removed any items other than the ones in paragraph 2.1 (a) to (f) spousal support will be suspended until an accounting of the items has been made.
8.1 In lieu of spousal support Ross paid for all expenses relating to the matrimonial home commencing January 1, 2012 to the tune of $2500.00 per month. Ross shall pay the expenses relating to the matrimonial home to and including August 31, 2013. Meral has had exclusive possession of the matrimonial home since December 31, 2011 to September 1, 2013.
8.2 Based on Ross paying for all the expenses relating to the matrimonial home Meral acknowledges receipt of spousal support in the amount of $1,500.00 per month for the period January 1, 2013 to and including August 31, 2013.
8.3 Commencing September 1, 2013 Ross will pay Meral $1,500.00 per month in spousal support on the first day of each month to and including January 1, 2017 by cheque. Provided Ross has made all of the spousal support payments he is required to make pursuant to these Minutes of Settlement, Ross’ obligation to pay spousal support to Meral ends forever after he makes his last payment on January 1, 2017.
8.4 Ross is entitled to deduct the spousal support he pays to Meral in the amount of $1500 per month from his income commencing January 1, 2013 to and including January 1, 2017. Meral is required to include these payments into her income for income tax purposes. The relevant sections of the Income Tax Act Apply.
[4] It should also be noted at the end of the Minutes of Settlement one finds a two-page list of household items, anything from bathroom vanities to vases, rugs and clocks etc. There are handwritten markings on those two pages, circled items and some joint initials and single initials of the parties. There was not agreement between the parties as to what those handwritten markings represented.
[5] It was not disputed between the parties that when these Minutes of Settlement were being mediated, Ms. Appleton had exclusive possession of the home and its contents. In accordance with paragraph 2.1 of the Minutes of Settlement, Ms. Appleton vacated the matrimonial home on September 1, 2013 and the parties agree that she took with her those item listed in paragraph 2.1 (a) to (f). It is also not disputed that on that same date, September 1, 2013, Mr. Appleton moved into the matrimonial home and took exclusive possession of it and its contents.
[6] In accordance with paragraph 8.3 the Minutes of Settlement that provided for the payment of spousal support in the amount of $1,500 per month from September 1, 2013 to and including January 1, 2017, Mr. Appleton paid on August 30, 2013 to Ms. Appleton his first spousal support payment in the amount of $1,500.
[7] On September 30, 2013, when Ms. Appleton had not received her second spousal support payment, she inquired as to why she had not. At that time she was informed by Mr. Appleton that she had breached the Minutes of Settlement by taking chattels from the matrimonial home other than those listed in paragraph 2.1 (a) to (f). As a result, Mr. Appleton was relying on and enforcing paragraph 4.1 of the Minutes of Settlement. According to Mr. Appleton this paragraph permits him to suspend his spousal support payments until an accounting of the items have been made.
[8] Both parties come before this Court seeking the enforcement of the Minutes of Settlement.
Position of the Applicant
[9] Ms. Appleton seeks an order to have her spousal support re-instated by Mr. Appleton. It is her evidence that she did not take any contents of the home that she was not permitted to do so.
[10] Ms. Appleton’s interpretation of the words found in paragraph 2.1 of the Minutes of Settlement “all of the contents and fixtures in the matrimonial home” which were to be left “in good condition” were identified and defined by the words in brackets in that paragraph, “(in accordance with the attached list)”, namely the two-page list of household items with the handwritten markings which follows the Minutes of Settlement.
[11] She interpreted the words found in paragraph 4.1 of the Minutes of Settlement, “all of the household items”, which were to go to Mr. Appleton in the same way. Namely, that he was to maintain all of the household contents, in accordance with the attached list except for the specific items listed in paragraph 2.1 (a) to (f) which she was permitted to take.
[12] According to Ms. Appleton the total of household items in the parties’ matrimonial home consisted of more than what was found in the two-page list of household items attached to the Minutes of Settlement. These items were not the subject to the Minutes of Settlement and cannot be used by Mr. Appleton to suspend his spousal support payments.
[13] The evidence shows that prior to vacating the matrimonial home Ms. Appleton held a garage sale and she has listed the items she sold during the garage sale. She also admitted through her counsel that she took one of the multiple clocks in the home when she moved.
Position of the Respondent
[14] The Respondent advances an opposite interpretation of the Minutes of Settlement. The only logical and reasonable interpretation of the Minutes of Settlement, Mr. Appleton submits, is that found in the all-inclusive words of paragraph 4.1 of the Minutes of Settlement that in their ordinary meaning states that Mr. Appleton is to maintain “all of the household contents” followed by the exclusionary words identifying the only items that Ms. Appleton could take from the total of the household contents, “except the items listed in paragraph 2.1 (a) to (f)” and again in the next sentence following this, “If Meral has removed any items other than the ones in paragraph 2.1 (a) to (f)….”. According to Mr. Appleton the words, “all of the household contents” are not limited nor defined by reference to the two-page list of household items that follows the parties’ Minutes of Settlement.
Analysis
[15] It is clear from the evidence that the totality of the parties’ household items did not consist of the two-page list of household items referred to in paragraph 2.1 of the Minutes of Settlement and attached to the Minutes of Settlement. In fact, based on an inventory list prepared by Mr. Appleton for the military when he moved back to Canada, after his posting in Turkey in 2008, the total contents of the home may have comprised an 18 page list of items.
[16] In his affidavit material Mr. Appleton states that he is missing or has damaged some $40,000 of household contents and for which he claims an accounting and compensation. This is merely his estimate of the missing and damaged items. Through evidence obtained from the social media Mr. Appleton states that he has identified certain items in Ms. Appleton’s home which were part of the general household items in the matrimonial home and not identified as items Ms. Appleton was permitted to take under the Minutes of Settlement. These consist of a clock, a brass vase, and possibly a wine wrack-wrought iron table. Ms. Appleton admitted to taking one of the multiple clocks in the home. Mr. Appleton has far from established that $40,000 of items are missing from the home and that they are in Ms. Appleton’s possession or that she disposed of them.
[17] It is also curious and unhelpful that Mr. Appleton waited for almost one month after moving back into the house to decide to put Ms. Appleton on notice, and only after she inquired about her spousal support payment, that he was suspending her spousal support payments and that he would be exercising his rights under paragraph 4.1 of the Minutes of Settlement. Surely, one would have noticed on the very day he moved back into the home that $40,000 of items were missing. His explanation that he was busy at work is not very convincing. The resolution of this dispute is not helped by his having exclusive possession of the household items for one month before the parties’ matrimonial dispute resurfaced.
[18] I find both interpretations of the Minutes of Settlement as advanced by the parties problematic and unhelpful in the resolution of what interpretation should be given to those paragraphs of the Minutes of Settlement that purport to resolve the division of the parties’ household chattels. I conclude that there is an inherent ambiguity and contradiction between paragraphs 2.1 and 4.1 of the Minutes of Settlement in their treatment of the parties’ household items.
[19] Paragraph 4.1 in isolation deals with household chattels and establishes that Ms. Appleton is meant to only take those items listed in paragraph 2.1 (a) to (f). It certainly weakens Ms. Appleton’s argument that there was a third pile of household chattels, not included in the two-page list of items attached to the Minutes of Settlement which was available to her.
[20] However, paragraph 4.1 cannot be read in isolation. The agreement must be read as a whole. Paragraph 2.1 also deals with household chattels and it defines and identifies “all the contents and fixtures in the matrimonial home”, which in fact may be a more expansive phrase than the one found in paragraph 4.1, “all of the household contents”, with reference to the list of items found on two pages at the end of the Minutes of Settlement. If Mr. Appleton was meant to have all of the household chattels, except for six identified items Ms. Appleton could take, why was the two-page list of items made part of the Minutes of Settlement? It is also apparent from the evidence that the parties did not necessarily agree on the contents of that two-page list of items.
[21] In view of the above, I conclude that the parties did not resolve the division of their household chattels in a clear and satisfactory way. The Minutes of Settlement on this issue is not clear. On the evidence before me I cannot attribute bad faith to either party. More importantly, I cannot conclude that Mr. Appleton is entitled to an accounting of $40,000 and hence is permitted to suspend his obligation to pay spousal support until such an accounting takes place.
[22] I therefore order as follows. The parties shall proceed to an accounting of all of the chattels that were in the matrimonial home at the time of the separation. This will be before a mutually agreed to Arbitrator, whose cost will be shared by both parties. In the meantime, Mr. Appleton is obligated to continue to pay his spousal support pursuant to the Minutes of Settlement. Any arrears of spousal support are also due and owing. However, until the accounting process is completed and the issue of the division of chattels is resolved between the parties, Mr. Appleton shall pay the spousal support, including any arrears of spousal support owing into court until further order of the court or until a jointly signed direction from both parties is filed.
[23] The parties are, of course, free to agree to return to the mediator who assisted them with the Minutes of Settlement in order to resolve this issue as an alternative. I would strongly recommend this route.
[24] The last issue is costs. This is an unfortunate matrimonial dispute that arose as a result of the lack of clarity in Minutes of Settlement. I am not inclined to award any costs. An appropriate decision would be that the parties bear their own costs of this motion. However, either party, if they cannot otherwise agree, is free to serve and file their written submissions on costs within two weeks of the date of this endorsement.
M. Linhares de Sousa J.
Released: March 28, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MERAL APPLETON, Applicant
AND
THOMAS ROSS APPLETON, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Evgeny Kozlov, counsel for the Applicant
Cecil J. Lyon, counsel for the Respondent
ENDORSEMENT
M. Linhares de Sousa J.
Released: March 28, 2014