ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Monique Leona Stafford
Applicant
– and –
Michael Fleming Stafford
Respondent
Julie A. Layne, for the Applicant
Réjean Parisé, for the Respondent
HEARD: December 18, 2014
DECISION ON MOTION
GAUTHIER, J.
The Motion
1The moving party (the “Wife”) seeks the following relief:
a) An order restraining and enjoining the Respondent from transferring, cashing in, disposing of, depleting or otherwise dealing with his pension with OMERS Primary Pension Plan, Registration Number 0345983, until further order of this court.
b) An order restraining OMERS from transferring or paying out any funds from the Respondent’s OMERS Primary Pension Plan, Registration Number 0345983.
In the alternative,
c) If the Respondent has already received a payout from his OMERS Pension Plan, an order that he pay into Court $120,014 to secure the Applicant’s claim for spousal support.
d) If OMERS has already transferred the Respondent’s pension to another pension fund and/or RRSP and/or LIRA, an order restraining and enjoining the Respondent from transferring, cashing, disposing of, depleting or otherwise dealing with such RRSP or LIRA until further order of this court.
e) If OMERS has already transferred the Respondent’s pension and/or made a payout to him, an order that the Respondent and/or OMERS, within seven days of this order, provide documentary evidence from OMERS or other third party institutions (if relevant), detailing the following:
i. Details of amounts and dates of transfers;
ii. Confirmation to whom or what funds were paid and/or transferred; and
iii. Current proof of the institutions and account numbers in which the funds are currently being held.
2I have borrowed liberally from the responding party’s (the “Husband”) factum.
3The parties were married on June 30, 1990, and separated on July 16, 2006. There are three children of the marriage being Curtis Stafford born August 27, 1991, Riley Stafford born April 7, 1993, and Alyssa Stafford born January 4, 1995. The sole child that remains a child of the marriage is Riley Stafford who lives with the Applicant.
4The parties were divorced on August 11, 2011.
5The issues of support were determined after trial before His Honour Justice R.D. Gordon, on April 24, 2013.
6The issue of equalization was deferred due to the Consumer Proposal of the Respondent under the Bankruptcy Act, to permit the Wife to obtain an order to lift the stay of proceedings caused by the Consumer Proposal. The Wife was unsuccessful in obtaining an order in the bankruptcy file to life the stay.
7The Wife asserted a trust claim of unjust enrichment in lump sum spousal support in order to continue a claim against the Husband’s pension. Justice Gordon ordered that the Wife’s spousal support shall be subject to review upon the Husband’s retirement and, amongst the circumstances to be considered in the review is the portion of the Husband’s pension that accrued from the date of the marriage to the date of separation.
8On December 24, 2013, the Wife launched an appeal of the December 4, 2013 order, with the following grounds of appeal:
a) The learned trial judge erred in failing to follow the Court of Appeal decision in DaCaen [sic] v. Dacaen [sic], 2013 ONCA 218.
b) The learned trail [sic] judge erred in failing to consider the compensatory nature of the spousal support post retirement and adopting instead a needs/means based test.
c) The learned judge erred in failing to provide security for the Appellant’s future claims for spousal support.
d) The learned trial judge erred in failing to give sufficient weight to the evidence with respect to the Family Law Value of the Respondent’s pension, the monthly income generated from the Respondent’s pension and the minimal pension savings as of the date of separation of the Appellant.
9The Wife is seeking from the Court of Appeal:
a) An order setting the amount of spousal support at $120,014.00 for the Appellant’s interest in the Respondent’s pension and requiring that the Respondent pay to the Appellant $1,500.00 per month once he retires until this sum is paid in full.
b) An order requiring the Respondent to secure the payment set out in paragraph a) herein by:
i) Designating the Appellant as irrevocable beneficiary on $150,000.00 of life insurance through his policy with Canada Life under policy #33065740 and through his group life insurance.
ii) An order that the Respondent shall designate the Appellant as a surviving beneficiary under his pension plan with OMERS.
iii) An order providing that the Appellant’s claim shall be secured as a first charge against the Respondent’s estate.
iv) An order that the Appellant shall have a charging order against the Respondent’s assets and the Respondent’s estate for the amount outstanding under paragraph a) herein.
10On September 12, 2014, the Husband brought a Motion to Change the Final Order of Gordon J. dated April 24, 2013, with a claim that the child support for the child Curtis be terminated, and that the child support be payable only for the child Alyssa.
11The Wife’s Response to the Motion to Change was delivered on October 15, 2014, seeking an increase of the spousal support ordered on April 24, 2013.
12A Case Conference was held on the Motion to Change on December 10, 2014. At that time, a consent order was made dealing with the child support for the two children, and staying the claim for increased spousal support until the Court of Appeal deals with the Appeal of Justice Gordon’s order.
13The Husband disclosed, at the Case Conference, that he was resigning from the Greater Sudbury Police Service, effective December 8, 2014. He has done so.
14The Wife’s material discloses that, to her knowledge, police officers under the age of 50 can receive a cash payout of their pension, upon resignation. She believes that the Husband will have opted for this payout. The Husband has neither denied nor confirmed his intention with regard to his pension.
Issues
Jurisdiction
15The first issue to be addressed is whether this court has jurisdiction to consider and grant the relief sought, or whether the motion should be brought before the Court of Appeal.
Applicability of Section 40 of the Family Law Act
16This section provides that the court may make a temporary or final order restraining the depletion of property that would impair or defeat a claim for support.
Available and/or Appropriateness of Injunction Relief Pursuant to Section 40 of the Rules of Civil Procedure
17Is the three-part test set out in R.J.R. MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), [1994] 1 S.C.R. 311 met.
Relevant Statutory Provisions
The Courts of Justice Act
18Section 134(1) provides for the powers of an appeal court as follows:
(1) Unless otherwise provided, a court to which an appeal is
taken may,
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;
(b) order a new trial;
(c) make any other order or decision that is considered just.
Interim orders
(2) On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal. 1999, c. 12, Sched. B, s. 4 (3).
Power to quash
(3) On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.
Determination of fact
(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case,
(a) draw inferences of fact from the evidence, except that no inference shall be drawn that is inconsistent with a finding that has not been set aside;
(b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs; and
(c) direct a reference or the trial of an issue,
to enable the court to determine the appeal.
Scope of decisions
(5) The powers conferred by this section may be exercised even if the appeal is as to part only of an order or decision, and may be exercised in favour of a party even though the party did not appeal. R.S.O. 1990, c. C.43, s. 134 (3-5).
New trial
(6) A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred. R.S.O. 1990, c. C.43, s. 134 (6); 1994, c. 12, s. 46 (1).
Idem
(7) Where some substantial wrong or miscarriage of justice has occurred but it affects only part of an order or decision or some of the parties, a new trial may be ordered in respect of only that part or those parties.
The Family Law Act
19I have already alluded to section 40. It reads as follows:
- Restraining Orders – The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.
20Section 36 of the Act is also relevant:
- Effect of Divorce Proceeding – (1) When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise.
Pension Benefits Act
21Section 66 of the Act:
Exemption from execution, seizure or attachment
- (1) Money payable under a pension plan is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (1).
Idem
(2) Money transferred from a pension fund to a prescribed retirement savings arrangement or for the purchase of a life annuity under section 42, 43, 48, 67.3 or 67.4 or subsection 73 (2) is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (2); 2009, c. 11, s. 47 (1).
Idem
(3) Money payable from a prescribed retirement savings arrangement or from a life annuity purchased in accordance with section 42, 43, 48, 67.3 or 67.4 or subsection 73 (2) is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (3); 2009, c. 11, s. 47 (2).
Order for support
(4) Despite subsection (1), payments under a pension or that result from a purchase or transfer under section 42 or 43, clause 48 (1) (b), section 67.3 or 67.4 or subsection 73 (2) are subject to execution, seizure or attachment in satisfaction of an order for support enforceable in Ontario to a maximum of one-half the money payable. R.S.O. 1990, c. P.8, s. 66 (4); 2009, c. 11, s. 47 (3).
Application of subs. (4)
(5) Subsection (4) applies to orders for support enforceable in Ontario whether made before or after the 1st day of January, 1988. R.S.O. 1990, c. P.8, s. 66 (5).
Restriction, locked-in retirement account
(6) The entitlement of a person, in his or her discretion, to withdraw money from a locked-in retirement account as defined in the regulations shall not be considered when determining, for the purposes of any other Act, the income or assets available to the person.
The Orders
April 24, 2013
22Gordon J. ordered the Husband to pay spousal support in the amount of $500 per month, commencing May 1, 2013, and continuing to and including April 1, 2018, at which time the spousal support obligation will end.
23The order provided for retroactive spousal support and for child support, among other things.
December 4, 3013
24This order provided that spousal support would be the subject of a review upon the husband’s retirement, and that such review be “considered having regard to the conditions, means, needs and other circumstances of the parties then existing, including: (a) The financial resources available to the Applicant in the event of her retirement; and (b) That portion of the Respondent’s pension that accrued between the date of marriage, June 30, 1990, and the date of separation, July 16, 2006. Although this order does not offer the parties the benefit of finality, it fairly preserves for the Applicant an entitlement to support in her retirement years.”
25Gordon J. dismissed the Wife’s claim for unjust enrichment, based on the Husband’s bankruptcy, and her claim for lump sum spousal support and post-retirement support.
Wife’s Position
26The Wife interprets Section 134 of the Courts of Justice Act as being permissive (“may” as opposed to “shall”) and not preventing me from considering and granting the request.
27Section 40 of the Family Law Act is available given that the Wife’s original claim for spousal support in her Application was made pursuant to the Family Law Act and not the Divorce Act.
28The Wife submits that the Husband should be prevented from withdrawing, transferring or receiving a payout of his OMERS pension, pending the disposition of her appeal, in order to prevent the Husband from frustrating the very subject of the appeal in advance of its adjudication.
29The Wife maintains that there is a very real risk that the Husband will deplete, or make unavailable, the very asset from which she is entitled to receive spousal support. As such, it is entirely appropriate to make an order under section 40 of the Family Law Act or, alternatively, to grant the injunctive relief sought pursuant to the Rules of Civil Procedure and the Courts of Justice Act.
30The court should protect the Wife’s interest in the Husband’s pension to prevent depletion. The Wife referred to the decision in LeVan v. LeVan, 2006 ONSC 63733, where at paragraph 20 Justice Backhouse, in analyzing the provisions of section 40 of the Family Law Act, said this:
In family law matters, interim preservation and restraining orders are quite commonly graded to protect the equalization payment claimed. Having already obtained judgment for an equalization payment, the wife is in a stronger position than someone seeking an interim restraining order. Until the equalization payment and lump sum spousal support have been satisfied, the husband should not be free to encumber or sell assets without the wife’s consent or further court order.
31The Wife’s argument is that the same principle applies to spousal support. According to the December 4, 2013, order, the Wife is entitled to future spousal support from the Husband’s pension. Her interest in the pension has vested. Her appeal of that order is meant to ensure that her entitlement is preserved. The depletion of the pension would frustrate both the December 4, 2013, order and the subject matter of the appeal. The Husband should not be permitted to withdraw his pension from OMERS pending the appeal.
32The Husband has not addressed, in any manner whatsoever, the issue of the payout of the pension. He has neither confirmed nor denied having applied for a pay out of same. He is not being candid or forthcoming. This increases the concern about depletion to defeat or impair her claim to spousal support.
33I should also take into account the Husband’s bankruptcy which had the effect of defeating the Wife’s equalization claim.
34Still dealing with the Husband’s material, the Wife points out that there is no evidence, nor even any suggestion, that the Husband will suffer harm if she is granted the relief sought.
35The Wife maintains that the December 4, 2013, order of Gordon J. effectively gave her a vested right in the Husband’s pension upon his resignation.
36The Wife did touch on the merits of her appeal and referred me to Justice Elllies’ decision in Decaen v. Decaen, 2012 ONSC 966, and to the Court of Appeal’s decision in the case, reported at 2013 ONCA 218. In that case, Ellies J. ordered the Husband to pay spousal support in an amount equal to one-half of the value by which his pension increased between the date of marriage and the date of separation. In that case, like in the case before me, the Husband’s bankruptcy defeated the Wife’s equalization claim, which would have included the value of the Husband’s pension.
37The Court of Appeal chose not to disturb the order of Ellies J. and went on to quantify and secure the future spousal support order, something that Gordon J. did not do in his December 4, 2013, order.
38The Wife’s Factum sets out succinctly her submissions with regard to her alternative claim for injunctive relief. I will not repeat her submissions here.
The Husband’s Position
39The Wife’s motion is brought within the Motion to Change the Final Order of April 24, 2013. That order did not address the issue of entitlement to, quantification of, or the securing of future post-retirement support, which is the subject of the Wife’s appeal, and, which is directly related to her motion regarding the Husband’s pension.
40In other words, the Wife’s motion seeks either a non-depletion order or injunctive relief in connection with the December 3, 2014, order, which is not the subject matter of the Motion to Change within which the motion is brought.
41The court has no jurisdiction to entertain that motion as there is no framework proceeding for it. There would have had to have been a Motion to Change the Final Order of December 4, 2013, within which the current motion could have been brought.
42Additionally, given the appeal, the proper forum is the Court of Appeal, not the Superior Court. The Husband relies on the provisions of Section 134 of the Courts of Justice Act.
43According to the Husband, I am essentially being asked to sit on appeal of the December 4, 2013, order by restraining the Husband from accessing or using his pension. This is properly within the purview of the Court of Appeal.
44As well, Section 40 is not available to the Wife as the spousal support order was made pursuant to the Divorce Act, and not the Family Law Act.
45The provisions of the Pension Benefits Act prohibit the execution, seizure, or attachment of pensions that are transferred to a prescribed retirement fund. It is only the monthly payments that are subject to enforcement of support orders.
46There was no evidentiary basis for Gordon J. to make an order securing the future support, and there is no evidentiary basis to grant that relief now. There is no evidence of any failure by the Husband to comply with the spousal and child support orders, or any evidence of attempts to avoid his support obligations.
47Finally, the Husband suggests that there is no evidence that the Wife will suffer irreparable harm if the relief is not granted. The suggestion that she will suffer such harm is speculative and not based on any concrete facts.
Analysis
48I begin by finding that the Wife’s motion should properly be made to the Court of Appeal. Section 134 of the Courts of Justice Act provides the statutory framework within which the Court of Appeal can deal precisely the type of issue raised by the Wife’s motion.
49Subsection (2) specifically provides that that court may “make any interim order that is considered just to prevent prejudice to a party pending the appeal.”
50The Wife’s motion is made in an attempt to prevent what she essentially describes as prejudice or harm, pending the hearing of her appeal on the merits.
51In the circumstances, the appropriate forum to entertain the Wife’s request is the Court of Appeal and not the Superior Court
52Additionally, I accept the Husband’s submission that the motion is procedurally flawed, having been brought within the Motion to Change the April 24, 2013, order, when the subject matter of the motion relates to the order of December 4, 2013.
53I would therefore dismiss the Wife’s motion.
54In the event that I am incorrect in this conclusion, I will address the balance of the issues.
Section 40 of the Family Law Act
55The Wife’s original Application issued on October 18, 2006, sought relief, including spousal support, pursuant to the Family Law Act. No relief was claimed under the Divorce Act. The Husband’s Answer, dated November 16, 2006, claimed a divorce.
56The Divorce Order made on August 11, 2011, provided that the “corollary issues are severed and remain as issues to be dealt with at the trial scheduled for November 14-18, 2011.”
57The Husband’s Answer effectively commenced a proceeding for divorce under the Divorce Act. That being the case, the provisions of Section 36 of the Family Law Act were engaged and the wife’s claim for spousal support pursuant to the Family Law Act was stayed as it had not been adjudicated. The spousal support ordered on April 24, 2013, and the further order dealing with future support on December 4, 2013, were both made pursuant to the Divorce Act. The conclusion therefore is that Section 40 of the Family Law Act is not available to the Wife, and there is no similar provision under the Divorce Act.
Injunctive Relief
58Rule 40 of the Rules of Civil Procedure provides that an interlocutory or mandatory order may be made (injunction) “on motion to a judge by a party to a pending or intended proceeding.”
59Firstly, from a procedural perspective, the Wife’s motion was not brought within an existing proceeding in connection with the order of December 4, 2013, nor did the Wife undertake to initiate a motion to change the final order of December 4, 2013. Therefore, there is neither a “pending nor intended proceeding” as required in Rule 40.
60Even if the request for injunctive relief was properly before me, I would nonetheless decline to grant it.
61Although the Wife alleges that she will suffer irreparable harm if the Husband is not prevented from accessing his pension on a lump sum pay-out basis, there is no evidence to support that proposition. As indicated by the Husband, he has complied with the support order and has not attempted, in any fashion, to avoid his support obligations. He denies any intention of attempting to defeat the Wife’s claim to future spousal support, and denies having initiated the earlier bankruptcy proceedings with the intent of defeating the Wife’s equalization claim. Rather, the Consumer Proposal was entered into after the Husband had assumed sole responsibility for the joint marital debts.
62There simply is insufficient evidence to support the claim of irreparable harm to the Wife.
63Therefore, even if there is a serious issue to be tried between the parties, part two of the three-part test is not met. The relief is therefore not available.
64I make one final observation with regard to the December 4, 2013, order. Despite the position taken by the Wife, the order did not vest in her any “interest” in the Husband’s pension. It provided for a review on the Husband’s retirement, such review to be considered taking into account the following: the conditions, means, needs, and other circumstances of the parties then existing, including: “(a) The financial resources available to the Applicant in the event of her retirement; and (b) That portion of the Respondent’s pension income that accrued between the date of marriage, June 30, 1990, and the date of separation, July 16, 2006.”
65In other words, the relevant amount of the Husband’s pension income is only one factor to be taken into account. This does not translate into a vested right in the Husband’s pension. It is not for me to say whether or not the order should have gone further in providing security in the Wife’s future support entitlement. To grant the order sought would be just that.
66For these reasons, I am dismissing the Wife’s motion.
67If the parties are unable to agree on the costs of this motion, the Husband may make written submissions on costs within 20 days of today’s date. The Wife will have 10 days after receipt of the Husband’s submissions to respond. If no submissions are delivered within that time frame, the parties will be deemed to have resolved the issue of costs between themselves.
The Honourable Madam Justice Louise L. Gauthier
Released: December 23, 2014
COURT FILE NO.: FS17,488-06(01)
DATE: 2014-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Monique Leona Stafford
Applicant
– and –
Michael Fleming Stafford
Respondent
DECISION ON MOTION
Gauthier, J.
Released: December 23, 2014