Forbes v. Forbes, 2015 ONSC 3424

COURT FILE NO.: FD 770-09 Ext 02

DATE: 2015/06/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Paul Forbes (Applicant)

• and -

Mary Claire Forbes (Respondent)

BEFORE: Justice D. R. Aston

COUNSEL: Sharon Hassan, for the applicant

B. Thomas Granger, for the respondent

HEARD: May 20, 2015

ENDORSEMENT

Introduction

[1] Mr. and Mrs. Forbes separated seven-and-a-half years ago on December 18, 2007. They have two children, Matthew now 16 and William who will be 15 this coming July. The children lived with Mrs. Forbes after the separation but last fall Matthew went to live with his father.

[2] The parties were divorced five-and-a-half years ago by the Order of Campbell J. on December 4, 2009 (the “Divorce Order”). The Divorce Order granted custody to Mrs. Forbes and provided for access and child support. It was granted at an uncontested hearing because Mr. Forbes’ pleading had been struck out, and his claims for custody, child support and equalization of net family property dismissed, by the Order of Vogelsang J., October 14, 2009. The child support provision in the Divorce Order was based upon an imputed income to Mr. Forbes of $100,000 per year. The Divorce Order also required Mr. Forbes to pay costs fixed in the sum of $10,000 plus GST, in addition to costs that had been previously ordered against him of $500 on July 8, 2009, $500 on September 2, 2009, $750 on September 16, 2009 and $500 on October 14, 2009.

[3] Mr. Forbes has sought to set aside or vary the Divorce Order of December 2009 by various procedural steps starting with a motion heard February 17, 2010. There is no procedural hurdle to overcome with respect to his Motion to Change custody, access and child support based on material changes in circumstances. His Motion to Change a Final Order has been consolidated under rule 8(2.1) with a new Application issued in 2010 in which he asserts claims for equalization of net family property and spousal support under the Divorce Act.

[4] Mrs. Forbes present motion is to summarily dismiss Mr. Forbes’ claims for equalization of net family property and spousal support. However, Mr. Granger now properly concedes that there is no procedural impediment to the claim for spousal support. Mr. Forbes never advanced that claim in his original 2009 pleading and it is outside the ambit of the Order of Vogelsang J. The remaining issue is whether Mr. Forbes’ claim for equalization of net family property can go forward.

[5] It is necessary to review the procedural history in determining whether Mr. Forbes’ claim for equalization of net family property constitutes an abuse of process or is otherwise barred on the basis of cause of action or issue estoppel.

Proceedings prior to December 4, 2009

[6] Mrs. Forbes first began the proceedings in May 2009. On July 8, 2009, McGarry J. ordered Mr. Forbes to serve and file his financial statement and certain other documents by July 29. He failed to do so. On September 2, 2009 Morissette J. again ordered him to deliver his financial statement and the documents listed by McGarry J. by an extended deadline of September 9, 2009. He failed to do. On September 16, 2009, Marshman J. ordered him to make certain specific productions by yet another extended deadline, failing which his pleadings were to be struck and his claims dismissed. The record indicates Mr. Forbes was represented by counsel when each of these orders was made.

[7] In her endorsement of September 16, 2009, Marshman J. wrote: “Mr. Forbes has ignored earlier court orders and when he purports to comply with monetary orders and promises, his cheques are returned by the bank. On the evidence before me, the order sought is appropriate.”

[8] Mr. Forbes did not bring himself into compliance within the extended time he had been given. As a consequence, on October 14, 2009, Vogelsang J. struck his pleading and dismissed his claims, which included Mr. Forbes’ claim for equalization of net family property. Mr. Forbes has never taken any steps to appeal or set aside the order of Vogelsang J. Instead, he has been focused on setting aside and varying the subsequent Divorce Order.

[9] Mr Forbes points out that Mrs. Forbes had claimed equalization of net family property in her original application, but that the Divorce Order is silent on that issue; that Campbell J. never made any disposition with respect to that claim. He also alleges that Mrs. Forbes misled Campbell J. with false evidence and non-disclosure on the property issue.

[10] I do not intend to review the various dispositions of the motions that were brought by the parties in 2010 and 2011. None of the endorsements or reasons on those motions address the point that Justice Vogelsang’s order has never been challenged. To this day, Mr. Forbes seems to believe that he can simply ignore Justice Vogelsang’s order dismissing his claim for equalization of net family property and simply make a new application for that relief. In my view, Mr. Forbes presently has no standing to assert a claim for equalization of net family property because the Order of Vogelsang J. remains extant.

[11] Mr. Forbes’ claim for equalization of net family property was not dismissed because of some failure to deliver a pleading or as an administrative act. It was dismissed by a Superior Court Judge after other judges of the court had given a series of deadlines for disclosure of financial information and production of documents with which Mr. Forbes did not comply. It is surely not be enough for him to simply say that he “should be entitled to his day in court”. Orders striking out pleadings, and particularly orders dismissing specific claims, must be respected unless and until they are successfully challenged. Moreover, the evidence on this motion falls short of meeting the test for setting aside an order such as the Order of Vogelsang J. That test requires more than the demonstration of apparent merit to the claim sought to be advanced.

[12] The transcript of the proceeding before Justice Campbell in December 2009, may support the conclusion that Mrs. Forbes simply abandoned her claim for equalization of net family property at the hearing. Even if that is not the case and her claim is technically still outstanding because there was no specific disposition of the issue, Mr. Forbes has no standing to compel her to pursue it. The allegations Mr. Forbes now makes about her deceiving the court or making less than candid disclosure of her assets, including a valuation of her pension, are beside the point. It is not as though the court made an equalization payment order which Mr. Forbes wishes to impugn. His allegations against Mrs. Forbes do not by themselves entitle him to advance his own claim.

[13] In my view, it would be an abuse of process to now allow Mr. Forbes to claim equalization of net family property, notwithstanding that there has been no determination of that claim on the merits.

[14] In City of Toronto v. C.U.P.E., 2003 SCC 63, [2003] S.C.J. No. 64, Arbour J. described the doctrine of abuse of process at paragraph 37 in words often quoted in the subsequent jurisprudence:

37 …the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]

As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (See, for example, Franco v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391 (C.A.); Bomac Construction Ltd. v. Stevenson, 1986 3573 (SK CA), [1986] 5 W.W.R. 21 (Sask. C.A.); and Bjarnarson v. Government of Manitoba (1987), 1987 993 (MB QB), 38 D.L.R. (4th) 32 (Man. Q.B.), aff’d (1987), 1987 5396 (MB CA), 21 C.P.C. (2d) 302 (Man. C.A.).)

[15] Mr. Forbes has brought three separate proceedings against Mr. Forbes. The first was dismissed by Justice Vogelsang. The second was commenced when Justice Templeton allowed Mr. Forbes to amend his motion to set aside the Divorce Order by converting it to a “motion to change”. The third action was commenced by a fresh application on December 15, 2010 claiming inter alia equalization of net family property and spousal support. Mrs. Forbes has unpaid orders for costs in her favour and has incurred significant costs beyond those orders directly attributable to the clumsy and intransigent manner by which Mr. Forbes has litigated the financial issues. There is evident prejudice to her.

[16] There is obvious prejudice to Mr. Forbes as well if he is not entitled to pursue an equalization claim which may have some merit. However, the possible prejudice to him in that outcome is offset, at least in part, by the fact that the Divorce Act allows for marital property to be taken into account on his spousal support claim. For example, if Mrs. Forbes had a pension at the time of separation and Mr. Forbes did not that is a factor a court may consider within the context of a spousal support claim.

[17] Balancing the prejudice to the parties is not the main consideration in any event. Allowing Mr. Forbes to ignore the order of Justice Vogelsang and simply proceed with a fresh application on the issue of equalization of property is inconsistent with any notion of judicial economy, consistency, finality and the integrity of the administration of justice.

Decision

[18] Mr. Forbes claims for equalization of net family property and his claim for a “set-off of his equalization entitlement” as against any other amounts he owes Mrs. Forbes (his attempt to do indirectly what he cannot do directly) are dismissed as is any other claim for “equitable relief” founded upon the equalization of net family property claim that he could have made had he complied with the various orders pre-dating December 2009.

[19] For greater certainty, the applicant’s claims are restricted to (a) a claim for spousal support under the Divorce Act and (b) any other matter that is properly the subject of a Motion to Change the Divorce Order based on a material change in circumstances.

[20] If counsel are unable to agree upon costs, brief written submissions may be made within the next 30 days.

“Justice D. R. Aston”

Justice D. R. Aston

Released: June 1, 2015