ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6052/14 (Action commenced at Milton)
DATE: 2015-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHEL GAUTHIER
Self-represented
Applicant
- and -
PAMELA ROBYN LAHEY
Self-represented
Respondent
HEARD: July 22, 2015,
at Brampton, Ontario
Price J.
Endorsement
NATURE OF PROCEEDING
[1] The parties have attended today for a Trial Management Conference in a proceeding by Mr. Gauthier in which he seeks a declaration that he has a constructive trust in a property owned by Ms. Lahey, and in which they co-habited from September 2010 until they separated in January 2013.
[2] The Trial Management cannot be completed at this time because Mr. Gauthier has not complied fully with previous orders made in the proceeding.
[3] At a Case Conference on April 29, 2015, the court granted Mr. Gauthier leave to have Ms. Lahey’s property valued provided the valuation include its present value, as well as its value at the beginning and end of the parties’ cohabitation, its fair market rental value during the period of cohabitation, and the contribution, if any, that any improvements Mr. Gauthier says he made or paid for made to the value of the property.
[4] Mr. Gauthier obtained a valuation of the property which did not include its present value, the fair market rental value during the period of cohabitation, or the contribution, if any, that any improvement he made or paid for made to the value of the property. Ms. Lahey points out that Mr. Gauthier has also failed to comply with orders made against him by the Ontario Court of Justice in a proceeding between the same parties in that court, including a monthly child support order, an order for costs, and an order for security for costs.
[5] This court must determine the steps that should be taken in the present proceeding before the matter is tried.
BACKGROUND FACTS
The Parties’ relationship
[6] The Applicant (“Mr. Gauthier”) and the Respondent (“Ms. Lahey”) were in a common law relationship. The parties’ son, Charles-Alexandre Philippe Gauthier, was born on September 16, 2010.
Proceedings in the Superior Court
[7] The parties separated on January 26, 2013. Mr. Gauthier commenced a proceeding on November 14, 2014, in which he claims a constructive trust interest in Ms. Lahey’s home located at 680 Regency Court, Unit 96, Burlington, Ontario (“the Regency Court property”). Mr. Gauthier additionally claims that Ms. Lahey owes him rent for a property that he rented, where the parties cohabited before Ms. Lahey bought the Regency Court property.
[8] At a Case Conference on December 18, 2014, Justice Skarica ordered Mr. Gauthier to provide disclosure regarding his constructive trust claim to the Regency Court property for the period from September 2010 to January 2013. The disclosure was to be provided by January 31, 2015. Mr. Gauthier failed to provide the disclosure.
[9] Justice Skarica additionally ordered Ms. Lahey to provide copies of the purchase agreement and mortgage payments for the period from September 2010 to January 2013 on the Regency Court property. She was to provide that disclosure by January 31, 2015, and she provided it on January 30, 2015.
[10] At a later Case Conference on April 8, 2015, I ordered Mr. Gauthier to produce to Ms. Lahey, by April 20, 2015, all documents required by Justice Skarica’s order dated December 18, 2014, and all additional documents he intended to rely on in support of his claims.
[11] At a Trial Management Conference held on April 29, 2015, I granted leave to Mr. Gauthier to obtain a valuation of the Regency Court property as of September 2010, January 2014, and the present, as well as the fair market rental value of Mr. Gauthier’s accommodation at the property from September 2010 to January 2013, and the amount of any increase in the value of the property caused by improvements Mr. Gauthier says he made or paid for during that period.
Proceedings in the Ontario Court of Justice
[12] Mr. Gauthier and Ms. Lahey are currently involved in litigation in the Ontario Court of Justice in Milton regarding custody, access, and child support (court file no. 338/13). Ms. Lahey says that Mr. Gauthier has breached several temporary orders that have been made by Justice O’Connell in the Ontario Court proceeding, including the following:
a) An interim-interim consent order dated January 29, 2014, requiring Mr. Gauthier to pay monthly child support in the amount of $699 and his proportionate contribution towards s. 7 expenses retroactive to February 12, 2013;
b) Order dated June 2, 2014, requiring Mr. Gauthier to pay costs in the amount of $3,000 to Ms. Lahey within 45 days of the date of the order;
c) Order dated November 21, 2014, requiring Mr. Gauthier to post security for costs in the amount of $40,000 within 45 days of the date of the order, and requiring him to pay Ms. Lahey’s costs in the amount of $1,500 within 30 days of the date of the order.
[13] Ms. Lahey asserts that, in breach of the above-mentioned orders, Mr. Gauthier owes child support arrears in the amount of $16,637, costs in the amount of $4,500, and has failed to post security for costs in the amount of $40,000.
[14] Ms. Lahey made a motion on May 11, 2015, for an order striking Mr. Gauthier’s Answer and the documents he has filed, and permitting Ms. Lahey to proceed to an uncontested trial of the action. Justice O’Connell reserved his decision in that motion, and his decision is still pending.
Mr. Gauthier’s claim for a constructive trust interest
[15] Ms. Lahey bought the Regency Court property jointly with her mother, Anne Lahey, in June 2008.
[16] Mr. Gauthier moved into the Regency Court property on September 14, 2010. According to Ms. Lahey, Mr. Gauthier insisted that Ms. Lahey’s mother move out of the home, and she moved out of the home and into an apartment, where Ms. Lahey paid her mother’s rent of $1,000 per month with no contribution from Mr. Lahey. The Regency Court property continued to be jointly owned by Ms. Lahey and her mother.
[17] While the parties cohabited in the Regency Court property, Mr. Gauthier sporadically provided cheques for rent, marked as such on the cheques, and contributed to living expenses such as groceries and utilities. The copies of cheques that Mr. Gauthier has produced in the proceeding indicate that the payments were for rent, with the exception of one cheque, which was for rent and auto expense, and another cheque, dated August 4, 2010, in the amount of $5,000, which was in re-payment of a loan that Ms. Lahey had provided to Mr. Gauthier.
[18] Mr. Gauthier has produced a valuation of the Regency Court property as of January 26, 2013, and a valuation of its fair market rental value as of September 1, 2010. The valuation does not provide the following:
a) A value for the Regency Court property from September 2010 and the present;
b) The value of improvements of the Regency Court property that Mr. Gauthier says he made or paid for, during the parties’ cohabitation;
[19] The parties never shared joint bank accounts or investments.
Mr. Gauthier’s claim for rent for his property on Rebecca Street, Oakville
[20] Ms. Lahey stayed at Mr. Gauthier’s home on Rebecca Street sporadically for 4 or 5 days per week from May 2009.
[21] There was no agreement between Mr. Gauthier and Ms. Lahey that Ms. Lahey would pay rent to Mr. Gauthier, and there was no request by Mr. Gauthier that Ms. Lahey pay rent to him.
[22] Ms. Lahey paid Mr. Gauthier’s rent on some occasions, to help him reduce his expenses, as he was paying legal fees at the time in his court proceedings against his former spouse, Jennifer.
ISSUES
[23] This court must determine the steps that should be taken in the present proceeding before the matter is tried.
PARTIES’ POSITIONS
[24] Mr. Gauthier seeks an order at trial declaring that he has a constructive trust interest in the Regency Court property and requiring Ms. Lahey to pay him rent, retroactively, for the period of time when she cohabited with him at the property he rented on Rebecca Street in Oakville.
[25] Ms. Lahey seeks an order at trial dismissing Mr. Gauthier’s claim for a constructive trust interest in the Regency Court property and his claim for rent for the period of Ms. Lahey’s cohabitation with him in the Rebecca Street property.
ANALYSIS AND EVIDENCE
a) The court’s jurisdiction to provide directions
[26] Mr. Gauthier has failed to comply with the order I made for disclosure of the improvements he made to the Regency Court property, which support his claim for a constructive trust interest in that property. In exercising the leave granted to him to obtain a valuation of the Regency Court property, he failed to obtain a valuation of the improvements he says he made.
[27] The Family Law Rules provide directions as to the course to be followed when a Trial Management Conference must be adjourned as a result of a party’s failure to comply with the Rules or order of the court. Rule 17(18) provides, in this regard, as follows:
17(18) If a conference is adjourned because a party is not prepared, has not served the required brief, has not made the required disclosure, or has otherwise not followed these rules, the judge shall,
(a) Order the party to pay the costs of the conference immediately;
(b) decide the amount of the costs; and
(c) Give any directions that are needed.
[28] In any event, one of the functions of a conference judge is to give directions for the steps to be taken in the proceeding and for the use of expert evidence at trial. Rule 17(8) of the Family Law Rules provides:
17(18) At a case conference, settlement conference or trial management conference, the judge may, if it is appropriate to do so,
(a) Make an order for document disclosure (rule 19), questioning (rule 20) or filing of summaries of argument on a motion, set the times for events in the case or give directions for the next step or steps in the case;
(a.0.1) Make an order respecting the use of expert witness evidence at trial or the service and filing of experts’ reports.[^1]
b) Motion for summary judgment
[29] In failing to provide the disclosure required, Mr. Gauthier has also failed to produce credible evidence of his claim. Absent such evidence, Ms. Lahey may have a basis for obtaining an order for summary judgment dismissing his action on the basis of the jurisprudence set out in Gonzalez v. Trobradovic, in 2014.[^2]
[30] Rule 16 of the Family Law Rules provides:
16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without trial on all or part of any claim made or any defence presented in the case.
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
[31] The Supreme Court of Canada, in Hyrniak v Mauldin,[^3] and Bruno Appliances and Furniture Inc. v Hyrniak,[^4] in 2014, reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the court to preserve the public’s access to justice. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It found that the Court of Appeal, in Combined Air Mechanical Services Inc. et al v. Flesch et al, in 2011,[^5] had placed too high a premium on the "full appreciation" of evidence that can be gained in a conventional trial, given that such a trial is not a realistic alternative for most litigants. It held that a trial is not required if the court hearing a summary judgment motion can make a fair and just adjudication, by making the necessary findings of fact, and applying the law to those facts, and if the process is a proportionate, more expeditious, and less expensive means of achieving a just result than a trial.
[32] The Supreme Court observed that the summary judgment motion judge must assess the interests of justice that would be served by summary judgment by considering the relative efficiencies that would be served by that process and those that would be served by a trial, including the cost and speed of each procedure, the evidence that is available on the motion versus the evidence that would be available at trial, and the opportunity to evaluate such evidence fairly. As the Supreme Court stated, there will be no genuine issue requiring a trial if the summary judgment process gives the motion judge the evidence required to fairly and justly adjudicate the dispute on its merits, and is a proportionate, more expeditious, and less expensive means to achieve a just result.
[36] In Sweda Farms v. Egg Farmers of Ontario, in 2014, Corbett J. described the current approach to summary judgment motions following the Supreme Court of Canada’s decision in Hryniak v Mauldin, as follows:
Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.[^6]
[33] Having regard to Mr. Gauthier’s failure to disclose evidence in support of his claim, and his breach of my order granting him leave to obtain a valuation of the Regency Court property, a motion for summary judgment would be a proportionate process for dealing with his claim for a constructive trust interest in that property and his claim against Ms. Lahey for rent during the period when they cohabited in the rental property on Rebecca Street.
c) Motion for security for costs
[34] Having regard to the fact that Mr. Gauthier has failed to pay Ms. Lahey’s costs in the proceeding in the Ontario Court of Justice, as ordered by that court, and to provide security for costs there, it would be appropriate, in my view, for this Court to consider, whether or not Mr. Gauthier’s action here can be disposed of by summary judgment, whether he should be required to provide security for costs.
[35] Where the Family Law Rules do not cover a matter, reference may be made to the Courts of Justice Act[^7] and the Rules of Civil Procedure[^8]. Rule 1(7) of the Family Law Rules provides:
1(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[36] As there is no provision in the Family Law Rules for security for costs, Rule 56 of the Rules of Civil Procedure applies. That Rule provides as follows:
56.05 A plaintiff or applicant against whom an order for security for costs has been made may not, until the security has been given, take any step in the proceeding except an appeal from the order, unless the court orders otherwise.
56.06 Where a plaintiff or applicant defaults in giving the security required by an order, the court on motion may dismiss the proceeding against the defendant or respondent who obtained the order, and the stay imposed by rule 56.05 no longer applies unless another respondent has obtained an order for security for costs. [Emphasis added]
[37] Where a respondent, such as Ms. Lahey, has an order against the applicant for costs in the same or another proceeding that remains unpaid in whole or in part, the court, on motion by the respondent, may make an order for security for costs. Rule 56.01(1) of the Rules of Civil Procedure provides, in part, as follows, in this regard:
56.01(1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;
(e) there is good reasons to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;
[38] Mr. Gauthier’s failure to provide security for costs in the Ontario Court has led to a motion for a stay of further steps in that proceeding. While his breach of the Ontario Court order does not directly result in a stay of his proceeding in the Superior Court, this Court may give effect to the Ontario Court order in order to prevent unfair conduct by a litigant and an abuse of the court’s process generally.
[39] In Andrews v. Andrews, in 2000, the payor husband was in arrears of spousal and child support and was ordered to give security for costs in the event of a future default. He complied with that order. However, he then did not make further support payments. Subsequently, the wife moved for a stay of proceedings under s. 106 of the Courts of Justice Act. The question before Nelson J. was what test to apply on the stay application. Nelson J. determined that the test was one of fairness, and continued:
While there are no hard and fast rules to follow, I believe it is incumbent on a judge to review the history of the matter in order to determine whether or not the parties have behaved reasonably and fairly towards one another. In this case, it is readily apparent that the applicant has engaged in litigation without any thought as to the consequences of his actions. His conduct in disobeying court orders and acting in an unreasonable fashion with respect to payment of his support and cost obligations militate against deciding in his favour.[^9]
[40] Nelson J. ordered a stay of proceedings, returnable only if the husband paid the outstanding costs or otherwise met his financial obligations to the wife’s satisfaction. Although Andrews was not concerned with a breach of a security for costs order, the reasons are applicable to the present proceeding, where Mr. Gauthier proposes to seek relief against Ms. Lahey from this Court while being in breach of orders made in her favour for support, costs, and security for costs in the Ontario Court.
[41] It is not unprecedented for the Superior Court to require, as a condition of proceeding in that court, that the respondent comply with orders previously made in the Ontario Court. In O’Brien v. O’Brien, in 2003, an order was made by Walsh J., in the Superior Court, requiring the respondent to pay Guideline child support for his children. He did not comply with the order and substantial arrears accumulated. The respondent then brought a motion to set aside the Walsh order. The motion was dismissed by Laforme J. The respondent then retained new counsel and brought a further motion requesting that the Walsh order, which he had not appealed, be set aside, and that there be a trial to determine the past arrears and ongoing support. Justice Backhouse refused this relief, but directed a trial of an issue to determine the respondent’s income and his support obligations on a go forward basis, provided he fulfilled the conditions set out in her order. The conditions were that the respondent pay Guideline child support for his children based on his admitted income, that he comply with an order of Justice Waldman of the Ontario Court of Justice to pay $10,000 to the Family Responsibility Office, and that he post security for costs in the sum of $10,000 as a condition of having the trial. The respondent appealed the Backhouse order, and the Court of Appeal dismissed the appeal.[^10]
[42] In the present case, Ms. Lahey asserts that Mr. Gauthier has breached orders in the Ontario Court requiring him to pay child support, costs, and security for costs. In this court, Mr. Gauthier breached my order as to the nature of the valuation he was to obtain of the Regency Court property. As a conference judge, I am permitted to deal with the latter breach by prohibiting Mr. Gauthier from using the valuation that he obtained in the trial of his application in this court.
[43] Additionally, Ms. Lahey should have an opportunity to apply for security for costs in this Court, pursuant to Rule 56.01, based on the following:
a) Mr. Gauthier has an order against him for costs in another proceeding that remain unpaid in whole or in part;
b) there is good reason to believe that Mr. Gauthier’s application is frivolous and vexatious and that, based on his failure to provide security for costs in the Ontario Court, he has insufficient assets in Ontario to pay Ms. Lahey’s costs of the present proceeding, if she is successful.
CONCLUSION AND ORDER
[44] For the foregoing reasons, it is ordered that:
a) Mr. Gauthier shall not use as evidence in the trial of his application the valuation of 96-680 Regency Court prepared by Lindsey Walker or by Walker & Walker Appraisal Ltd.
b) Ms. Lahey has leave to make a motion for summary judgment dismissing Mr. Gauthier’s action or, in the alternative, an order requiring Mr. Gauthier to post security for costs in the present proceeding.
c) The Trial Management Conference is adjourned to November 26, 2015, at 10 a.m., before me in Brampton.
d) Mr. Gauthier shall pay to Ms. Lahey the costs wasted of today’s appearance, fixed in the amount of $2,000.00 and payable forthwith.
Price J.
Released: July 22, 2015
COURT FILE NO.: 6052/14 (Action commenced at Milton)
DATE: 2015-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHEL GAUTHIER
Applicant
- and –
PAMELA ROBYN LAHEY
Respondent
REASONS FOR ORDER
Price J.
Released: July 22, 2015
[^1]: Family Law Rules, O. Reg. 114/99, as am.
[^2]: Gonzalez v. Trobradovic, 2014 ONSC 2468
[^3]: Hyrniak v. Mauldin, 2014 SCC 7
[^4]: Bruno Appliances and Furniture Inc. v Hyrniak, 2014 SCC 8
[^5]: Combined Air Mechanical Services Inc. et al v. Flesch et al, 2011 ONCA 764
[^6]: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200
[^7]: Courts of Justice Act, R.S.O. 1990, chap. C.43
[^8]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[^9]: Andrews v. Andrews, 2000 22552 (ON SC)
[^10]: O’Brien v. O’Brien, 2003 ONSC 2367.