ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08804/14
DATE: 20150831
BETWEEN:
Fred Kazuk
Applicant
– and –
Amy Shuglo
Respondent
Paul Mongenais, for the Applicant
Thomas K. Mann, for the Respondent
HEARD: Motion in Writing
DECISION ON MOTION
CORNELL J.:
Introduction
[1] This is a motion for leave to appeal the temporary order of Justice R.Y. Tremblay of the Superior Court of Justice, dated April 7, 2015, that requires the applicant to pay $737 per month in child support and $350 in spousal support to the respondent. In accordance with the reasons that follow, leave to appeal the order is granted.
Background
[2] The parties were married in December of 2008 and separated in June of 2014. There is one child of the marriage, Logan Samuel Kazuk who is now seven years of age.
[3] The parties entered into a separation agreement on July 3, 2014. This agreement provides that the parties would share custody of Logan. Child support in an amount of $400 per month was to be paid to the respondent mother commencing July 1, 2014. The separation agreement also acknowledges that the applicant has transferred to the respondent property known municipally as 19 Habel, Fauquier, Ontario “in partial satisfaction of his child support obligation.”
[4] The separation agreement also contains a spousal support release that indicates that neither party may claim spousal support from the other.
The Test
[5] The test for leave to appeal is set out by Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as follows:
Leave to appeal shall not be granted unless,
(a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
Analysis
Pleadings
[6] Rule 8(3) of the Family Law Rules, O Reg 114/99 provides that an application “may contain a claim against more than one person.” There is a requirement that a claimant use Form 8 in order to bring the application. No further details or requirements are specified in the Family Law Rules setting out the requirements for such application. This may form part of the basis for the observation made by Justice J.W. Quinn at para. 92 of Taylor v. Taylor, 2004 42952 (ON SC), [2004] O.J. No. 4802 that “…[u]nfortunately, the caliber of pleading under the Family Law Rules, in my experience, generally is inferior to that found under the Rules of Civil Procedure.”
[7] Rule 1(7) of the Family Law Rules provides that if such rules do not cover a matter adequately, reference may be had to the Rules of Civil Procedure.
[8] Rule 25.06(9) of the Rules of Civil Procedure provides that “the nature of the relief claimed shall be specified.” It is a well-established principle that a person is entitled to know the case that they are required to meet. In an effort to satisfy this requirement, Form 8 contains a number of boxes that can be ticked in order to identify the claim that has been presented along with Box 50, which allows a claimant to set out any other relief that is being sought. The respondent initially filed an answer and claim by respondent on September 29, 2014. At that time, the respondent claimed support for the children – table amount, custody of the child and costs. The respondent was not represented by a lawyer at the time that this documentation was delivered.
[9] On December 3, 2014, the respondent delivered an amended answer and claim by respondent. In the answer, she agrees with the applicant’s request for a divorce. In view of the fact that this is a divorce proceeding, the respondent also claims spousal support, child support, custody of and access to the child of the marriage under the Divorce Act, R.S.C. 1985, C. 3 (2nd Supp.). In addition, the respondent seeks spousal support, child support, custody of and access to the child of the marriage, equalization of net family property, costs, and pre-judgment interest under the Family Law Act or Children’s Law Reform Act. In Box 50, the respondent requests “[a]n Order that the Respondent be allowed to relocate with the child Logan on a permanent basis to London, Ontario.”
[10] Until a domestic agreement has been found to be invalid, the agreement remains valid: see Hall v. Sabri, 2011 ONSC 5495 at para. 33.
[11] No claim to set aside the separation agreement is contained in either pleading filed by the respondent nor is there a general prayer for relief, which is often found in pleadings. In certain circumstances, a request for “such further and other relief as may be deemed just” has allowed the court to grant relief not specifically enumerated: see Eckland v. Eckland, 1972 565 (ON SC), [1973] 3 O.R. 472 (H.C.) and Doherty v. Doherty, 1968 219 (ON CA), [1968] 2 O.R. 518 (C.A.). In the absence of such a provision, there is no basis in this case to consider such relief.
[12] In Taylor, Justice J.W. Quinn held that unpleaded claims cannot be argued at trial. He addressed the issue in this manner at para. 66:
I am not prepared to consider an unpleaded claim for something as significant as an unequal division of the net family properties of the parties. It is unfair to the husband that he was not alerted to the claim earlier than at trial. The husband was represented by a lawyer before trial and any legal advice given to him could not possibly have included the prospect of an unequal division. Subsection 5(6) of the Family Law Act makes express provision for an unequal division. If it is sought it should be pleaded. Form 8 under the Family Law Rules does not contain (and perhaps it should) a specific box to be checked where the claim is for an unequal division, but the claim certainly can be specified in the “Other” box or, at least, mentioned elsewhere in the body of the form. [Emphasis added.]
[13] In my opinion, it should not be open to a party to argue or present a claim that has not been pleaded on an interim motion or at trial for the reasons outlined by Justice J.W. Quinn. This is to prevent trial or motion by ambush, a concept that has now been well-established is not to form part of our litigation system.
[14] In this particular case, the motions judge proceeds to consider the request for child and spousal support despite the fact that no claim has ever been made by the respondent to set aside the separation agreement. This conflicts with the decision rendered in Taylor. In addition, in view of this violation of the most fundamental principle surrounding pleadings, that is to say, that a party must have knowledge of the claim that is being made against him, I am of the opinion that it is desirable that leave to appeal be granted.
[15] I acknowledge that this is a technical answer and it will, in all likelihood, be addressed by way of an amendment shortly. Nevertheless, it does not alter my view that at the time the motion was argued, there was no claim to set aside the separation agreement and accordingly, no basis for the relief granted by the motions judge.
[16] Having made this acknowledgement, I now turn to the merits of the claim, as there are serious concerns in this regard as well.
Divorce Act
[17] The applicant sought a divorce at the time that the application was commenced. In her amended answer, the respondent has agreed to this relief. As previously mentioned, the respondent has also sought child and spousal support pursuant to the Divorce Act in her amended answer and claim by respondent. In view of this, questions pertaining to child and spousal support are to be considered pursuant to the provisions of the Divorce Act and not the Family Law Act: see French v. MacKenzie, 2003 2023 (ON SC), [2003] O.J. No. 1786.
[18] This is not the approach taken by the motions judge who relies upon the Family Law Act in connection with the claims for support. In view of the fact that the motions judge relied upon the Family Law Act provisions and not those contained with the Divorce Act, there is good reason to doubt the correctness of the order in question.
General Importance
[19] Two divergent lines of authority have developed with respect to the question of making an interim order for support given the existence of a separation agreement. In Palmer v. Palmer, 2003 SKQB 438, the court states at para. 12:
…If interim relief is granted which flies in the face of an agreement, and that agreement is subsequently upheld at trial, the fairness and equity of the interim order may be brought into question. Except in exceptional circumstances, agreements should be respected and upheld until trial when the circumstances surrounding the agreement can be fully canvassed. It is only in rare cases that a court should vary from this principle. [Emphasis added.]
[20] This is in keeping with the approach taken in Hall v. Sabri that until found otherwise, a domestic agreement is valid.
[21] Another line of cases approaches the subject by considering whether there is a substantial likelihood of success at trial: see Jones v. Murray, [2005] O.J. No. 2761 at para. 9-10.
[22] The motions judge approaches the subject in yet a different manner by focussing on whether there exists a triable issue as opposed to the existence of exceptional circumstances or a substantial likelihood of success at trial. At para. 39 of his decision, he states:
I find that on this interim motion for spousal support, the respondent must establish that there exists a triable issue as to whether the agreement in which she waives spousal support results in unconscionable circumstances. This is in accordance with the findings in the decisions of Salzman v. Salzman, 2004 5009 (ON SC), [2004] O.J. No. 166; Scheel v. Henkelman, (1999), 45 R.F.L. (4th) 419 (O.G.D.) and Lafrance v. Charbonneau, [2011] O.J. No. 4819 and Veneris v. Veneris, [2015] O.J. No. 502.
[23] In my opinion, there is a substantial difference between permitting interim spousal support contrary to a separation agreement only in exceptional or rare cases as opposed to situations where it has been established that there is a substantial likelihood of success at trial or there is a triable issue as to entitlement. The issue of the validity of a domestic agreement is one that the court is being called upon to address on interim motions on a more frequent basis. The uncertainty in the law presents challenges for litigants, lawyers, and judges alike. In my opinion, the uncertain state of the law is highly problematic and as such, transcends the interests of the parties.
[24] For the reasons outlined, I am also of the opinion that there is good reason to doubt the correctness of the order on the merits and that, given the conflict in the caselaw, the matter is of such importance that leave to appeal should be granted.
Conclusion
[25] In accordance with the reasons that I have provided, I am satisfied that leave to appeal should be granted under Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure.
Stay of Enforcement
[26] A stay of the interim order of Justice R.Y. Tremblay dated April 7, 2015, hereby issues pursuant to Rule 63.02(1)(b) of the Rules of Civil Procedure. Leave to issue a Certificate of Stay is hereby granted pursuant to Rule 63.03(4) of the same rules.
Costs
[27] If the parties are unable to agree upon costs, the moving party shall submit a bill of costs not exceeding two pages, together with supporting documentation, within 14 days of this decision being rendered. The respondent shall have 14 days to deliver responding material, such material not to exceed two pages. If written submissions are not received within this period, it shall be conclusively determined that the issue of costs has been settled.
The Hon. Mr. Justice R. Dan Cornell
Released: August 31, 2015
COURT FILE NO.: 08804/14
DATE: 20150831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Fred Kazuk
Applicant
– and –
Amy Shuglo
Respondent
DECISION ON MOTION
Cornell J.
Released: August 31, 2015