Court File and Parties

CITATION: Clement v. Clement, 2015 ONSC 5654

COURT FILE NO.: F-18-867/09

DATE: 2015-10-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Monique Clement, Applicant

AND:

Robert Clement, Respondent

BEFORE: The Honourable Mr. Justice Robert G.S. Del Frate

COUNSEL: James M. Longstreet, for the applicant Daniel Dooley, for the respondent

HEARD: September 1, 2015

ENDORSEMENT ON MOTION

[1] This is a motion for clarification of an order I made on July 7, 2014, whereby I ruled that there was an enforceable settlement agreement between the parties as a result of the offers and counter-offers that had been exchanged between them.

[2] Clarification was required for paragraph six of the respondent’s counter-offer dated June 17, 2014, which reads as follows:

The applicant wife will waive her claim to occupational rents; the applicant will waive her claim to retroactive spousal support; the applicant will waive her claim to child support for Brigitte; and the respondent husband will waive his claim to child support for their child Martin.

[3] The wife takes the position that this paragraph settled all of the past and ongoing child support for Martin. The husband takes the position that the paragraph deals solely with the retroactive child support and not ongoing support.

[4] On January 21, 2015, the matter was made returnable before me. I ruled at the time that the proper documentation and in particular, the transcript of the prior proceedings should be ordered. I also ruled that if the matter was to proceed, the parties were to deal with the following issues:

a. Am I functus?;

b. Provide evidence that will assist me in determining the intention of the parties when the offers to settle were exchanged;

c. Case law on whether the parties can waive child support.

[5] These issues were addressed at the present motion.

[6] By way of background, it should be pointed out that this has been a long and bitter litigation considering that the parties separated on July 27, 2009. By July 2014, and after numerous court appearances, most of the issues were still unresolved. It appears that regardless of my ruling on this motion, the issues that seem to have been resolved by acceptance of the respondent’s counter proposal will be reopened. Accordingly, evidence as to who owes what to whom for occupational rent, retroactive child and spousal support, will have to be led to determine what the intentions of the parties were and whether the waiver of ongoing child support was in the best interests of Martin.

[7] I will now deal with the questions that I asked counsel to address me on in my endorsement of January 21, 2015.

Am I Functus?

[8] The husband submits that I am not functus since the issue that I was to adjudicate on July 7, 2014, was whether there was an enforceable settlement agreement. At no time was I asked to rule upon or interpret the contents of the agreement. For me to make a proper adjudication of the agreement, I would have required evidence and submissions on the intentions of the parties, the applicable guidelines, and whether the proper arrangements for Martin’s support were encompassed in the agreement.

[9] The wife submits that all of the issues would have been resolved by her acceptance of the counter proposal. My ruling that there was an enforceable agreement confirms the wife’s understanding that all issues including ongoing child support were finalized.

[10] If in fact there was any dispute as to what paragraph 6 meant, then the proper venue would have been to appeal the order that I made on July 7, 2014. Neither such appeal nor other steps were undertaken to deal with that particular order other than to send a letter in the latter part of July requesting ongoing child support.

Law

[11] Case law is quite clear that a judge becomes functus when “the order or judgment is signed and entered.” See 369413 Alberta Ltd. v. Pocklington, 1999 ABQB 936, [2000] A.J. No. 410 (Q.B.); Condominium Plan No. 7510189 v. Jones, 1997 ABCA 53; and Pro-Express Ltd. v. Thew (1996), 1996 CanLII 19953 (AB KB), 185 A.R. 285 (B.Q.).

[12] The exceptions are in situations where there was a mistake in the process of putting the judgment to paper and finalizing it or where there has been an error in expressing the intention of the court; Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, or in situations where fraud can be proven: Wavel Ventures Corp v. Constantini, [1996] A.J. No. 1093 (C.A.).

[13] This principle is also enunciated by Perrel and Morden in The Law of Civil Procedure in Ontario, 1st ed. (Toronto: LexisNexis, 2010), at p. 777:

….until the order in question has been signed and entered, the lower court is not functus officio and still has jurisdiction over the case, with the necessary consequence that the appellate court does not have jurisdiction to decide the appeal.

Discussion

[14] It is apparent from the correspondence exchanged between counsel in June of 2014 that the parties intended to resolve all of their outstanding issues. The June 17, 2014, counter-offer was quite explicit in addressing what and how the issues were to be resolved. For instance, there are details of how the matrimonial property is to be listed, who is to choose the real estate agent, and how the net proceeds would be divided. The counter-offer then goes on to deal with who keeps what, how the pension is to be divided and how each party will bear their own costs.

[15] As mentioned, the contentious paragraph reads as follows:

The applicant will waive her claim to occupational rent; the applicant will waive her claim to retroactive spousal support; the applicant will waive her claim to child support for Brigitte; and the respondent will waive his claim to child support for their child Martin.

[16] The counter offer then stipulates what issues would be tried if there is no acceptance of the counter offer. These would be occupational rent, retroactive spousal support, and retroactive child support for Brigitte. There is no mention made for retroactive child support for Martin.

[17] It appears to me that a reasonable inference that can be drawn from reading the counter offer in its entirety, that “…the respondent will waive his claim to child support for their child, Martin” would refer to all of the child support since there is no specific reference to retroactive support.

[18] The correspondence between counsel was quite specific as to what issues were to be resolved and I do not find that either counsel acted in a “fast practice manner.” They both had honest beliefs of what that particular phrase meant. Unfortunately, it was not until later that they both realized that their belief was not ad idem with what they intended.

[19] I am making these comments for the purpose of determining whether I am functus and not to try and explain what the parties intended.

[20] As mentioned a judge becomes functus once the order or judgment has been issued.

[21] Although the husband submits that my reasons dealt solely with the discreet issue of whether there was an “enforceable settlement agreement”, my order incorporated the terms of the counter-proposal which was accepted by the applicant in its entirety by correspondence forwarded on June 25, 2014.

[22] The facts of this case are somewhat similar to the decisions referred to by the husband in Liberale v. Sparafora, [2008] O.J. No. 2245 and Douglas v. Faucher, 2014 ONSC 6883. Accordingly, once the order was entered and issued, I became functus.

[23] Having found that I am functus, I do not plan on addressing the other two outstanding issues being the intentions of the parties when the offers to settle were exchanged and case law on whether the parties can waive child support. Should I be wrong in my reasoning, I am satisfied that the case law is clear that child support is the right of the child and not of the parents and that right cannot be bartered away without clearly establishing the reasonableness of the proposed arrangement to support the child. See Kudoba v. Kudoba [2007] W.D.F.L. 4655, [2007] W.D.F.L. 4659 in which Justice D.J. Gordon reviews the applicable law in detail.

[24] As to the intention of the parties, evidence will have to be led so that determination can be made.

[25] In summary, therefore, I conclude that I am functus. Counsel inform me that costs of this application will be reserved to the motions judge.

[26] Order to issue as per Reasons.

The Honourable Mr. Justice R.G.S. Del Frate

Date: October 5, 2015