ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-4
DATE: 2015/10/22
BETWEEN:
James Bennett
Applicant
– and –
Anna Marie Breuers
Respondent
Self-represented
Pam MacEachern, counsel for the Respondent
HEARD: October 14, 2015
RULING
laliberte, j.
INTRODUCTION
1On March 18, 2015, the Clerk of the Court issued an Order dismissing this case pursuant to subrule 39(12) of the Family Law Rules.
2The Applicant, James Bennett, had started these proceedings, with counsel, on January 2, 2014. He now brings a Motion, without counsel, seeking an Order setting aside the said Dismissal Order.
3Furthermore, he wishes to revive his claim for spousal support which had been withdrawn on consent in the course of a Settlement Conference held on September 18, 2014.
4The Respondent, Anna Marie Breuers, opposes these claims on a number of distinct basis, namely:
− The Applicant’s failure to comply with prior Court orders;
− His claim for spousal support has already been dismissed on consent;
− The claim based on unjust enrichment is without merit;
− The reinstitution of these proceedings will result in extreme prejudice to her.
5The issues to be decided by the Court are therefore properly articulated as follows:
Should the Court set aside the Dismissal Order issued by the Clerk on March 18, 2015?
Did the Applicant fail to abide by Court orders and if so, should he be precluded from reinstituting these proceedings by reason of such failure?
If the Court allows for the recommencement of these proceedings, should the Applicant’s claim for spousal support be revived as requested by him? If so, should the $20,000.00 costs award sought by the Respondent be granted?
THE FACTS
6The parties paint a significantly different picture of their relationship which lasted approximately 15 years. They did not have children.
7The Applicant is 57 years old. He has two children from a prior relationship. His children to whom he was granted custody, resided with the parties for a good portion of the period of cohabitation.
8He describes himself as a successful business person who was able to provide the Respondent with what he describes as a “lavish” lifestyle. His view is that the relationship was very positive.
9The Respondent is 53 years old. She is employed by the City of Cornwall.
10She describes a very volatile relationship and alleges having been subjected to both physical and verbal violence.
11The Respondent rejects the notion that the Applicant provided her with a “lavish” lifestyle. Her position is that she was the one paying for most of the expenses.
12They agree that the separation occurred on February 10, 2012. The Respondent remained in the home located at 412 Sherdian following the breakdown.
13On January 2, 2014, the Applicant started legal proceedings against the Respondent. He had retained counsel. His claims were for spousal support and an equitable claim for financial compensation based on the principle of unjust enrichment.
14The Respondent, with legal counsel, filed an Answer on February 20, 2014 wherein she opposed the Applicant’s claims. She also makes a number of property related claims against the Applicant, namely the return of a motor vehicle and reimbursement of debts incurred by him in her name.
15A Case Conference was held on April 14, 2014. On consent of the parties, leave was granted for questioning which took place on June 20, 2014. A number of undertakings to provide were given by each litigant.
16A Notice of Change in Representation was filed by the Applicant on July 11, 2014 confirming that he was now self-represented.
17A Settlement Conference was scheduled to proceed on September 18, 2014. However, for the reasons articulated by the presiding Justice, the said conference did not proceed. The Judge’s endorsement reads as follows:
“Settlement conference cannot proceed as Applicant’s production undertaking given June 18, 2014 remains entirely outstanding. This is the Applicant’s case to make. The claim for spousal support is withdrawn on consent. The outstanding production undertakings are directed to the centre of the joint family venture/unjust enrichment/constructive trust claims and the file cannot move forward without compliance.
Costs of the conference thrown away are assessed against the Applicant in the amount of $1,000.00 plus H.S.T. The parties shall present the transcription excerpts from the undertakings forthwith to each other in respect of the outstanding undertakings and on delivery the recipient party shall honour the undertakings within 30 days, failing which either side may move for the appropriate remedy.
Settlement Conference date to be set, if required, through office of the trial coordinator.”
18On January 7, 2015, a Notice of Approaching Dismissal was sent by the Court to both parties. This notice was sent by mail at the addresses noted on record.
19A Dismissal Order was issued by the Clerk of the Court on March 18, 2015. A copy of the Order was again mailed to the parties.
20The without Notice Motion brought by the Applicant to set aside the Dismissal Order was dismissed on July 31, 2015 with an indication that Motion was to be brought on Notice to the Respondent. The Court noted the following:
“Applicant has failed to abide by rules on at least 2 occasions one of which resulted in costs against him. This issue needs to be decided in the context of a Motion with Notice.”
21The Applicant brought a Motion which was set to be argued on September 17, 2015. The matter was adjourned at the Applicant’s request to allow him additional time to respond to the materials he had recently received from the Respondent. He was reminded by the Court to comply with the orders for costs and in regards to his undertakings given during the questioning of June 20, 2015. Reference was made by the Justice to Justice Leroy’s Order of September 18, 2014. The Motion was adjourned to be heard on October 14, 2015.
22On October 14, 2015, the Court was advised that the Applicant had paid the $1,000.00 costs award ordered on September 18, 2014 five minutes prior to the commencement of the hearing.
23There remains much uncertainty and controversy on the question of the Applicant’s compliance with his said undertakings.
POSITIONS OF THE PARTIES
Applicant
24The Applicant’s position on the issues raised in this motion can be summarized as follows:
- Dismissal for delay
25The Applicant argues that the Dismissal Order should be set aside by the Court.
26He denies having received the initial Notice of Approaching Dismissal mailed to him by the Court on January 7, 2015. He notes that the postal code was wrong. He states having been told by an employee from Court Services that this was a fairly common occurrence.
27When he received the Notice of Dismissal on March 28, 2015, his then legal advisor would have told him that the case could be reopened at any time. Also, he suggests that an employee from Court Services advised him that Judges always set such Orders aside.
28The delay in bringing the Motion to set aside is due to efforts made by him and his then legal advisor to resolve the issues with counsel for the Respondent.
29He refers to conflicting and contradictory legal advice received from legal aid counsel in Perth (where he presently resides) and Cornwall.
30Much of his difficulties revolve around the fact that he is self-represented. He does not have the means to retain a lawyer.
31He attributes much of the delay in these proceedings to the Respondent’s counsel. He states that she has been responsible for much of the delay.
32He opines that both his claims for spousal support and financial compensation based on unjust enrichment are legitimate and meritorious. He would therefore be prejudiced by the maintenance of the Dismissal Order.
(continues exactly as in the decision)
Justice Ronald M. Laliberte Jr.
Released: October 22, 2015
COURT FILE NO.: 14-4
DATE: 2015/10/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Bennett
Applicant
– and –
Anna Marie Breuers
Respondent
RULING
Justice Ronald M. Laliberte Jr.
Released: October 22, 2015