ONTARIO
SUPERIOR COURT OF JUSTICE
Editor’s note: Addendum released on November 18, 2015 and appended to the original decision. The corrections were not integrated in the original reasons.
COURT FILE NO.: 3579/14
DATE: 2015-11-18
BETWEEN:
Ruth Elizabeth Marshall
James Higginson for the Applicant
Applicant
- and -
Daniel Robert Marshall
Ben Fortino for the Respondent
Respondent
HEARD: October 9, 2015
The Honourable Mr. Justice R. J. Mazza
[1] This is a motion brought by Mr. Fortino on behalf of the Respondent for leave to appeal Justice Chappel’s order pursuant to Rule 62.02 of the Rules of Civil Procedure.
Background
[2] Mr. Fortino, who represents Daniel Marshall, attended the case conference on September 15, 2015, without his client, who had been incarcerated at that time.
[3] He submitted that although Mr. Marshall’s nonattendance was the result of a failure to serve the Barton Street Jail with notice requiring attendance at the case conference, he did make efforts on two separate occasions to obtain his client’s instructions, but without success, due to a lockdown, which had taken place during each of the two visits.
[4] The case conference proceeded in Mr. Marshall’s absence without Mr. Fortino’s objection.
[5] At the case conference, Justice Chappel made the following orders:
A) The matter is adjourned until a settlement conference on January 19, 2016, at 2:30 p.m.
B) The Registered Retirement Savings Plan of the Respondent with MD Management Account No.: 44475.731 shall be frozen with the exception of any payments required to maintain the mortgage on the former matrimonial home located at 123 Chedoke Avenue, Hamilton, Ontario.
C) The matrimonial shall be listed forthwith for sale. The Applicant and the Respondent shall take all necessary steps to implement this Order, including executing listing documentation. Any disagreement with respect to the listing of the home for sale, may be addressed by way of Motion returnable before any judge.
[6] Mr. Fortino simply submitted that the orders are made without his client’s instructions and his client’s consent, and therefore contrary to the powers of a judge regarding orders that are made at a conference under Rule 17(8) of the Family Law Rules.
[7] Mr. Higginson on behalf of the Applicant submitted that although the case conference was originally scheduled for May 25, 2015, it was adjourned to accommodate Mr. Marshall’s appeal against conviction and sentence to the Court of Appeal.
[8] Thereafter, the case conference was rescheduled to September 15, 2015, and Mr. Higginson served his notice on June 17, 2015.
[9] Further, on August 27, 2015, Mr. Higginson forwarded a correspondence to Mr. Fortino requesting he obtain a judge’s order to permit Mr. Marshall to attend the conference from the detention centre.
[10] On August 25, 2015, as well, Mr. Higginson indicated that he also served Mr. Fortino a request for sale of the matrimonial home, as set out in the Applicant’s case conference.
[11] At the case conference there was no brief filed by the Respondent.
[12] In addition to counsel’s submissions, I also reviewed the case conference brief filed by Mr. Higginson on behalf of the Applicant and the transcript of the proceedings before Justice Chappel.
[13] First, dealing with the brief, I notice at Page 4 that Paragraph 12 states as follows:
“(a) an immediate order for sale of the matrimonial home known municipally as 123 Chedoke Avenue, Hamilton, Ontario;
(d) an order for a freezing of the Registered Retirement Savings Plan of the Respondent.”
[14] Again at Paragraph 13 under the heading in which the parties are asked if they wish the court to make a temporary or final order at the case conference about any of the issues, Mr. Higginson inserted an X in the box beside the “yes” column.
[15] The orders requested were, (a), an immediate order for the sale of the matrimonial, and (d), an order for freezing of the Registered Retirement Savings Plan of the Respondent.
[16] Turning to the transcript of the proceedings, firstly, regarding the preservation of the RRSP, I note the following comments made by counsel and Justice Chappel.
[17] At Page 6, Mr. Higginson states as follows:
“…but I would ask that your Honour consider writing an order for the immediate sale of the 123 Chedoke Avenue in Hamilton so that at least this matter can be moving forward; that there be a freezing of the Registered Retirement Savings Plan I think is fine.”
[18] Justice Chappel responded as follows at Page 7 of the transcript:
“THE COURT: I am just worried about if I freeze the RRSP and that’s a source of payment for the mortgage, then your client - who’s living in the house now, is Mr. Marshall there?”
[19] Further on Justice Chappel went on to say:
“THE COURT: All right, so but I could make an order freezing the RRSP with the exception of any payments towards the mortgage.”
[20] Mr. Fortino then responded at Page 8 as follows:
“MR. FORTINO: I don’t have those instructions, your Honour. A freezing order is generally one that should be applied mutually, not to be defended, but in this case with someone who has lost as much as much as to practice, to have a freezing order may be onerous without having a full picture. It’s not just a procedural requirement because we’re dealing with his ability to service – service the house and service his livelihood, so I’m not in a position to consent to that and that’s all I can.”
[21] Mr. Fortino also commented:
“…On the freezing, though, I think my client ought to have an opportunity to respond. Yes, I know we’re here today and we could facilitate that discussion more frankly. Perhaps that falls on my mistake, but in terms of the merits of the freezing order, I think much more information has to be provided because it could prejudice my client and Mr. Higginson is correct. We’ve been going on this since June of 2014.”
[22] The discussion continued at Page 9 in which Mr. Fortino continued:
“…Your Honour, we won’t be able to resolve spousal support until we know what his income is and what happens to his livelihood, but in terms of the freezing order and freezing his share of the proceeds, again, that’s something I think should be fleshed out with a full record, your Honour.”
[23] At Page 8, Mr. Fortino stated:
“I can understand the sale of the matrimonial home – I don’t have those instructions – but that’s automatic. It’s pretty clear that that will take place if there was a motion from this court”
[24] At Page 21 Mr. Fortino further commented regarding the matrimonial home as follows:
“I don’t have his instructions, Your Honour. I can indicate to you it is what the law states, but I think it’s – my client is not here to respond. It could – who controls the sale, maybe my client wants to fix the place up. I understand it’s in a dilapidated condition, although that’s not something that’s imminent to take place because he’s still incarcerated, but I leave that in your hands, Your Honour. I just don’t have those instructions.”
[25] At the end of the case conference, Justice Chappel determined that she was able to make an order on notice, as permitted under Rule 17(8), and in doing so stated as follows:
“THE COURT: Under the rules I can make an order regarding preservation of assets if notice has been giving. And so in the case conference brief notice was given of that request and the circumstances, given what we do not know how the mortgage is being paid at this point, I think it’s appropriate to make a freezing order with respect to the RRSP, except with respect to the mortgage payments required to maintain the mortgage.”
Analysis and Conclusion
[26] Under Rule 62.02 of the Rules of Civil Procedure, subsection 4 reads as follows:
(4) Grounds on which leave may be granted – Leave to appeal should 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.
[27] Rule 17 (8) sets out orders a judge may make at a conference, and for the purpose of this motion, the court need only concern itself with the following portions of the subsection:
“(b.1) “if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:
…(ii) an order preserving assets generally or particularly,
…(c) (or) make an unopposed order or an order on consent;”
[28] In my opinion, although a court may make an order at a case conference after the opposing side has been served with notice, it does not necessarily follow that the order will be made automatically. The moving party must present the court with evidence that would persuade the judge presiding over the case conference that any order made at the case conference is in keeping with the primary objective of the Rules, namely “to deal with cases justly”.
[29] In applying the legislation and that principle to the facts before me, dealing first with the matrimonial home, I find that based on discussions between counsel and Justice Chappel, it is not disputed that the matrimonial home is one of the two major assets, the other one being the Registered Retirement Savings Plan of Dr. Marshall.
[30] First dealing with the matrimonial home, when I consider Mr. Fortino’s comments, that firstly the sale appeared to be “automatic”, and secondly, it would appear to be a fait accompli at any motion for sale, Justice Chappel could rightly draw the inference that he had given his implied consent on behalf of his client.
[31] Regarding Justice Chappel’s decision to freeze the Registered Retirement Savings Plan, in this particular case Mr. Fortino in fact did specify on the record that he was not “in a position to consent to that” and argued that “much more information has to be provided because it could prejudice [his] client”.
[32] However, at Page 9 Justice Chappel in reviewing the evidence before her at the conference regarding the Applicant’s claim for spousal support stated as follows:
“THE COURT: So whether she’s going to be able to advance a spousal support claim at this point, given the circumstances, is highly questionable because of the – your client’s situation [referring to the charges being faced by Dr. Marshall and thereby affecting his ability to earn a steady income] really her livelihood depends on issues of property settlement and I’m very anxious to ensure any property is not depleted.”
[33] However, Justice Chappel noted that because the Applicant was making a claim for spousal support, that it appeared Dr. Marshall was unable to guarantee a continuing source of income.
[34] Accordingly, given that the evidence before Justice Chappel at the case conference suggested an unpredictability of Dr. Marshall’s future income, and given that Mr. Fortino was given notice of the Applicant’s request to freeze the Registered Retirement Savings Plan, I am satisfied that the evidence before Justice Chappel was compelling enough to warrant an order preserving and securing this asset, and in keeping with the court’s mandate to deal with cases justly.
[35] In any event, in my opinion, even if the issue of sale and preservation of the RRSP had gone to a motion, I am satisfied that the orders made by Justice Chappel would have been the inevitable result.
[36] Accordingly, the motion for leave to appeal is dismissed.
[37] I may be spoken to on costs.
Mazza, J.
Released: November 18, 2015
COURT FILE NO.: 3579/14
DATE: 2015-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ruth Elizabeth Marshall
Applicant
- and -
Daniel Robert Marshall
Respondent
REASONS FOR JUDGMENT
Mazza, J.
Released: November 18, 2015
COURT FILE NO.: 3579/14
DATE: 2015-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ruth Elizabeth Marshall
James Higginson for the Applicant
Applicant
- and -
Daniel Robert Marshall
Ben Fortino for the Respondent
Respondent
HEARD: October 9, 2015
The Honourable Mr. Justice R. J. Mazza
ADDENDUM TO JUDGMENT
For further clarification, there is no conflicting decision by another judge or court in Ontario nor do I find that there is good reason to doubt the correctness of Justice Chappel’s order as required by Rule 62.02 of the Rules of Civil Procedure.
Mazza, J.
November 18, 2015