Superior Court of Justice - Ontario

Citation: P.Z. v. B.G, 2016 ONSC 2843

Court File No.: FS-13-387140

Date: 2016-04-27

Re: P.Z., Applicant and B.G., Respondent

Before: F.L. Myers J.

Counsel: Stephen Grant for the respondent Tanya Road for the applicant

Read: April 27, 2016

ENDORSEMENT

[1] Apparently my endorsement dated January 25, 2016, reported at 2016 ONSC 625, was not as clear as I hoped it to be. At para. [7] of the endorsement, I held that I could not enforce the parties’ unsigned separation agreement. However, the separation agreement was anticipated by signed Minutes of Settlement that I did enforce that day. Not only did I enforce the Minutes of Settlement, to head off disagreements, I also settled the terms of the formal order enforcing the Minutes of Settlement. As set out in para. [8] of my endorsement, the formal order was to be in the terms of the draft provided by Mr. Grant as amended by items #1 to #4 in para. [8]. Inputting those amendments would also precipitate changes to paragraph numbers in Mr. Grant’s draft.

[2] In para. [13] of the endorsement, I directed Mr. Grant to submit a draft order revised as set out in the endorsement for signing.

[3] As the draft separation agreement contained a few terms that exceeded the scope of the Minutes of Settlement, in para. [11] of the endorsement, I directed counsel to meet to resolve those few remaining matters.

[4] Rather than submitting the revised draft order for signing as directed in para. [13] of my endorsement, the parties communicated and managed to settled some of the terms that remained outstanding between them. The parties have inserted what they have since agreed to into the draft order for January 25, 2016. They continue to disagree over some matters and they have also put those terms into competing draft orders for January 25, 2016. Each side has submissions on how those remaining paragraphs should read. Ms. Road has purported to deliver a Notice Disputing Approval of the draft order under Rule 25(5)(a) and Mr. Grant’s office has sought a hearing to settle the form and content of the order.

[5] There is nothing left to settle in the order that I made. I did not enforce the unsigned separation agreement. Rather, I enforced the prior Minutes of Settlement. I also settled the form and content of the order enforcing the Minutes of Settlement as discussed above. It should have been sent to me for signing rather than being revised again and sent to Ms. Road for approval. Nor was there a basis for Ms. Road to dispute approval of the order that I made. Having already settled the formal terms of the order, para [13] of my endorsement was an “order otherwise” excepting the formal order from the approval process set out in Rule 25(5).

[6] I specifically left the hockey tickets as an issue to be resolved by the parties in finalizing their separation agreement. It appears that they have done so as a term has been inserted in the new competing draft orders. It should not be there as I did not order it on January 25, 2016.

[7] Further, the parties do not agree on two further paragraphs as set out in their competing drafts. Para. [26] of the draft that was before me on the motion (which will now be para. [22] due to the deletion of paragraphs from the draft as set out in para. [8] of the endorsement) has already been ordered. I am unsure as to whether that solves their issue. But if it does not, I cannot solve a disagreement as to the outstanding negotiations by settling the order that I already made. I already found that there was insufficient agreement as the remaining terms for the court to enforce them on the motion.

[8] I note that Ms. Road also seeks a change to the wording of para. [14] of the order. The order has already been settled. It is not open to her to change it absent a motion or appeal. In addition, she argues that the costs that I ordered somehow amended or superseded a different costs order made by Matheson J. in a different endorsement. Matheson granted an adjournment and dealt with the costs of the hearing before her. She did not reserve any costs issue to the court that next heard the adjourned matter. I resolved the costs of the motion that I heard. I ordered the applicant to pay forthwith to the respondent the fixed sum of $5,500 in costs all-in – that is, inclusive of disbursements and taxes. My costs award has nothing whatsoever to do with the order made by Matheson J.

[9] If and when the parties reach agreement on terms to allow them to sign a separation agreement, I suppose they can just proceed to do that. If they want those terms incorporated into a further order, a Rule 14B motion is available. If the terms amend the terms of my order, they can put that into their 14B motion on consent for the court’s consideration at the time.

[10] While I am all for efficiency and minimizing unnecessary hearings, in my view, there is nothing left for me to do in this matter. There is no dispute as to the order I made and settled. For certainty, I attach a mark-up of Mr. Grant’s draft reflecting the changes set out in para [8] of my endorsement. Mr. Grant is to have those changes, and only those changes, made and submit the final typed version to Judges’ Reception at 361 University Avenue, to my attention, for signing.

[11] If the parties jointly wish my assistance with settling any terms that remain outstanding between them, they should contact me in accordance with Rule 1.09 of the Rules of Civil Procedure and I will consider convening a case conference to try to help them settle any outstanding matters. Otherwise, they have their remedies under the Family Law Rules.

F.L. Myers J.

Date: April 27, 2016