Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Penelope Kay Sickinger, Applicant - and - Ralph Thomas James Sickinger, Respondent
BEFORE: Justice S. Stevenson
COUNSEL:
- Maxine M. Kerr, as agent only, for the Applicant
- Respondent, self-represented
- Carol J. Smith, for City of Toronto, Legal Services
DATE HEARD: May 31, 2016
ENDORSEMENT
Introduction
1The respondent commenced a Motion to Change dated April 29, 2014 wherein he seeks adjustments retroactively and ongoing to the support payments that he is obligated to pay pursuant to the order of Perkins J. dated March 30, 2012. He subsequently filed an Amended Motion to Change and supporting documentation wherein he seeks changes to the residency and parenting provisions of the Perkins J. order.
2The applicant moves for summary judgment pursuant to Rule 16 of the Family Law Rules (the "FLRs"). She seeks that the claim of the respondent as set out in his Motion to Change that he is entitled to a credit (referred to him as “Credit 2” in his affidavit sworn April 24, 2014, filed his Motion to Change) against his support payments owing in the amount of $20,341.98 or any other amount on account of Greer J.’s costs order dated July 2, 2009 be dismissed. She also seeks her costs of this motion on a full recovery basis.
3The applicant is in receipt of Ontario Works assistance and the City of Toronto is an Assignee. Ms. Smith for the City of Toronto attended. She did not participate in the motion other than to file submissions outlining that should the costs order be set off against child support, the City of Toronto will deduct the quantum of support set-off from the applicant’s assistance rendering her ineligible for assistance. Although I acknowledge the position of the City of Toronto, this factor was not taken into consideration by me in the determination of this motion.
Background
4The parties began living together in 1989 and married in 1991. They subsequently separated in November 2005. The parties have three children, who are now 21, 18 and 15 years of age. The youngest child suffers from three auto-immune disorders being diabetes, vitiligo and hypothyroidism.
5The applicant commenced an application in May of 2006. The parties subsequently signed a Separation Agreement dated December 20, 2007. The Separation Agreement was then incorporated into the Divorce Order of Backhouse J. dated April 18, 2008. Pursuant to that order, inter alia the respondent was to pay to the applicant the sum of $40,000 as an equalization payment through installments of $4,000 per month, commencing March 1, 2008 and payable through to and including December 1, 2008.
6In May of 2009, the respondent brought a Motion to Change which ultimately resulted in a trial before Perkins J. Prior to the trial before Perkins J., as a result of a contempt motion brought against the applicant by the respondent, Greer J. ordered that the applicant pay costs to the respondent in the amount of $20,341.98. Specifically the order states: “The Applicant, Penelope Kay Sickinger shall pay to the Respondent, Ralph Thomas Ja Sickinger costs in the amount of $18,000 plus GST of $900, plus disbursements of $1,373.31 plus GST of $68.66 for a total of $20,341.98 to be paid when the Respondent pays the Applicant the equalization payment the Applicant is entitled to. This order bears interest at the rate of 2.0 percent per year commencing on July 2, 2009.” The date of the order is July 2, 2009 and the date of Greer J.’s signature is September 12, 2014.
7After trial, in his order dated March 30, 2012, Perkins J. significantly reduced the support arrears owing by the respondent to the applicant to $19,000 and reduced the respondent’s monthly support obligation for both child and spousal support. Subsequent to this, by order of Czutrin J. dated May 14, 2012 and made on consent, the residential schedule was changed. On November 6, 2013, an order was made by Spence J. of the Ontario Court of Justice fixing support arrears and dealing with ongoing support payments as a result of a default hearing brought against the respondent by the Director, Family Responsibility Office.
Position of the Parties
8The respondent, as indicated, commenced this Motion to Change on April 29, 2014. The applicant contends that support arrears have once again accumulated. As per the order of Kruzick J. dated December 19, 2014, this matter is not to proceed to trial but should take no more than a one day hearing. Backhouse J. in her endorsement of January 25, 2016, determined that Questioning was not necessary and too expensive. The applicant indicates that if she is successful on this motion for summary judgment, this will significantly reduce the time needed for the hearing of the Motion to Change. She contends that the issue is primarily a legal issue and one that is appropriate for summary judgment.
9The applicant contends that she never received payment of the equalization payment as ordered as the respondent declared bankruptcy in April of 2010. She asserts that as a result of the equalization payment not being paid, Greer J.'s cost award is not due and owing to the respondent as per the terms of the order. She contends that it was a condition precedent that the equalization payment be paid first. Further, she submits that even if the costs order remains payable, it vested in the trustee and the trustee has taken no steps to enforce the cost order against the applicant. She further asserts that the respondent personally has no right, title or interest in the costs order that he can set off against the outstanding support arrears. The respondent was discharged from his bankruptcy on November 12, 2014.
10In contrast, the respondent disagrees that summary judgment should be granted with respect to the costs issue. He contends that a full hearing is required in order to properly determine the issue. He submits that evidence is needed from the bankruptcy trustee as well as from a bankruptcy lawyer. The respondent deposes that he contacted his bankruptcy trustee who is not available until late June to early July.
11The respondent further asserts that contrary to Rule 16(4) of the FLRs, the applicant has failed to provide any evidence of any specific facts that show there is no genuine issue for trial. He further contends that there is a genuine issue for trial as he deposes that the applicant has full knowledge of the respondent's trustee in bankruptcy's position which contradicts the applicant's position. He further contends that the motion for summary judgment is inappropriate and should be dismissed with costs because there is another case going on between the same parties about the same matter, being the Motion to Change.
12It is the respondent's position that the applicant received what she was entitled to which was zero as a result of the bankruptcy. He contends that the amount owing for costs from the applicant goes into a “pot” that other creditors may be entitled to and that the applicant may receive a portion of when the matter is fully resolved by the trustee. It is his position that under bankruptcy law, the monies for costs will not be credited to the applicant but rather go to the trustee. The respondent contends that it is highly inappropriate to single out an issue on summary judgment and that the applicant is delaying the matter given there are significant credits owing to him. He further submits that given the complexity of the issues, a proper hearing beyond a day is needed.
The Law on Summary Judgment
13The sections of Rule 16 of the FLRs applicable to this motion are as follows:
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. (5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5). (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6). (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence. (6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1). (7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount. O. Reg. 114/99, r. 16 (7). (8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8). (9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2), (a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).
14As set out in Rule 16(2) above, “a motion for summary judgment may be made in any case…that does not include a divorce claim.” Pursuant to Rule 2(1) of the FLRs, “case” means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals. As such, summary judgment may be granted on a Motion to Change.
15In Hryniak v. Maudlin, 2014 SCC 7, the Supreme Court stated at para. 34:
…the summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial…. Generally, summary judgment is available when there is no genuine issue for trial.
16Further, at paragraph 49, the court stated:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
17As set out by Kiteley J. in Turk v. Turk, 2015 ONSC 5845 para. 47: “The moving party has the burden of establishing a prima facie case that there is no genuine issue requiring a trial. If that burden is met, the onus shifts to the responding party “to set out specific facts that there is a genuine issue that requires a trial”.
Analysis
18I find on the record before me that this is an appropriate case for summary judgment. I am satisfied that there is no genuine issue requiring a trial with respect to the respondent's request that the costs order of Greer J. owing by the applicant to the respondent, be given as a credit to him with respect to his support obligations. The issue revolves around the interpretation of the order of Greer J. and the implications of the respondent's subsequent bankruptcy and how it affects that order. This is primarily a legal question.
19In her evidence filed before the court, the applicant has included the order of Greer J. and deposes that the equalization payment owed to her under the Divorce Order of Backhouse J. was never paid to her by the respondent. From a reading of the Greer J. order, I agree with the submissions of the applicant that it was a condition precedent that the equalization payment be made to the applicant by the respondent which would then trigger the payment by the applicant to the respondent of the costs ordered by Greer J.
20As set out in Rule 16(4.1), “…the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.” I note that despite this being a motion for summary judgment, the respondent did not file a factum nor did he provide any evidence from the trustee in bankruptcy. Attached to the respondent's affidavit sworn May 26, 2016 is a letter from the trustee in bankruptcy, Mr. Rosen. This letter was dated May 19, 2016 and only addresses the availability of Mr. Rosen to attend as a witness in this matter. There was no affidavit provided by Mr. Rosen as to the merits of the respondent's position with respect to his bankruptcy and that he is entitled to claim that the costs award can be used as a credit by him towards his support obligations. As this is a motion for summary judgment, the respondent is expected to put his best foot forward. The respondent has failed to do so.
21Under the terms of the Greer J. order, the costs award only became due and payable from the applicant to the respondent when the respondent paid the $40,000 equalization payment owing to the applicant. Based on the evidence before me, he did not do so before he declared bankruptcy. As a result of his discharge from bankruptcy, he is no longer required to pay the equalization payment to the applicant. As the applicant will not receive the equalization payment, the condition precedent to her costs award becoming payable has not been met. As such, the applicant does not owe any costs under the order.
22Additionally, even if the costs debt accrued from the applicant to the respondent prior to his bankruptcy, the debt would have been a receivable or an asset of the respondent when the respondent went bankrupt. At that time, the debt would have become vested in the trustee with all of the other property of the respondent under section 71 of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3. Therefore, the respondent cannot use the argument that he is entitled to a credit with respect to any support payments owing or his ongoing support obligations. Even if the costs debt accrued due and payable and continues to exist, it does not belong to the respondent and cannot be used by him towards his support obligations. As such for all of these reasons, there is no genuine issue requiring a trial and the applicant’s motion for summary judgment is granted.
23Order to go as follows:
i) the applicant’s motion for summary judgment is granted. The respondent’s claim that he is entitled to a credit of $20,341.98 plus interest as a result of the costs order of Greer J. dated July 2, 2009 against the applicant towards the respondent’s obligation of child or spousal support payments outstanding or ongoing, is dismissed; ii) the parties shall attend at a Settlement Conference to be held no later than July 31, 2016, in order to discuss settlement and to set a date for a hearing if settlement is not possible. Both parties shall ensure that they serve and file Settlement Conference Briefs and Offers to Settle one week prior to the Settlement Conference; iii) I urge the parties to agree on costs but if they are unable to do so, the applicant shall serve and file written costs submissions, no longer than two double-spaced pages, along with a Bill of Costs and any Offers to Settle, within 14 days. The respondent shall serve and file responding written costs submissions, no longer than two double-spaced pages, 14 days thereafter. Any reply by the applicant shall be served and filed 7 days thereafter.