Court File and Parties

Court File Number: FS-11-17514 Date: June 16, 2016 Superior Court of Justice – Ontario Court Office Address: 393 University Avenue, Toronto

Applicant(s): Ian Goodfellow Counsel for Applicant: Guy Hunter

Respondent(s): Suzanne Tordjman Counsel for Respondent: Michael J. Polisuk

Before: Perkins J. Heard: June 7, 2016

Issues on the Motions

[1] The applicant has moved for an order for disclosure of information and documents by the respondent, in an application containing a claim for “constructive trust / unjust enrichment / tracing” in respect of the respondent’s home and its furniture and the respondent’s retirement pension.

[2] The respondent’s motion is for summary judgment dismissing the claims in the application, on the ground that they are barred by the expiry of the applicable limitation periods. She also asks that the application be struck out because the applicant is in breach of costs orders against him. At the hearing, she asked in the alternative for a stay of the application until the costs are paid.

Result

[3] The applicant’s motion is dismissed. However, if the applicant brings forward a motion to extend the limitation period for making a spousal support claim, the respondent must serve and file a financial statement in the form for a support claim, attaching the required income tax information and a summary of her income going back 15 years or as far as her records permit.

[4] The respondent’s motion succeeds. The application is dismissed. In the event that the application is revived in some manner, the application is stayed until the applicant is in full compliance with all outstanding costs orders in favour of the respondent, including the costs of these motions.

[5] Costs are to be addressed in writing. See below.

Family History

[6] The parties lived together for 25 years, from 1973 to 1998. They did not marry. They have four children, who are all independent adults. After the separation, the children lived primarily with the respondent.

[7] The parties have been separated for over 17 years and are now in their sixties. The respondent retired in 2014. She receives an $80,000 annual pension (from her 25 years as a teacher and principal) and some rental income. The applicant continues to work, but in the last few years has not earned more than the minimum wage (except that his earnings for 2014 have not been disclosed).

Litigation History

[8] In August, 1999, the respondent mother filed an application in Newmarket, seeking custody of the children, child support, and other relief. The applicant father defended, advanced an unjust enrichment or constructive trust claim in relation to the respondent’s house and her pension, and also asked for spousal support for himself. A temporary child support order was made on consent in favour of the mother on November 9, 2001. It provided for a monthly child support payment of $474 by the father.

[9] No further steps were taken in the Newmarket case. The case (including the trust and spousal support claims) was administratively dismissed for delay on November 28, 2003. However, the father continued paying the child support. Neither party sought to advance the case for the next several years. The father did not become aware of the dismissal of the Newmarket case until January, 2007. He took no steps to revive it.

[10] The applicant father says he overpaid child support under the Newmarket order to the tune of at least $18,000 after the order was terminated on November 28, 2003. The respondent mother says that whether or not there was an existing order for child support, there was an obligation under the law to contribute to not only the children’s food, clothing, and shelter, but also to their postsecondary education, and the father did not make adequate contribution. These issues remain contested. There are also contentious, unresolved issues about where the children lived at times, and who was entitled to claim child tax credits and benefits. However, neither party took these issues to court.

[11] On August 2, 2011, the applicant filed a fresh application in Toronto, the application that began this case. He sought “constructive trust / unjust enrichment / tracing” in relation to the respondent’s home and its furniture and the respondent’s pension, and spousal support – essentially the same claims as he made in the 1999 Newmarket case. He did not assert a right to repayment of the child support paid over the years after the Newmarket case was dismissed. The respondent did not raise the child support issue either. (However, by that point the children may not have been “children of the marriage” any longer.)

[12] At a case conference held on October 17, 2011, the presiding judge recorded that the applicant wanted to seek an order for spousal support, scheduled his motion for November 10, noting that the respondent intended to retain a lawyer and the motion might have to be adjourned, and ordered the parties “to expedite disclosure process and make best efforts to make full financial disclosure by November 10, 2011.”

[13] The motion was heard on December 12, 2011. The decision of January 16, 2012, 2012 ONSC 303, found that the spousal support claim was barred by the limitation period under section 50(1) (now repealed) of the Family Law Act as it read before the coming into force of the Limitations Act, 2002, and the claim was not saved by any of the transitional provisions in section 24 of that Act. In a decision of June 5, 2013, 2013 ONCA 736, the Court of Appeal agreed. However, the Court of Appeal left open whether the applicant might be able to get an extension of the limitation period on a motion for an extension under section 2(8) of the Family Law Act (which has remained unchanged since 1990). The Court of Appeal also determined that the issue of whether the other claims of the applicant were barred by a limitation period remained open to be canvassed in this court.

[14] Accordingly, the spousal support claim of the applicant has been finally determined, unless he persuades this court to grant an extension of time under section 2(8) of the Family Law Act. The applicant has not yet brought a motion for an extension. He says that in order to do so, he needs the disclosure he seeks on this motion first.

[15] The applicant tried to have the dismissal of the Newmarket case set aside. However, his motion to reopen that case was dismissed on December 13, 2012. The presiding judge found that he had not satisfactorily explained his delay in trying to revive the case. The Court of Appeal dismissed an appeal from that decision on August 21, 2013: see 2013 ONCA 523.

[16] There are several outstanding costs orders against the applicant resulting from the dismissals of his motions and appeals. They total $12,750, but of those costs, some $9,500 is payable in monthly instalments of $250. Some costs are due and owing now and have not been paid.

[17] The continuing record in this case consists of three volumes. The first two volumes comprise documents filed between July and November, 2011, leading to the motion decision of January 16, 2012. In 2012 and 2013, events were taking place in Newmarket Family Court (motion to set aside the administrative dismissal of the Newmarket case), the Divisional Court (an appeal brought by the applicant, dismissed as being in the wrong court), and the Court of Appeal (two separate appeals). The case came back to life in this court, and volume three of the record begins, on April 14, 2016, with the applicant’s motion now before me.

[18] The applicant’s motion seeks disclosure of a number of items in a list extending over four pages, all of which had been requested by letters sent to the respondent’s lawyer in August, 2015 and February, 2016. The applicant says he needs the disclosure in order to gather evidence for his planned motion for an extension of the limitation period on his spousal support claim and for the purpose of evaluating his claims for “constructive trust / unjust enrichment / tracing”.

[19] The respondent’s motion, dated April 18, 2016, asks for summary judgment dismissing the applicant’s claims relating to property on the ground that they are barred by the relevant limitation periods. Further, the respondent seeks an order striking out (or staying) the applicant’s claims by reason of the unpaid costs owing by him to her.

Unpaid Costs

[20] The respondent argued this issue as a preliminary objection to the applicant’s disclosure motion. She relied on rule 1(8) of the Family Law Rules. Also applicable is the court’s general power to stay a case under section 106 of the Courts of Justice Act, which the court can order on a party’s motion or on its own initiative.

[21] The costs orders made against the applicant must be presumed to have taken account of his means at the time they were made. To the extent there are any arrears under those costs orders, they ought to be paid in full, unless the applicant has provided evidence of a change in circumstances that would justify relief. But the only evidence the applicant has provided that bears on this issue is that he owes his lawyer a lot of money and has paid his lawyer $750 to cover some of his own costs of the appeal or appeals. This is insufficient to relieve him from payment of his costs obligations.

[22] The applicant has argued that one or both of the Court of Appeal decisions somehow set aside or suspend the costs orders at first instance. I fail to see why. The Court of Appeal knew of the existing costs orders and left them untouched. Nor is there any reason to wait for the second Court of Appeal order to be signed before sorting out the costs. Orders are enforceable by way of a stay or striking out, whether or not the formal orders have been signed, so long as the court’s endorsement or reasons set out the parties’ obligations clearly. They are very clear in this case.

[23] The applicant asserts that he has many other entitlements against the respondent, by way of spousal support, tax credits, and property claims, and so should not have to pay costs now. It may be that there is merit to his claims, but he must first establish them, and once they are turned into court orders like the costs orders, the entitlements can be set off against each other – but not before.

[24] The applicant has not made out a case for relief from the costs orders, which have been outstanding for years. As a colleague of mine likes to say, court orders are to be obeyed – they are not just suggestions.

[25] The applicant’s application is stayed until he is in complete compliance with all costs orders in favour of the respondent, including the costs of these motions. For clarity, this does not accelerate any instalment payments under those orders.

Summary Judgment on the Property Claims

[26] The respondent asserts that, under rule 16 of the Family Law Rules, she is entitled to a dismissal of the property claims made by the applicant because the limitation period for bringing those claims forward has expired. On a motion for summary judgment, the applicant as moving party must show that there is no case requiring a trial, and the respondent must provide his best evidence showing that a trial is needed.

[27] The applicant’s first problem is that his motion to set aside the administrative dismissal of the Newmarket case has failed, in this court and at the Court of Appeal. As the judge said in the decision of January 16, 2012, reported at 2012 ONSC 303, in dismissing the spousal support claim made by the applicant:

[6] I find that Mr. Goodfellow cannot currently commence a new application to seek similar relief to the claims he advanced in 1999, and which were ultimately administratively dismissed in 2003. …

[7] If Mr. Goodfellow has a remedy, it would be in setting aside the 2003 dismissal order, though I make no comment on the merits of such an application. In fact, any remedy pursued by Mr. Goodfellow to obtain spousal support cannot simply ignore the effect of this previous dismissal order. This is especially the case when his current application is being made 13 years after separation.

[28] The Court of Appeal did not comment on this passage when the case came before it. It seems to me that for this reason alone, the applicant’s property claims are barred. They too were administratively dismissed, and the applicant’s motion to revive them was dismissed. However, the respondent did not rest her argument on this ground, and the motions before me were argued on the basis that the applicable limitations periods had expired, so I will proceed to address that issue.

[29] The parties separated in 1998 and the case before me was commenced in 2011, some 13 years later. There is no evidence in the record to suggest, let alone establish, that after 1998 the applicant made contributions to the property in question that would give him an entitlement to a trust interest.

[30] It is common ground that the limitation periods are those found in the old Limitations Act, R.S.O. 1990, c L.15, as it read before the coming into effect of the Limitations Act, 2002. It is also agreed that the limitation period for the applicant’s claim to an interest in the respondent’s house is 10 years, as it is a claim to recover land governed by section 4 of the old Act. See McConnell v Huxtable, 2014 ONCA 86. In that case, the Court of Appeal determined that the time ordinarily begins to run in cases like this one from the date of the parties’ separation: McConnell, above, at paras [52]-54. There is no evidence before me to justify any later start date.

[31] How does the applicant get around the fact that the ten year limitation period expired in 2008, about three years before he issued the current application? He relies on what he says is a “concealed fraud”, which suspends the running of the limitation period, under section 28 of the old Limitations Act. That section reads:

Cases where fraud remains concealed

28. In every case of a concealed fraud, the right of a person to bring an action for the recovery of any land or rent of which the person or any person through whom that person claims may have been deprived by the fraud shall be deemed to have first accrued at and not before the time at which the fraud was or with reasonable diligence might have been first known or discovered.

[32] The various facts deposed to by the applicant in his materials for the motion as being a concealed fraud are summarized as follows:

• The parties’ son Daniel was not living with the respondent in 2002-2007. She did not tell the applicant. Accordingly the respondent collected child support for him fraudulently.
• The respondent did not disclose that she was on the title of a house in Montreal occupied by Daniel or that she was receiving rent from Daniel.
• The respondent claimed child care deductions on her tax returns in the 1990s, when she was not entitled to do so because the applicant’s income was lower than hers. This cost the applicant about $148,000 in taxes, interest, and penalties.
• One or more of the parties’ children lived with the applicant or on their own during the period when the applicant was still paying child support to the respondent.
• One or more of the parties’ children had grants, bursaries, loans, or other money of their own to cover their education costs. The respondent’s claim that she supported their education is untrue.
• While the Newmarket case was active, the respondent did not provide any disclosure of her income or assets.
• For the December, 2011 motion in this case, the respondent provided incomplete tax summaries and did not disclose ownership of any properties other than the parties’ former home. She has not provided any documents to substantiate her income, assets, or liabilities.
• The respondent lied when she said she did not remove furniture and fixtures from the parties’ former residence.
• The respondent did not inform FRO of the dismissal of the Newmarket case in 2003 until 2008.

[33] Section 28 of the old Limitations Act applies to the concealment of facts that would allow the victim of a fraud to discover that there was a cause of action for a claim to the land. I have been given no law that leads me to conclude that any of the facts set out above could be relevant in this case. The contributions made by the applicant that might entitle him to a claim against the land in question were always known to him. His claim for a trust or an unjust enrichment remedy is based first on his own acts while the parties were together or just separating, and second on the respondent’s failure to compensate him. The facts he relies on as a concealed fraud are either relevant to the support issue that has now been foreclosed, or else meant to indicate that the respondent is generally an untrustworthy person who lies and conceals her financial circumstances. The evidence before me does not show that these purportedly fraudulent acts by the respondent have in any way prevented the applicant from knowing that he had a cause of action or from asserting it within the 10 years after the parties’ separation.

[34] I find that the evidence does not indicate a “concealed fraud” within the meaning of section 28, and therefore the 10 year limitation period for the applicant’s claim for an interest in the house has expired.

[35] For the claim to the household furniture and the pension, a different limitation period applies.

[36] The applicant in a submission sent in after argument of the motion (and maybe not served on the respondent, I do not know), says that his claim is in the nature of breach of a fiduciary duty, to which no limitation period applied before 2004. There is no basis on the evidence to sustain the novel theory that his claim to the furniture or the pension is for a breach of fiduciary duty.

[37] His claim might be characterized, at least for the furniture, as a personal action for trespass, detinue, replevin, etc. under section 45(1) of the old Limitations Act before the 2002 amendments, in which case the limitation period was six years. There is no issue of discoverability of the cause of action or disability of the applicant that would cause the limitation period to be extended.

[38] If the applicant’s claims to the furniture and the pension are properly characterized as equitable claims for constructive trust, resulting trust, or quantum meruit, it appears that there was no limitation period under the old Limitations Act. Part II of that Act applies to trusts created by “an instrument or an Act of the Legislature”, neither of which is applicable here. The same is true for a claim for equitable tracing, though it may be that tracing is only a remedy rather than a distinct cause of action in itself. For equitable claims such as constructive trust and resulting trust, though there was no statutory limitation period, courts exercising equitable jurisdiction would refuse to allow a claim to go forward if the claimant was guilty of “laches”, that is, of unreasonable delay that put the other party at an unfair disadvantage if the claim were allowed to go forward.

[39] The respondent’s motion for summary judgment asserted that the applicable limitation periods barred all of the applicant’s claims. The evidence on delay and unfairness comes largely from the applicant. It focuses on the facts summarized above in paragraph [32]. The essence of his explanation appears to be that if he had known more about the children’s circumstances, or about the purchase of a house in Montreal after the parties’ separation, he would have come forward sooner to assert his claims in relation to pre separation assets. None of this bears on whether he knew what he needed to know in order to assert his equitable remedies from 1998 onward. The delay in not prosecuting the Newmarket case, and not coming forward after 2007, is not really explained at all. The respondent relies on the prejudice that naturally arises from the effluxion of so much time, and the arrangement of her affairs on the assumption that the applicant no longer had any claims against her.

[40] It has already been determined that the applicant delayed unreasonably in seeking to reinstate the Newmarket case and did not explain the delay satisfactorily. I am of the view that the same is true in relation to his advancement of his equitable claims here. He has not put forward in his evidence a satisfactory explanation of why it took him four years after the dismissal of his Newmarket claims came to his attention to try to bring the claims forward again. Now, more than 17 years have passed since the parties’ separation. Many of the events that he relies on in support of his equitable claims date back much farther than that. It is unreasonable to expect the respondent to have to defend them after all this time.

[41] The respondent’s summary judgment motion succeeds. However, because it is possible that the application may be revived in some manner, the order of the court should still contain the stay provision set out above.

Disclosure and a Motion for Extension of Limitation Period

[42] The applicant submits that the respondent is already in breach of a disclosure order made at the case conference of October 17, 2011. However, that order was made in the context of an application with a live support claim that was proceeding to an immediate motion. The support motion was blown out of the water, and now there is a very real question whether it will be allowed to proceed.

[43] The applicant submits that he needs to know about the respondent’s means throughout the last 18 years in order to bring forward his motion for an extension of the limitation period for his spousal support claim. What he must prove, on a motion to extend the limitation period under section 2(8) of the Family Law Act, is that:

(a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

[44] The disclosure he seeks in his disclosure list is extensive, and is of a nature and extent that would be justified if he is indeed allowed to bring forward his motion for spousal support. But for the limited purposes of establishing his “apparent grounds of relief”, he does not need anything near what he has asked for. The respondent has in her evidence for these motions before me made a number of admissions about her income over the years and her current assets. In summary, she has earned anywhere from about $80,000 to $120,000 annually for the last 15 years.

[45] For purposes of a motion under section 2(8), the applicant already has more than enough information. The means of the respondent are not the central issue at this stage, and the applicant can rely on the evidence already provided by the respondent to show that there are or were means at the relevant times. However, for the convenience of the parties and the presiding judge on such a motion, I order that in response to the motion if brought, the respondent must serve and file a financial statement in the form for a support claim, attaching the required income tax information and a summary of her income going back 15 years or as far as her records permit.

[46] The applicant’s motion for disclosure is dismissed.

Costs

[47] The respondent is to serve and file a costs submission of not more than three pages, plus any relevant offers and costs summary, by July 8. Cases and rules may be referred to but not attached. The applicant may serve and file a similar submission by July 29. The applicant may serve and file a one page reply by August 13. The applicant is responsible for having the file with the costs submissions sent to me. Oral argument may be booked if desired, after the applicant’s submission is served. A half hour telephone appointment may be made through the motions coordinator.

Perkins J. Date: June 16, 2016