Court File and Parties
COURT FILE NO.: Brampton CV-16-0971-00 DATE: 2016-08-24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHAEL MIKHAIL, Plaintiff AND: DEIDRE JOYCE COLE O/A DEIDRE MARINELLI, ROBERT COLE, MARY LOU BOUSFIELD by her Litigation Guardian ROBERT COLE, Defendants
BEFORE: Gibson J.
COUNSEL: Michael Mikhail, Self-Represented Aleksandar Jovanovic, Counsel for the Defendants
HEARD: July 13, 2016
Endorsement
[1] This is a motion brought by the Defendants under Rules 21 and 25.11 of the Rules of Civil Procedure to dismiss the action on the basis that it is an abuse of process or, in the alternative, that the Statement of Claim discloses no reasonable cause of action and is replete with contraventions of the rules of pleadings. In sum, the Defendants submit that the Plaintiff claims an equalization payment and spousal support, and that these claims should have been brought in their matrimonial litigation.
Issues
The matters in contention on this motion may be distilled to three issues:
- Is the action an abuse of process?
- Is it plain and obvious that the Statement of Claim discloses no reasonable cause of action?
- Is the Statement of Claim so replete with contraventions of the rules of pleadings that it ought to be struck without leave to amend?
Facts
[2] The Plaintiff Michael Mikhail (“Michael”) and the Defendant Deidre Marinelli (“Deidre”) married on June 30, 2000 and separated on July 3, 2006. There is an ongoing family law proceeding relating to Michael and Deidre and the custody of their daughter Isabella. Robert Cole is Deidre’s father. Mary Lou Bousfield is Deidre’s stepmother.
[3] According to the Financial Statement filed by Deirdre in their matrimonial litigation, she was insolvent at the time of their separation because she and Michael were jointly and severally liable to repay a number of loans used to finance Michael’s business ventures. Deidre made a consumer proposal to her creditors that was fully performed on September 17, 2010.
[4] Neither spouse brought an application for equalization of net family property under the Family Law Act (“FLA”) because they were both insolvent. Michael never advanced a complaint about the financial disclosure provided.
[5] The family law proceeding was commenced in the Ontario Court of Justice and related to custody of and access to Isabella. Deidre was granted sole custody and Michael was granted access. He was represented by counsel throughout. They were divorced on September 27, 2009.
[6] Michael has brought multiple motions to vary the final custody order. He seeks additional access. Deidre resists these motions and seeks to have Michael’s access determined by Isabella’s views and preferences. At a March 1, 2016 case conference related to Michael’s motion to change, Michael served Deidre with the Statement of Claim in this action.
[7] Michael alleges that Deidre diminished marital assets prior to separation, and concealed her assets in order to deprive Michael of his purported entitlement to the one-half difference between their Net Family Properties, and to avoid paying spousal support; and, that she defrauded her creditors as part of her consumer proposal by misrepresenting the value of her assets.
Position of the Parties
1. Abuse of Process
Defendants
[8] The Defendants submit that this action should be struck as an abuse of process. They say that the Plaintiff is attempting to circumvent the Family Law Act. He claims that the Defendants fraudulently concealed Deidre’s assets so that she would not have to make an equalization payment or spousal support payments. The damages claimed by the Plaintiff are therefore premised on his alleged entitlement to an equalization payment and spousal support under the FLA. No such entitlement has been proven under the FLA.
[9] The Defendants say that the Plaintiff must bring an application under the FLA to prove his entitlement to an equalization payment and/or spousal support: Cunningham v. Moran, 2011 ONCA 476, and Sutton v. Balinsky, 2015 ONSC 3081. Litigants with these types of claims are not entitled to make an election between the procedure prescribed by the Civil Rules and that provided by the Family Rules.
[10] The limitation period applicable to the Plaintiff’s claims under the FLA has expired and the Plaintiff would be forced to meet a high bar in order to be allowed to pursue that claim. The Plaintiff has brought this civil action to circumvent the scheme provided by the FLA and the Family Law Rules. As a result, the Defendants say, this action is an abuse of process and it should be struck pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure.
Plaintiff
[11] The Plaintiff submits his claims are transactional in nature and provable through discovery.
2. Does the Statement of Claim Disclose a reasonable cause of action?
Defendants
[12] If the Court finds that this action is not an abuse of process, the Defendants submit in the alternative, it is plain and obvious that the Statement of Claim discloses no reasonable cause of action. Even if the facts pleaded are assumed to be true, the only cause of action that is pleaded and recognized at law is negligence. They assert that the Plaintiff has not pleaded sufficient facts to support the constituent elements of negligence.
[13] The Defendants assert that the Plaintiff has no entitlement to damages because no court has determined that he is entitled to an equalization payment or spousal support. In addition, no statutory regime could entitle the Plaintiff to damages against Robert or Mary Lou since they are not subject to any FLA claims that could be brought by the Plaintiff.
Plaintiff
[14] The Plaintiff maintains that his claims are legitimate and that the Defendants worked to defraud him of the ability to pursue his entitlements in the matrimonial litigation.
3. Is the Statement of Claim so replete with contraventions of the rules of pleadings that it ought to be struck without leave to amend?
Defendants
[15] As a further alternative argument, the Defendants submit that the Statement of Claim ought to be struck in accordance with Rule 25.11, without leave to amend. The Defendants submit that the Statement of Claim is scandalous because it contains bare allegations of fraud, without sufficient material facts to support them. It also contains unsupported statements of personal belief and pure argument, and is filled with irrelevant inflammatory language. The Plaintiff, they say, pleads fraud without providing the necessary particulars, which renders the Defendants unable to defend them. The Defendants say that the Statement of Claim also contains irrelevant bad character proceedings. The entirety of the Statement ought to be struck as a result.
Plaintiff
[16] The Plaintiff does not respond to this argument directly- he simply maintains that his claims are legitimate and that the Defendants are only seeking to delay this action and waste the Court’s time.
Analysis
[17] I agree with the Defendants that the circumstances of the present case are very similar to those in Cunningham v. Moran. In dismissing the action as being an abuse of process, the Court of Appeal for Ontario stated in that case at paragraph 36:
“First, the appellant is attempting, in an action for damages brought under the Rules of Civil Procedure, to address issues governed by the Family Law Act, the Child Support Guidelines, O. Reg 391/97 and the Family Law Rules, O. Reg. 114/99. In our view, this attempt, in itself, amounts to an abuse of process.”
[18] The Court of Appeal went on to hold that absent a determination under the applicable legislative scheme, no entitlement arises and an Action for damages does not therefore lie in relation to such amounts.
[19] I also concur with the argument of the Defendants that the present case is very factually similar to that in Sutton v. Balinsky, 2015 ONSC 3081, where Dunphy J. held that the plaintiff in that case was seeking in her action to accomplish indirectly via a damages claim what she chose not to seek to do directly in FLA proceedings, and that there is no election of remedies between civil and statutory remedies where FLA rights are concerned: if the plaintiff has a claim under the FLA, she must pursue it directly under the FLA and not indirectly via a negligence or similar action.
[20] In the present case, Michael’s claim for equalization of net family property is proscribed by s. 7(3) of the Family Law Act which prohibits Michael from bringing such an action after the earliest of either two years from the date of the divorce order (September 11, 2007) or six years from the date of separation (2012). Michael can only extend the time prescribed by the Family Law Act in accordance with s. 2(8) of the Act, which sets a high bar.
[21] I concur with the argument of the Defendants that in the present case, the Action arises only as a result of the marriage between Michael and Deidre and Michael must therefore pursue his claim under the applicable legislative scheme. Absent a determination under the applicable legislative scheme, Michael is not entitled to damages.
[22] I therefore consider that to permit the Action to proceed under the Rules of Civil Procedure would allow Michael to circumvent the Family Law Act, and would constitute an abuse of process.
[23] Given my conclusion on this issue, it is not necessary for me to consider the second and third issues.
Disposition
[24] The Plaintiff’s action is dismissed as an abuse of process.
[25] If they are not able to agree on costs for this motion, the Parties may make submissions to me in writing, not to exceed three pages (plus a bill of costs). The Defendants will have two weeks from the release of this endorsement to provide any submission, and shall ensure that a copy is provided to the Plaintiff. The Plaintiff will have one week to respond, with a copy to the Defendants. The Defendants will then have one week further for any reply.
Gibson J. Date: August 24, 2016