CITATION: Bonnick v. Bonnick 2016 ONSC 657

OSHAWA COURT FILE NO.: FC-15-1201

DATE: 20160126

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

Tena Tamara Bonnick

Applicant

— and —

Niel Anthony Bonnick

Respondent

BEFORE: The Honourable Mr. Justice R. Timms

COUNSEL: Cheryl B. Mounsey, for the Applicant

Niel Anthony Bonnick, acting in person

HEARD: January 7, 2016

ENDORSEMENT

[1] This proceeding started in July 2015. There was a case conference held on October 16, 2015, at which “all issues were discussed”. The applicant then brought a motion, which prompted a cross-motion by the respondent. Both motions were originally returnable on December 7, 2015, but were adjourned over and heard by me on January 7, 2016. I reserved my decision on all issues, except for the relief found in paragraph 9 of the notice of motion found at Tab 9 of the continuing record. Counsel for the respondent gave his consent to that order being made. As well, I noted as part of my endorsement, that counsel for the applicant agreed on behalf of her client that any monies that the applicant had received for loss of future income, as part of the damages settlement arising out of the motor vehicle accident which had occurred on November 15, 2005, would, at the very least, have to be taken into consideration when considering the question of spousal support. I will come back to that issue later on in these reasons.

[2] The primary relief sought by the applicant in her notice of motion was the partition and sale of the jointly owned matrimonial home. That relief was opposed by the respondent.

[3] In my view, the law with respect to whether the court should grant an order for the partition and sale of a jointly owned matrimonial home is long since settled. The equalisation scheme in Part I of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) does not “oust” the court’s jurisdiction under the Partition Act, R.S.O. 1990 c. P.4 (PA).[^1] As Justice Finlayson said in Silva, at paragraph 23, “an application under s. 2 [of the PA] should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A”. Generally speaking, that statement has been interpreted to mean that an order for partition and sale of a jointly owned matrimonial home should be ordered, unless the spouse opposed to the order can demonstrate that his or her right to exclusive possession, an equalisation payment, or some other possible relief pursuant to Part I of the FLA, would be prejudiced. The onus to demonstrate such a possible prejudice lies with the party opposing an order under section 2 of the PA.[^2]

[4] When I heard the motion on January 7, 2016, I had not reviewed the whole of the file. I have now done so. What immediately struck me was that the respondent has never filed an answer or answer/claim. Therefore, he has not asserted a right to exclusive possession or an equalisation of the parties’ net family properties. As far as I am concerned, that is a fatal flaw to his opposition to the applicant’s application for partition and sale of the matrimonial home. Accordingly, I am hereby granting the applicant an order for the partition and sale of the jointly owned home located at 38 Unsworth Crescent, Ajax, Ontario.

[5] I am also granting relief in accordance with paragraphs 3 and 6 of the notice of motion at Tab 12, Volume 1, of the continuing record. The net proceeds of the sale are to be held in trust by the lawyer acting on the sale, pending further order of this court. I decline to make the orders sought in paragraphs 4 and 5 of the notice of motion at Tab 12, Volume 1, of the continuing record. There is no current evidence before the court to establish that the respondent will not comply with my order. If events prove otherwise, the applicant is free to seek further relief.

[6] Although it is moot, I almost certainly would have made the same order had the respondent served and filed an answer or answer/claim in which he sought exclusive possession or an equalisation of net family properties. Given that the two children of the marriage are in the care and custody of the applicant, and have been continuously so since the separation, it would have been close to impossible for the respondent to have made a claim for exclusive possession based on the needs of the children.[^3] Perhaps with that in mind, counsel for the respondent limited his arguments on the applicant’s motion to those that would arise out of a possible claim by the respondent for equalisation of the parties’ net family properties.

[7] The respondent’s theory is that when the equalisation of the parties’ net family properties ultimately occurrs, the applicant’s interest in the matrimonial home will have to be transferred to him to satisfy the equalisation payment owing from her to him. The applicant disagrees with that possible outcome. In my view, the argument put forward by the respondent based on a putative claim for an equalisation of net family properties is not sustainable, no matter what conclusion the court might reach regarding the value of the applicant’s net family property.

[8] Section 9 of the FLA sets out the powers of the court once an equalisation payment has been determined. Subparagraph (1)(d) of that section permits the court, if appropriate, to order the transfer or vesting of property to satisfy an obligation to pay an equalisation payment. In other words, it is a discretionary remedy and not a mandatory one. Once the matrimonial home has been sold and the proceeds held in trust as I have already ordered, the respondent will be more than adequately protected with respect to any equalisation payment owing to him.

[9] That takes me to the respondent’s motion. In that motion, the respondent seeks “a determination” from the court regarding certain monies received by the applicant as a result of a motor vehicle accident in which she had been involved. In my view, the respondent is in effect seeking what amounts to a declaration. While it is unusual to seek such relief in a motion in a family law matter, I consider that the Family Court has jurisdiction to make declaratory orders, arising out of its jurisdiction pursuant to section 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and subrule 1(7) of the Family Law Rules, O. Reg. 114/99.

[10] The motor vehicle accident took place on November 14, 2005. One of the parties’ children was unfortunately killed in that accident. The applicant pursued a civil claim which resulted in a damage award to her of $563,279.21. The amount was paid out to her in April 2013. The award was broken down as follows:

1. $217,000.00 for pain and suffering,

2. $160,000.00 for future income loss,

3. $80,000.00 for FLA claims[^4], and

4. $105,769.21 for future care, housekeeping and expenses.

[11] Pursuant to the definition of excluded property found in paragraph 3 of subsection 4(2) of the FLA, damages for personal injuries are excluded:

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

[12] When setting out her net family property, the applicant should have included the full amount of the award to her, and then claimed an exclusion for those amounts that she believes fall within the definition set out in subsection 4(2). In neither her financial statement filed on July 7, 2015, nor in the net family property statement filed by her on October 8, 2015, did she include so much as one penny of the damage award.

[13] Obviously, the amount of $217,000.00 for pain and suffering is excluded property, being damages awarded for “personal injuries”. Likewise, the amount of $80,000.00 awarded to the applicant for her claims pursuant to paragraph 61(2)(e) of the FLA is excluded, as it represents her “loss of guidance, care, and companionship”. The same is true for the amount of $30,000.00 apparently awarded to the respondent for his FLA claims.

[14] With respect to the amount of $160,000.00 for future income loss, the respondent seeks a determination of whether all of that amount would be income for the purposes of determining spousal support. As I said above in paragraph [1], counsel for the applicant agrees that it would.

[15] Both counsel included the decision of Justice Leitch in Vanderaa v. Vanderaa in their books of authorities.[^5] In that case Her Honour held that damages awarded for lost income accrued prior to the valuation date had to be included in net family property. Justice Marshman arrived at a somewhat different conclusion in Kowalski v. Kowalski.[^6] Referring to what Justice Leitch had said about loss of wages accruing both before and after the valuation date, she said in paragraph [48]:

With respect, I disagree. The section creates an exclusion based on the nature of the damages suffered, not their timing. While the result of Justice Leitch's decision is fair and equitable, in my opinion it does not flow from the wording of the exclusion section. If the legislature intended damages to be excluded if they related to a period after cohabitation, the section would have been worded to that effect.

[16] With all respect to my colleague Justice Marshman, I prefer the analysis of Justice Leitch. In my opinion, paragraph 3 of subsection 4(2) of the FLA has nothing to do with the issue, beyond an initial determination as to whether certain portions of an award for damages fall within the exclusion. Once it is determined that they do not, then one moves on to determine whether or not they are property pursuant to the definition found in subsection 4(1) of the FLA. What the court does not know in this case is what portion of the award of $160,000.00 for future income loss relates to lost income accrued prior to the valuation date, as opposed to after the valuation date. Actuarial evidence might be required on that issue. Once that has been determined, the former amount will have to be included in the applicant’s net family property.

[17] That leaves the award of $105,769.21 for future care and housekeeping expenses. The issue of how such amounts are to be qualified has mainly come up in the context of support cases. For example in Rivard v. Hankiewicz[^7] Justice Murray was required to consider whether all or part of a structured settlement was income as defined under the Child Support Guidelines.[^8] Her Honour concluded that only that portion of a structured settlement relating to lost income, as opposed to any amount for costs of future care, would fall within the definition of income. I find that analysis sound. However, the question of whether they should be considered property is less clear. One case that might have clarified the matter, Lewcock v. Natili-Lewcock,[^9] contained no clear statement of the law since the parties had agreed that the settlement monies would be included in the calculation of family property. As a result, Justice Aston held that the court would not interfere with their agreement (at paragraph 21).

[18] In the case of Prince v. Prince,[^10] Justice Festeryga had to determine whether accident benefits fell within excluded property as defined in paragraph 3 of subsection 4(2). It was his conclusion that they did not. For reasons that amount to obiter, His Honour went on to disagree with Justice Mendes da Costa in Shaver v. Shaver[^11] as to lost wages and disability benefits not falling within the exclusion. I respectfully disagree with Justice Festeryga. The categories (heads) of excluded damage awards contained in paragraph 3 of subsection 4(2) are exhaustive. Modifying what His Honour said in paragraph [19] of his judgment, had the legislature intended to exclude all damage awards, no matter what for, it would not have been necessary to enumerate them.

[19] Even though it does not appear to be settled by the case law whether damages for costs of future care should be included in calculations of family property, it is my view that they should be. I hold that view because they are not specifically excluded. That said, depending upon the facts of the case, their inclusion might well generate a successful subsection 5(6) argument. For example, the recipient of the award could have very real and substantial past or future expenses for services and care. Any determination on this issue could well be heavily fact-driven. This is an issue that could well require determinations by a trial judge after careful consideration of the evidence; it would be premature for me to decide this issue now. For that reason, I decline to make a ruling on this matter at this stage.

[20] It seems obvious that both parties should have come to court on January 7, 2016, armed with net family property statements, and the documentation to support the figures contained therein. Neither did. Both counsel should ensure that when they attend at the settlement conference there are no gaps with respect to their assets and liabilities as per Form 13B.

[21] Counsel for the applicant may serve and file cost submissions, restricted to five pages, exclusive of a bill of costs, by forwarding same to my secretary within ten days of the release of this judgment. Counsel for the respondent may serve and file their response, restricted to five pages, within seven days thereafter and counsel for the applicant may serve and file their reply, restricted to five pages, within four days thereafter.

The Honourable Mr. Justice Roger Timms

DATE RELEASED: January 26, 2016

[^1]: Silva v. Silva, 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436. [^2]: Davis v. Davis, 1953 CanLII 148 (ON CA), [1954] O.R. 23; Silva v. Bettencourt, 2002 CanLII 49534 (ON SC), 28 R.F.L. (5th) 430; Brienza v. Brienza, 2014 ONSC 6942, 2014 CarswellOnt 16820. [^3]: The applicant asserts that the separation occurred in September 2012. The respondent says that it was in December 2013. Based on the facts set out by the applicant in her own materials, I cannot see a court concluding that the valuation date as defined under section 4 of the FLA occurred any earlier than September 2013. [^4]: Although the respondent did not mention anything in his materials, his counsel advised the court during argument that he had received $30,000.00 for his FLA claim. [^5]: 1995 CanLII 7350 (ON SC), 18 R.F.L. (4th) 393. [^6]: [1997] O.J. NO. 4050. [^7]: 2007 ONCJ 180, 38 R.F.L. (6th) 189. [^8]: O. Reg. 391/97. [^9]: [2001] O.J. No. 2051 (Ont. S.C.). [^10]: 2006 CanLII 27873 (ON SC). [^11]: 1991 CanLII 12853 (ON SC), 1991 CarswellOnt 346.