SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Bradley Evans, Applicant
AND
Debra Lynne Evans, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Gary Blaney, Counsel, for the Applicant
Leonard Max, for the Respondent
HEARD: October 18, 2016
ENDORSEMENT
Overview
1The Respondent requests that the Court strike portions of the Applicant’s Change Information Form filed in support of a motion to vary the final order of Justice Sheffield dated May 19, 2009 (“Final Order”). He submits that these paragraphs contain allegations of events predating the Final Order and, as such, offend the principles of issue estoppel or res judicata. On a review or a variation application, the Court should only consider events occurring after the Final Order.
2The Applicant opposes the motion on the basis that these allegations do not raise a question of law and alternatively, it is a decision for the trial Judge who will be dealing with both a review and a variation based on a material change of circumstances.
3The issues are as follows:
i) Is there a question of law for the Court to decide before trial that may dispose of all or part of the case, substantially shorten the trial or save substantial costs pursuant to Family Law Rule (FLR) 16(12) (a)?
ii) Should the Court strike out portions of the Applicant’s Change of Information Form as it sets out no reasonable claim or defence in law pursuant to FLR 16 (12) (b)?
iii) Is the trial Judge in a better position to determine whether the Court should hear evidence on these allegations due to principles of issue estoppel or res judicata?
4For reasons set out below, the Court dismisses the motion with costs reserved to the Trial Judge.
Background
5The parties were married on December 4, 1982 and separated on November 14, 2000. The parties were divorced on August 13, 2003.
6They had two children Scott, born April 16, 1988 and Lauren, born April 10, 1990 who are financially independent.
7The parties signed final Minutes of Settlement (“Minutes”) dated October 2002. The Applicant agreed to pay the Respondent the amount of $3000 per month as spousal support.
8The Minutes also provided for the following:
Paragraph 2.04: The wife is presently a homemaker. She has received her certificate as a legal secretary and worked in the past as a legal secretary, and acknowledges her obligations to make all reasonable efforts to become economically self-sufficient as soon as possible. The wife represents that she has already commenced efforts to retrain and seek employment and confirms that she will continue to do so in an effort to maximize her income potential.
Paragraph 5.03: The wife acknowledges that the husband reserves the right to seek a variation of his spousal support obligations in the event that he feels that the wife has not made reasonable efforts to retrain and or seek employment. The husband reserves the right to argue that the wife’s failure to do so may constitute a material change of circumstances which can give rise to a variation which may include a reduction of spousal support.
Paragraph 5:04: In addition to any application to vary, either party may apply to a court of competent jurisdiction on or after May 1, 2007 to reconsider the wife’s entitlement to support and any continuation of support. The quantum of support, if any, should be decided in light of all of the circumstances as may then exist and upon application of s.15 (5) and (7) of the Divorce Act.
9In 2007, the Applicant brought a motion to change requesting a termination of spousal support (“2007 motion”).
10In the Applicant’s affidavit dated April 10, 2007, the Applicant alleged that the Respondent did not fulfil her obligation to seek any form of employment and training. He alleges that between 2000 and 2002, she had only applied for one position. In July 2002, she undertook what she described as a vocational assessment and instead of undertaking any formal retraining she took a part-time position at a local school board. He alleges that she breached her obligation to make reasonable efforts to become economically self-sufficient or retrain in any substantial way.
11On consent, the parties agreed to the Final Order. In the preamble, the parties acknowledged that there was a dispute between the parties as to what income to be used. The Applicant reserved his right to seek a termination of spousal support. He agreed to pay monthly spousal support in the amount of $5,400 commencing June 1, 2009. The Respondent would pay to the Applicant child support in the amount of $281 for Lauren based on annual income of $31,000. The other terms of the Minutes remained in full force and effect.
12The Applicant’s motion to change the Final Order was instituted on June 21, 2012 which is the subject of the current litigation (“Current Motion”).
13By way of a preliminary matter, the Court permitted the parties to file affidavits in support of this motion pursuant to FLR 16 (13) which states that evidence is not admissible on a motion to determine a legal issue before trial, save on consent of the parties or with permission of the Court. Although motions of this nature are usually determined on pleadings only, the Court held it was fair to allow the Applicant to respond to the Respondent’s counsel’s staff member’s affidavit filed in support of the motion.
Respondent’s Position
14The Respondent requests an order pursuant to FLR 16(12) (a) on a question of law as the Applicant’s materials filed in the 2007 motion made allegations of the Respondent’s lack of efforts to become financially self-sufficient. He repeats the same grounds in this Current Motion thereby referring to events occurring after separation but before the Final Order.
15In addition, these offending paragraphs do set out a reasonable claim and should be struck pursuant to FLR 16(12) (b).
16In the 2007 motion, the Applicant pleaded that the Respondent failed to take good faith steps to become economically self-sufficient in the previous proceeding.
17By consenting to the Final Order settling all claims, the effect of the doctrine of res judicata and issue estoppel estops him from raising these claims again in the Current Motion. He submits that the Applicant may proceed with the variation only on the ground of his retirement.
Applicant’s Position
18The Applicant’s motion is not properly a question of law under FLR 16 (12)(a).
19Secondly, the trial Judge will likely hear evidence of the history of the parties and their respective roles when considering the factors and objectives pursuant to the Divorce Act. A motions Judge should not be “cutting and pasting” what evidence will be permitted at trial when it determines the issue of spousal support. Therefore, the claim should not be struck pursuant to FLR 16(12)(b).
20The Current Motion is requesting a review pursuant to the Minutes and a variation based on a material change of circumstances.
21A review allows the Court to treat the matter as an initial application to determine entitlement, quantum and duration. The objectives and factors set out in the Divorce Act will be considered by the Court in this determination. In doing so, the Respondent’s efforts to become self-sufficient will be reviewed. The evidence with respect to this issue and the time period should be left to the trial Judge.
i) Is there a question of law for the Court to decide before trial that may dispose of all or part of the case, substantially shorten the trial or save substantial costs pursuant to FLR 16(12) (a)?
Legal Principles
(i) Family Law Rule 16
21FLR 16 (12) provides that the Court may, on motion,
(a) Decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(ii) Res Judicata and Issue estoppel
22According to the law of evidence there were two principles subsumed under the heading res judicata. The first is that any action or issue which has been litigated and upon which a decision has been rendered cannot be retried in a subsequent suit between the same parties. This principle prevents the contradiction of that which was determined in the previous litigation by prohibiting the relitigation of issues already actually addressed.
23The second principle makes it mandatory that a plaintiff asserting a cause of action is claiming all possible relief in respect thereto prevents any second attempt to invoke the aid of the courts in the same cause. That is, the plaintiff’s cause of action becomes “merged” in the judgment. The judgment actually operates as a comprehensive declaration of the rights of all parties in respect of the matters in issue. The principle prevents the fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which property belonged to it.
24A judgment by consent raises issue estoppel in the same manner as the judgment which has been contested.
25In Komarniski v. Komarniski 1982 CanLII 1286 (AB KB), [1982] 29 R.F.L. (2d) 150, the Alberta Queen’s Bench struck a statement of claim in a second proceeding dealing with the same issues argued in the prior proceeding, i.e. division of property.
26In Horsfall v. Horsfall 1988 CanLII 8789 (MB QB), [1988] 14 R.F.L (3d) 393, the Manitoba Queen’s Bench dealt with a case where the wife was estopped from raising the issue of the without prejudice agreement in the second proceeding as she had failed to do so in the first proceeding.
27Professor MacLeod’s annotation to this case commented on the issue of res judicata/issue estoppel in family law cases. The court in Horsfall accepted the notion that a party asserting a cause of action must claim all of his relief in respect to it in one proceeding and not try to “split his claim”. He states that “all relief which flows from the facts alleged and can properly be brought in one proceeding should be brought”.
28Professor MacLeod refers to Patterson v. Antonucci [1988] W.D.F.L. 1744 where the Court refused to allow a woman to claim damages for assault as she could have made such a claim in the earlier proceedings between the parties which had been settled. “Especially in the case of settlement, courts should try to ensure that all claims arising out of the ‘family’ relationship that could be brought together have been brought together, unless both parties clearly intended the issue to survive”.
(iii) Review and Variation Proceedings
29The difference between a review and a variation on a final order is that in the latter case, a party must prove that there has been a material change of circumstances.
30A review is expressed in the Ontario Court of Appeal decision of Fisher v. Fisher 2008 ONCA 11:
Para. 63: A review allows an application for support without the need to prove the material change in circumstances required in a s. 17 variation application. Unless the review is restricted to a specific issue, it is generally equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum.
31In Choquette v. Choquette [1998] CarswellOnt 2939, the Ontario Court of Appeal stated at para.3:
The review order was defined by counsel in terms described by Prof. James G. McLeod in his annotation to the case of Trewin v. Jones (1997), 1997 CanLII 1105 (ON CA), 26 R.F.L. (4th) 418 (Ont. C.A.) at 420 as follows:
Under a review order either party may return the matter to court at a fixed time. On the return, the court will review support entitlement, form, duration and quantum on the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies. Neither party has to prove a material change in circumstances.
32The Applicant refers to Hickey v Princ 2015 ONSC 5596 decision of the Divisional Court where the parties had by consent order determined spousal support. The husband retired in 2013 at age 51 and brought an application for a reduction of spousal support based on a material change to his income following retirement. At the motion, spousal support was reduced to $1,050 per month and was to terminate in October 2021.
33The Divisional Court allowed the appeal and heard fresh evidence on consent. In the original divorce proceedings, the husband had consistently denied that his pension should be valued at his earliest date of eligibility and that he would never have intended to retire at the earliest possible opportunity. His lawyer admitted, five years after the divorce, that settlement of the property was based on a pension valuation at age 55.
34The Applicant refers to variation application cases including the Nye v. Nye 2016 ONSC 1853, [2016] CarswellOnt 4894 case and the Richardson v. Matuzic 2015 ONSC 5752, where the Court reiterates the background including facts existing before and after the execution of minutes of settlement.
35In Leyland v. Baillie, [2006] O.T.C. 300 (S.C.), at para 51, Justice Coats states:
The review must take into consideration the same factors and objectives which would be employed in determining a spousal support application in the first instance. This does not mean that the court ignores the circumstances of the execution of the Separation Agreement, what has happened since and the current circumstances at the time of the review. The court must consider all of the background as a context for the review. The Separation Agreement is part of the backdrop of the review, as is the pre-Agreement and post-Agreement circumstances of each party. On a review of the provisions of a valid Agreement, the court should take into account the present circumstances in a way that continues to give due weight to the original agreement.
Analysis
36Firstly, FLR 16 motions are in the nature of summary judgment which enables the Court to deal with matters prior to trial in accordance with the principles of FLR 2, i.e. to deal with cases justly, ensuring the process is fair to all parties, saving time and expense and dealing with the case in ways that are appropriate to its importance.
37FLR 16(12) specifically permits the Court to determine a question of law prior to trial.
38A question of law can take various forms, including question of jurisdiction, limitation act and statutory interpretation.
39It is clear that the intent of this FLR is to review the pleadings to determine if a question of law can be determined on the face of the pleadings. The question of issue estoppel or res judicata is a question of law.
40The alleged offending portions of the Applicant’s Change Information Form 15 are:
Paragraph: 5: The minutes of settlement represented that “The wife is presently a homemaker. She has received a certificate as a legal secretary, worked in the past as a legal secretary, and acknowledges her obligations to make all reasonable efforts to become economically self-sufficient as soon as possible. The wife represents that she has already commenced efforts to retrain and seek employment and confirms that she will do so in an effort to maximize her income potential.”
41The Court finds that this is not offending the issue estoppel rule. This paragraph merely reiterates a paragraph in the Minutes which continue to be in full force and effect after the Final Order. The Minutes did not merge with the Final Order.
42The other paragraphs deal with allegations of events that would have occurred before the Final Order.
Paragraph 7: In fact for several years following the signing of the Minutes of Settlement, the wife took virtually no steps to retrain or work.
Paragraph 8: During the same period of time the husband was virtually solely responsible for the financial support of both children of the marriage. The husband supported the children through various post secondary educational pursuits with virtually no contribution or assistance be it financial or otherwise from the wife
Paragraph 17 (b): The wife reached her obligation for a period of excess of five years after the date of the signing of Minutes of Settlement whereby she agreed that “The wife represents that she has already commenced efforts to retrain and seek employment and confirms that she will continue to do so in an effort to maximize your income potential”. She in fact took no meaningful steps for a period of over five years to retrain or upgrade in any fashion. If she had done so she would have been able to obtain meaningful employment years earlier and would have contributed to her own economic self-sufficiency years earlier”.
Paragraph 17 (c): The husband was the parent who solely contribute to the very expensive post secondary educational costs and other costs as well as their care and nurturing during those years for both children of the marriage. This took place during the time that the wife was fully capable of financially contributing towards the educational and other costs of the children as well as their care and nurturing but chose not to do so. The wife benefited vary substantially from the fact that the husband paid virtually all of these expenses and took care of their housing and other personal needs and thereby freed the wife to contribute to her own economic self-sufficiency.
43Generally speaking, a variation application based on a material change of circumstances and a review would be reviewing the events that occurred since the last order. Therefore, these paragraphs do raise a question of law which may offend the principles of res judicata and issue estoppel.
44However, as will be discussed below, this question of striking these paragraphs requires an analysis under the relevant legislation and should not be considered in isolation.
ii) Should the Court strike out portions of the Applicant’s change of information form as it sets out no reasonable claim or defence in law pursuant to FLR 16 (12) (b)?
Legal Principles
45FLR 16 (12) (b) reads that a Court may, on motion:
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law;
46A review of the case law would suggest that the intent of this subsection is to ensure that there is a reasonable claim or defence worthy of a trial.
47This section mirrors the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the “Rules”) 21.01(b) and the case law is clear that the Court must determine if it is plain and obvious that no tenable cause of action is possible on the facts alleged. Conway v. Law Society of Upper Canada [2016] ONCA 72.
48It has been held that the in order to succeed, the Respondent must demonstrate that “it is planned and obvious and beyond a doubt” that the claim discloses no reasonable cause of action. Mabey v. Mabey 2005 CarswellNS 72. R.D. Belanger & Associated Ltd. v. Stadium Corp. of Ontario Ltd. (1991) 1991 CanLII 2731 (ON CA), O.J. 1962 (Ont. C.A.).
49In Mantella v. Mantella (2005) 2005 CarswellOnt. 2850 (Ont.S.C.J.), the Court dismissed the husband’s summary judgment motion to dismiss the wife’s claim as the Court must accept the facts alleged in the pleadings as proven unless they are patently ridiculous or incapable of proof. It is not the Court’s role to assess credibility or weigh the evidence, of the wife’s claim that the separation agreement should be set aside based on duress, failure to disclose or unconscionability despite the husband’s strong defence to the wife’s claim.
50In Frick v. Frick [2016] ONSC 359, the Respondent was successful in striking out the claim pursuant to FLR 16(12)(b) as the claim was without merit and did not disclose a reasonable claim in law. The amended application included allegations that the Respondent recklessly depleted his net family property by spending money on a mistress, escorts, and adult websites. On that basis, the Applicant sought an unequal division of net family property in her favour, under s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”)
Analysis
51It is clear that the Applicant has in paras. 7, 8 and 17 asserted a claim or a statement that they intend to be true.
52It is also clear that the claims predate the Final Order.
53Paragraph 17 (a) refers to the Minutes which is certainly properly before the Court. In addition, para. 17 (b) speaks of the Applicant taking on the obligations of the children after separation. The Court questions the relevance of this as the current motion is dealing with spousal support. However, it notes that one of the objectives of spousal support under s. 15.2 (b) is to apportion between the spouses any financial consequences arising from the care of any child.
54The parties’ financial responsibility may have impacted other issues of support, such as economic hardship and efforts to obtain employment. To strike this claim, could prevent both parties from having the court consider this objective on a broader approach.
iii) Is the trial Judge in a better position to determine whether the Court should hear evidence on these allegations due to principles of issue estoppel or res judicata?
Legal Principles
55Firstly, in its determination of spousal support, a trial Judge will need to consider the Divorce Act s. 15.2 (4) and (6) which are reproduced below:
Factors:
(4) In making an order under subsection (1) or an interim order under subsection (2), the Court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Analysis
56The trial judge will be hearing evidence of what occurred after the Final Order. However, should he or she be prevented from considering the allegations contained in those paragraphs as they predate the Final Order?
57Firstly, it is assumed that the Final Order is correct and the parties will not be entitled to relitigate issues that resulted in that order. The Respondent was found to still be entitled to and in need of spousal support.
58Nevertheless, the Court is reluctant to parse out segments of the Change of Information Form and thereby curtail the trial Judge’s ability to determine the relevance of evidence. A trial Judge will be interested in the background and explore information, context and time lines to determine the basis of spousal support, i.e. compensatory, non-compensatory or contractual
59In determining spousal support, the trial Judge must review all four objectives set out in s. 15.2(6). The Supreme Court has stated that none of the objectives have more weight than the others. In its attempt to achieve on of its objective, the Court will consider if it is practicable for her to become financially self-sufficient. As a motion Judge, it is prejudicial to the Applicant if the Court precludes a trial Judge from considering this objective. Essentially, such an order would impede a trial Judge’s ability to consider what evidence he/she can consider in determining this objective.
60Certainly, a review is unlike a variation as it does not require a material change of circumstances. As stated in Choquette, the Court will consider the facts as they exist at the trial and will undoubtedly need to review the history of the proceedings. What has occurred since the Final Order will also be explored.
61The allegations contained in these paragraphs are evidence. The Respondent is at liberty to object to the leading of evidence that supports this claim and it will up to the trial Judge to determine what he or she needs to hear to achieve the objective set out in s. 15.2(6) (d).
62This is particularly so in light of Dr. Lazarovitz’s report which finds one of the causes of the Respondent’s current depression and anxiety is “years of abuse”. The Applicant submits that this allegation is directed at him and of course, this will likely invite the Court to consider events before the Final Order.
63Therefore, it may be premature to determine what the Court may wish to consider regarding the evidence at trial. If the parties lead evidence that predates the 2009 order, then the trial Judge will determine if it offends the issue estoppel principle.
64In conclusion, the Court must balance the directive to manage cases justly and to determine issues in as efficient a manner as possible, with the requirement that the Court have an adequate basis upon which to ground its legal findings. Since these claims may have a bearing on the trial Judge’s final determination, the Court declines to do so at this time.
65Given that the decision regarding the issues raised in this motion has been postponed until trial, the costs of this hearing are reserved to the trial Judge.
Madam Justice A. Doyle
Date: October 25, 2016
CITATION: Evans v Evans, 2016 ONSC 6612
COURT FILE NO.: 02 FL -978-2
DATE: 2016/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: David Bradley Evans, Applicant
AND
Debra Lynne Evans, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Gary Blaney, Counsel, for the Applicant
Leonard Max, for the Respondent
HEARD: October 18, 2016
ENDORSEMENT
Madam Justice A. Doyle
Released: October 25, 2016