CITATION: Mignella v. Federico, 2016 ONSC 7606
COURT FILE NO.: FS-11-4809-00
DATE: 2016-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GIANNI (JOHN) MIGNELLA
Self-represented
Applicant
- and -
MARIA TERESA FEDERICO
Self-represented
Respondent
HEARD: December 6, 2016,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] Mr. Mignella moves to set aside an Order this court made on October 9, 2012, and for an Order replacing it with the terms of a Separation Agreement the parties signed on February 6, 2013. The Agreement provides, among other things, that Mr. Mignella’s spousal support obligation will end in March 2017. Ms. Federico has served a responding affidavit in which she alleges, in effect, that in June 2014, Mr. Mignella unilaterally reduced the support he was paying pursuant to the Agreement and has since feigned incapacity to work. She opposes his motion and claims a re-adjustment of support and contribution to s. 7 expenses based on income to be imputed to Mr. Mignella.
BACKGROUND FACTS
[2] Mr. Mignella and Ms. Federico are now 46 years old. They married on July 13, 2000, and separated January 11, 2010, when Mr. Mignella moved out of the matrimonial home.
[3] Each of the parties has a son from a previous relationship. Mr. Mignella’s son, Nicholas Mignella, will soon be 22 years old (born December 15, 1994). Ms. Federico’s son, Christian Federico, is 21 (born April 3, 1995).
[4] Mr. Mignella and Ms. Federico have one child together, Sebastian Mignella, who is 13 (born February 8, 2003), and lives primarily with Ms. Federico.
[5] With the help of a mediator, the parties negotiated a parenting agreement, which they signed on March 29, 2011. It provides that Mr. Mignella may have access to Sebastian’s on alternate weekends and on one night mid-week.
[6] Mr. Mignella began the present proceeding on December 9, 2011, by an Application in which he claimed custody of the parties’ child, Sebastian, and child support for him, equalization of net family property and sale of the matrimonial home. Ms. Federico delivered an Answer on January 17, 2012, in which she also claimed divorce, custody of Sebastian and a child from a previous relationship, Christian, child support for them, and equalization of net family property.
[7] Mr. Mignella, who had earned $127,000 in 2009, working in construction, was injured in an automobile collision in July 2011, which he says left him unable to work. He received accident benefits, including Income Replacement Benefits until January 2012, when his insurer determined that he was capable of employment. Ms. Federico asserts that he is capable of earning income, but has been residing with his parents in Woodbridge where he is renovating his parents’ home while he maintains a condominium elsewhere from which he may be deriving rental income.
[8] Ms. Federico developed cancer for which she underwent treatment. She earned $22,384.00 in 2011 but has since gradually increased her income until it is now approximately $54,000 per year.
[9] In 2012, Mr. Mignella moved for an order for sale of the matrimonial home, which he left when the parties separated, and to enforce a parenting agreement that the parties negotiated in March 2011. Ms. Federico moved for interim spousal support and for interim child support for Sebastian and for Ms. Federico’s son from a previous relationship, Christian, for whom she says Mr. Mignella stood in place of a father. Both parties represented themselves at the hearing of the motions, which were heard on the eve of a trial that was scheduled to begin November 19, 2012, and was expected to last four days.
[10] The court made an order on October 9, 2012, dismissing Mr. Mignella’s motion for interim sale of the matrimonial home, dismissing Ms. Federico’s motion for interim child support for Christian, and ordering interim child support for Sebastian and interim spousal support for Ms. Federico based on Mr. Mignella’s then income of $45,416 from the date of separation.
[11] Following the court’s order of October 9, 2012, Mr. Mignella made further motions but while they were pending, the parties entered into a final Separation Agreement, each apparently with independent legal advice, on February 6, 2013. Neither party filed the Agreement with the Ontario Court of Justice pursuant to the provisions of section 35 of the Family Law Act. In his affidavit, Mr. Mignella apologizes for not doing so.
[12] On February 19, 2013, Justice Donohue endorsed the record that Mr. Mignella’s motions were withdrawn, as the parties may have resolved the issues and the Office of the Children’s Lawyer was involved. She adjourned the proceeding to February 22, 2013, when the parties attended with their signed Separation Agreement. Mr. Mignella had not yet secured confirmation of independent legal advice from a lawyer. Justice Donohue further endorsed the record, “Pursuant to this Agreement and the Minutes of Settlement signed today, Order is to go as agreed.” The Minutes of Settlement contained the terms of disposition of the matrimonial home, whereby Ms. Federico would transfer title to Mr. Mignella and vacate the home by March 2, 2013.
[13] Justice Donohue provided that the Order was conditional on Mr. Mignella providing the final Agreement with his lawyer’s confirmation of independent legal advice and serving it on Ms. Federico on February 25, 2013.
[14] On April 4, 2013, Justice Barnes noted that the parties settled outstanding matters pursuant to Minutes of Settlement dated February 22, 2013. Justice Barnes severed the claim for divorce from the claims for custody and access and noted that Ms. Federico had agreed to dispense with her May 1, 2013, spousal support payment to compensate Mr. Mignella for the cost of building materials which Ms. Federico was to have left in the home.
[15] On August 26, 2014, Justice Fragomeni made a final order in accordance with Final Minutes of Settlement filed. The Final Minutes of Settlement provided that the parties would have joint custody of Sebastian, who would reside primarily with Ms. Federico, and set out an access schedule for Mr. Mignella. Page 8 (of 9) of the Final Minutes of Settlement stated “These Minutes of Settlement resolve all outstanding claims (raised by either party) in this proceeding on a final basis and any outstanding claims shall be noted withdrawn and any temporary orders are hereby terminated.”
ISSUES
[16] The court must determine the status of the Order made on October 9, 2012, and whether this court has the jurisdiction to set it aside.
POSITIONS OF THE PARTIES
[17] Both parties seek variations of the temporary order made by this court on October 9, 2012. For the reasons set out below, it is unnecessary to set out the reasons they advance in support of their claims, as this is not the proper court to which the claims should be made.
ANALYSIS AND EVIDENCE
Legislative framework
[18] The court has limited jurisdiction to set aside orders previously made. This jurisdiction is provided by Rule 25(19) of the Family Law Rules, which provides:
25(19) The court may, on motion, change an order that,
(a) Was obtained by fraud;
(b) Contains a mistake;
(c) Needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) Was made without notice; or
(e) Was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.[^1]
[19] None of the foregoing conditions is met in the present case.
[20] The final order of Justice Fragomeni dated August 26, 2014, based on the Minutes of Settlement filed at that time, terminated any temporary orders made in the proceeding. The order was to be in the terms of the Minutes of Settlement filed, which provided that “These Minutes of Settlement resolve all outstanding claims (raised by either party) in this proceeding on a final basis and any outstanding claims shall be noted withdrawn and any temporary orders are hereby terminated.”
[21] Even if Justice Fragomeni’s Order had not specifically terminated all temporary orders made in the proceeding, a final order in the proceeding had that effect in any event. Justice T. A. Platana, in L.J.J.C. v. V.S.C., in 2006, stated:
The very unfortunate aspect of the balance of this claim is that Mrs. V.S.C. is not present in order to pursue any of the rest of her claims either under her divorce action, or under her civil action. On that basis, I have no choice but to dismiss her claims in action number CV-04-0935. All other claims which she makes in the divorce action, including claims for support, must also be dismissed as there is no evidence before me upon which any judgment can be based. Since any interim orders expire at the time of trial when final orders are made, the dismissal of her claim now effectively discontinues and terminates any orders previously being enforced by Family Responsibility Office.[^2]
[22] While both parties seek variations of the Order made on October 9, 2012, the consent of the parties cannot confer jurisdiction on the court.[^3] After the final order of Justice Fragomeni terminated all temporary orders in the proceeding, including the Order made on October 9, 2012, this Court no longer had jurisdiction to set aside or vary the Order.
[23] On February 13, 2013, the parties entered into a Separation Agreement which disposed of their claims for equalization of net family property, division or sale of the matrimonial home, and child and spousal support. On February 19, 2013, Justice Donohue made a final Order, on consent of the parties, disposing of the claims in connection with the matrimonial home. On April 4, 2013, Justice Barnes severed the parties’ claim for divorce from their claims for collateral remedies. On August 26, 2014, Justice Fragomeni made a final Order, based on the Minutes of Settlement filed on that date, which disposed of the custody and access issues and terminated all temporary orders made in the proceeding.
[24] The issues of child and spousal support, which are the subject of the present motion, were dealt with in the Separation Agreement that the parties entered into on a final basis on February 13, 2013. The Separation Agreement is a domestic contract. The Family Law Act entitles a spouse to file a domestic contract with the court, and thereby empower the Family Responsibility Office to enforce the contract as if it were a court order. Section 35 of the Family Law Act provides, in this regard:
35(1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement.
(2) A provision for support or maintenance contained in a contract that is filed in this manner,
(a) may be enforced;
(b) may be varied under section 37; and
(c) except in the case of a provision for the support of a child, may be increased under section 30,
as if it were an order of the court where it is filed.[^4] [Emphasis added]
[25] The Court of Appeal described the effect of s. 35 in Jasen v. Karassik, in 2009. It stated:
… Section 35(1) enables a party to a “domestic contract” to file the contract with an Ontario court. Section 35(2) provides that when a contract is filed under subsection (1), a provision for support or maintenance in the contract may be enforced or varied under s. 37 of the FLA as if it were an order of the court where it is filed.
… Section 35 simply provides a summary procedure which enables a party to file a contract with the court to seek enforcement or variation of a provision as if that provision were an order of the court. This procedure allows parties to take advantage of a variety of statutory processes designed to facilitate recovery of support and maintenance payments.[^5] [Emphasis added]
[26] The variation of a domestic contract, including a Separation Agreement, that has been filed, pursuant to s. 35 of the Family Law Act, with the Ontario Court of Justice or the Family Court branch of the Superior Court, is governed by s. 37 of that Act. Section 37 provides:
37.(1) An application to the court for variation of an order made or confirmed under this Part may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);….
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.
[27] For reasons which this court set out in O’Higgins v O’Higgins, in 2015, this court is not a Family Court Branch of the Superior Court. It does not possess jurisdiction to receive a domestic contract for filing, or to vary the terms of such a contract. If either of the parties wishes their separation agreement enforced or varied, they must file it with the Ontario Court of Justice. That is the only court in Central West Region with jurisdiction to vary its terms.[^6]
CONCLUSION AND ORDER
[28] For the reasons stated above, it is ordered that:
Mr. Mignella’s motion is dismissed.
There shall be no order as to costs.
Price J.
Released: December 6, 2016
CITATION: Mignella v. Federico, 2016 ONSC 7606
COURT FILE NO.: FS-11-4809-00
DATE: 2016-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GIANNI (JOHN) MIGNELLA
Applicant
– and –
MARIA TERESA FEDERICO
Respondent
REASONS FOR ORDER
Price J.
Released: December 6, 2016
[^1]: Family Law Rules, O. Reg. 114/99, as am. [^2]: L.J.J.C. v. V.S.C., 2006 ONSC 3470, at para. 53. See also: Smylski, Re, 2010 ABASC 449, in which the court stated: “The Interim Order expires, by its terms, with the issuance of this decision.” [^3]: Gatt v. Rumack, 1994 ONSC 7362 [^4]: Family Law Act, R.S.O. 1990 c. F-3, as amended, s. 35 [^5]: Jasen v. Karassik, 2009 ONCA 245, [2009] O.J. No. 1175 (Ont. C.A.), paras. 24 and 33 [^6]: O’Higgins v O’Higgins, 2015 ONSC 3825,