Court File and Parties

COURT FILE NO.: 04125/07 DATE: 20170524

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JOHN WILSON WHARRY, Applicant KAREN WHARRY, Respondent

BEFORE: EMERY J.

COUNSEL: John Wharry, for himself Elli Cohen, for the Respondent Karen Wharry

HEARD: April 20, 2017 in Walkerton

Endorsement

[1] The respondent Karen Wharry brings this motion under Family Law Rule 25(19) to change the final order of this court dated October 16, 2016. Ms. Wharry seeks an order changing the amount John Wharry has been ordered to pay her for an equalization payment under section 5 of the Family Law Act, from $80,449 (£42,944) to $155,898.26 (£87,094).

[2] Mr. Wharry opposes the motion. As a preliminary matter, Mr. Wharry submits that I am functus officio because the final order has already been issued and entered with the court.

[3] In this endorsement, I intend to decide this preliminary issue only. This endorsement does not contain any decision on the merits of the motion itself under Family Law Rule 25(19).

Brief Background

[4] The parties married in 1992 in Northern Ireland. In 2002, they immigrated to Canada and operated a farm they purchased together near Kincardine, Ontario.

[5] The parties separated in Ontario in November 2006.

[6] Mr. Wharry commenced an application under the Divorce Act and under the Family Law Act in 2007.

[7] Justice Dunn made an order on June 25, 2008 disposing of several issues the parties were able to resolve. Justice Dunn made an order on consent that included the settlement of Ms. Wharry’s equalization claim for all property owned by Mr. Wharry and herself with respect to property in Ontario. In the course of that settlement, Mr. Wharry paid Ms. Wharry $85,000 to purchase her interest in the Kincardine farm.

[8] Justice Dunn’s order set out the remaining issues for trial. The trial took place before me in Walkerton for two weeks in November 2014.

[9] My Reasons for Decision granting judgment on all remaining issues were released on October 16, 2015. Those reasons included an order that Mr. Wharry pay $80,449.76 to Ms. Wharry for an equalization payment with respect to property in Northern Ireland that he had received from his father during the marriage that was not found to be a gift.

[10] On November 13, 2015, counsel for Ms. Wharry filed a notice of appeal dated November 13, 2015 to appeal the final order I had made to the Court of Appeal for Ontario.

[11] On January 21, 2016 I released an endorsement awarding costs of the trial to John Wharry fixed in the amount of $10,000, plus disbursements and HST.

[12] In the course of perfecting the appeal, counsel for Ms. Wharry had the final order entered on February 8, 2016.

[13] The Court of Appeal heard the appeal of the trial judgment on November 10, 2016. The appeal decision was released at 2016 ONCA 930 on December 13, 2016. The court dismissed all of Ms. Wharry’s grounds of appeal with respect to property and equalization issues, and allowed the appeal only with respect to spousal support, retroactive child support and section 7 expenses.

[14] In respect of costs for the appeal, the court reduced the amount of costs awarded to Mr. Wharry at trial from $10,000 to $7,000 for reasons released on January 25, 2017. The court awarded no costs for the appeal itself.

[15] Mr. Cohen submits that it was when the parties were corresponding earlier this year to arrange for Mr. Wharry to make the equalization payment under the judgment that a mathematical miscalculation was detected in my Reasons for Decision. Mr. Cohen contends on behalf of Ms. Wharry that the value of his one half share of the bungalow should have been added to the computation of Mr. Wharry’s net family property. This would have the effect of increasing Mr. Wharry’s net family property, thereby increasing the equalization payment he owes to Ms. Wharry.

[16] Mr. Wharry submits that once the final order was entered, I became functus officio. In any event, he states that I made no mathematical error when calculating the net family property of each party in the Reasons for Decision. Mr. Wharry further submits that Ms. Wharry has already appealed every aspect of the final order, and that the Court of Appeal upheld the judgment with respect to property and equalization issues. He submits that with the final order entered and the appeal concluded, the case between Ms. Wharry and himself should be considered finished and over with.

Analysis

[17] Ms. Wharry brings her motion to change the final order based on my Reasons for Decision under the procedure suggested by the Court of Appeal recently in Gray v. Gray, 2017 ONCA 100.

[18] In Gray, the respondent had been ordered to pay significant spousal support arrears and ongoing child support at trial. The order was made in his absence because the trial judge did not accept his excuse for not attending the trial.

[19] The respondent in Gray commenced an appeal of the order to the Court of Appeal. Shortly thereafter, the respondent brought a motion under Family Law Rule 25(19)(e) before the Superior Court of Justice to set aside the order the court had made in his absence. The motion to change seeking an order to set aside the final order had not been heard at the time the appeal was considered. The Court of Appeal in Gray held that the power to change a final order within the meaning of Family Law Rule 25(19) includes the authority of this court to set aside a previous order.

[20] I am of the view that the circumstances before me are distinguishable from the facts in Gray. In this case, the parties have engaged in a full trial and a subsequent appeal. In Gray, judgment was obtained in the absence of the respondent who had not yet presented evidence. The respondent in Gray had already launched a motion to have the order set aside under Family Law Rule 25(19).

[21] The present circumstances between Ms. Wharry and Mr. Wharry provide a context for the court to consider the preliminary argument made by Mr. Wharry that I am functus officio. These are circumstances that were not available to the parties in Gray.

[22] A judge who has made an order remains seized of a matter and has the power to reconsider, vary or revoke the judgment until he or she becomes functus officio of the case.

[23] It was said by Laidlaw, J.A. in Holmes Foundery Ltd. v. Point Edward (Village) that:

“it is well settled in law that an order can always be withdrawn, altered or modified by a judge either on his own initiative or on the application of a party until such time as the order can be drawn up, passed and entered.”

[24] A judge becomes functus officio when an order is issued and entered: Gray v. Rizzi, 2010 ONSC 2858 and Chand v. Insurance Corp. of British Columbia, 2009 BCSC 4. Justice Del Frate squarely stated the applicable principles about when, and what it means for a judge to become functus officio in Clement v. Clement, 2015 ONSC 5654 in the following terms:

[11] Case law is quite clear that a judge becomes functus when “the order or judgment is signed and entered.” See 369413 Alberta Ltd. v. Pocklington, 1999 ABQB 936, [2000] A.J. No. 410 (Q.B.); Condominium Plan No. 7510189 v. Jones, 1997 ABCA 53; and Pro-Express Ltd. v. Thew (1996), 185 A.R. 285 (B.Q.).

[12] The exceptions are in situations where there was a mistake in the process of putting the judgment to paper and finalizing it or where there has been an error in expressing the intention of the court; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, or in situations where fraud can be proven: Wavel Ventures Corp v. Constantini, [1996] A.J. No. 1093 (C.A.).

[13] This principle is also enunciated by Perrel and Morden in The Law of Civil Procedure in Ontario, 1st ed. (Toronto: LexisNexis, 2010), at p. 777:

….until the order in question has been signed and entered, the lower court is not functus officio and still has jurisdiction over the case, with the necessary consequence that the appellate court does not have jurisdiction to decide the appeal.

[25] On the basis of the authorities cited to me, I became functus officio when the final order between the parties in this case was issued and entered. However, Mr. Cohen urges me to exercise certain residual jurisdiction I have to change the final order as entered within the narrow exception discussed in paragraph 12 of Clement v. Clement. That jurisdiction is found only if a mistake has been made in the process of putting the judgment to paper and finalizing it, or if there has been an error in expressing the intention of the court.

[26] I have been provided no authority for the exception to the functus officio principle other than Clement v. Clement. That residual power is restricted to simply transposing the decision about the issues from the reasons given, to the form of the final order that is entered. It must consist of a function so straightforward that, absent fraud, judicial analysis or discretion is not required, and another judge should not be troubled by a matter that is in essence clerical in nature.

[27] The understanding of what constitutes a “mistake” for the purpose of qualifying as an exception to the functus officio principle is therefore much narrower than the understanding of what constitutes a “mistake” for the purposes of changing an order that has already been entered under Family Law Rule 25(19)(b). What might even be considered a “mistake” for the purpose of Family Law Rule 25(19) is extremely limited.

[28] The court in Abitbol v. Abitbol, 2017 ONSC 571 refers to McLeod’s Ontario Family Law Rules Annotated, 2016-2017 for the following statement as a starting point for the scope of Family Law Rule 25(19)(b):

“Rule 25(19)(b) should be used to correct technical mistakes due to inadvertence or oversight in order to ensure that the court’s intention is accurately reflected. The rule cannot be used to empower the court to revisit, reopen and reargue a case or allow a court to hear an appeal of its own decision.”

[29] In Feldman v. Ford, 2014 ONSC 7466 (SCJ), the court held that a motion under Family Law Rule 25(19)(b) is “specifically designed to address typographical errors.” In Henderson v. Henderson, 2015 ONSC 2914 (SCJ), the restrictive scope of the stated purpose of the rule is to correct “a mistake in the content of the order, for instance where the order contains a typographical error, a misstatement of what was actually endorsed by the court, or a mathematical miscalculation.” See also Stephens v. Stephens, 2016 ONSC 367.

[30] Mr. Cohen submits that Ms. Wharry does not seek an order setting aside any part of the final order, as in Gray v. Gray. Ms. Wharry does not ask for any change to a finding of fact or a ruling of law in the judgment. Rather, Mr. Cohen submits that Ms. Wharry seeks only a mathematical correction consistent with what the court intended the judgment to say.

[31] To the contrary, I find that Ms. Wharry is asking for a great deal more than that.

[32] Ms. Wharry is seeking a further finding by the court that an addition should be made to Mr. Wharry’s net family property in order to increase the equalization payment she is to receive. I say nothing of the findings of fact in the Reasons for Decision that Mr. Wharry’s father gifted him the farm on Drumcrow Road that included the bungalow (at paragraphs 83 and 138), or that a monetary amount was awarded to Ms. Wharry for the value of her contribution to the bungalow. This award of a monetary amount represented a debt of £44,000 at the date of separation that was given as a credit in her column, and taken as a debit in his (in paragraphs 143, 144, and 145 of the Reasons for Decision).

[33] Ms. Wharry is really alleging that a legal error has been made for which she seeks a different result. This purpose is outside the narrow exception to the functus officio rule discussed in Clement v. Clement, and in my view, beyond the scope of Family Law Rule 25(19) considered in Henderson v. Henderson. The Court of Appeal agreed with the statement made by Boswell J in the decision under appeal in Gray v. Rizzi, 2011 ONCA 436 when he said:

The Rule was not, in my view, intended to apply to cases of alleged legal errors, such as the suggestion that the court exceeded its jurisdiction in making the order. Mistakes, or errors in law are appealable errors and are not subject to correction under Rule 25(19).

[34] The change Ms. Wharry asks this court to make is conceptual in nature, and legal in character. It is not the kind of correction borne of a mathematical miscalculation. It is not the kind of mistake to qualify as a possible exception to the principle that makes me functus officio. Ms. Wharry brings this motion under the guise of a motion to change a technical mistake, when she is really making a further appeal.

[35] It is therefore my conclusion that I am functus officio, and that I have no jurisdiction to hear this motion. The motion is therefore dismissed without prejudice to either party to bring another motion under Family Law Rule 25(19) for hearing by another judge of this court.

[36] I have not considered whether Family Law Rule 25(19) can replenish me with jurisdiction to hear the motion notwithstanding my conclusion I am functus officio. I did not hear submissions from the parties on this point, and neither party has provided any legal authority for it. It would be unfair to either party for me to make such a determination in view of those circumstances.

[37] If either party seeks costs on the matter that has been adjudicated, that party may make written submissions by May 31, 2017. The responding party shall then have until June 14, 2017 to file responding submissions. Neither set of submissions shall consist of more than two double spaced typewritten pages. All written submissions may be made by faxing my Judicial Assistant, Ms. Priscilla Gutierrez at 905-456-4834 at Brampton.

Emery J DATE: May 24, 2017