Court File and Parties

CITATION: Abitbol v. Abitbol, 2017 ONSC 571

COURT FILE NO.: FS-16-16865

DATE: 20170125

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Emmanuel Abitbol, Applicant

AND:

Carmela Annunziata Abitbol, Respondent

BEFORE: Howard J.

COUNSEL: Emmanuel Abitbol, acting in person

Daniel C. Sirois, for the Respondent

HEARD: January 6, 2017, by telephone conference

ENDORSEMENT

[1] The applicant husband and the respondent wife were married for more than 23 years. There are three children of the marriage, namely, Julia Mimi Abitbol (born May 27, 1992 – now 24 years old, living independently), Jordana Rosa Abitbol (born March 22, 1994 – now 22 years old, living independently), and Isaac Michael Abitbol (born July 23, 1996 – now 20 years old, living with his mother while he pursues post-secondary studies).

[2] The parties were married on August 8, 1991, and separated on February 4, 2015. I note that the respondent mother was more than 52 years old at the time of separation.

[3] The applicant husband brings a motion (tab 14 of the Continuing Record), pursuant to rule 25(19)(b) of the Family Law Rules,[^1] to change and “mathematically correct” the consent order of S.K. Campbell J. made November 30, 2016, at a case conference and, in particular, para. 7 of the endorsement, which requires the husband to pay the wife $800 per month for spousal support, commencing December 1, 2016.

[4] As referenced, a case conference was held on November 30, 2016, before Campbell J. With leave of the court, the respondent principals were permitted to attend by telephone conference call, as the respondent and her lawyer reside in Sudbury. Participating on the call in Sudbury was the respondent, her counsel (Mr. Sirois), and Mr. Sirois’ student-at-law (Scott Whalen). The applicant attended in person before Campbell J., in Windsor. Mr. Abitbol is not represented by counsel in this proceeding. That said, I would note he is a licensed paralegal and duly-qualified member of the Law Society of Upper Canada; earlier in this proceeding, he described himself as “a sole practitioner under the Paralegal Office of Emmanuel (Emy) Abitbol Professional Corporation.”

[5] It is plain that a number of issues were discussed at the case conference. The parties agreed on various items, which were then reduced to writing by the conference judge and reflected in his endorsement. The endorsement reads as follows:

Case Conference held.

1. Applicant to pay fee for accounting information (for both Corps.) and release information to respondent within 15 days. Issue of costs of accounting fees to be determined in the course of resolution of this matter.

2. Annotated NFPs to be completed and provided by January 31, 2017.

3. Leave granted for questioning not to occur before January 31, 2017. Questioning to occur in Sudbury.

4. Leave granted for motions.

5. On consent commencing December 1, 2016 applicant shall pay support to the respondent for Isaac in the amount of $1,068 per month based on an income of $124,000/year.

6. The applicant and respondent will continue to share equally the monthly dividends received from TD Wealth Management and RBC Wealth Management. The parties shall advise both TD and RBC of this arrangement and ensure the dividends continue to be paid.

7. Applicant to pay spousal support to the respondent of $800/month commencing December 1, 2016. That is based on an income of the applicant of $124,000 and the respondent’s income of $78,000.

8. Motion for change of venue adjourned sine die returnable on 5 days’ notice by the respondent.

9. Upon completion of disclosure/discovery parties may arrange a settlement conference or a continuation of this case conference. Either can be before Campbell J. and initially may be done by the respondent attending by teleconference.

[6] One of the issues discussed at the case conference was what income of the applicant husband should be used for purposes of determining, on an interim basis, child support and spousal support. Again, the husband is a sole practitioner operating a professional corporation, so the issue was not as straight-forward as it is where an individual receives only employment income.

[7] There was evidence before the court that the husband’s income in 2015 was $150,662. Attached to the husband’s financial statement sworn September 13, 2016 (tab 2 of the Continuing Record) is an assessment report of his income potential for child/spousal support purposes prepared by Mr. Michael Carnegie of Taylor Leibow LLP, in which Mr. Carnegie concludes that the husband’s “historical earnings” for 2015 was $150,662.

[8] Alternatively, there was also evidence before the court that the husband’s annual income for 2015 was $134,167. In his financial statement sworn November 28, 2016 (tab 13 of the Continuing Record), the husband stated his annual income as $134,167.56, and accepting the respondent’s position that taxable benefits of $4,800 should be added, the result would yield a total income of approximately $138,967.

[9] In the applicant’s case conference brief, the husband took the position that his income for 2015 was $134,167.56 and that the wife’s income was $78,418.80.

[10] In the respondent’s case conference brief, the wife took the position that the husband’s income for 2015 was $150,622 and that the wife’s income was $71,439. 25.

[11] As can be seen, notwithstanding the position taken by the husband himself that his 2015 income was about $134,167, the conference judge set the husband’s income, for purposes of determining child and spousal support on an interim basis, at $124,000. That amount obviously compares favourably to the husband’s position.

[12] Further, again for purposes of determining spousal support on an interim basis, the conference judge set the wife’s income at $78,000. Again, that amount also compares favourably to the husband’s position.

[13] Pursuant to the tables under the Federal Child Support Guidelines,[^2] child support for one child, based on an annual income of $124,000, is $1,068 per month. Hence, the applicant consented to pay child support for Isaac at the rate of $1,068 per month, commencing December 1, 2016. There is no issue between the parties regarding child support, and no suggestion by the applicant that the endorsement of the conference judge does not accurately reflect the consent order to which they both agreed.

[14] Attached to the respondent’s case conference brief was a DivorceMate calculation sheet, which, using $150,662 for the husband’s income and $71,439 for the wife’s income, and assuming child support for Isaac in the amount of $1,268 per month, indicated monthly spousal support in the low-range of $870, in the mid-range of $1,400, and in the high-range of $1,976.

[15] It is common ground that there was no DivorceMate calculation sheet available to the parties and the conference judge during the conference that showed the range of spousal support using $124,000 for the husband’s income and $78,000 for the wife’s income.

[16] In the absence of such DivorceMate calculations, the conference judge proposed a monthly spousal support of $800. Both parties consented to that amount, at least at that time.

[17] The evidence of the applicant husband is that, in proposing the spousal support at $800 per month, the conference judge commented on “applying the low range.” That is specifically denied by the evidence of the respondent wife. The affidavit of Mr. Whalen sworn December 9, 2016 (who, again, participated on the conference call) is that at no time during the case conference did the conference judge ever indicate that spousal support would be based on “applying the low range” of support. Rather, the evidence of Mr. Whalen is that there was a discussion about the quantum of spousal support, and the conference judge indicated that the “old school method” would justify an award of spousal support at $800 per month. The applicant husband disputed that evidence in oral argument before me, although he did say to me in submissions that the $800 “was based on, as they say, ‘the old school method’,” but he disputes that the conference judge said that at the conference.

[18] In any event, I find that the parties consented to the $800 per month spousal support at the time of the case conference. That is not really in dispute. The applicant husband confirmed that in oral argument before me when I put that question to him.

[19] However, the applicant’s point is that after the conference had concluded and the parties had gone their separate ways, but later that same day, the applicant performed further calculations with the DivorceMate software, from which he concluded that the $800 per month that he had agreed to at the case conference was, in his view, “very much outside” of the range recommended by the Spousal Support Advisory Guidelines (“SSAG”).[^3] The applicant than wrote to counsel for the respondent that same day to put him on notice that he would be bringing a motion to change the order because, as he put it, “there has clearly been a ‘calculation mistake.’”

[20] Thus, the applicant husband brings the instant motion pursuant to rule 25(19)(b) of the Family Law Rules, on the basis that there is a mistake in the consent order made on November 30, 2016, and that the spousal support amount of $800 per month requires “mathematical correction” to align it with the SSAG.

[21] In my view, the applicant’s motion must fail.

[22] Rule 25(19) of the Family Law Rules provides as follows:

(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. [Emphasis added.]

[23] The applicant confirmed in oral argument before me that the only ground upon which he relies for his motion is that the impugned order “contains a mistake” within the meaning of rule 25(19)(b). There is no argument based on fraud, material change in circumstances, or any other ground.

[24] It is apparent that our understanding of what constitutes a “mistake” for the purposes of rule 25(19)(b) has developed over time. The authors of McLeod’s Ontario Family Law Rules Annotated, 2016-2017 provide some historical context, as follows:

Rule 25(19)(b) is descended from [rule] 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which in turn is descended from [rule] 527, Rules of Practice, R.R.O. 1980, Reg. 540, the wording of which is instructive as to the meaning of “mistake” in the current rule:

527. Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission may at any time be corrected on motion.

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 the court to hear an appeal of its own decision.[^4]

[25] That view of the scope of rule 25(19)(b) is consistent with some of the authorities submitted to me by the applicant husband. For example, in Feldman v. Ford, the court held that a motion under rule 25(19)(b) “is specifically designed to address typographical errors.”[^5]

[26] Similarly, in Henderson v. Henderson, McDermot J. noted that restrictive scope given to rule 25(19)(b) by earlier decisions that had held that the purpose of the provision was 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.”[^6]

[27] In Henderson v. Henderson, McDermot J. gave rule 25(19)(b) a broader scope and held that it permits the correction of an order where the order mistakenly fails to include a term that had been agreed upon by the parties but was inadvertently omitted because of a lawyer’s error. In Henderson, McDermot J. effectively aligned the scope of rule 25(19)(b) with the equitable remedy of rectification, as follows:

Those definitions are, in my view, sufficient to permit a court to amend or rectify an order which mistakenly did not reflect the common intention of the parties. An order which, by inadvertence, failed to reflect the parties’ common intentions can be said to include within it a mistake, and may therefore be rectified under Rule 25(19)(b).

Rectification is, however, an equitable remedy in the discretion of the trial judge, and it must be in the interests of justice that an order be changed to reflect the common intentions of the parties: [citations omitted]. This is especially so in the family context where Rule 2(2) of the Family Law Rules requires cases to be decided “justly”.

Therefore, I believe that, in addition to correcting typographical or mathematical errors, Rule 25(19)(b) may be used to rectify a court order where, through mistake, that order does not reflect the common intentions of the parties and there are similar grounds to rectify the order as there would be for rectification of contract. This is, however, only where it is in the interests of justice to do so. [Emphasis added.][^7]

[28] The decision of McDermot J. in Henderson v. Henderson was relied upon by Raikes J. in Stephens v. Stephens,[^8] another case submitted to me by the applicant, where the court relied upon rule 25(19)(b) to vary a term in a consent court order so as to require the husband to transfer a further $82,000 from his pension plan to equalize net family property. There, the consent order was based on the parties’ minutes of settlement, which in turn had relied on pension valuation figures provided by the husband’s pension plan administrator. Subsequent to the minutes of settlement and consequent consent order, the pension plan administrator advised the parties that the previous valuation had given a wrong value, understating the value of the husband’s pension by some $164,000. Both parties had relied on the mistaken pension value in entering into the minutes of settlement and agreeing to the consent order.

[29] Relying upon the expanded scope of rule 25(19)(b) as developed by McDermot J. in Henderson, Raikes J. in Stephens noted that the “mistake here lies in the mutual misapprehension of the value of [the husband’s] pension, a mistake both parties shared because they relied on the statement received from the pension plan administrator.”[^9] In the result, Raikes J. found that he had the authority to vary the court order on the basis of a “mistake” pursuant to rule 25(19)(b) in order to “fix a ‘mistake’ in an order to reflect the common intention of the parties.”[^10] [Emphasis added.]

[30] In the passages quoted from both the decision of McDermott J. in Henderson v. Henderson and the decision of Raikes J. in Stephens v. Stephens, I have emphasized that the court provided relief in those cases under rule 25(19)(b) in order to correct a mutual mistake of the parties and rectify an order so as to ensure that it reflects “the common intention of the parties.”

[31] That is not what the applicant husband seeks to do here. As such, his reliance upon the Stephens decision is misplaced.

[32] Here, there is no common mistake or “mutual misapprehension” (as Raikes J. put it in Stephens) of the parties. There is no “mistake” in the consent order at all. The applicant husband is not seeking to rectify the court order so as to align it with some external common intention of the parties that is not captured by the language of the provisions of the order. Indeed, the order as it stands already aligns with the common intention of the parties, as expressed at the case conference. That is, at the time they agreed to the consent order at the case conference, the parties were ad idem on the quantum of spousal support; they both agreed that the applicant husband should pay the respondent wife $800 per month in spousal support.

[33] It was not until after the case conference was concluded that, upon running further DivorceMate calculations, the applicant husband decided to resile from the support order to which he had earlier consented.

[34] In my view, there is nothing in the evidence or material before me to suggest that the terms of the consent order and, in particular, the amount of spousal support, were improvident, unconscionable, or manifestly unjust. Again, the DivorceMate calculations presented by the respondent at the conference, using $150,662 for the husband’s income and $71,439 for the wife’s income, yielded monthly spousal support in the low-range of $870, in the mid-range of $1,400, and in the high-range of $1,976. The conference judge used a lower amount for the husband’s income and a somewhat higher amount for the wife’s income, and suggested $800 for spousal support, an amount only slightly lower that the low-range in the DivorceMate calculations that were before the parties.

[35] Further, the evidence before me from the respondent indicates that if one runs the DivorceMate calculations using $138,964 for the husband’s income (the amount used by the husband in his case conference brief) and $78,948 for the wife’s income (somewhat higher than the $78,000 figure used by the conference judge), the SSAG suggest monthly spousal support in the low-range of $236, in the mid-range of $757, and in the high-range of $1,322. The $800 amount agreed upon by the parties is only slightly above the mid-range figure and well below the high-range figure.

[36] The respondent has also run the DivorceMate calculations using $124,000 for the husband’s income (as the conference judge did) and $78,948 for the wife’s income, yielding monthly spousal support in the low-range of $0, in the mid-range of $369, and in the high-range of $867. Again, the $800 amount agreed upon by the parties is within the range suggested by the SSAG, albeit closer to the high-range, which, however, may well be appropriate for a marriage of more than 23 years.

[37] Even the DivorceMate calculations put in evidence before me by the applicant husband indicate that, using $124,000 for the husband’s income (as the conference judge did) and $78,000 for the wife’s income (as the conference judge did), and allowing for child support of $1,068 (as the parties agreed and the conference judge ordered), the SSAG suggest monthly spousal support in the low range of $0, in the mid-range of $388, and in the high-range of $884. Again, the $800 amount agreed upon by the parties is within the range suggested by the SSAG and not inappropriate for a marriage of more than 23 years.

[38] In these circumstances, it cannot be said that the consent order agreed upon by the parties contains a “mistake” within the meaning of rule 25(19)(b). Even using the applicant’s figures, the result falls within the range contemplated by the SSAG. It was one option within the ambit of reasonable solutions available. Thus, there is no merit to the applicant’s motion.

[39] That said, I feel compelled to add that it is in keeping with the nature of the agreements reached at case conferences and settlement conferences that many items are discussed, many factors are considered, and many concessions are made, before the parties agree, where they do, to enter into a consent order or settlement. Parties temper their expectations and compromise their positions in order to reach an agreement. They may give a little on one issue in order to get a little more on another. The very definition of an agreement involves some quid pro quo between the parties. Given that dynamic and that reality, a court subsequently reviewing the parties’ positions and conduct leading up to a settlement cannot be certain as to exactly what factors incited the parties to enter into the settlement. Therefore, the court should, in my view, be very reluctant to tinker with isolated items within the context of the parties’ entire settlement.

[40] That reality is reflected in the position articulated by respondent counsel in oral argument before me, who submitted that while he may not have agreed with the conference judge’s decision to assess the husband’s income at $124,000 for the purposes of spousal support, while he did not believe that $800 was “the perfect amount,” and while he believed he probably could have obtained more than $800 if he had argued the motion, he was nonetheless content with the $800 amount for interim purposes, and “we can deal with it at a later date when we have a full hearing on the merits.”

[41] The latter comment highlights a further point that is usefully underscored here. The consent order in question was made at the initial case conference and on an interim basis. It is instructive to pause at this juncture to review the nature of interim orders, and I would note that most of what follows comes from the authorities that were submitted to me by the applicant.

[42] The nature and purpose of interim orders in family law proceedings were aptly described by Zuber J.A. of the Ontario Court of Appeal in Sypher v. Sypher,[^11] where the court observed that:

At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

At trial, after a full investigation of the facts, a trial judge may well come to the conclusion that a substantially different order should be made. I gather that there is a fear that the interim order may acquire such an aura of propriety that there will be a tendency to repeat the terms after trial. This is not so. The trial judge’s discretion is unfettered and his judgment will be rendered on a full investigation of the facts.

[43] In a similar vein, the Superior Court of Justice in Brown v. Brown,[^12] as adopted in Feldman v. Ford,[^13] commented on the purpose of interim orders, in the following terms:

Interim orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial. Of necessity, interim orders are susceptible to error – the same evidence is simply not available at that stage as at a trial interim orders or makeshift solutions until the correct answer is discovered at trial.

[44] Those comments were echoed by the court in Oxley v. Oxley,[^14] where Boswell J. said that:

Temporary orders for support, as the name suggests, are not final orders. They were formerly known as “interim orders”, referencing the fact that they were intended to cover the interim period between the commencement of proceedings and trial. The Family Law Rules now use the term “temporary” to underscore the notion that they are not intended to be long term solutions. They are by their nature imperfect solutions. They are based on limited and typically untested information. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] O.J. No. 907 (Ont. S.C.J.) per Sachs J.

[45] More recently, in Wharry v. Wharry,[^15] our Court of Appeal quoted with approval from the decision of the British Columbia Court of Appeal in Tedham v. Tedham,[^16] where that court observed that:

An interim order is just that – one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.

[46] As our Court of Appeal said in Wharry,[^17] summarizing the B.C. Court of Appeal’s analysis in Tedham, “an interim order is often no more than a rough estimate of a payor’s income.”

[47] The interim order made here, on consent, should be viewed in that perspective. The order of the conference judge, made on consent of the parties, reflected a rough estimate of the applicant husband’s income. It provided, at the very first attendance in the proceeding, which was held just some two months after the proceeding was commenced, “a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial.”

[48] I find no mistake contained in the consent order and no basis upon which to vary its terms. The applicant’s motion is therefore dismissed.

[49] If the parties are unable to agree on the issue of costs, they may file brief written submissions with the court, of no more than three double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. the respondent shall deliver her submissions within fourteen (14) days following the release of this endorsement;

b. the applicant shall deliver his submissions within seven (7) days following service of the respondent’s submissions;

c. the respondent shall deliver her reply submissions, if any, within three (3) days following service of the applicant’s submissions;

d. if either party fails to deliver its submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs.

Original Signed by “Howard J.”

J. Paul R. Howard

Justice

Date: January 25, 2017

[^1]: Family Law Rules, O. Reg. 114/99. [^2]: Federal Child Support Guidelines, SOR/97-175. [^3]: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008). [^4]: The Hon. Mr. Justice Henry Vogelsang, Glenda D. McLeod & The Hon. Mr. Justice Barry Tobin, McLeod’s Ontario Family Law Rules Annotated, 2016-2017 (Toronto: Thomson Reuters, 2016), at p. 395. [^5]: Feldman v. Ford, 2014 ONSC 7466 (S.C.J.), at para. 15. [^6]: Henderson v. Henderson, 2015 ONSC 2914 (S.C.J.), at paras. 85 and 94, citing Grey v. Rizzi, 2010 ONSC 2858, aff’d 2011 ONCA 436, and Clarke v. Clarke, 2002 78088 (ON SC), [2002] O.J. No. 3223. [^7]: Henderson v. Henderson, at paras. 106-108. [^8]: Stephens v. Stephens, 2016 ONSC 367, additional reasons on costs 2016 ONSC 1393 (S.C.J.). [^9]: Ibid., at para. 29. [^10]: Ibid., at para. 30. [^11]: Sypher v. Sypher, 1986 6337 (ON CA), [1986] O.J. No. 536, 2 R.F.L. (3d) 413 (C.A.), at paras. 2-3, quoted in Simmons v. Simmons, 2011 ONSC 5020 (S.C.J.), at para. 24. [^12]: Brown v. Brown (1999), 1999 15074 (ON SC), 45 O.R. (3d) 308 (S.C.J.), at para. 34. [^13]: Feldman v. Ford, at para. 10. [^14]: Oxley v. Oxley, 2010 ONSC 1609, 85 R.F.L. (6th) 435 [^15]: Wharry v. Wharry, 2016 ONCA 930, at para. 60. [^16]: Tedham v. Tedham, 2003 BCCA 600, at para. 59. [^17]: Wharry v. Wharry, at para. 62.