Superior Court of Justice – Ontario

Citation: Buchser v. Maughan, 2017 ONSC 726 Court File No.: 4684/07 Date: 2017/01/30

Re: Linda Marie Buchser (formerly Maughan), Applicant And: Thomas James Maughan, Respondent

Before: Justice J. George Counsel: Rose Faddoul, counsel for the Applicant Raymond Phillips, counsel for the Respondent

Heard: January 26, 2017

Endorsement

Background & Orders to Date

[1] This litigation goes back to 2002. It concerns two court orders, both made by Desotti J. The first in 2005 and the second in 2007. On September 7, 2005, he ordered the respondent to:

i. pay spousal support in the amount of $500.00 per month (para. 5).

ii. designate the applicant as the irrevocable beneficiary of his life insurance policies, reviewable upon a material change in circumstances (para. 7).

iii. designate the applicant as the irrevocable beneficiary of his Imperial Oil Limited pension plan, including the spousal death benefits (para. 8).

[2] He also directed that the respondent’s Imperial Oil pension be divided equally.

[3] The terms were agreed upon and set out in minutes of settlement. Each party was represented by counsel.

[4] On August 16, 2007 Desotti J.:

i. varied his 2005 order terminating the respondent’s obligation to pay spousal support effective January 1, 2007 (para. 3).

ii. ordered the applicant to pay the respondent $9,890.00 as reimbursement for support overpayments (para. 4).

iii. terminated the respondent’s obligation to designate the applicant as beneficiary of his life insurance policies (para. 5).

[5] This was not a consent order. The applicant was unrepresented.

Main Action

[6] The applicant has commenced a Motion to Change seeking to vary the 2005 order. She now wants the respondent to pay her spousal support and seeks a series of changes to para. 8 which requires the respondent to designate her the irrevocable beneficiary of his pension “including spousal death benefits”. She is essentially asking the court to now direct the Imperial Oil Retirement Plan to sever the respondent’s pension into two parts, creating one for her that would be payable for her lifetime.

[7] In the meanwhile, she wants the “if and when” division to continue until the new pension is established so that her income is not interrupted. She seeks other relief, but her notice is too convoluted and confusing to succinctly describe.

Motions

[8] The applicant has not complied with para. 4 of the 2007 order. She has yet to reimburse the respondent for the overpayment. Because of this, the respondent asks that I dismiss or strike out the applicant’s Motion to Change. In the alternative he asks that I prohibit the applicant from seeking any further relief until she complies. In the further alternative, he asks that I strike certain portions of her affidavit, and related exhibits, as being prejudicial, scandalous, frivolous, vexatious and or an abuse of process. This motion is now before me.

[9] The applicant asks that I dismiss the respondent’s motion, and that I strike his response to the Motion to Change, affidavits and financial statement. This basically mirrors the relief sought by the respondent, alleging it is he who has not complied with various court orders since 2002.

[10] She seeks to amend the Motion to Change to include “all of the relief available to the applicant in accordance with the reports of Kelley McKeating”. Kelley McKeating prepared a report which opines about the value of ‘survivor benefits’ which are not now available to the applicant, concluding also that there is a future shortfall for the division of the respondent’s pension, representing the difference between the monthly amounts specified in Desotti J.’s order, and the amount paid to her by the plan.

[11] I am considering only these aspects of the applicant’s motion.

[12] The applicant has also brought a summary judgment motion seeking a final order on the terms set out in her Motion to Change. She argues there is no genuine issue requiring a trial. In a separate motion, she seeks leave to amend her Motion to Change to include a request to set aside Desotti J.’s 2007 order pursuant to r. 25(19). I am not addressing either of these, and, depending on the result of the motions I am addressing, may become moot.

Applicable Rules

[13] Rule 1(8) of the Family Law Rules provides that:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise.

[14] I am to apply a three-stage test. First, is there noncompliance? This is easy. The applicant has made no attempts to comply. This she acknowledges, pointing out only that the respondent has also failed to comply with various orders. Second, if there is noncompliance should I exercise my discretion in favour of the applicant and not sanction her? I am to exercise this discretion in exceptional circumstances, and only after considering the entire history of the litigation. And third, should I decline to use my discretion, what is the appropriate relief?

Failure to Obey?

[15] The applicant has made no attempt to satisfy Desotti J.’s order, which is the triggering event. She did not appeal his order. She did not even include a request to set it aside. While she seeks that amendment now, we are 14 months removed from the issuance of her motion, and 10 years from the making of the order itself. Her reply to the respondent’s motion is to simply allege malfeasance on his part, some of it not relevant at all.

Explanations for Non-Compliance & Cross Allegations

[16] For instance, she includes in the materials references to her previous counsel George McFadyen. She attributes statements to him, and attaches letters he sent and received. The difficulty is, the support overpayment Desotti J. addressed was accrued during a period after Mr. McFadyen’s representation. I am utterly confused by her inclusion of a specific passage from a letter he sent to the Law Society of Upper Canada respecting the applicant and an unspecified payment of $9,800.00. She fails to disclose the entire content of this letter. It lacks all context. Not to mention the fact it could not possibly be referring to the overpayment mentioned in the 2007 order.

[17] Her affidavit goes on at length about the respondent’s supposed failures to obey court orders. She says he owes her money. It’s a strange tactic as she is suggesting that, because of this, the respondent’s materials should be struck. Which means that, on her logic, I would have to strike her materials as well. I’m quite certain the respondent would be very happy with that result.

[18] In any case, I will address each of her allegations.

[19] The applicant refers to several amounts she says is owed her. These are set out in para. 22 of her affidavit and para. 24 of the Notice of Motion. The problem is these very claims were dealt with in a small claims court action she commenced against the respondent, which was dismissed in 2010. Applicant counsel took the position that this is of little consequence, as it was dismissed as abandoned, citing res judicata. This is a convenient argument as, if true, it means the small claims court was acknowledging through the dismissal that those issues were already adjudicated by another court and could no longer be pursued by these parties, in that forum. In other words, it wasn’t dismissed on its merits. But I have no way of knowing this. This isn’t apparent in the dismissal order.

[20] She references an OSAP debt once held by one of their sons. In relation to this, it doesn’t appear anything is payable to the applicant, and there is certainly no evidence to suggest she paid the debt. Her explanation about this point was beyond confusing.

[21] She alleges the respondent has failed to satisfy the July 31, 2003 costs order of Killeen J. Applicant counsel spent a considerable amount of time addressing this in argument. She provided case law confirming the obvious, which is interim costs orders survive a final settlement. That is, if the parties agree on a final resolution which does not include a costs provision, previously made costs orders survive. That is not what we are talking about here. The costs for which she speaks were on a motion, predating the 2005 final settlement, that generically referred to the respondent paying her “costs”. These were not detailed. No amount was set out. These costs were never assessed. This necessarily means there were no costs to pay.

[22] The applicant has since sent along her bill from Mr. McFadyen, demanding the respondent pay it. However, absent an assessment, or further agreement upon final resolution, there is no existing costs obligation.

[23] The applicant further references an $80.20 bill for “healthcare expenses” from 2002; a supposed payment to a Dr. Gretzinger; and $1140 for a “pension payment”. I could not make sense of much of this. As far as I can discern each of these were either purposely omitted from the 2005 resolution, or dealt with in the small claims action.

First Two Steps of Test

[24] Desotti J.’s order is clear and unambiguous. The applicant was ordered to pay $9890.00 to the respondent. No payment has been made and, after calculating interest at the rate set out in the order, she now owes more than $17,000.00.

[25] Hers is a flimsy attempt to turn the tables on the respondent by, at this late date, alleging noncompliance on his part. On the evidence before me, this is without merit which, when considered with the chronology of this case, precludes me from exercising my discretion in the applicant’s favour. This is an inescapable conclusion given I am only to do so in exceptional circumstances, which don’t exist.

What is Appropriate Remedy?

[26] That leaves me to consider whether an order should go pursuant to r. 1(8)(b), (c), or (e). This is a broad discretion. There is a wide range of factors I can consider. Should I conclude the applicant has wilfully disobeyed an order, my approach should be to protect the integrity of the administration of justice. In this case, the noncompliance is willful. It appears to me, on the affidavits filed, that the applicant has intimate knowledge of every endorsement and order made by a judge in this case going back to 2002. She has, at all times, known of her obligation, and has chosen not to comply. I don’t accept for one minute she just forgot about it. At present, she rationalizes it, her counsel cavalierly suggesting that I just offset it against what the respondent will owe her, at some later, unknown time.

[27] While the respondent is not seeking summary judgment, he submits I can consider the strength and merits of the underlying action, including the applicant’s proposed amendments, in determining the appropriate remedy. In other words, he suggests that, in addition to the noncompliance and difficult history of this file, the applicants claim is, on the face of it, weak, which should weigh in favour of the more drastic step of dismissal, and not a stay or other order which would allow her to bring herself into compliance.

[28] If you cut through the clutter, I believe the essence of the applicant’s Motion to Change is this. That in 2007 the court would not have agreed to vary the 2005 order by terminating the respondent’s obligations to pay spousal support and designate her a beneficiary of his life insurance policy, had it known she was not considered a “spouse” by the pension administrator. She alleges the respondent misled her and the court, which not only prompted the variations, but which ran afoul of para. 8 of the 2005 order that mandated her receipt of “spousal death benefits”.

[29] The problem is this. The parties separated in 2001. The respondent retired with his pension going into pay in 2002, which is when he would have made the necessary elections and designations. Desotti J.’s orders are then made in 2005 and 2007 respectively. I cannot see how it would be open to a trier of fact to conclude the respondent misled the applicant.

[30] The Ontario Pension Benefits Act, R.S.O. 1990, c. P.8 alters the definition of spouse for the purpose of survivor benefits. Section 44(1.1) states clearly that a “person whom the retired member at the date of retirement is legally married to but living separate and apart from is not a spouse and not entitled to survivor benefits.” This was the case in 2005.

[31] The retirement, and spousal designation, occurred some three years before Desotti J.’s first order. Which means, to the extent she has legitimate concerns, it is either with her counsel at the time, or the legislature and its definition of a spouse. Consider the letter Mr. McFadyen received from the benefits administrator on April 10, 2002. It states:

“If you are not sure about the meaning of a spouse at pension commencement, maybe you can look into Ontario Pension Benefits Act and Regulation. I can assure you that we are complying with the Act. I can also assure you that the form of pension for Mr. Maughan is life only and if he were to die today, there would be no survivor benefits payable.”

[32] This is in 2002. A communication to her lawyer. The very lawyer who negotiated the 2005 settlement, which informed Desotti J.’s order.

[33] This context is just as important to the applicant’s motion to amend her pleadings. While leave for amendments should be granted, at any stage, so long as there is no prejudice that can’t be remedied through costs or an adjournment, a leave application must actually disclose a cause of action and include facts that are at least capable of supporting the relief now sought.

[34] Taking the evidence at its highest, there is simply no basis to find a mistake, fraud, or misrepresentation. It follows then that there is no basis to look behind Desotti J.’s order. Nothing has been disclosed that makes it even remotely possible that a court would set it aside or change pursuant to r. 25.

[35] This includes the applicant’s last minute assertion that the 2005 calculation of the support overpayment was done in error. She doesn’t have to agree with the court’s decision, but if she didn’t her responsibility was to appeal within the prescribed time. She didn’t.

[36] This of course addresses only the second part of the applicant’s amendment request. She also seeks leave to “amend the Motion to Change to include all of the relief available to the applicant in accordance with the reports of Kelley McKeating”. Not much need be said about this. This is not the proper way to seek leave. A notice of motion would have to particularize what precise amendments are sought, and this falls far short.

[37] While a moot point, I would not have granted leave to amend the applicant’s pleadings in the manner proposed in Tab 18.

Conclusions

[38] All of the above informs the noncompliance and is relevant to my consideration of an appropriate remedy.

[39] The noncompliance was and is willful. There is no prospect of the applicant complying with the order. Her claims, on the face of it, lack merit. The materials are littered with irrelevant information and inappropriate commentary from her past counsel, and other lawyers. She has filed as evidence a report from an actuary, simply attaching it as an exhibit to her affidavit. Her claim is constantly evolving, to the point there are now two separate motions seeking leave to amend.

[40] I acknowledge a court should be cautious in dismissing, or staying matters, or in striking pleadings, and that in many cases the best remedy is to simply order compliance and not allow further relief until it’s done. However, the nature and longstanding impact of this noncompliance, considered together with the factors just outlined, cry out for that drastic remedy.

Order

[41] The respondent’s motion is granted. The applicant’s Motion to Change is dismissed.

[42] This renders all other issues raised in the various motions before the court moot.

[43] If the parties cannot agree on costs, I invite brief written submissions. The respondent has 25 days to file; the applicant 10 days after that.

“Original signed by Justice George”

Justice Jonathon C. George

Date: January 30, 2017