Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-182-00 DATE: 20180710 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Patricia Anne Virc, Applicant -and- Michael F. Blair, Respondent

BEFORE: The Honourable Madam Justice M.E. Vallee

COUNSEL: Patricia Anne Virc, Self-Represented Valerie L. Brown, for the Respondent

HEARD: June 21, 2018

Endorsement

[1] Mr. Blair issued a Motion to Change on February 9, 2018. He seeks to change the order of Jarvis J. made May 31, 2016 at the conclusion of trial. Ms. Virc brings this motion requesting that Mr. Blair post security for costs with respect to the Motion to Change and that the Motion to Change be stayed with leave to Mr. Blair to issue another motion to change in a different jurisdiction. The security for costs issue was resolved at the commencement of the motion. Mr. Blair owns a property in London. In his affidavit, he agreed that he would undertake not to sell it. Ms. Virc stated in her affidavit that she would accept a first charge on the property. The parties agreed that a certificate of pending litigation would issue and be registered against the property.

Jurisdiction

[2] The parties were involved in protracted litigation for over seven years. It includes several decisions from the Court of Appeal. The matter was tried in May, June, July and October, 2015. When the Reasons for Decision were released on May 31, 2016, Mr. Blair was 70 years old. Jarvis J. ordered that spousal support be paid to Ms. Virc with no termination date. He also ordered Mr. Blair to pay certain section 7 expenses. Mr. Blair’s Motion to Change issued in Barrie seeks an order that spousal support be terminated, and that Ms. Virc pay him s. 7 expenses.

Legal issue to be determined

[3] Should the Motion to Change issued in Barrie be stayed with granted leave to issue a similar Motion to Change in another jurisdiction?

Applicable rule

[4] Rule 5 of the Family Law Rules states that a case shall be started in the municipality where a party resides.

Ms. Virc’s Position

[5] Ms. Virc takes issue with the fact that Mr. Blair has issued the Motion to Change in Barrie. She lives in Toronto. The underlying proceedings were heard in Newmarket. Ms. Virc drew to the court’s attention Jarvis J.’s findings in his Reasons for Decision where he commented on Mr. Blair’s “general lack of credibility on self-interested financial matters” (para 276), “he managed the risk by controlling the information” (para 274), his financial disclosure of the value of his assets of the date of marriage was deliberately misleading (paras 113-115) and his evidence was “situationally opportunistic” and “tailored”. (para 82) In his ruling on the trial costs, Jarvis J. agreed that Mr. Blair’s conduct was unreasonable and materially impacted the complexity and length of their case. Some of this included irrelevant and repeated requests to admit, delivery of voluminous binders of documents, (many shortly before trial and many of which were uncatalogued and not indexed or tabbed), non-compliance with court ordered disclosure, a pre-emptive motion withdrawn by Mr. Blair the start of the trial accusing Ms. Virc and her lawyer of evidence tampering (to which she had to respond) and seeking to file evidence binders that contained inadmissible evidence or duplicated evidence already contained and catalogued in Ms. Virc’s exhibits, among other things. (see Virc v. Blair 2016 ONSC 5381 paras 20 -21)

[6] Ms. Virc states that history is a good indicator of the future. She is concerned that Mr. Blair’s conduct in this matter will again be unreasonable and will materially impact the complexity and length of these proceedings. She lives in Toronto. She will be required to come to Barrie on numerous occasions at significant cost and inconvenience.

[7] Ms. Virc states that although Mr. Blair says he currently resides in Collingwood, he represented to the Canada Revenue Agency (CRA) on his 2017 income tax return that he resided in British Columbia. He also made the same representation to the Court of Appeal last year with respect to his availability to attend court in Toronto [1]. Ms. Virc states that the court should not be persuaded by his position that he lives in Collingwood and therefore is entitled to issue his Motion to Change in Barrie. While neither of the parties live in York Region, Ms. Virc states that there is nothing prohibiting Mr. Blair from issuing a Motion to Change in Toronto.

[8] Ms. Virc states that Mr. Blair has initiated his Motion to Change in Barrie rather than Newmarket, where the trial proceedings took place and where his lawyer’s office is located as a tactic to escape his long record of bad behaviour in Newmarket, and increase the inconvenience to her and drive up her costs. She would consent to hearing the Motion to Change issued in Newmarket.

Mr. Blair’s Position

[9] Mr. Blair states that he does live in Collingwood now. He is living in a chalet which he rents from a previous wife, Nancy Blair. He lived there after the sale of the matrimonial home in the trial proceedings. When he lived in British Columbia, he was residing in rental premises. His British Columbia address on his 2017 income tax return is in response to the question: where did you live as of December 31, 2017. There is no dispute that in 2017, he was spending the majority of his time in British Columbia.

[10] He was complying with the Rules by issuing the Motion to Change in Barrie. Newmarket is no longer the proper jurisdiction because neither party resides there.

[11] Mr. Blair states that if a court should find that he conducts himself in these proceedings in a way that materially impacts the complexity and length of this matter, this can be addressed in costs. Ms. Virc will essentially have security for costs because a certificate of pending litigation will be registered against property that he owns in London.

[12] The court ought to consider the balance of convenience. Both parties will be inconvenienced if the Motion to Change proceeds in Barrie. Mr. Blair will have to travel from Collingwood. Ms. Virc will have to travel from Toronto. She would be travelling north in the morning and south later in the day which somewhat lessens the impact of traffic delays. When the court considers balance of convenience, there is no guidance as to which party should be the most inconvenienced.

Analysis

[13] Mr. Blair swore two affidavits in response to Ms. Virc’s motion, one dated May 2, 2018 and another dated May 30, 2018. Both of these affidavits focus on Ms. Virc’s request for security for costs. There is very little evidence that responds to Ms. Virc’s request for a stay of the Motion to Change issued in Barrie. In his affidavit dated May 30, 2018, in paragraph 5(a), Mr. Blair states, “I am ordinarily resident of Collingwood Ontario. I have solely resided in Ontario all of my adult life, with the exception that as of September 2017 I also maintained a residence in Rossland, British Columbia.” This evidence is inconsistent with his position that he spent most of his time in 2017 in British Columbia. If he maintained a residence in British Columbia as of September 2017, one might expect that his tax return would state that his residence was in Ontario.

[14] These parties have been through very lengthy legal proceedings in which Mr. Blair’s credibility was found to be seriously lacking. As noted above, barely two years ago Jarvis J. ordered Mr. Blair to pay Ms. Virc spousal support with no termination date. One of the factors that Mr. Blair relies upon in support of his Motion to Change is that Ms. Virc’s income has increased post-trial. He states that it has increased because she is now receiving interest income on the investments that she was able to make with her equalization payment. Conversely, his income has significantly reduced. He has retired.

[15] I have some concerns regarding Mr. Blair’s evidence that he now resides in Collingwood. He rents both the Collingwood and British Columbia residences. His evidence was inconsistent. On the other hand, there is no doubt that Ms. Virc lives in Toronto. This was not challenged. Ms. Virc is a lawyer with a practice in Toronto. Mr. Blair is retired. I find that the balance of convenience favours Ms. Virc.

Conclusion

[16] A certificate of pending litigation shall issue and be registered against the property that Mr. Blair owns in London, Ontario.

[17] The Motion to Change issued in Barrie shall be stayed. Mr. Blair does not need leave to issue a similar Motion to Change in Toronto.

Costs

[18] Ms. Virc has been successful on this motion. She did not make a Rule 18 offer to settle. Mr. Blair did. He offered to neither sell nor encumber the London property until the Motion to Change is determined. He offered to list the London property for sale if the Motion to Change was dismissed and to use the proceeds of sale to satisfy any costs award in Ms. Virc’s favour if he was unable to pay the award from other sources. The result on this motion was more favourable to Ms. Virc than Mr. Blair’s offer.

[19] Ms. Virc is entitled to costs. She is a self-represented lawyer. She seeks to be reimbursed for the time that she has spent on this matter at a rate of $250 per hour. I note that Mr. Blair stated in his material that Ms. Virc charges $350 an hour. Therefore, $250 per hour is a compromise regarding her actual loss of income relating to this matter. She requests costs of $6,282.80.

[20] Counsel for Mr. Blair states that 4.4 hours for preparation of a factum should not be allowed because a factum was not required for this motion. While that may be correct, it was important for the court to have an understanding of the history of these legal proceedings. The compendium of evidence, for which no time is shown, and the factum were very helpful to this court. I note that in her estimated costs for attendance at this motion, Ms. Virc includes four hours for receipt and review of responding factum, authorities and any new material. The respondent did not prepare a factum. There is no evidence that any new material had to be reviewed. Accordingly, those four hours are not allowed. The request for disbursements is appropriate and reasonable.

[21] Having considered the factors set out in rule 24(11), I find that a fair and proportionate costs award is $5,280 which Mr. Blair shall pay to Ms. Virc within 30 days.

VALLEE J. Released: July 10, 2018

[1] In a letter to the Court delivered in December, 2017, Mr. Blair states that it would not be convenient for him to come to Ontario in December but he was planning to come in February 2018 to be a witness in another proceeding.