Court File and Parties

COURT FILE NO.: FS-15-406705 DATE: 2018-10-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Chuvalo, Applicant AND: Joanne Chuvalo and Janet O’Hara, Respondents

BEFORE: Kiteley J.

COUNSEL: Herschel I. Fogelman for the Public Guardian and Trustee, [^1] for the Applicant Christopher M.B. Graham, for the Respondent Joanne Chuvalo

HEARD: September 27, 2018

Endorsement on Rule 25(19)(b) Motion

[1] On January 12, 2018, following a trial of an issue, I released an endorsement [^2] in which I ordered and declared that George Chuvalo did not have capacity to decide whether to reconcile with Joanne Chuvalo. On June 12, 2018, the order was signed and entered by the Local Registrar of the Superior Court. This is a motion pursuant to Family Law Rule 25(19)(b) for an order that the designation of “temporary” on the signed and entered order was a mistake and should be corrected to the designation of “final”. For the reasons that follow, the motion is dismissed.

[2] On November 20, 2015, this application was issued claiming a divorce, disclosure, spousal support, an unequal division of net family property and other financial relief.

[3] The genesis of the trial of the issue is found in the endorsement dated November 8, 2017 [^3]. As indicated, counsel for Joanne Chuvalo had repeatedly raised the issue as to whether her husband wanted to be divorced and the issue as to whether the court should adjourn the proceeding pursuant to s. 10 (2) of the Divorce Act on the basis that the parties wished to reconcile. [^4] That endorsement indicates that the trial of the issue was in response to those assertions and at paragraph 36, the issues were listed.

[4] On the first day of the trial on January 8, Joanne Chuvalo conceded that, based on the report of Dr. Shulman dated December 20, 2017, George Chuvalo did not have capacity to instruct counsel and for that reason, I appointed the PGT. Furthermore, I narrowed the issues in the trial of the issue to the question as to whether George Chuvalo had capacity to decide whether to divorce or reconcile. I authorized counsel from the PGT to take out the order without approval and it was issued and entered on January 10, 2018 as a “temporary” order.

[5] On January 8, 9 and 10, 2018 I heard the evidence and submissions on the issue of capacity to decide whether to divorce or to reconcile. At paragraph 1 of the January 12 endorsement, I indicated as follows:

For the reasons that follow, I find and declare that at this time he does not have the capacity to decide whether to reconcile. I need not decide whether he has capacity to divorce.

[6] At paragraph 70 I held as follows:

I order and declare that George Chuvalo does not have capacity to decide whether to reconcile with Joanne Chuvalo.

[7] In other words the temporal limitation was specified in paragraph 1 but not in paragraph 70. I consider that of no consequence.

[8] In this motion counsel for Joanne Chuvalo relies on the evidence of Rick Bickhram, her family law counsel and co-counsel in the guardianship proceeding, and counsel for the PGT relies on an affidavit of an articling student in his law office attached to which are various documents. Based on that evidence, the circumstances leading up to the designation of January 12 order as “temporary” were as follows.

[9] On or about February 9, 2018, Joanne Chuvalo served and filed a notice of appeal in the Court of Appeal in which she asked that the January 12, 2018 judgment be set aside. In the notice of appeal her counsel indicated that the judgment appealed from is final.

[10] At paragraph 8 of his affidavit, Mr. Bickhram deposed that appellate counsel had not been able to perfect the appeal because the signed and entered order

incorrectly states that it is a temporary order. The order should be a final order. In the paragraphs below, I explain this mistake.

[11] On or about May 29, 2018, Chris Graham sent an email to Mr. Fogelman seeking Mr. Fogelman’s consent, on behalf of the PGT, as to the form and content of the order. That draft order indicated it was a “final” order.

[12] On or about June 4, 2018, Heather Hogan, internal counsel for the PGT sent an email to Mr. Graham that included the following:

The Temporary/Final tick boxes are, as you know, not something we use in civil proceedings. As I understand it, they are primarily relevant to support and custody orders, as they dictate the procedure for changing any such support and custody order. In any event, the PGT’s position in family proceedings is that a declaration of lack of capacity is always temporary. People are not declared incapable on a final basis. A Final Order would only issue when all the substantive issues in the pleadings have been adjudicated.

[13] Ms. Hogan approved the order with the designation of “temporary”. In his submissions, Chris Graham took the position that he and Ms. Hogan were both “mistaken” in having the order signed and entered as “temporary”.

[14] According to his affidavit, Mr. Bickhram said that after he was informed by appellate counsel of this “mistake” on or about August 14, 2018, he wrote to Mr. Fogelman explaining the mistake and asking for Mr. Fogelman’s consent to sending a letter to me to request an amendment of the signed and entered order from “temporary” to “final”. Mr. Fogelman did not respond to the letter but did respond in his confirmation form for the August 24 case conference that he would not consent to the amendment.

[15] At the case conference on August 24, 2018, the PGT, represented by Mr. Fogelman refused to consent to an amendment of the order. As indicated at paragraph 21 of the endorsement dated August 29, 2018, I granted leave to Joanne Chuvalo to bring a regular motion returnable before me on September 27, 2018 pursuant to Family Law Rule 25(19)(b).

Analysis

(a) The order is “temporary” not “final”

[16] Rule 2 of the Family Law Rules defines a “temporary” order as an order that says it is effective only for a limited time and includes an interim order. A “final” order, is “an order, other than a temporary order, that decides a claim in an application, including . . . an order that decides a party’s rights, in an issue between the parties”.

[17] In Hendrickson v. Kallio [^5] the Court of Appeal dealt with whether an appeal from an order dismissing the appeal from the report of the judge acting as special referee should be quashed on the basis that the Court of Appeal had jurisdiction only if the appellant had obtained leave. The Court held as follows:

I am clearly of opinion that the order in question is not an interlocutory order within the meaning of this statutory provision. The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the applications, but it is interlocutory if the merits of the case remain to be determined.

[18] In 2441472 Ontario Inc. v. Collicut Energy Services Corp. [^6] the Court of Appeal dealt with an appeal from the decision of a motion judge dismissing the motion for an order to strike out and declare void the PPSA registration. The Court referred to the “classic test in Hendrickson v. Kallio”, namely whether the order finally disposes of the rights of the parties.

[19] Joanne Chuvalo takes the position that the declaration of incapacity to reconcile finally determined the matter in dispute between the parties. I disagree. The real matters in dispute are those involved in the proceeding, which, as indicated above include a divorce, disclosure, spousal support, an unequal division of net family property and other financial relief.

[20] As indicated above, after persisting over many months with the submission that the court had a duty pursuant to s. 10(2) (b) of the Divorce Act to adjourn the divorce proceeding, I made an order for a trial of the issue as to George Chuvalo’s capacity to reconcile. As indicated in paragraph 1 of the endorsement I made a finding in January 2018 on the basis of the evidence of Dr. Shulman including his report dated December 20, 2017. Capacity is fluid and is temporally situated. It is a temporary order. There is no basis to change the designation because it is correct in law.

[21] In submissions on her behalf, Joanne Chuvalo takes the position that a decision such as capacity is final as reflected in the decisions of the Court of Appeal in Calvert [^7], in Sung Estate [^8] and in Hunt v. Worrod [^9]. I disagree. As those cases illustrate, the issue of capacity to divorce or to marry was collateral to the final determination of the issues between the parties. It was the judgment reflecting the final determination that brought the matter within the jurisdiction of the Court of Appeal.

(b) There is no mistake between counsel

[22] Rule 25(19)(b) is to be used to correct technical mistakes due to inadvertence or oversight in order to ensure that the court’s intention is accurately reflected. [^10] In Henderson v Henderson [^11] in the context of a motion pursuant to rule 59.06 of the Rules of Civil Procedure, the court expanded the threshold or analysis of “contain a mistake” to include a notion of common intention.

[23] The evidence is clear that there was no mistake by Ms. Hogan. Furthermore, in acquiescing in taking out the order as “temporary” there was no mistake by Mr. Graham. On the same evidence, there was no common intention that the order be designated as “final”. The assertion in paragraph 12 of the factum that “Joanne disagrees that there is a common intention that the Order is temporary in nature” is not evidence.

Costs

[24] At the conclusion of the hearing, I asked for submissions as to costs. In her notice of motion and in her factum, Joanne Chuvalo had asked for an order that the PGT pay costs on a full indemnity basis. However, Mr. Graham candidly conceded that since he took the position that he had been mistaken, he would not ask for costs.

[25] Mr. Fogelman brought a bill of costs that reflected partial recovery in the amount of $2,506.22 and full recovery in the amount of $4,093.65. In each case the total included fees, disbursements and HST but did not include the attendance on September 27. Mr. Fogelman pointed out that when retained by the PGT, counsel is required to use the hourly rate established by the PGT that is less than his usual rate. On that basis and because costs had been asserted against the PGT, Mr. Fogelman asked for full recovery costs totalling $5000 including attendance on September 27.

[26] On behalf of the PGT, Mr. Fogelman prepared an affidavit to complete the chronology as to how events had occurred and he prepared a factum and book of authorities. The PGT was successful and pursuant to rule 24(1) of the Family Law Rules, is presumed entitled to costs. I see no basis to depart from the presumption of entitlement but I am not persuaded that fully recovery costs are appropriate.

Order to Go as Follows:

[27] The motion pursuant to rule 25(19)(b) is dismissed.

[28] Joanne Chuvalo shall pay costs to the Public Guardian and Trustee in the amount of $3000.00 (all in) no later than November 5, 2018.

Kiteley J. Date: October 5, 2018

Footnotes

[^1]: In the order dated January 8, 2018 PGT was appointed as representative of George Chuvalo pursuant to rule 4(3) of the Family Law Rules and has all the powers of Litigation Guardian under rule 7 of the Rules of Civil Procedure. [^2]: 2018 ONSC 311 [^3]: 2017 ONSC 6687 [^4]: see footnote 3 at paragraphs 9, 10, 12, 14, 17, 19, 20, 25, 34 and 36 [^5]: Hendrickson v. Kallio, [1932] O.R. 675 [^6]: 2441472 Ontario Inc. v. Collicut Energy Services Corp., [2017] ONCA 452 at para 9 [^7]: Calvert (Litigation Guardian of) v. Calvert, 32 O.R. (3d) 281 [^8]: Re Sung Estate, 2004 CarswellOnt 4512 [^9]: Hunt v. Worrod, 2017 ONSC 7397 [^10]: Abitbol v. Abitbol, 2017 ONSC 571 [^11]: Henderson v Henderson, 2015 ONSC 2914