Court File and Parties
COURT FILE NO.: FS-13107-17 DATE: 2018-12-11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tracy Lee Lamirande Applicant – and – Darren Randolph Byrne Respondent
Counsel: Réjean Parisé, for the Applicant Carol Hartman, for the Respondent
HEARD: November 15, 2018
RULING ON MOTION FOR SUMMARY JUDGMENT
DEL FRATE, J.
[1] The respondent husband brings a motion for summary judgment seeking to dismiss the application dated May 2, 2017, issued under Court File No. FS-13107-17 on the grounds that there is no genuine issue for trial because the applicant wife’s claims are barred as res judicata and abuse of process.
Background
[2] The parties were married on August 7, 2004, and separated on December 5, 2013.
[3] A privately prepared separation agreement was signed by the parties on July 17, 2014. Josée M. Brunet-McFadden, a private mediator, assisted with the preparation of this agreement.
[4] The agreement dealt with the common issues resulting from the separation. In particular, it dealt with the division of the family assets and the applicant’s entitlement to a portion of the respondent’s pension plan which at the time of separation was valued at $89,152.85.
[5] The application for divorce was issued on July 4, 2016.
[6] The divorce was granted on November 29, 2016, with it becoming final on December 30, 2016.
[7] On November 30, 2016, the applicant attempted to file an answer whereby she agreed that the divorce be granted but that the separation agreement dated July 17, 2014, be set aside. The applicant specifically sought to set aside the provision denying her from half of the family law value of the respondent’s pension plan with Vale Canada Limited [“Vale”]. The applicant was unable to file that answer. The court could not accept the answer because the divorce judgment had been granted the previous day.
[8] With the inability of the applicant to file such an answer, counsel for the parties agreed to set aside the divorce judgment granted on December 30, 2016.
[9] The consent order was reviewed by Cornell J. on March 15, 2017. The order was rejected since Cornell, J. was not satisfied that a divorce judgment could be set aside on consent. He asked for authority on this topic. None was provided.
[10] On May 2, 2017, the applicant brought an application seeking spousal support, equalization of the net family property under the Family Law Act, R.S.O. 1990, c. F. 3, and an order setting aside the separation agreement dated July 17, 2014. The applicant specifically targeted the provisions that denied her one-half of the family law value of the respondent’s Vale pension plan.
[11] Following a case conference, the parties proceeded with questioning and with this particular motion.
Position of the respondent
[12] The respondent submits that the present application is an abuse of process since the matter is res judicata. First, the parties entered into a very comprehensive separation agreement where, up until the issuance of the divorce application, both parties were content with what had been agreed upon.
[13] The respondent further submits that permitting this matter to proceed is re-adjudicating issues of the separation agreement and the divorce application. In his view, the issues were totally resolved once the divorce judgment was final.
[14] The respondent further submits that this “new” application is an abuse of process. The proper procedure would have been to file the answer prior to the issuance of the divorce decree. Or else, the divorce judgment ought to have been appealed.
[15] All of the evidence and issues were known to the applicant at the time that the divorce application was filed. Accordingly, her failure to file in time renders the matter res judicata.
[16] The respondent relies on the following decisions: Henderson v. Henderson (1843), 67 E.R. 313, 3 Hare 100 (Eng. V.-C.); and Lee v. Lee, 2010 ONSC 4524, 91 R.F.L. (6th) 385.
Position of the applicant
[17] The applicant wife submits that the issues that she now wishes to have adjudicated were never dealt with in the divorce application brought by the husband on July 4, 2016. The only relief requested in the application was a “divorce”. The applicant contends that issues arising from the separation agreement signed on July 17, 2014 now need to be adjudicated. At no time were those issues addressed in the application for divorce.
[18] The applicant explains that she initiated these proceedings to protect her interests under the separation agreement. When the applicant heard that the respondent intended to deprive her of her share of the respondent’s pension with Vale, the equalization issues arose. The applicant then attempted to file her answer.
[19] In her answer dated November 30, 2016, she specifically stated that she took no issue with the divorce “subject to the applicant (husband) complying with his obligation to transfer to the respondent (wife) pursuant to the Pension Benefits Act one-half of the applicant’s family law value of his employment pension with Vale Canada Limited.” At paragraph 2 of the answer, she reiterated that she was not in agreement with the divorce “unless there has been a transfer to the respondent of her one half interest in the applicant’s employment pension plan.”
[20] Since the divorce was granted on November 29, 2016, she was unable to file her answer.
[21] Counsel therefore agreed on consent to set aside the divorce and permit her to file her answer. Unfortunately that consent and order was not accepted by the reviewing judge.
[22] The applicant wife further submits that the causes of action being advanced are protected by ss. 4, 5 and 6 of the Family Law Act. These sections permit a party to bring an action for equalization of the net family property within two years of the termination of the marriage by divorce.
[23] The same Act provides for relief if the issues of support and equalization have not been adjudicated in the divorce application. For instance, s. 36(3) of Family Law Act addresses the question of support, s. 56 of the Family Law Act addresses issue of setting aside a separation agreement.
[24] Accordingly, the applicant argues the principle of res judicata does not apply because at no time were these issues raised nor adjudicated in the application for divorce.
Discussion
[25] Henderson outlines the principles to be considered in applying res judicata. At p. 319, the court states:
[w]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[26] This pronouncement was followed by Perell J. in Lee v. Lee. Perell, J. allowed a motion for summary judgment dismissing the plaintiff’s claim because the plaintiff knew or ought to have known that the new cause of action should have been raised in the divorce application.
[27] The present case is somewhat different than Henderson and Lee. First, at no time did the court adjudicate the issues of support and entitlement to the pension.
[28] Second, non-compliance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, precipitated this application: the applicant failed to file her answer within the prescribed time. Counsel attempted to remedy this difficulty with a consent order setting aside the divorce judgment and proceeding with the issues raised in the answer. Unfortunately, the court was not convinced it had jurisdiction to make such an order. Thus, the applicant wife brought an application pursuant to the Family Law Act.
[29] In my view, ss. 4, 5, 6, 36(3) and 56 of the Family Law Act permit her to bring such a claim. This situation is no different than where a claim for this type of relief and divorce is advanced by a party. At some point in the proceedings, the relief for a divorce is severed from the main action and the divorce is granted. The remaining issues can continue to be litigated without any difficulty.
[30] I reiterate that the present relief, at no time, was adjudicated in a court of competent jurisdiction and accordingly res judicata does not apply.
[31] Having arrived at that decision then the summary judgment application must fail. Accordingly, the respondent’s motion for summary judgment is dismissed.
[32] Should the issue of costs be raised then I am prepared to receive written submissions not to exceed three pages. The applicant wife shall have 30 days to provide written submissions. The respondent husband shall have 15 days from receipt of such documentation to deliver a response.
[33] Order to issue as per reasons.
The Honourable Mr. Justice Robert G.S. Del Frate