Court File and Parties
COURT FILE NO.: 16/D-202 DATE: 2019/06/19 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bonnie Jean Jones, Applicant AND: Jeffrey Orville Jones, Respondent
BEFORE: Honourable Madame Justice M. Fraser
COUNSEL: Victoria Legris, Counsel for the Applicant
HEARD: May 29, 2019
Endorsement
[1] The parties to this proceeding were married on September 17, 1994. They separated in May 2015. There were two children of the marriage. Both are now adults who live independent of the parties.
[2] An application in the Superior Court of Justice was commenced by Bonnie Jean Jones in May 2016. That application proceeded to trial in October 2017. The trial judge found that an equalization payment was owed to the Applicant by the Respondent in the sum of $107,252.03, and ordered that it be payable immediately. The Applicant was also granted two cost awards during the proceeding, in the amount of $750.00, which was ordered at the conclusion of the trial management conference, and in the amount of $5,499.78 for her costs at trial. Both the equalization payment and the costs at trial were to bear post-judgment interest at the rate of 3% per annum.
[3] At the date of separation the Applicant and the Respondent held a joint line of credit with the Royal Bank of Canada. There was $37,941.90 outstanding on this line as at the date of separation. One half of the amount ($18,970.95) was listed as a debt owed by the Respondent in arriving at the equalization owed to the Applicant.
[4] The Respondent has not paid the equalization payment to the Applicant as ordered by the trial judge on October 31, 2017, nor have the cost orders been paid. The Respondent owes the Applicant a total of $113,501.81 for the equalization payment and her costs plus accrued post-judgment interest.
[5] The Respondent has also not paid the one half share of the joint line of credit attributed to him as part of his net family property. As a result of her joint and several liability for same, the Applicant has now paid the debt in full.
[6] The Applicant has commenced a fresh application and seeks an order vesting title of the matrimonial home (which is owned by the Respondent) in the Applicant so that it can be sold to satisfy the amounts owed to her, including the Respondent’s one half share of this joint line of credit debt.
[7] The Respondent has not responded to this Application. He was ordered to file his Answer by March 15, 2019 and has not done so. He has therefore been noted in default. The Applicant moves for summary judgment.
[8] Section 100 of the Courts of Justice Act states:
A court may vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.
[9] The authority granted by section 100 was considered in Trick v. Trick (2006), 81 O.R. (3d) 241 (Ont. C.A.), leave to appeal refused, (2007), [2006] S.C.C.A. No. 388 (S.C.C.). In that case, Lang J.A. stated, at para. 19, that s. 100 of the CJA:
[P]rovides a court with jurisdiction to vest property in a person but only if the court also possesses the "authority to order [that the property] be disposed of, encumbered or conveyed". Thus, s. 100 only provides a mechanism to give the applicant the ownership or possession of property to which he or she is otherwise entitled; it does not provide a free standing right to property simply because the court considers that result equitable.
[10] Section 9(1)(d)(i) of the Family Law Act states:
9(1) Powers of court
In an application under section 7, the court may order,
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
[11] Can I now make the orders pursuant to section 9 of the Family Law Act as sought by the Applicant? Section 9 of the Family Law Act clearly states that the jurisdiction to provide the relief set out therein is within the context of an application being made under section 7.
[12] The difficulty in this case is that there was an application made under section 7 of the Family Law Act. The Judgment in that application was rendered on October 31, 2017. At trial, the trial judge considered whether to exercise any powers provided under section 9 of the Family Law Act and expressly declined to do so. Therefore, the application is “spent” meaning it has been judicially decided and the judgment has become final. The court does not have the jurisdiction to then return to the application and continue to make additional substantive orders in the case after final judgment. See: Blatherwick v. Blatherwick, 2016 ONSC 6699.
[13] Bringing a fresh application does not solve this problem, as the Applicant is still faced with two issues:
The fresh application is not an application made under section 7 in which the jurisdiction to grant the form of relief provided under section 9 is expressly restricted; and
Even if it were, the matter is now res judicata.
[14] The traditional statement of the law on the subject of res judicata can be found in Henderson v. Henderson (1843), 67 E.R. 313 (Eng. V.-C.) at 319:
I believe I state the rule of the Court correctly when I say that, where 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 litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[15] The Ontario Court of Appeal in Tsaoussis (Litigation Guardian of) v. Baetz, [1998 CarswellOnt 3409 (Ont. C.A.)] stated this on the doctrine of res judicata:
16 ... Finality is an important feature of our justice system, both to the parties involved in any specific litigation and on an institutional level to the community at large....
19 The importance attached to finality is reflected in the doctrine of res judicata. That doctrine prohibits re-litigation of matters that have been decided and requires that parties put forward their entire case in a single action. Litigation by instalment is not tolerated: Toronto General Trusts Corporation v. Roman, [1963] 1 O.R. 312 (C.A.). Finality is so highly valued that it can be given priority over the justice of an individual case …: R. v. Thomas, [1990] 1 S.C.R. 713....
[16] The judgment rendered in this proceeding was not made to be ignored. There has been no explanation provided by the Respondent to justify his failure to make the equalization payment to the Applicant as ordered. However, the Applicant continues to have the ability to enforce this judgment in the normal course. One means to enforce the judgment, however, is not through the application of section 9 of the Family Law Act for the reasons stated above. As such, I conclude I have no choice but to dismiss the Applicant’s motion.
Justice M. Fraser Date: June 19, 2019