COURT FILE NO.: FS-19-7777

DATE: 20190708

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Conroy, Plaintiff

AND:

Donna Vassel, Defendant

BEFORE: Penny J.

COUNSEL: Joseph Figliomeni for the Moving Party, Defendant

David Conroy on his own behalf, Responding Party, Plaintiff

HEARD: July 4, 2019

ENDORSEMENT

Overview

[1] This is a motion to strike the plaintiff’s claim as an abuse of process or as disclosing no cause of action.

Background

[2] The plaintiff and defendant are former spouses. The plaintiff has a medical degree and a graduate degree in law. He also practiced a medical doctor in Ontario.

[3] The plaintiff and defendant were married in 1994. They have two adult children, Dana Conroy (26 YOA) and Collin Conroy (25 YOA).

[4] In 1999, the plaintiff suffered a serious accident. He was off work for three years. His marriage to the defendant began to suffer. In 2007, the defendant discovered that the plaintiff was involved another woman in Columbia.

[5] The plaintiff left the matrimonial home in early 2008. At the end of that year, he advised the defendant that his girlfriend was pregnant and that he wanted a divorce.

[6] In early 2009, the parties retained family law lawyers. The plaintiff discharged his lawyer shortly thereafter. The plaintiff was subject to an investigation by the College of Physicians and Surgeons of Ontario. In August 2009, the CPSO determined that it would not permit the plaintiff to carry on his medical practice on account of mental health problems.

[7] In November 2009, the defendant commenced a Family Law Act application seeking orders relating to child custody and support, spousal support and a transfer to the defendant of the matrimonial home. The plaintiff never formally responded to this application. Rather, the plaintiff proposed the terms of a house and separation agreement, which he drafted and which was executed by the plaintiff and defendant in February 2010.

[8] Under the terms of that agreement, among other things:

(a) the defendant was given exclusive ownership of the matrimonial home, including all equity and profit from any sale;

(b) the defendant would make no claims for retroactive spousal support;

(c) the defendant would make no claim for any monies owed to the date of the settlement agreement;

(d) the defendant agreed that any equalization claim she might have was satisfied by the terms of the settlement agreement;

(e) the parties agreed that any future claims for spousal support would not continue beyond March 1, 2023. Until the commencement of a civil action in June 2017, the plaintiff never made any claim in the nature of spousal support;

(f) any breach of the settlement agreement “may either nullify the entire agreement [with certain exceptions] or make the party in breach of the agreement liable for restitution to the aggrieved party.” The plaintiff described this clause in oral argument as a “penalty clause.”

[9] In April 2010, the plaintiff made an assignment into bankruptcy. In his bankruptcy proceedings, the plaintiff represented to his creditors and trustee that he had no interest in the matrimonial home and that his assets, including personal property, had a total value of $500.

[10] In April 2011, the parties agreed to amend the defendant’s family law application to seek a divorce. The divorce was granted July 25, 2011.

[11] In April 2012, the plaintiff received an automatic discharge from bankruptcy.

[12] Following his discharge in 2012, the plaintiff began threatening to take legal action against the defendant, alleging at various times that the separation agreement was null and void and that the plaintiff would be seeking child and spousal support in the courts. He also demanded the return of a bracelet which he alleges was wrongfully taken from him by the defendant and to which he attributes a value of $1,200.

[13] In August 2017, the plaintiff issued a statement of claim against the defendant under the Rules of Civil Procedure, Court File. No. CV-17-576840. In the statement of claim, the plaintiff seeks restitutionary damages, compensatory damage, aggravated damages, general damages and exemplary damages in a global amount of $480,000. The claim alleges that the defendant breached the separation agreement by: a) refusing to return the plaintiff’s turquoise bracelet when demanded; and b) refusing to cooperate in calculating and paying spousal support. The plaintiff alleges that these breaches entitle him to damages in the amounts cited above (including a claim to the value of half the equity of the matrimonial home).

The Motion

[14] The defendant’s motion to strike the statement of claim boils down to this:

1. the plaintiff has never made a claim for spousal support. To the extent he is entitled to make such a claim, he must do so in conformity with the Family Law Act and Rules. Attempting to circumvent the Family Law Act and Rules by bringing a civil action for damages is an abuse of process; and

2. the matrimonial home and turquoise bracelet, to the extent they were property of plaintiff in 2010, vested in his trustee upon bankruptcy. The plaintiff was discharged. Title to these assets does not re-vest in the debtor upon discharge. The plaintiff’s claims to the bracelet and to any form of compensation on account of his interest in the matrimonial home were extinguished by his bankruptcy and discharge.

Analysis

Claim for spousal support

[15] The plaintiff submits that he is unrepresented and accepts that he may have asserted his spousal support claim in the wrong way. He asks for leave to amend. I accept that as an unrepresented litigant, some consideration must be shown for the plaintiff’s lack of legal training and experience. The fact remains, however, that the Family Law Act and Rules set out a complete code for the bringing, proving and adjudicating of spousal support claims. These are not just empty or formalistic requirements. For example, a critical element in the adjudicating of a spousal support claim is the filing of financial statement. The pleadings in spousal support claims typically lay a foundation for the claim by alleging facts dealing with such things as sources of the parties’ income, financial or other contributions to the family unit and education, training and employability and the like. There are no financial statements filed and there is next to no pleading of facts and circumstances upon which a spousal support claim could be considered.

[16] I agree with the defendant. The attempt to seek spousal support in the guise of a civil claim for damages is misguided and constitutes an abuse of process, Cunningham v. Moran, 2011 ONCA 476. This claim must be struck out without leave to amend.

[17] If the plaintiff intends to proceed with a claim for spousal support, he must do so by delivering an application in accordance with the Family Law Act and Rules using the Family Court File No. FS-19-7777, not by way of amendment to the civil statement of claim.[^1] The plaintiff also conceded during oral argument that, under the Limitations Act, his spousal support claim could only reach back two years before the issuance of his statement of claim. Any claim for spousal support before June 2015 is barred.

Claim for damages arising out of matrimonial home/bracelet

[18] The plaintiff submits that the defendant’s breach of the separation agreement (by failing to agree to pay spousal support and to return his bracelet) gives rise to a restitutionary claim for damages under the penalty clause of the separation agreement and/or a return of his bracelet.

[19] There are a number of problems with this argument. The most glaring is that the plaintiff is a discharged bankrupt. The plaintiff’s alleged interest in the home and the bracelet were assets at the date of his bankruptcy. All the plaintiff’s assets vested in the trustee. Upon his discharge, the plaintiff was entitled to a release of all liability for claims against him. The plaintiff does not get these assets back; they do not re-vest in him upon discharge. Any pre-bankruptcy interest the plaintiff had arising out of the matrimonial home or other property, such as the bracelet, has been extinguished, Kinsella v. Mills, 2017 ONSC 7093.

[20] Accordingly, the claim for restitutionary damages and/or the return of the bracelet is also an abuse of process and, on the pleaded facts, cannot succeed. This is not just a problem of the form of the pleadings; the problem is incurable as a matter of law. These claims too, therefore, must be struck, also without leave to amend.

Conclusion

[21] In a prior endorsement on July 4, 2019, I severed the children’s claims in tort and breach of trust/fiduciary duty from David Conroy’s matrimonial claims and directed that the childrens’ claims proceed on the civil list following a case conference at civil practice court.

[22] What remains are David Conroy’s claims, which all arise out of the marital dispute and the separation agreement. Having found that the two claims asserted by this plaintiff in the civil action must be struck and that only one of them may proceed (but as a family law application for spousal support under the Family Law Act and Rules), the entirety of David Conroy’s claims in the civil action have therefore been struck out.

Costs

[23] The defendant submits that the plaintiff’s entire claim was misconceived. The defendant advised the plaintiff that the proper way to assert a spousal support claim was under the Family Law Act and Rules, but the plaintiff disregarded this advice. The claim, she says, should never had been brought. Further, the defendant argues that all of the costs of having the civil claim dismissed are costs thrown away, because the only potentially “legitimate” claim left open to the plaintiff is a claim for spousal support from June 2015 which, if it is to be re-asserted at all, must be re-asserted in the proper way. The defendant seeks substantial indemnity costs of about $16,500 on top of the $5,000 already ordered by Belobaba J.

[24] In assessing costs, important inputs are what the losing party might reasonably expect to pay and the means of the losing party to pay. The order of Belobaba J. traversing this matter to the Family Division should have given the plaintiff some insight into the need to assert his claim in accordance with Family Division law and practice. The $5,000 cost award of Belobaba J. was apparently not a sufficient message. I find that partial indemnity costs of $7,500 for the dismissal of the plaintiff’s entire action is an appropriate award that recognizes the needless cost imposed on the defendant and the plaintiff’s limited means.

Penny J.

Date: July 8, 2019

[^1]: The civil action was traversed to the Family Division by Court order and a new Family Division Court File No. was assigned. I have severed the childrens’ claims and remitted them back to the civil list. No further issuing fee shall be charged if David Conroy chooses to bring a spousal support application in the Family Division proceeding.