Malboeuf v. Belter, 2019 ONSC 4573

Court File and Parties

COURT FILE NO.: FC-11-292-3 and FC-11-292-2

DATE: 2019/07/31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GILLES ALFRED MALBOEUF, Applicant

-and-

STACEY PAULA BELTER, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Christopher Rutherford, for the Applicant

Respondent is self-represented

HEARD: July 30, 2019

ENDORSEMENT

1Mr. Malboeuf has brought a motion seeking to enforce the settlement reached between the parties on November 21, 2018. The terms of that settlement resolve the two motions to change in FC-11-292-3 and FC-11-292-2.

2At the hearing of the motion, both parties confirmed that they reached a final settlement in November of 2018. Ms. Belter’s former lawyer, Ms. Anders, sent Ms. Belter’s offer to Mr. Rutherford on November 20, 2018. Mr. Malboeuf accepted her offer except for paragraphs 7B and 9, plus a change to the life insurance clause. Ms. Belter accepted Mr. Malboeuf’s changes. Ms. Belter’s offer, as set out in the November 20, 2018 email, as accepted with changes, is the settlement between the parties.

3The only issue is how the terms of the settlement will be incorporated into a final order. Both parties provided draft orders. Both provided a detailed review of their respective positions.

4At the motion, Ms. Belter confirmed she agrees that the terms of the settlement mean that paragraphs 1 to 3, 5 to 11, 12, 14 to 17, 19 d), 20, 21, and 23 of Justice Polowin’s Order dated January 29, 2013, should be removed. Ms. Belter also confirmed that paragraph 13 (s.7 expenses), 18 (when child support ends), and 22 (life insurance) of the 2013 Order need to be reworded. Paragraph 13 needs to be amended to reflect the terms of settlement regarding the sharing of s.7 expenses. Paragraph 18 needs to be amended to reflect that both parties have a child support obligation. Paragraph 22 needs to be reworded to reflect the parties’ agreement on life insurance.

5Ms. Belter further agreed to the wording of paragraphs 2 to 5, 7 to 8, 10, and 12 in Mr. Malboeuf’s draft order.

6The terms of the settlement provided only that Ms. Belter would continue to claim the dependant credit for their child. Ms. Belter’s draft order included a term for her to claim additional tax benefits that are more expansive than the terms of the settlement, and so I have not included these.

7The issues to be determined, therefore, are the following:

1. Mr. Malboeuf’s draft order provides at paragraph 1 that the 2013 Order “is no longer in force and effect and is suspended and replaced by this Order.” Ms. Belter objects to this wording, being of the view that the 2013 Order was carefully drafted and should not be discarded in its entirety. In substance, however, given Ms. Belter’s position above, almost all of the paragraphs in the 2013 Order are being replaced or reworded to reflect the parties’ settlement. Ms. Belter’s concern, therefore, does not carry with it a substantive impact. Because the parties cannot agree on this point, I have provided wording below that is slightly different from the wording proposed by Mr. Malboeuf. [Paragraph [8] 1) 1. below]

2. Paragraph 6 of Mr. Malboeuf’s draft order: Ms. Belter objects to wording for the sharing of the s.7 expenses that requires consent in advance for an expense being shared. This wording reflects the wording from the 2013 Order. I find this wording is required as it flows from the terms of settlement that requires the sharing of s.7 expenses. Such sharing cannot be imposed without some mechanism to ensure the expenses are reasonable. [Paragraph [8] 1) 1.a.iv. below]

3. Mr. Malboeuf’s proposed wording in paragraph 9 of his draft order provides that Ms. Belter will claim the eligible dependant credit, and he will not. It is not clear to me why Ms. Belter does not agree with this wording, but she wishes for the wording to be limited to what is stated in the November 20, 2018 offer. As that was the wording accepted in the settlement, this is the wording I have ordered below. [Paragraph [8] 1) d. below]

4. Ms. Belter opposes paragraph 11 of Mr. Malboeuf’s draft order because it provides for a lien on each party’s estate in the absence of the life insurance. This reflects the wording of the 2013 Order. Mr. Malboeuf’s view is that there was no agreement to change this clause in the terms of the settlement. I agree. [Paragraph [8] 1) f. below]

8Given the above, I order the following:

1. One order shall issue in both FC-11-292-3 and FC-11-292-2 files that states the following:

1. Effective November 30, 2018, the Final Order of Justice Polowin dated January 29, 2013, shall be varied as follows:

a. Paragraphs 1 to 3, 5 to 18, 19 d), 20 to 24 are deleted and replaced with the following:

i. Christian ##XX, born ##XX 2001¹, will reside with each party in accordance with his wishes.

ii. As of November 30, 2018, there are no arrears of child support or expenses owed from one party to the other.

iii. Commencing December 1, 2018, there shall be no periodic (monthly) child support payable between the parties regardless of where Christian resides.

iv. Commencing December 1, 2018, and continuing thereafter until varied by written agreement between the parties or court order, the parties shall share the following s.7 special and extraordinary expenses on the following basis, the Applicants share 25%, and the Respondents share 75%. Both parties’ consent must be obtained prior to the expense to be shared, otherwise, the expense will not be shared. The consent shall not be unreasonably withheld. The expenses are as follows:

(a) a health-related expense that exceeds insurance reimbursement, including but not limited to orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses, contact lenses;

(b) extraordinary expenses for secondary school education or for any educational programs that meet Christian’s particular needs;

(c) expenses for post-secondary education not limited to tuition, residence, supplies, equipment and other incidental expenses; and

(d) extraordinary expenses for extracurricular activities such as summer camps.

b. There shall be no further exchange of documentation in any form between the parties.

c. Child support ends when Christian:

i. ceases to be a “child” as defined in the Family Law Act; or

ii. no longer resides with a party (“resides” includes living away from home for school, summer employment or vacation); or

iii. turns 18, unless he is unable to become self-supporting due to illness, disability, education or other cause; or

iv. becomes self-supporting; or

v. obtains one postsecondary degree or diploma; or

vi. turns 23 years of age; or

vii. marries or commences cohabitating in a common-law relationship; or

viii. dies; or

ix. a party dies so long as the deceased party maintained the life insurance provisions.

d. The Respondent shall continue to claim the eligible dependant credit for Christian.

e. Effective October 25, 2019, the parties shall designate Christian as the beneficiary of their respective Supplementary Death Benefit (SDB) life insurance or benefit coverage.

f. In the event that the said life insurance is not in place at the time of a party’s death, while Christian is eligible for child support, there shall be a lien and first charge against the deceased party’s estate for the full amount of life insurance coverage required to be maintained by them at the time of the deceased’s death.

2. Paragraphs 4 and 19 a) to c) of the Final Order of Justice Polowin dated January 29, 2013, shall continue to be in full force and effect.

Costs

9I award Mr. Malboeuf costs of this motion fixed at $4,550, inclusive of HST and disbursements. These costs shall be payable by Ms. Belter to Mr. Malboeuf. I base this award on the following:

• Given the outcome of the motion, which is an order very close to what Mr. Malboeuf was seeking from the outset, I find that he is the successful party on the motion and presumptively entitled to an award of costs.

• Mr. Malboeuf provided a bill of costs detailing the legal fees he has incurred from November 19, 2018, to July 29, 2018, which total $10,837.51, inclusive of HST and disbursements. He would have incurred some of these fees in any event to implement the terms of the settlement. Those fees are not separated from the total provided in the bill of costs, which is not broken down by date. I find that fees of $7,000 are reasonable and proportional for this motion. The award of costs above represents 65% of these fees.

• I find Mr. Malboeuf acted reasonably in advising Ms. Belter’s counsel on March 12, 2019, that he would be bringing a motion unless she approved his draft orders. This letter does not, however, meet the formal requirements of a Rule 18 offer. The proposed orders are also slightly different than the result on this motion, but not in a manner that is meaningfully different.

• Mr. Malboeuf served his notice of motion on April 9, 2019. Ms. Belter did not advise Mr. Malboeuf until July 23, 2019, when she served her affidavit material, that she agreed there was a final settlement between them, but that the difference was the wording of the final order incorporating these terms.

• Mr. Malboeuf had provided his draft order incorporating the terms of settlement in January of 2019. The first time Ms. Belter advised of her specific concerns about his wording was on July 23, 2019, when she filed her affidavit.

• It turned out that the differences between the parties’ positions were not significant. These differences were only identified at the hearing of the motion after Ms. Belter had advised of her position, and there was some discussion between the parties.

• I find that Ms. Belter acted unreasonably in failing to provide her position on Mr. Malboeuf’s proposed wording earlier and that this delay on her part resulted in Mr. Malboeuf incurring significant legal fees to prepare and bring this motion, including filing a factum, which should not have been necessary.

Footnotes

1. 1Full name and birthdate to be inserted in final order. These are redacted from this decision for privacy reasons.