Flowerday v. Flowerday, 2019 ONSC 7374

Court File and Parties

COURT FILE NO.: FS-17-88633-00

DATE: 2019 12 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JASON FLOWERDAY

Applicant

• and -

ANGELA FLOWERDAY

Respondent

Counsel:

Jenna Beaton & Faria Marlatt for the Applicant/Responding party, J.F., jenna@mccarthyco.ca, and faria@mccarthyco.ca

Samantha Coomaran for the Respondent/Moving Party, A.F., sam@maddalenafuller.com

HEARD: August 9, 2019

ENDORSEMENT

Trimble J.

1This endorsement addresses financial issues with respect to which Mr. Flowerday sought clarification, and costs arising from the August 9, 2019 custody and access review hearing. I have withheld this portion of my reasons pending receipt of the costs submissions, the last of which arrived on November 21, 2019.

Costs of August 9, 2019

2In paragraphs 80 and 81 of my October 11, 2019 Endorsement arising from the August 9 custody and access motion, I mentioned that Mr. Flowerday, through an unsolicited email, said that Ms. Flowerday had been discharged from bankruptcy. Therefore, I invited cost submissions.

3It is clear from the cost materials filed that Ms. Flowerday remains an undischarged bankrupt. Therefore, there will be no costs of the motions.

Financial Issues

4Mr. Flowerday brought a motion (Continuing Record Vol. 5A, tab 7) with respect to certain corrections he sought to my endorsement dated November 28, 2018 (as corrected January 8, 2019) which addressed financial issues. Because of time constraints on August 9, 2019, Mr. Flowerday’s financial issues motion was not heard. The parties agreed that I should address the financial questions based on the written record.

5On August 9, Ms. Flowerday indicated that she took no issue with the quantification of the amounts Mr. Flowerday wish to address.

6The financial issues Mr. Flowerday raises are:

a) I omitted from my November 29, 2018 Endorsement (as corrected January 8, 2019) Family Bridges accounts that I ordered Mr. Flowerday to pay of:

i) $16,679 as ordered on page 2 of my endorsement dated November 26, 2016;

ii) $6,825 as ordered in paragraph 82 of my endorsement dated March 13, 2017;

b) I omitted altogether from my November 29, 2018 endorsement (as corrected January 8, 2019) Dr. Parnell’s account #9 of $1,968.

Family Bridges Account of $16,679.

7In my Costs Endorsement of November 29, 2016, at paragraph 173 to 176, I ordered that Ms. Flowerday should reimburse Mr. Flowerday for 80% of Family Bridges fees to the date of my cost endorsement. With respect to Family Bridges fees incurred thereafter insofar as they were related to the children, Ms. Flowerday would reimburse Mr. Flowerday for 75% of those fees.

8Following Ms. Flowerday’s December 13, 2016 assignment into bankruptcy, the parties asked me to rule on the effect of Ms. Flowerday’s bankruptcy on existing cost and support orders.

9In paragraphs 61 to 65 of my Custody and Access Review Endorsement of March 13, 2017, I found that all of Family Bridges fees incurred for other than specific counseling to Mr. or Ms. Flowerday, individually, were in the nature of maintenance for the children and therefore were exempt from Ms. Flowerday’s bankruptcy by section 178(1)(c) and (h) of the Bankruptcy and Insolvency Act. Those fees were incurred for the children’s well-being, to help them restore, support, and maintain healthy relationships with both parents. In light of that finding I held that my 25/75% allocation of Family Bridges invoices between Mr. Flowerday and Ms. Flowerday, respectively, for services provided to the children, would continue, unaffected by the bankruptcy.

10The parties requested that I clarify certain issues that the parties and FRO had raised arising out of my March 13, 2017 Endorsement.

11I addressed those requested clarifications in paragraphs 21 to 23 of my June 21, 2017 Endorsement, and set out basic rules with respect to approaching Family Bridges’ fees in order to help the parties decide which were caught by Ms. Flowerday’s bankruptcy. In paragraph 21 of that decision, I addressed the question of whether the Family Bridges’ fees of $16,697.60, awarded as part of the cost order of November 29, 2016, were in the nature of support and maintenance of the children, or section 7 expenses, and therefore exempted from Ms. Flowerday’s bankruptcy. I said, as follows:

Subject to the general rules regarding responsibility for Family Bridges accounts, as above, I cannot answer this specific question for two reasons. First, it is not a matter of clarification of any part of my March 13, 2017 endorsement. Second, there is no evidence, properly before me, to indicate what services the invoice covers. Even if they were properly proved, the invoices themselves are not sufficiently detailed to allow me to make any determination.

12Mr. Flowerday, in his June 3, 2019 Affidavit, paragraph 11(a), in effect, asks me to reverse my decision. I do not do so, for several reasons. First, it is a final decision. The remedy is by way of appeal.

13Second, even if I had the power to change my earlier rulings, I would not. In my endorsement of June 21, 2017, paragraph 22, I stated that I had no evidence which indicated what services the $16,697 invoices covered, to whom those services were provided, and whom they may have benefited. Therefore, I was in no position to determine what portion, if any, of the invoices that totalled $16,697 would survive the bankruptcy. It is for this reason that in paragraph 28 of that Endorsement I eliminated the $16,679.60 invoices from my calculations.

14This request is denied.

Family Bridges Account of $6,825

15In paragraph 81 of my March 13, 2017 Custody and Access Review Endorsement, I indicated that Ms. Flowerday remained obliged to pay Family Bridges’ related expenses that she listed on her December 13, 2016 “liabilities” statement, Form 79, filed in the bankruptcy. I held that the $2,565 she owed to the Oakville Centre for family dispute resolution and $4,260 she owed to Dr. Yvonne Parnell (totaling $6,825) survived the bankruptcy.

16Mr. Flowerday says that this $6,825 was not included in the calculations contained in my November 28, 2018 endorsement as corrected January 8, 2019.

17Mr. Flowerday is correct that this amount was not included in my calculations as there were no specific invoices for these charges. However, I overlooked the fact that, as Mr. Flowerday said in paragraph 2 of his Affidavit of August 23, 2018, he was asked by Ms. Vanbetlehem to reimburse these amounts, and did so on his credit card.

18An adjustment must be made for this expense.

Dr. Parnell Invoice # 9 for $1,968.75.

19Mr. Flowerday says that I failed to consider in my November 28, 2018 endorsement (as corrected January 8, 2019) Dr. Parnell’s invoice #9 found at Exhibit A – 36.4, attached to his August 23, 2018 Affidavit. That invoice was for $2,625, 75% of which (after deducting the credit card service charge) is $1,968.75.

20Mr. Flowerday is correct that this amount was not included in my calculations.

Conclusion

21Because Ms. Flowerday remains an undischarged bankrupt, there will be no costs with respect to the August 9, 2019 motions.

22By oversight, in my November 28, 2018 endorsement (as corrected January 8, 2019) I failed to take into account the Family Bridges’ accounts totaling $6,828, and Dr. Parnell’s account #9 for $1,968.75.

23Therefore, I amend paragraphs 37 and 69(1) of my 27 November 2018 Reasons (as corrected January 8, 2019). I had said in those paragraphs that the total net amount Ms. Flowerday owes to Mr. Flowerday for Family Bridges\Parnell accounts from trial to December 5, 2018 was $81,745.67. Those paragraphs should now read $89,542.42, instead.

Trimble J.