Court File and Parties
COURT FILE NO.: FC-14-130 DATE: 2020/06/01 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
N. S. Applicant – and – R. M. Respondent
Counsel: Christian Pilon, Counsel for the Applicant Self-Represented
Heard: May 28, 2020: By Teleconference
Endorsement
Justice A. Doyle
[1] On July 18, 2019, the Court rendered its decision (“Decision”) regarding the custodial and financial arrangements of the parties’ two daughters, L.M. and C.M-S. The trial proceeded from October 11, 2017 to June 4, 2019. Written submissions were provided by the parties.
[2] Mr. Murphy, the Respondent father (“father”) who is now self-represented and Mr. Pilon, counsel for the Applicant mother (“mother”) attended by phone conference to deal with the settling of the terms of the final Order pursuant to Family Law Rules O.Reg. 114/99, section 25(7), (“Rules”).
[3] Both parties have submitted their respective draft Orders and their respective explanations for their positions by email sent to the trial coordination office.
[4] As a result of COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020, this matter was heard by teleconference. See https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
Brief Background
[5] The Court presided over this trial that took place for 20 days spread over 20 months. Written submissions were provided to the Court dealing with numerous issues such as custody, access, mobility, ongoing and retroactive child support, ongoing and retroactive s. 7 special and extraordinary expenses, spousal support and reimbursement with respect to a business.
[6] Both parents were represented at trial by counsel.
[7] During the trial, the Court was advised that the parties had arrived at a consent so that both children’s surnames would include both parents’ surnames. Counsel advised that they would provide a consent Order for the Court’s execution. This was not done.
[8] Instead, the consent is included in the Final draft Order provided by mother’s counsel.
[9] By inadvertence, my Decision released in July 2019 did not deal with this consent. In the Decision, the Court dismissed the father’s request for a change of name for one of the two children on the basis that this issue was not presented, argued or discussed at the trial and that there was no evidence led on this issue. The issue was not raised in the father’s pleadings.
[10] The parties are before me now disputing the terms of the Order.
Mother’s Position
[11] The mother submits that the Decision omits the consent of the parties put on record during the trial to reflect the parties’ agreement that the children’s surnames would be hyphenated to include both parents’ surnames.
[12] Pursuant to s. 25(19)(b) of the Rules, the Court may change an Order if it contains a mistake. Given the father’s initial position that a formal motion had to be made, the mother stated she would bring a motion and asks the court to schedule a date.
[13] The draft Order provides that the mother would have custody of Lilia Murphy and Clarissa Murphy-Samson and includes a clause that the parents agreed that the children’s surnames would be changed to include both parents’ surnames and that they would sign the appropriate documentation to effect that change.
[14] The draft Order also includes a post-judgment interest clause and the parties’ addresses. The mother also requests that the draft Costs Order be signed. In previous correspondence, the father that he had issues regarding the inclusion of these clauses. However, at the hearing, the father indicated that he has no objection to the inclusion of those clauses.
Father’s Position
[15] The father submits that since the Decision did not grant the change of children’s surnames, the Final Order should not include a term dealing with the consent to change the names.
[16] At the commencement of his submissions at this hearing, he indicated that if there was a mistake in the Decision, the mother should have brought a motion under Rule 25 (19) to request the court correct the mistake. She had since January 2020 to bring this motion and has failed to do so.
[17] In his reply submissions, after mother’s counsel indicated that he was prepared to bring a motion, he indicated that he doubted that this is the proper procedure given that there was no real “Order” before the court.
[18] In his materials, he indicates that mother’s counsel misled the Court on October 23, 2019 when he indicated that the parties had a consent.
[19] He wishes the wording to reflect that the mother has custody of Lilia Athena Murphy and Clarissa Rose Samson.
[20] He does not object to the draft Costs Order, interest clause or inclusion of the addresses of the parties.
Issues
[21] The heart of the matter is what authority does the Court have to change a term of its decision when, before the Order is issued, it learns that there has been an omission?
[22] The issues for my determination are:
- Does the Court have jurisdiction to correct its Decision which omitted to include the parties’ consent to a change the children’s surname to include both parents’ surnames?
- If so, what process should be followed?
Analysis
1. Does the Court have jurisdiction to correct its Decision which omitted to include the parties’ consent to a change the children’s surname to include both parents’ surnames?
[23] For the reasons that follow, I find that, firstly, I am not functus officio (“functus”).
[24] Secondly, in my view Rule 25(19)(b) does not apply as there is no “Order” before the court to correct.
[25] Thirdly, I have the jurisdiction to modify or amend my decision until the Order has been issued.
Is the Court functus officio?
[26] Firstly, neither party suggested that I am functus. This is supported in the case law as the Final Order has not been issued.
[27] Laidlaw, J.A. in Holmes Foundery Ltd. v. Point Edward (Village) stated that:
“it is well settled in law that an Order can always be withdrawn, altered or modified by a judge either on his own initiative or on the application of a party until such time as the Order can be drawn up, passed and entered.”
[28] In addition, cases have followed this principle in Chand v. Insurance Corp. of British Columbia, 2009 BCSC 4.
[29] In Wharry v. Wharry 2019 ONSC 2895, Justice Emery dealt with a motion to change the final Order that had already been issued on the basis that there was a mistake with respect to the equalization payment. He also found that a judge who has made an Order remains seized of a matter and has the power to reconsider, vary or revoke the judgment until he or she becomes functus officio of the case.
[30] In Clement v. Clement 2015 ONSC 5654, Justice Del Frate aptly described the principles that apply:
[11] The case law is quite clear that a judge becomes functus when “the Order or judgment is signed and entered.” See 369413 Alberta Ltd. v. Pocklington, 1999 ABQB 936, 2000} A.J. No. 410 (Q.B.), Condominium Plan No. 7510189 v. Jones, 1997 ABCA; and Pro-Express Ltd. v. Thew (1996), 185 A.R. 285 (B.Q.).
[12] The exceptions are in situations where there was a mistake in the process of putting the judgment to paper and finalizing it or where there has been an error in expressing the intention of the court; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, or in situations where fraud can be proven: Wavel Ventures Corp v. Constantini, [1996] A.J. No. 1093 (C.A.).
[13] This principle is also enunciated by Perrel and Morden in The Law of Civil Procedure in Ontario, 1st ed. (Toronto: LexisNexis, 2010), at p. 777:
….until the Order in question has been signed and entered, the lower court is not functus officio and still has jurisdiction over the case, with the necessary consequence that the appellate court does not have jurisdiction to decide the appeal.
Rule 25(19)(b)
[31] The next issue is whether the Court can correct its omission under this Rule. For the reasons that follow, I find that this Rule does not apply as the cases dealing with this Rule deal with Orders that have been issued and entered by the Court. In the case at bar, there is no issued Order before the Court.
[32] It reads as follows:
The court may, on motion, change an Order that,
(a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the Order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.
[33] In Abitol v. Abitol 2017 ONSC 571, Justice Howard summarizes the case law on Rule 25(19)(b). In that case, the father brought a motion to correct what he believed to be a mistake in a consent Order stating that the spousal support amount of $800 per month required a mathematical correction. The Court dismissed his motion and described the history of definition of the word “mistake” from a previous rule from the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as “Clerical mistakes in judgments or Orders or errors arising therein from any accidental slip or omission may at any time be corrected on motion”.
[34] Justice McDermot in Henderson v. Henderson 2015 ONSC 2914, also interpreted the narrow scope of Rule 25(19)(b) which was to correct “a mistake in the content of the Order, for instance where the Order contains a typographical error, a misstatement of what was actually endorsed by the court, or a mathematical miscalculation.”
[35] However, he did broaden the interpretation stating the Rule did permit the correction of an Order where the Order mistakenly fails to include a term that had been agreed upon by the parties but was inadvertently omitted because of a lawyer’s error. He relied on the equitable remedy of rectification.
[36] In Stephens v. Stephens 2016 ONSC 367, Justice Raikes, relying on the above two cases, amended an Order as both parties had relied on a mistaken pension value when signing their Final Minutes of Settlement. He noted that the “mistake here lies in the mutual misapprehension of the value of [the husband’s] pension, a mistake both parties shared because they relied on the statement received from the pension plan administrator.” [9] He found that there was mutual mistake and the Order as drafted should reflect the parties’ common intention.
[37] In Gray v. Rizzi, 2011 ONCA 436, at para. 5, the Ontario Court of Appeal stated:
Without passing on the merits of those arguments, they go to the correctness of the Order – dealing with whether the Court could deal with the issues of spousal and child support as they had already been decided by a previous Order, arguments which can only be made on appellate review. They are not the type of “mistakes” contemplated by r. 25(19)(b). We agree with Boswell J. when he said:
The Rule was not, in my view, intended to apply to cases of alleged legal errors, such as the suggestion that the court exceeded its jurisdiction in making the Order. Mistakes, or errors, in law are appealable errors and are not subject to correction under r. 25(19).
[38] I agree with his finding that Rule 25 (19)(b) should be used to correct technical mistakes due to inadvertence or oversight in Order to ensure that the court’s intention or the parties’ common intention is accurately reflected. I also agree that the Rule should not be used to empower the court to revisit, reopen and reargue a case or allow the court to hear an appeal of its own decision.
[39] However, I find that until there is a formal Order that has been issued, a party cannot avail himself/herself of Rule 25(19)(b) to modify the Decision.
[40] Since no Order has been issued, then this Rule is not available for rectification as no Order exists. Once the Order has been issued, a motion can be made to any Justice of this Court.
2. If so, what process should be followed?
[41] Given that I am not functus, I am prepared to deal with the issue of whether I should amend my Decision.
[42] Rule 2(3) provides that the Court deal with cases justly which includes that the Court ensures that the procedure is fair to all parties and that saves time and expense.
[43] In this case, I find that it is appropriate to deal with this omission prior to the Order being issued.
[44] In Holmes, the parties did not challenge the right of the Court to alter or modify its oral judgment but submitted, among other things, that parties must be afforded an opportunity to make submissions.
Conclusion
[45] Given that the father did not have an opportunity to fully argue the substantive element of his objections i.e. why the court should not include the surname changes as per the consent placed on the record. I will grant him the opportunity to provide his full position. He will be able to file his submissions through the trial coordinator‘s office no later than June 10 at 4 PM. Mr. Pilon, counsel for the mother, may file his reply by June 17, 2020 at 4 PM.
[46] Costs of the hearing will be determined when I ultimately render a decision regarding the terms of the draft Order.