SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-17-277-1

DATE: 2020/01/28

RE: Janet Erin Hubley Applicant

-and-

Joseph Redmond Fitzpatrick, Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Philip A. Burger, for the Applicant

Respondent is Self-represented

HEARD: January 17, 2020

E N D O R S E M E N T

1. A case conference was held in this Application on January 17, 2020.

2. This endorsement sets out several orders dealing with how this matter shall proceed.

Litigation History

3. There is a litigation history between the parties, arising from their separation, that is relevant to determining how this matter should proceed.

Ms. Hubley’s Application

4. Ms. Hubley filed her Application, seeking only a divorce, on August 22, 2019.

Justice Audet’s Decision

5. Ms. Hubley’s Application followed the release of Justice Audet’s decision in FC-17-277 on January 14, 2019. Justice Audet’s decision was made after a three-day trial heard on December 11, 13 and 14, 2018.

6. In her January 14, 2019 decision, Justice Audet determined child support, Ms. Hubley’s claim for spousal support, equalization, sale of the matrimonial home, and issues related to sharing the child tax benefit. These issues were determined under the Family Law Act, as neither party sought a divorce in the proceedings before Justice Audet.

7. Justice Audet’s January 14, 2019 decision included the following:

   1. That commencing January 1, 2019, Mr. Fitzpatrick pay child support to Ms. Hubley of $330 per month. This was a set-off calculation based on Rachael spending equal time with each parent, and Emma primarily residing with Ms. Hubley. The amount of child support was based on the parties’ 2017 incomes - Mr. Fitzpatrick’s being $53,901 and Ms. Hubley’s being $52,095;
   2. That Mr. Fitzpatrick pay child support arrears to Ms. Hubley of $20,692.70. The arrears are payable at the rate of $200 per month, subject to variation upon the occurrence of a material change in circumstances;
   3. That the parties share s.7 expenses equally;
   4. That child support be adjusted yearly, by the end of June each year, beginning in June of 2019, to include a retroactive adjustment for the previous year (if any) on the basis that child support is payable in each year based on the income earned by the parties in the same year;
   5. That although Ms. Hubley was found to have an entitlement to compensatory spousal support, Mr. Fitzpatrick did not have a present ability to pay;
   6. That Mr. Fitzpatrick pay Ms. Hubley the sum of $8,838.50 concerning the Child Tax Benefit issue;
   7. That Ms. Hubley owed Mr. Fitzpatrick an equalization payment of $862.70;
   8. That contents be divided based on the process set out in Justice Audet’s order, which included that if Mr. Fitzpatrick failed to return any of the items chosen by Ms. Hubley, he shall be liable to pay the value set out in the attached Schedule. Any difficulties implementing the order regarding contents could be returned before Justice Audet by motion.
   9. Fixing Ms. Hubley’s interest in the matrimonial home at $20,151.43 and dismissing Ms. Hubley’s claim for occupation rent, based on taking into consideration several factors, including Mr. Fitzpatrick’s claims for paying various costs related to the upkeep of the home;
   10. Ordering the sale of the home on various terms, including that Mr. Fitzpatrick be required to vacate the home on or before March 17, 2019, at which time Ms. Hubley shall have exclusive possession of the home to prepare it for sale;
   11. For the division of the sale proceeds

8. Justice Audet awarded costs payable to Ms. Hubley of $15,906 (cost decision dated March 5, 2019). 50% of this sum was payable from the sale proceeds of the home. The remaining 50% was enforceable as support by the Family Responsibility Office.

9. On April 1st, 2019, Justice Audet made a further order on Ms. Hubley’s motion, granting a writ of possession for the matrimonial home to enforce the requirement that Mr. Fitzpatrick vacates the home. Justice Audet provided that if the items agreed upon under the parties’ division of contents were not left in the home when Ms. Hubley took possession, the matter may be returned before her. Direction was provided for Mr. Fitzpatrick to remove all of his items from the home, and he was required to pay further costs of $1,000.

10. The matrimonial home appears to have now been sold.

11. Mr. Fitzpatrick has not sought to appeal Justice Audet’s decision dated January 14, 2019.

Mr. Fitzpatrick’s Answer

12. Mr. Fitzpatrick filed his Answer on October 15, 2019. His Answer is difficult to understand. It appears from his Answer that, although he agrees with a divorce, he seeks additional relief, including an order reducing child support, spousal support for himself, an order for a retrial of the matters determined by Justice Audet based on new evidence, and a reconciliation related to the proceeds of sale from the matrimonial home.

13. Mr. Fitzpatrick’s Answer includes several claims that have already been litigated and determined by Justice Audet. His pleading needs to be fixed to remove claims that are not properly before the court, to clarify what he is seeking, and the basis for the relief that he seeks. Ms. Hubley is entitled to know what Mr. Fitzpatrick is seeking, the jurisdiction of the court that he relies on to grant this relief and the material facts that support his claim. Mr. Fitzpatrick’s existing Answer does not provide this and is deficient.

Ms. Hubley’s Amended Application

14. In response to Mr. Fitzpatrick’s Answer, Ms. Hubley sought leave to amend her Application and was granted leave to do so by order of Justice Doyle dated November 20, 2019. Ms. Hubley has served and filed her Amended Application. Ms. Hubley now seeks, in addition to a divorce, an Order striking Mr. Fitzpatrick’s Answer, an Order requiring Mr. Fitzpatrick to pay damages related to the state of the matrimonial home, damages for his failure to transfer the contents as directed under Justice Audet’s January 14, 2019 order, that child support be changed based on both children now primarily residing with Ms. Hubley, and an order preventing Mr. Fitzpatrick from commencing any further proceedings without leave.

15. Ms. Hubley’s claims relating to the division of the household contents should be returned to Justice Audet. Justice Audet retained jurisdiction to address difficulties in implementing her directions for the division of household contents (in her January 14, 2019 order) and to address issues if Mr. Fitzpatrick did not leave the contents agreed upon (April 1st, 2019 endorsement).

Divorce

16. The corollary relief issues were severed from the divorce by Order of Justice Doyle dated November 20, 2019. A Divorce Order was granted on December 10, 2019.

Purpose of a Case Conference

17. The purpose of a case conference includes[^1]:

(a) exploring the chances of settling the case;

(b) identifying the issues that are in dispute and those that are not in dispute;

(c) exploring ways to resolve the issues that are in dispute;

(d) ensuring disclosure of the relevant evidence;

(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(e) noting admissions that may simplify the case;

(f) setting the date for the next step in the case;

(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;

(h) organizing a settlement conference, or holding one if appropriate; and

(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate. O. Reg. 114/99, r. 17 (4); O. Reg. 89/04, s. 8 (1);

18. The Family Law Rules must be applied to promote the primary objective of the rules, which is to enable the court to deal with cases justly. Rule 2 includes the following:

“(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. “

19. The Family Law Rules specifically empower the Court to make several orders to promote the primary objective. Certain orders may be made at any stage in a proceeding. Rule 1 provides:

“(7.1) For greater certainty, a court may make an order under subrule (7.2), (8), (8.1) or (8.2) at any time during a case, and the power to make such an order,

(a) is in addition to any other power to make an order that these rules may specify in the circumstances; and

(b) exists unless these rules expressly provide otherwise.

(7.2) For the purposes of promoting the primary objective of these rules as required under sub rules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(a) that a party give to another party an affidavit listing documents that are relevant to the issues in a case and that are in the party’s control or available to the party on request, or that a party make any other disclosure, within a specified time;

(b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits);

(c) that any motions be brought within a specified time;

(f) limiting the number of witnesses;

(g) that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing;

(i) that a witness gives all or part of his or her evidence by affidavit or another method not requiring the witness to attend in person;

(j) that oral evidence be presented, or that any oral evidence be subject to a time limit;

(l) that a party serve and file a summary of argument;

(m) that a party provide to the court a draft order (Form 25, 25A, 25B, 25C or 25D) setting out the relief that he or she is seeking;

(n) identifying the issues to be decided at a particular hearing;

(o) that the parties appear before the court by a specified date;

(p) that a case be scheduled for trial or that a trial management conference be conducted; and

(q) that a trial be limited to a specified number of days and apportioning those days between the parties. “

Issues in Dispute

20. The essence of the parties’ respective claims in this proceeding are compliance/enforcement issues under Justice Audet’s order and seeking to change the child and spousal support orders made by Justice Audet. This conclusion is based on Mr. Fitzpatrick’s submissions at the case conference and Ms. Hubley’s Amended Application.

21. Aside from seeking to re-litigate the issues before Justice Audet, Mr. Fitzpatrick indicates that he wishes to seek orders:

    1. Reducing child support based on a claim of undue hardship and a reduction in his income;
    2. Requiring Ms. Hubley to pay him spousal support; and
    3. Adjusting child support as of June 2019, to include a retroactive adjustment for child support paid in 2018 based on the parties’ incomes in 2018, as provided for in Justice Audet’s January 14, 2019 decision.

22. Ms. Hubley’s claims similarly are, in essence, claims arising from Mr. Hubley’s compliance with Justice Audet’s orders and seeking to change child support based on a material change in circumstances (both children are now primarily residing with her).

23. This proceeding is under the Divorce Act. Justice Audet’s orders regarding child and spousal support were made under the Family Law Act. Accordingly, the claims for child support may be determined under s.15.1 of the Divorce Act, and the claim for spousal support may be determined under s.15.2 of the Divorce Act. In both situations, Justice Audet’s orders respecting child and spousal support will be the starting point for any determination of the parties’ respective claims. If a party seeks to change the child and spousal support orders, they should be prepared to address what has changed since Justice Audet’s orders to warrant a change. These claims must be properly pleaded by Mr. Fitzpatrick in his new Answer, with a concise statement of the material facts on which he relies in support of his claim, but not the evidence by which those facts are to be proved.

Pleadings

24. The first issue that needs to be addressed to move this matter forward is Mr. Fitzpatrick’s pleadings. I am striking Mr. Fitzpatrick’s Answer and providing him with 30 days to file a new Answer, properly pleaded, to set out, concisely, what orders he is asking the court to grant, the jurisdiction of the court to make the orders that he seeks, and a concise statement of the material facts on which he relies in support of his claim, but not the evidence by which those facts are to be proved.

25. I encourage Mr. Fitzpatrick to seek assistance to ensure that he files proper pleadings. He may seek assistance by obtaining legal advice. Mr. Fitzpatrick has been assisted by counsel previously in this matter. But Mr. Fitzpatrick may also seek assistance from other sources, including the Family Law Information Centre at the Ottawa courthouse, the Superior Court of Justice website, the Ontario government website, and the Community Legal Education Ontario website. Mr. Fitzpatrick is ultimately responsible for ensuring that he abides by the Family Law Rules and understanding his legal obligations in this matter under the applicable laws.

26. I caution both parties that the Family Law Rules provide that the court may require one party to pay costs to the other party in several circumstances, which include if the party does not comply with the Family Law Rules, pursues meritless claims, waste the court’s time or the other side’s time, does not act reasonably to narrow the issues, or ultimately is simply unsuccessful in their claims. Both parties should be familiar with the jurisdiction of the court to award costs, given the history in the litigation arising from their separation.

27. Mr. Fitzpatrick’s new Answer should not include claims that are, in substance, an attempt to re-litigate matters determined by Justice Audet. That is improper. This includes, for example, claims relating to the payment of expenses on the matrimonial home and the value of the home to determine Ms. Hubley’s equity, which have already been determined by Justice Audet, as well as claims for a re-trial. The starting point of this proceeding, in the absence of an appeal, is that Justice Audet’s decisions are correct, and this court will not go behind her decisions to change them.

28. Mr. Fitzpatrick’s new Answer should not include facts that are not material to the relief he is seeking, or the relief Ms. Hubley is seeking.

29. Mr. Fitzpatrick’s new Answer should include a concise statement of the material facts on which he relies for the claims he makes. Mr. Fitzpatrick’s new Answer should not include statements of the evidence by which he will seek to prove these material facts.

30. Mr. Fitzpatrick’s new Answer should include a concise statement of the material facts upon which he relies to defend Ms. Hubley’s claims in her Amended Application, but not the evidence by which he will seek to prove these material facts.

31. Upon being served with Mr. Fitzpatrick’s new Answer. Ms. Hubley shall have 30 days to serve and file her Reply.

32. Each party shall also file an updated and complete sworn Financial Statement with their new Answer/Reply, in accordance with the Family Law Rules. I remind both parties of their obligations to provide financial disclosure in accordance with the rules, including their ongoing obligation to correct and update their financial information (see Rule 13(15)).

Fair and Just Hearing

33. I find that the just way for this matter to proceed to adjudication is by way of a one-day focused hearing before Justice Audet, according to the directions set out below. This finding is based on the following:
    1. The issues in this matter are, in essence, compliance/enforcement issues under Justice Audet’s orders and seeking to change the child and spousal support orders made by Justice Audet (although under s.15.1 and 15.2 of the Divorce Act);
    2. Justice Audet expressly retained jurisdiction to deal with issues arising from her directions on the division of contents;
    3. This matter was recently before Justice Audet on a three-day trial heard on December 11, 13 and 14, 2018; and again, before Justice Audet on April 1, 2019;
    4. Proceeding in this manner will make the most efficient use of the parties’ and the court’s limited resources;
    5. The directions below are intended to limit the number of court appearances and move this matter towards resolution expeditiously in one final hearing, rather than splitting the issues between multiple judges;
    6. The directions below provide for a process that provides for evidence by affidavit, with oral cross-examinations to address credibility issues; and
    7. Proceeding in the manner directed best promotes the primary objective of the Family Law Rules.

Directions

34. Accordingly, I direct that the parties obtain a one-day final hearing date before Justice Audet from the Trial Coordinator, on a date that accommodates the timelines set out herein.

35. The parties shall also obtain a second court date for a case management conference before me. This conference shall be scheduled approximately one month before the final hearing date before Justice Audet. The purpose of this case management conference shall be to ensure the parties have complied with the terms of this order, to address any outstanding issues, and to conduct a settlement conference.

36. At the final hearing, each parties’ direct evidence shall go in by affidavit. Affidavits shall be no longer than 25 pages, 1.5 spaced, 12-point font, plus exhibits.

37. Ms. Hubley shall serve her affidavit within 45 days of being served with Mr. Fitzpatrick's new Answer. Ms. Hubley’s affidavit shall include a copy of the draft order setting out the precise orders she is seeking from the court.

38. Mr. Fitzpatrick shall serve and file his affidavit within 20 days of being served with Ms. Hubley’s affidavit. Mr. Fitzpatrick’s affidavit shall include a copy of the draft order setting out the precise orders he is seeking from the court.

39. Ms. Hubley may then file a Reply affidavit, not to exceed ten pages, 1.5 spaced, 12-point font, plus exhibits. Ms. Hubley shall serve and file her Reply affidavit within 15 days of being served with Mr. Fitzpatrick’s affidavit.

40. At the final hearing, each party shall have the right to cross-examine the other party on their affidavit for a period not exceeding 90 minutes.

41. At the final hearing, each party shall have 10 minutes at the commencement of the hearing to provide an opening statement.

42. In advance of the final hearing, each party shall file a factum, not to exceed 20 pages in length (1.5 spaced, 12-point font) in accordance with the Family Law Rules and Practice Direction. Each party shall also have 30 minutes to make final submissions at the close of the final hearing.

43. For any court appearances, each party shall file confirmation forms per the Family Law Rules.

Disclosure

44. Mr. Fitzpatrick states that there are medical reasons why he is not able to earn the same level of income that he has earned in the past. Mr. Fitzpatrick shall provide Ms. Hubley, through her counsel, with copies of all medical assessments related to his alleged ability to work for the period from November 1, 2018, to present. Mr. Fitzpatrick shall also provide a copy of his family doctor’s medical file (including chart and notes) for the period from November 1, 2018, to present. These documents shall be produced within 30 days.

45. I remind the parties that they each must produce disclosure requested by the other party that is relevant to the issues in dispute, that is within their possession, power or control, and is proportional and is necessary.

46. If there are issues with disclosure, either party may serve and file a Form 14B motion, to my attention. Such a motion shall include a concise statement of the disclosure sought, including evidence of when the disclosure was requested, and why the requested disclosure is relevant, proportional, and necessary.

Costs

47. Mr. Fitzpatrick shall pay costs to Ms. Hubley fixed in the amount of $350 for the case conference heard on January 17, 2020. I order these costs against him due to the time spent at the conference due to deficiencies in his pleading, including to identify the issues in dispute and to provide for Mr. Fitzpatrick to file a new Answer. These costs are payable forthwith.

Dated: January 29, 2020 __________________

Justice P. MacEachern

COURT FILE NO.: FC-17-277-1

DATE: 2020/01/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Janet Erin Hubley Applicant

-and-

Joseph Redmond Fitzpatrick, Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Philip A. Burger, for the Applicant

Respondent is Self-represented

HEARD: January 17, 2020

ENDORSEMENT

Justice Pam MacEachern

Released: January 28, 2020

[^1]: Family Law Rules, Rule 17(4)