COURT FILE NO. 402/14

DATE: 2021-01-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kim Shirley Devine

Applicant

– and –

Peter Thomas Devine

Respondent

Gerry V. Shaffer, for the Applicant

Laura Smith, for the Respondent

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with two motions brought by the Applicant and a cross motion brought by the Respondent. The motions proceeded before me as long motions on October 20, 2020.

[2] The Applicant’s first motion was originally returnable on July 12, 2018. In that motion, she requested an order finding the Respondent in contempt of paragraph 10 of the final order of Hardman J. dated September 3, 2015 (“paragraph 10), which provided as follows:

The Respondent, Peter Devine, shall provide the Applicant, Kim Devine, with confirmation of her reinstatement under his benefits through his employment or independent confirmation of her ineligibility to be reinstated within 60 days of this order. Should he fail to do so, the Respondent shall pay to the Applicant the sum of $8,000.00 forthwith.

[3] The Applicant alleged in her contempt motion that the Respondent was in contempt of paragraph 10 of the September 3, 2015 order, since he did not reinstate her on his benefits by November 3, 2015, did not provide her with independent proof of her ineligibility to be reinstated by that date and did not pay her $8,000.00. The contempt motion was adjourned, and for some reason it was not scheduled for a hearing for many months. The Applicant eventually brought a motion on February 19, 2020 seeking to return her contempt motion for a hearing, and requesting in the alternative that paragraph 10 be enforced. At the hearing before me, counsel for the Applicant confirmed that the Applicant was not pursuing her request for a contempt finding, but was simply requesting an order requiring the Respondent to pay her the sum of $8,000.00 in accordance with paragraph 10.

[4] In his cross motion, the Respondent requests an order prohibiting the Applicant from bringing any further motions without leave of the court. The Respondent seeks this relief pursuant to section 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, on the ground that the Applicant’s motions are vexatious.

[5] For the reasons that follow, I conclude that the Respondent did not reinstate the Applicant as a beneficiary under his benefits plan by November 3, 2015 and did not provide her with independent confirmation that she was ineligible to be reinstated by that date. Accordingly, he was required by virtue of paragraph 10 of the September 3, 2015 order to pay the Applicant the sum of $8,000.00 as of November 3, 2015. He did not make this payment, and there is in my view no legal basis or justification for relieving him of his obligation to do so. Accordingly, as a matter of enforcement of paragraph 10, I am ordering him to pay the sum of $8,000.000 forthwith, plus post-judgment interest at the rate of 2% per year from November 3, 2015 until the date of payment, as required pursuant to the September 3, 2015 order. With respect to the Respondent’s cross motion, I conclude that there are no grounds for the relief requested, and I have therefore dismissed the motion.

PART II: THE APPLICANT’S MOTION

I. BACKGROUND

[6] The parties were married on May 22, 1993 and separated on February 11, 2005. They were divorced on February 5, 2018. The Respondent maintained the Applicant as a beneficiary under his benefits plan following the parties’ separation but removed her from the plan in 2007. The parties subsequently executed a Separation Agreement on April 2, 2008, which provided at paragraph 8.7 that the Respondent must maintain the Applicant as a beneficiary under his benefits plan. At that time, neither party had a common law spouse. The Respondent reinstated the Applicant as a beneficiary in compliance with the Separation Agreement.

[7] In 2011, the Respondent asked the Applicant for permission to remove her as a beneficiary under the benefits plan, since she had obtained employment and had a separate benefits plan through her employment. The Applicant did not respond to this request and therefore the Respondent maintained her on his plan. The Respondent asked the Applicant again for permission to remove her as a beneficiary in 2012, since he was in a common law relationship with Mary Reinhart by that time. The Applicant agreed to be removed from the benefits plan at that point, since she had benefits available to her through her work. The Respondent proceeded to remove the Applicant as a beneficiary under the plan and designated his partner Mary Reinhart as a beneficiary effective April 1, 2012.

[8] Unfortunately, the Applicant lost her job in October 2013 and her benefits through her employment ended in January 2014. Since the parties were not yet divorced at that time, the Applicant asked the Respondent to reinstate her as a beneficiary under his benefits plan. The Respondent declined to reinstate the Applicant on the plan, stating that his benefits provider, Sun Life, had advised him that the Applicant was not entitled to coverage since she no longer met the definition of an eligible dependent under the plan.

[9] According to the coverage booklet for the benefits plan, an “eligible dependent” is defined as including the following:

Your spouse by marriage or under any other formal union recognized by law, or a person of the opposite sex or of the same sex who is publicly represented as your spouse for a minimum of 12 consecutive months, is an eligible dependent. You can only cover one spouse at a time.

[10] The benefits booklet also specifies that “to be eligible, your spouse must be legally married to you, or be your partner of the opposite sex or the same sex who is publicly represented as your spouse for at least the last year…”

[11] The Applicant’s position is that pursuant to these terms, the Respondent could have removed Ms. Reinhart as a beneficiary under his benefits plan prior the parties’ divorce on February 5, 2018 and reinstated coverage for her under the plan as a “spouse by marriage.”

[12] The Applicant commenced Family Law proceedings following the separation, and the case eventually proceeded to trial before Hardman J. in 2015. By the time of trial, the Respondent had not reinstated the Applicant under the benefits plan and had not provided the Applicant with independent confirmation from his employer or Sun Life that she was ineligible for coverage under the plan. In response to this issue, Hardman J. granted the Respondent a further 60 days to either reinstate the Applicant on the benefits plan or to provide independent proof that she no longer qualified as an eligible dependent. As I have indicated, Hardman J. ordered the Respondent to pay the Applicant $8,000.00 forthwith if he failed to either reinstate the Applicant or provide her with independent proof of ineligibility by November 3, 2015. I find based on the Applicant’s evidence as set out in her affidavit sworn June 26, 2018 that the $8,000.00 referred to in paragraph 10 related to health expenses that she had incurred as of that time, as she had been off work due to disability. I also find that the Applicant incurred additional medical expenses of at least $12,000.00 after September 3, 2015.

[13] After receiving the September 3, 2015 order, the Respondent emailed both a Sun Life Customer Relations Representative, Mr. Sean Murray, and the Supervisor of Benefit Development, Human Resources Department, for the City of Kitchener, Ms. Ita Magid, to determine if the Applicant could be reinstated as a beneficiary under the benefits plan. It is clear from the evidence that the Respondent was of the view that the Applicant did not qualify for coverage under the plan, that he first spoke to Ms. Magid about this issue, and that Ms. Magid initially refused to send him confirmation or documentation indicating that the Applicant was no longer eligible for coverage. The Respondent then emailed Mr. Murray for assistance. On September 25, 2015, Mr. Murray sent the Respondent an email indicating that the Applicant was not an eligible dependent under the plan since she was not legally married to the Respondent and did not live in the same domicile as him. He added that the Respondent already had another spouse listed on the policy, and that a second spouse could not be added. When the Respondent later clarified that the parties were not yet legally divorced, Mr. Murray responded on September 25, 2015 that “[t]he fact that you do not cohabitate with your ex-spouse, do not publicly represent her as your spouse, and that you have a current spouse already listed on the policy are the most relevant facts here. That you are not legally divorced does not matter in this case.” This response left open the question of whether the Respondent could remove Ms. Reinhart from the plan and add the Applicant as a beneficiary. The Respondent emailed Mr. Murray again on September 28, 2015 seeking clarification on this issue. Mr. Murray responded by email on September 29, 2015, stating “even if you didn’t have a current spouse, the other criteria I have listed would make your ex-spouse ineligible as a dependent.” Following receipt of this email from Mr. Murray, Ms. Magid sent an email to the Respondent dated October 1, 2015 in which she essentially reiterated what Mr. Murray had relayed to the Respondent. Specifically, she stated, inter alia, as follows:

The most relevant facts in determining that your ex-spouse does not satisfy the definition of a spouse under our policy with Sun Life are that you do not cohabitate with your ex-spouse, do not publicly represent her as your spouse and that you have a current spouse already listed on the policy. Sun Life has also stated that even if you didn’t have a current spouse listed, the criteria listed above would make your ex-spouse ineligible and the fact that you are not yet legally divorced does not matter in this case.

[14] The parties’ former counsel, Ms. Gladkykh and Mr. Lannan, appeared before Hardman J. again on March 11, 2016 to address costs in relation to the trial and problems with the Support Deduction Order pertaining to the September 3, 2015 order. A transcript from that court appearance was adduced as evidence on the motions. At that appearance, the Applicant’s former counsel Ms. Gladkykh advised the court that the Respondent had not complied with paragraph 10 of the September 3, 2015 order. She indicated that she had received a letter dated October 4, 2015 from Mr. Lannan in which he had simply stated “my client was advised by his employer that he is unable to add Kim to his benefits.” However, she noted that the letter did not attach any independent confirmation of the Applicant’s ineligibility for coverage under the benefits plan. Mr. Lannan advised the court that he thought he had sent Ms. Magid’s October 1, 2015 email to Ms. Gladkykh, but that in any event he had a copy that he could produce at that point. He provided a copy of Ms. Magid’s email to Ms. Gladkykh and the judge on that date.

[15] Ms. Gladkykh argued before Hardman J. in court on March 11, 2016 that there was a genuine issue to be determined as to whether the interpretation set out in Ms. Magid’s October 1, 2015 letter regarding the Applicant’s entitlement to benefits coverage under the Respondent’s plan was correct. Specifically, the issue in dispute was whether the requirement relating to public recognition as the Respondent’s spouse for the previous 12 months applied only to a common law spouse, or whether it extended also to a spouse by marriage. Hardman J. indicated during the hearing on March 11, 2016 that in light of this uncertainty, the most practical course of action was for the Respondent to submit a claim on behalf of the Applicant, and for him to challenge Sun Life if it decided to deny the claim. She emphasized to the Respondent that there was a court order respecting reinstatement of the Applicant on the benefits plan, and that it was therefore his obligation to “fight it” if Sun Life denied coverage for the Applicant. She added as follows:

So I would really recommend if the father is being genuine about this, try putting through a claim. You know, something that you know should be covered. And then fight it. And then maybe somebody will tell why- because it is not clear to anybody, any four of us right now.

[16] At the end of the hearing of these motions on October 20, 2020, I concluded that the parties’ former counsel, Ms. Gladkykh and Mr. Lannan, should be put on notice about the Applicant’s motion and be given an opportunity to file evidence, given the potential implications of any findings and the outcome of this motion in regard to their former solicitor-client obligations towards the parties. I adjourned the motions to December 22, 2020 to be spoken to only, to ascertain if either former counsel wished to seek party status or participate in the hearing in any fashion. Both former counsel were served with the motion materials, and neither chose to seek party status or to file additional materials in connection with the motion. However, both former counsel sent emails to the parties’ current lawyers after receiving the motion materials. The Applicant’s former counsel Ms. Gladkykh confirmed in an email to Mr. Schaffer dated October 22, 2020 that the only correspondence that she had received from Mr. Lannan regarding the benefits issue from September 3, 2015 until the court-ordered deadline of November 3, 2015 was his letter dated October 4, 2015. She also reiterated that there were no attachments to that letter. Mr. Lannan indicated in an email to the Respondent’s counsel dated December 22, 2020 that from his perspective, independent confirmation respecting the Applicant’s ineligibility for coverage under the benefits plan had been provided to the Applicant either before court on March 11, 2016 or at the latest at court on that date. He did not provide any documentary evidence to support his suggestion that he had sent Ms. Gladkykh or the Applicant independent confirmation of the Applicant’s ineligibility for coverage under the benefits plan prior to November 3, 2015.

II. ANALYSIS

A. Issue #1: Did the Respondent Comply with Paragraph 10 of the September 3, 2015 Order?

[17] The parties both acknowledge that the Respondent did not reinstate the Applicant as a beneficiary on his benefits plan by the November 3, 2015 deadline set out in paragraph 10 of the September 3, 2015 order. However, the Respondent claims that he provided a copy of Ms. Magid’s October 1, 2015 email to his former counsel Mr. Michael Lannan prior to the November 3, 2015 deadline. He also stated that he provided Mr. Lannan with the email from Mr. Murray dated September 29, 2015 prior to the deadline, but that Mr. Lannan advised him that the October 1, 2015 email from Ms. Magid was sufficient to comply with paragraph 10. His position is that Mr. Lannan forwarded the October 1, 2015 email from Ms. Magid to Ms. Gladkykh prior to November 3, 2015.

[18] For the reasons outlined below, I accept the Respondent’s evidence that he sent the October 1, 2015 email from Ms. Magid and the September 29, 2015 email from Mr. Murray to Mr. Lannan prior to November 3, 2015. However, I am not satisfied that the Respondent or Mr. Lannan forwarded either of these emails or any other independent confirmation of the Applicant’s ineligibility for coverage under the benefits plan to either Ms. Gladkykh or the Applicant by the court-ordered deadline of November 3, 2015.

[19] Addressing first my conclusion that the Respondent sent the required independent confirmation to Mr. Lannan prior to the November 3, 2015 deadline, I note that in an email to Mr. Lannan dated October 23, 2015, the Respondent asked Mr. Lannan if “the documentation regarding the benefits” had to be submitted to the court. In a second email to Mr. Lannan dated October 23, 2015, he confirmed that Mr. Lannan had told him that the emails from Sun Life stating that the Applicant was not eligible for coverage did not have to be included, and that “the one from my HR department would be enough to satisfy the judge.” Furthermore, it is clear from Mr. Lannan’s statements in court on March 11, 2016 that he had received a copy of Ms. Magid’s October 1, 2015 email prior to writing the letter to Ms. Gladkykh dated October 4, 2015, and that he believed that he had attached it to that letter.

[20] While I find that the Respondent produced the independent confirmation required by paragraph 10 to his former counsel prior the deadline of November 3, 2015, the pertinent question for the purposes of the Applicant’s motion is whether he or Mr. Lannan provided this independent confirmation to either the Applicant or her former counsel Ms. Gladkykh by that date. I find that they did not. The evidence supports the Applicant’s position that she and Ms. Gladkykh did not receive independent confirmation that the Applicant no longer qualified for coverage under the benefits plan until March 11, 2016, when Mr. Lannan provided Ms. Gladkykh with a copy of Ms. Magid’s October 1, 2015 email in court. On this issue, I note that Mr. Lannan’s attention to the benefits coverage issue in his letter to Ms. Gladkykh dated October 4, 2015 was brief and summary in nature. He simply stated “[a]dditionally, my client was advised by his employer that he is unable to add Kim to his benefits.” There is no reference in the body of the letter to any attachments or enclosures that would qualify as independent confirmation that the Applicant was no longer eligible for coverage under the benefits plan. In addition, there is no notation at the end of the letter indicating that there were any attachments or enclosures, and the fax printout at the top of the two-page letter shows that only two pages were sent. Significantly, the letter indicates that the Respondent was copied on the correspondence. It is clear that the Respondent received a copy of this letter, since he referred to it in an email that he sent to Mr. Lannan on October 23, 2015. In that email, he noted that “it has been close to three weeks since you sent the letter to her,” referring to the Applicant’s lawyer Ms. Gladkykh. The Respondent should have therefore been aware that Mr. Lannan had not attached the emails from Ms. Magid or Mr. Murray to his October 4, 2015 letter to Ms. Gladkykh. Furthermore, I find that the Applicant put the Respondent on clear notice on February 24, 2016 that she had not yet received independent confirmation that she was ineligible to be reinstated on the Respondent’s benefits plan. In an email of that date to the Respondent, she reinforced that she needed a letter from the City of Kitchener stating that she could not be placed back on the benefits plan. The Respondent replied by email on March 4, 2016, stating simply that he had been told by his counsel that “this matter has been handled and is closed.” The comments of the parties’ former counsel in court on March 11, 2016 further support my conclusion that neither the Respondent nor Mr. Lannan had provided the Applicant or her counsel with the independent confirmation required by paragraph 10 prior to that date.

[21] I emphasize that Mr. Lannan was put on notice of this proceeding and was given an opportunity to provide further evidence to the court to clarify whether he or the Respondent provided the Applicant or Ms. Gladkykh with any independent confirmation of the Applicant’s ineligibility for coverage under the benefits plan prior to November 3, 2015. He chose not to participate and did not provide any further evidence to shed light on this issue.

B. Issue #2: Should the Respondent be Relieved of His Obligation to Pay the Applicant $8,000.00, plus interest?

[22] Having concluded that the Respondent neither reinstated the Applicant under his benefits plan nor provided independent confirmation of her ineligibility for coverage by November 3, 2015, the question is whether there are any grounds for relieving him of his obligation pursuant to paragraph 10 of the September 3, 2015 order to pay the Applicant $8,000.00, plus post-judgment interest. Counsel for the Respondent submitted that even if the Applicant or her former counsel did not receive the independent confirmation by November 3, 2015, the Respondent should not be required to comply with the payment term in paragraph 10 for the following reasons:

1. First, he acted with due diligence after September 3, 2015 and provided Mr. Lannan with the October 1, 2015 email of Ms. Magid and the September 29, 2015 email of Mr. Murray well before the November 3, 2015 deadline.

2. Second, the Applicant and Ms. Gladkykh received a copy of Ms. Magid’s October 1, 2015 email by March 11, 2016 at the latest, and the Applicant would not have suffered any prejudice by the 4.5 month delay in receiving this independent confirmation that she no longer qualified as an eligible dependent.

3. Third, it would be unjust to require the Respondent to pay $8,000.00 to the Applicant, given the evidence that the Applicant did not qualify for coverage under the benefits plan. Counsel for the Respondent argued that this outcome would amount to a windfall for the Applicant and cause the Respondent significant hardship.

4. Finally, the Respondent argued that Hardman J. already addressed the question of his compliance with paragraph 10 at the court appearance on March 11, 2016, and that she declined at that time to enforce the term requiring him to pay $8,000.00 to the Applicant.

[23] I have carefully considered these arguments, but I conclude that there are no grounds for relieving the Respondent of his obligation to pay the Applicant the $8,000.00 referred to in paragraph 10 of the September 3, 2015 order. My decision is based on the following considerations:

1. This proceeding is simply about enforcement of paragraph 10. The terms of that paragraph are clear, and the Respondent did not comply with them. He never appealed this term of the order.

2. The Respondent has not requested an order nunc pro tunc amending paragraph 10 of the September 3, 2015 order to extend the time for him to comply.

3. It is clear from the evidence before me that Hardman J. included paragraph 10 in her order because the Respondent had failed to address the issue of the Applicant’s coverage under his benefits plan for an extended period of time. The Applicant had been asking the Respondent since January 2014 to either reinstate her on the benefits plan or to provide confirmation from Sun Life or his employer that she was no longer eligible for coverage. Hardman J. granted the Respondent a further indulgence of 60 days to address this issue properly. This was clearly intended to be a final and binding deadline, having regard for the Respondent’s inadequate attention to the benefits coverage issue over a protracted period of time.

4. Although the Respondent provided Mr. Lannan with independent confirmation of the Applicant’s ineligibility for coverage prior to the November 3, 2015 deadline, the obligation was to provide it to the Applicant or her counsel. The failure on the part of Mr. Lannan to provide the confirmation to the Applicant or Ms. Gladkykh by the deadline is a matter between the Respondent and Mr. Lannan. There are in my view no grounds for shifting the consequences of failing to comply with paragraph 10 from Mr. Lannan and the Respondent to the Applicant. Moreover, as I have indicated, the Respondent should have been aware based on Mr. Lannan’s correspondence to Ms. Gladkykh dated October 4, 2015 and the Applicant’s email to him dated February 24, 2016 that the Applicant and her counsel had not received the independent confirmation required by paragraph 10.

5. The Respondent’s arguments regarding hardship to him and a windfall to the Applicant rest on the assumption that Mr. Murray’s position respecting the Applicant’s ineligibility for coverage under the benefits plan was correct. However, this issue has not been determined by the court, and I have not been asked to address it. Mr. Murray was an employee of Sun Life, and therefore his interpretation would have been formulated with Sun Life’s interests in mind. Without deciding the issue, I agree with counsel for the Applicant that there appears to be a genuine issue as to whether the eligibility requirement set out in the benefits plan booklet and on Sun Life’s website regarding public representation as a spouse for at least one year applies only to a common law spouse or also to a spouse by marriage. It appears that Ms. Magid was uncertain on this point, as she waited until the Respondent obtained written confirmation from Sun Life regarding the Applicant’s eligibility for coverage before sending her October 1, 2015 email. Moreover, in an email to the Applicant’s counsel dated January 21, 2020, Ms. Magid asserted that if the Respondent had removed Ms. Reinhart as a beneficiary under the plan in 2015, the Respondent could have reinstated the Applicant as a beneficiary since the parties were not yet divorced. She subsequently retracted this statement on February 26, 2020, suggesting that counsel for the Applicant had misconstrued her position.

6. With respect to the uncertainty regarding the eligibility criteria, Hardman J. clearly advised the Respondent on March 11, 2016 that paragraph 10 of the September 3, 2015 order placed an onus on him to push Sun Life on the issue of the Applicant’s eligibility for coverage. She directed that he should take a very practical and pragmatic approach to resolving the benefits issue by putting a claim through to Sun Life on behalf of the Applicant and then taking all available steps to dispute any rejection of the claim. This would have involved removing Ms. Reinhart as a beneficiary under the benefits plan and reinstating the Applicant. The Respondent failed to take these steps. Moreover, upon carefully considering the evidence in its entirety, I find that the Respondent had no interest in reinstating the Applicant as a beneficiary, because he wished to maintain his current partner Ms. Reinhart on the plan. I do not give any weight to the Respondent’s arguments respecting hardship to him and a potential windfall to the Applicant, given the uncertainty regarding the eligibility criteria and his failure to take the practical steps that Hardman J. directed him to take to advocate for the Applicant’s coverage under the benefits plan.

7. Finally, I disagree with the Respondent’s position that Hardman J. decided on March 11, 2016 that the term in paragraph 10 requiring the Respondent to pay the Applicant $8,000.00 should not be enforced. There was no motion before the court on that date requesting that Hardman J. address this issue, and Ms. Gladkykh essentially raised the Respondent’s non-compliance with paragraph 10 as a house-keeping matter. Counsel did not make submissions on the question of whether the payment term should be enforced. The main focus of the discussion on this issue in court on March 11, 2016 was Hardman J.’s direction to the Respondent that he should resolve the question of the Applicant’s benefits coverage in a pragmatic fashion by submitting a claim on behalf of the Applicant and actively disputing any rejection of the claim by Sun Life.

[24] For the reasons set out above, I am ordering the Respondent to pay the Applicant the sum of $8,000.00 forthwith, in compliance with paragraph 10 of the September 3, 2015 order. In addition, that order provides that post-judgment interest is payable at the rate of 2% per year effective from the date of the order, and that any payment in default shall bear interest from the date of default. The date of default in this case was November 3, 2015, which is the date by which the Respondent was to either reinstate the Applicant on his benefits plan, provide independent confirmation that she was no longer eligible for coverage, or pay the Applicant $8,000.00 if he failed to do either. Accordingly, the Respondent must pay the Applicant post-judgment interest at the rate of 2% per year on the amount of $8,000.00, from November 3, 2015 to the date of payment.

PART III: THE RESPONDENT’S MOTION

[25] The Respondent requests an order that the Applicant be precluded from bringing any further motions without leave of the court. He relies on section 140(1) of the Courts of Justice Act in support of this request. That section provides as follows:

Vexatious proceedings

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice. R.S.O. 1990, c. C.43, s. 140 (1); 1996, c. 25, s. 9 (17).

[26] The Respondent argues that the Applicant’s motion is vexatious, since the Applicant had brought a previous motion for contempt of paragraph 10 in 2018, and the question of enforcement of the payment term in paragraph 10 had already been addressed by Hardman J. on March 11, 2016. I am not satisfied that the Applicant’s motion was vexatious for several reasons. First, she was entirely successful on the motion. Second, the evidence indicates that the contempt aspect of her motion was not a new motion, but rather a return of the contempt motion that she originally brought in 2018. There is no evidence that she abandoned the first motion, as the Respondent alleges. Finally, as I have indicated, I am not satisfied that Hardman J. addressed the issues raised in the Applicant’s motion at the court appearance on March 11, 2016. Accordingly, I am dismissing the Respondent’s cross motion.

PART IV: TERMS OF ORDER TO ISSUE

[27] For the reasons outlined above, a final order shall issue as follows:

1. The Applicant’s claim for an order finding the Respondent in contempt of paragraph 10 of the final order dated September 3, 2015 is withdrawn.

2. The Respondent shall forthwith pay the Applicant the sum of $8,000.00, plus post-judgment interest on this amount at the rate of 2% per year from November 3, 2015 to the date of payment, in compliance with paragraph 10 of the final order dated September 3, 2015.

3. The Respondent’s claim for an order prohibiting the Applicant from bringing any further motions without leave of the court is dismissed.

4. The parties shall engage in meaningful discussions respecting costs in connection with the motions. In the event that they are unable to resolve the issue of costs, any party seeking costs shall by no later than January 18, 2021 submit a written request to the Trial Coordinator to schedule a 45 minute hearing before me to address costs. Any costs hearing shall occur by no later than February 26, 2021. In the event that neither party submits a written request for a costs hearing by January 18, 2021, there shall be no costs payable by either party in connection with the motions.

5. For the purposes of any costs hearing, the parties shall serve and file a brief Costs Outline of no more than 2 pages, a Bill of Costs and any authorities that they intend to rely on by the following dates:

The Applicant: by no later than 7 days prior to the costs hearing.

The Respondent: by no later than 4 days prior to the costs hearing.

Released: January 6, 2021

COURT FILE NO. 402/14

DATE: 2021-01-06

Kim Shirley Devine

Applicant

– and –

Peter Thomas Devine

Respondent

REASONS FOR JUDGMENT

Chappel J.

Released: January 6, 2021