Court File and Parties
COURT FILE NO.: CV-19-00628908
DATE: 20210719
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Radosevich Plaintiff
– and –
Jane Harvey Defendant
Counsel: Tanya A. Pagliaroli, for the Plaintiff Ted R. Laan, for the Defendant
HEARD: July 12, 2021
VELLA J.
ENDORSEMENT - reasons for decision
[1] On July 12, 2021, I delivered my ruling, with reasons to follow. These are those reasons.
[2] In my ruling, I ordered this proceeding stayed as an abuse of process, but without prejudice to the Plaintiff’s right to seek leave to lift the stay once she has exhausted her remedies under s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), regarding the subject matter of this action.
[3] The parties filed an agreed statement of facts in relation to this motion brought by the Defendant, Ms. Harvey, for an order, inter alia, staying this action as an abuse of process. The parties agree that the Plaintiff, Ms. Radosevich, and her husband entered into a separation agreement on October 19, 2017. Ms. Harvey represented Ms. Radosevich throughout the negotiation and finalization of the separation agreement. The parties further agree that, as of the date of this motion, Ms. Radosevich has neither challenged the validity of the separation agreement nor sought to set it aside pursuant to the FLA. Furthermore, Ms. Radosevich’s husband is not a party to any action or application in which the separation agreement is in issue.
[4] The parties agreed that this matter was suitable for a summary judgment procedure. I agree based on the factors set out by Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. I also have sufficient evidence before me, by way of the agreed statement of facts, to determine whether there is a genuine issue for trial without the need to use the fact-finding powers in rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] The complaint by Ms. Radosevich is set out in her factum. At the heart of the matter is whether her former husband paid enough spousal support. She claims that Ms. Harvey was negligent for two reasons: (1) Ms. Harvey failed to advise Ms. Radosevich of her right to claim retroactive spousal support; and (2) Ms. Harvey failed to pursue an income valuation from the former husband to better understand whether the lump sum offered, in full satisfaction of his spousal support obligations, was fair and reasonable.
[6] Ms. Radosevich has not pursued a variation of the separation agreement under s. 56(4) of the FLA because, she says, she has no grounds to do so.
[7] The abuse of process doctrine is a flexible doctrine that vests discretion in the court to consider whether the current proceeding is unfair to the point that it is contrary to the interests of justice. Under this doctrine, proceedings that are inconsistent with the objectives of public policy may be barred: see Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 39 and 41; Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 31, rev’d on other grounds, 2002 SCC 63, [2002] 3 S.C.R. 307.
[8] In my view the Court of Appeal’s decision rendered in Cunningham v. Moran, 2011 ONCA 476, 283 O.A.C. 137, clarifies that before a civil action for damages can be pursued in a matter governed by family law legislation, the aggrieved spouse must exhaust her remedies against her spouse under the FLA, or the relevant statutory scheme governing the family law claim at issue, before she has access to the civil court for damages. While Cunningham dealt with a husband’s civil claim for damages against his wife and her lawyer, claiming he overpaid child support through a mediated family law agreement, the ratio still applies to the situation before me.
[9] As emphasized in Cunningham, the legislature has set out a comprehensive scheme for the resolution of spousal support matters under the FLA.
[10] In Cunningham, at paras. 36 and 40, the Court of Appeal stated that family law litigants must not be permitted to use the civil law system to circumvent the applicable family law statutory scheme. To do so would constitute an abuse of process by running contrary to the public policy objectives underlying the family law statutory scheme:
[36] First, the [husband] is attempting, in an action for damages brought under the Rules of Civil Procedure, to address issues governed by the Family Law Act, the Child Support Guidelines, O. Reg. 391/97 and the Family Law Rules, O. Reg. 114/99. In our view, this attempt, in itself, amounts to an abuse of process.
[40] Considered in this context, the [husband]’s civil action for damages against the [wife] is an abuse of process. Allowing such claims to proceed would permit family law litigants to circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system.
[11] A similar matter considered by way of a summary judgment motion was dealt with by Dunphy J. in Sutton v. Balinsky et al., 2015 ONSC 3081. In Sutton, Dunphy J. held that it was an abuse of process to permit the spouse to claim what amounted to a variation of a domestic contract through a damages claim in civil court. The plaintiff wife brought an action against her former lawyer and other professional advisors who had represented her during the negotiation of a marriage contract. Among other things, she claimed that the agreement was improvident and that she did not receive adequate disclosure from her husband.
[12] Dunphy J. concluded that the wife had to move for a variation of the marriage contract under s. 56(4) of the FLA. If the wife’s claims were made out, the husband breached his duty of full and frank disclosure, so the husband should pay more support.
[13] Accordingly, Dunphy J. held that it was an abuse of process for the wife to pursue the civil action against her former lawyer and advisors because this circumvented the family law statutory scheme and was therefore contrary to public policy.
[14] For these reasons, I concluded that Ms. Radosevich must attempt to vary the separation agreement, and otherwise avail herself of whatever remedies she might have against her former husband under the relevant family law legislation first, before coming to the civil court to advance an action based on solicitor’s negligence against her former lawyer. The remedies advanced by Ms. Radosevich against Ms. Harvey are, in substance, matters governed by the FLA; namely, whether retroactive spousal support ought to be paid by her husband, and whether the lump sum spousal support agreed to be paid was fair in light of her husband’s true financial picture.
[15] However, in the event that after pursuing her remedies under the relevant family law legislation, Ms. Radosevich is in fact without a remedy because she may not be able to establish any of the grounds under s. 56(4) of the FLA, as urged by her lawyer before me, this order is without prejudice to her right to bring a motion to lift the stay and revive this action.
[16] In the event that the parties cannot reach an agreement with respect to costs, the defendant shall deliver her cost outline and written submissions by July 30, 2021, and the plaintiff shall deliver her cost outline and responding submissions by August 10, 2021. The written submissions will not exceed three pages double spaced and should be delivered to my judicial assistant.
Justice S. Vella
Released: July 19, 2021
COURT FILE NO.: CV-19-00628908
DATE: 20210719
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Radosevich Plaintiff
– and –
Jane Harvey Defendant
REASONS FOR JUDGMENT
Vella J.
Released: July 19, 2021