COURT FILE NO.: FC-08-2638
DATE: 2021/09/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Suzanne Lecompte, Applicant
AND
André Paroyan, Respondent
BEFORE: Justice Mark Shelston
COUNSEL: Marc Coderre, for the Applicant
Frédéric P. Huard, for the Respondent
HEARD: August 10, 2021
ENDORSEMENT
Overview
[1] In April 2020, the applicant (“Suzanne”) filed a motion pursuant to Rule 25(19) of the Family Law Rules to change the final order of the Honourable Justice Aitken dated August 17, 2009, increasing the equalization payment owed by the respondent (“André”) to her as a result of a mutual mistake occasioned by the incorrect figure provided by the plan administrator to the pension valuator causing him to overestimate the value of Suzanne’s pension plan.
[2] On September 4, 2020, in file FC-08-2638-4, Suzanne commenced a Motion to Change to terminate her obligation to pay table child support and postsecondary educational expenses set out in the orders of Justice O’Bonsawin dated July 27, 2017 and the order of Justice Audet dated March 22, 2019, terminating her obligation to pay table child support for Cameron effective May 1, 2019.
[3] Both matters were ordered to proceed to a final hearing to be heard at the same time which was set for August 10, 2021. However, the parties agreed to proceed only on Suzanne’s motion regarding her request to change the final order of Justice Aitken dated August 17, 2009. Suzanne agreed that her Motion to Change to terminate child support for Cameron be dismissed. Suzanne sought an adjournment of André’s claims related to child support and section 7 expenses for Cameron because she did not have an opportunity to file a responding affidavit. On consent, that matter was adjourned.
Factual Background
[4] The parties married each other on October 8, 1994, separated on September 10, 2008 and were divorced by an order dated December 9, 2009. There were three children of the marriage with the youngest being Cameron.
[5] On October 3, 2008, Suzanne’s counsel retained Mr. Martel, an actuary, to prepare an actuarial valuation of Suzanne’s teacher’s pension. In that letter, Suzanne’s counsel enclosed a copy of a printed form entitled “Régime de Retraite des enseignantes et des enseignants de l’Ontario-Relève de service”. The printed form included a chart setting out the years of service that Suzanne was employed and setting out the years that she contributed to the pension fund as follows:
1990\1991
Emploi
1991\1992
Aucun service déclaré
1992\1993
Emploi
1993\1994
Emploi
1994\1995
Emploi
1995\1996
Emploi
1996\1997
Emploi
1997\1998
Rachat
Emploi
1998\1999
Rachat
1999\2000
Rachat
2000\2001
Rachat
2001\2002
Rachat
2002\2003
Rachat
2003\2004
Rachat
2004\2005
Emploi
2005\2006
Emploi
2006\2007
Emploi
2007\2008
Emploi
2008\2009
Emploi
[6] Further, the second paragraph of the form included the following sentence:
Nous utilisons les services d’escomptes dans votre relève de service pour calculer vos prestations futures. Nous incluons les rachats dans votre relève de service, présumant que vous réglerez tout paiement non acquitté et que vous remplirez tous les critères d’admissibilité.
[7] Based on the presumption that Suzanne had purchased her pension credits for the period of time indicated on the form, Mr. Martel prepared a report dated October 2008, in which he provided the net after-tax value of Suzanne’s pension based on three different dates of retirement. The three different amounts were $171,347 based on Suzanne’s earliest retirement age 55.46 years of age; $132,332 based on retirement at age 60 and $95,959 based on retirement at age 65. Mr. Martel based his report on the basis that Suzanne had purchased the years of service indicated on the form during the marriage.
[8] Based on Mr. Martel’s report, in completing her net family property statement, Suzanne indicated that the value of her pension was $171,347 based on her retirement age of 55.46 and that André owed her an equalization payment of $34,804.25. Eventually the parties were able to reach an agreement whereby André would pay Suzanne an equalization payment of $33,709. On August 17, 2009, based on an agreement reached by the parties, Justice Aitken granted a final order addressing a variety of issues including but not limited to the issues of custody, access, child support and equalization of the net family property.
[9] Approximately ten years later, in 2018, Suzanne contacted Mr. Martel to verify if the years of service that could have been bought back were included in his original report. There is no explanation of what prompted Suzanne to make inquires about her pension in her affidavits. However, during oral argument, her counsel advised she did so in anticipation of her eventual retirement. In any event, Suzanne had not purchased back her pensionable service by the date of separation. During those relative six years, Suzanne was a full-time mother caring for the three children. At Suzanne’s request, Mr. Martel prepared an amended report dated August 2018, where he did not take into consideration any service being bought back. Based on that information, the amended report indicated that the net value of Suzanne’s pension was one of three values:
a) $68,730 based on retirement age of 58.46
b) $62,694 based in retirement at age 60
c) $45,486 based in retirement at age 65.
[10] The amended report reduced Suzanne’s pension based on the earliest retirement age from $171,347 to $68,730. The difference was a reduction in the pension value of by $102,617. Once she received the report, Suzanne decided to retain the services of another lawyer to address the error. Suzanne was advised by that lawyer that the matter should be appealed, that the time limitation had lapsed but did not discuss a possible motion to amend the order based on a mistake. At some point, Suzanne retained Mr. Coderre, her present counsel, and the motion was filed in April 2020. On April 15, 2020, André was served with the material.
Legislative and Jurisprudential Framework
[11] Rule 2(2) of the Family Law Rules states that the primary objective of the Family Law Rules is to enable the court to deal with cases justly.
[12] Rule 2(3) of the Family Law Rules states that 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 up 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.
[13] In Rule 25(19) of the Family Law Rules states that the court may, on motion, change in 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 in adequate or the party was unable, for a reason satisfactory to the court, to be present.
[14] The purpose of Rule 25(19)(b) of the Family Law Rules is to correct accidental slips or omissions including typographical errors or mathematical miscalculations. (Gray v. Rizzi, 2010 ONSC 2858 affirmed 2011 ONCA 436.)
[15] In Henderson v. Henderson, 2015 ONSC, McDermott J, amended a divorce order seven years after it was granted based on his finding that he had jurisdiction under Rule 25(19) where through inadvertence of counsel, a clause requiring the husband to pay to the wife $100,000 of support arrears over a 4 year period, was not included in the final order. Justice McDermott found that where a mistake was made that affected the parties’ common intention, he could act to correct the mistake. Specifically, he stated at para. 104 to 107:
[104] In this analysis, I also need to address the differences in the wording of Rule 59.06 from that of Rule 25(19)(b) of the Family Law Rules. The latter states that I can only correct an order which “contains” a mistake. There have been no cases where courts have used Rule 25(19)(b) to permit rectification of an order, which is a substantial stretch from a typographical or mathematical error discussed by Boswell J. in Grey v. Rizzi.
[105] The key, in my mind, is the wording, “contains a mistake” in the Rule. The word “contains” has been defined as to “have or hold (someone or something) within”. It has also been defined as to “have within” or to “comprise” or “include”. Based upon these definitions, there is jurisdiction to rectify an order under Rule 25(19)(b) where the order has within it a mistake, or includes or comprises within it a mistake.
[106] Those definitions are, in my view, sufficient to permit a court to amend or rectify an order which mistakenly did not reflect the common intention of the parties. An order which, by inadvertence, failed to reflect the parties common intentions can be said to include within it a mistake, and may therefore be rectified under Rule 25(19)(b).
[107] Rectification is, however, an equitable remedy in the discretion of the trial judge, and it must be in the interests of justice that an order be changed to reflect the common intentions of the parties: see Stoughton Trailers Canada Corp. v. James Expedite Transport Inc., 2008 ONCA 817. This is especially so in the family context where Rule 2(2) of the Family Law Rules requires cases to be decided “justly”.
(Citations removed)
[16] In a case very similar to the case at bar, in Stephens v. Stephens, 2016 ONSC 367, Raikes J, amended a final order requiring the respondent to transfer $82,003 plus interest from July 24, 2012 from the respondent’s pension for equalization of the net family property. In this case, the parties relied on pension information provided by pension administrator regarding the value of the husband’s pension and the maximum amount that could be transferred to the wife. Subsequently, the parties negotiated a final settlement and the final order was issued by Justice Nolan dated October 23, 2013. On April 14, 2015, the pension administrator wrote to both parties advising that the pension value in the earlier statement was incorrect. Based on the new information, the wife submitted that she was entitled to a further sum of $82,003 plus interest from the date of separation to rectify the error in the pension valuation. The court stated at paragraph 30 and 37 the following:
[30] Nevertheless, I agree that I have authority to change the final order of Justice Nolan on the basis of a “mistake” pursuant to Rule 25(19) to be consistent with the reasoning of Justice McDermott in Henderson v. Henderson, supra, above. I may fix a “mistake” in an order to reflect the common intention of the parties.
[37] In my view, the reasoning of Justice McDermott in Henderson v. Henderson, supra, applies to the circumstances of this case. In this case, the parties clearly intended to divide equally the respondent’s pension. This is consistent with the wording of section 5 of the Family Law Act which requires an equal division absent exceptional circumstances such as that contemplated under section 5(6). There is no evidence to suggest that had the parties been aware that the pension value was greater, they would have apportioned the value between them on other than a 50-50 basis. Likewise, there is no evidence that the respondent is entitled to an unequal division under section 5(6) of the Family Law Act.
[17] In Abitbol v Abitbol, 2017 ONSC 571, after agreeing to pay $800 per month as spousal support at a case conference based on that amount being at the low range of the Spousal Support Advisory Guidelines(“SSAG”), the husband brought a motion under rule 25 (19) to amend the order arguing that the order was in fact outside of the ranges in the SSAG. In dismissing the husband’s motion, the court found that the parties common intention was that the husband would pay $800 per month as spousal support and that the husband was attempting to resile from that agreement after the case conference. Specifically, the court stated at para. 30:
[30] In the passages quoted from both the decision of McDermott J. in Henderson v. Henderson and the decision of Raikes J. in Stephens v. Stephens, I have emphasized that the court provided relief in those cases under rule 25(19)(b) in order to correct a mutual mistake of the parties and rectify an order so as to ensure that it reflects "the common intention of the parties."
[18] In Samson v Samson, 2021 ONSC 3358, where the unrepresented parties sought to have their divorce order set aside, the court identified the common intention factor in paragraph 18:
[18] In the circumstances of this motion, the only potentially applicable part of r. 25(19) is subrule (b): mistake. A "mistake" in the context of r. 25(19)(b) has been held to include circumstances where a final order does not reflect the "common intention" of the parties": Chuvalo v. Chuvalo, 2018 ONSC 5863, at para. 22; Stephens v. Stephens, 2016 ONSC 367, at paras. 30–36; Henderson v. Henderson, 2015 ONSC 2914, at paras. 103–109.
[19] Recently, in Donner v. Donner, 2021 NSCA 30, the husband sought to amend a trial decision alleging that his former accountant incorrectly valued his shareholder loan at $55,667 while his new accountant advised that the value was $5400. The end result was that the husband would owe the wife $2700 rather than $27,833.50. The Court of Appeal denied the husband’s request and stated:
[47] Relying on West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 Mr. Donner posits this case fits within the criteria recited therein under which a court can exercise its inherent jurisdiction:
[23] The jurisdiction to set aside or change an order to prevent a miscarriage of justice is ancient. It goes back to the old common law writ of audita querela: see Holmested and Gale on the Judicature Act of Ontario and Rules of Practice, r. 529 § 2; Blackstone, William, Commentaries on the Law of England (1765), vol. 3, pp. 405-6. It forms part of the inherent jurisdiction of the court. The cases have laid down a fairly stringent test before it will be exercised: see cases digested in Holmested and Gale, r. 529 § 10, and Holmested and Watson Ontario Civil Procedure, r. 59 § 10 [5]. The evidence presented on the motion must be clear and credible; it must be of such a nature that the original order would have been different if the evidence had been available; it must not have been in existence at the time the order was made or not discoverable by diligent effort by the party asking the court to change the order; the party must have acted with diligence once the information came to light; and the evidence must establish that action is needed to prevent a miscarriage of justice.
[48] Mr. Donner asserts he met the common law test on his application, through the evidence of Mr. Yuill regarding the loan. He maintains the judge erred in declining to rely on that evidence. His position ignores that the judge made discrete factual findings about: the clarity of the evidence, credibility, the timing of the discoverability of the evidence, diligence, and the significance of the evidence. None of those findings favoured Mr. Donner's position. That said, the correct test was applied by the judge, and it is not for this Court to disturb her factual findings absent palpable and overriding error, of which I am satisfied there was none.
[49] The test in West , supra, was applied in Stephens v. Stephens, 2016 ONSC 367 also relied upon by Mr. Donner. There, the court adjusted the value attributed to a pension plan that was to be divided equally, pursuant to a corollary relief order adopting Minutes of Settlement reached by the parties. Corrected information about the value of the plan was generated by the third party pension plan administrator after the imposition of the order. The court's decision to exercise its common law jurisdiction to change the order was rooted in its conclusion the test had been met:
[39] ... the criteria for the invocation of my common law jurisdiction have been met as:
The evidence presented at trial was clear and cogent. It explained what transpired, when and why in sufficient particularity;
The evidence of the correct value of the Respondent's pension is material to the determination of equalization and, if known at the time, would likely have resulted in a different order;
The evidence was not discoverable by the parties with reasonable diligence at the time. They were entitled to rely upon the statement provided by the plan administrator. There was no obligation to go beyond that statement to verify its accuracy. By then, it was common practice to obtain pension valuation statements from a plan administrator and to rely upon same for the purpose of negotiating a resolution of family law disputes and related court proceedings;
The moving party acted promptly and diligently once the new information from the plan administrator came to light in 2015; and,
Absent an amendment to Justice Nolan's order, the Respondent will gain an unintended and unexpected windfall at the expense of and to the prejudice of his wife. This would result in a substantial miscarriage of justice.
[41] Therefore, whether one applies the approach taken by Justice McDermot in Henderson v. Henderson, supra, or applies Rule 59.06(2) by analogy or invokes the inherent jurisdiction of the court at common law, the result is the same. Under any of these approaches, it is appropriate and necessary that the Order of Justice Nolan be amended to remedy a mutual mistake made by the parties through no fault of their own to achieve a result consistent with their mutual intentions at the time.
Position of the parties
[20] Suzanne’s position is that as a result of a mistake in the calculation of her pension, through no fault to either party or the actuary, the equalization payment due to her was approximately $85,000 and not $33,709 representing a difference of approximately $51,528.20. Suzanne requests that this amount plus interest be paid to her either in cash or by a pension rollover after grossing up the amount to take into account the income tax implications.
[21] Suzanne argues that the actuarial report dated October 2008 did not reflect the actual contributions that she made to her pension during the relevant period of time. Further, she submits that it was the common intention of the parties to divide the value of both pensions during the equalization process and that both parties agreed to value their respective pension based on the early as possible retirement age.
[22] André’s position is that if there was an error in the calculation of Suzanne’s pension, the fault was either Suzanne’s or her then counsel or Mr. Martel. Secondly, he submits that Suzanne received $40,000 on May 15, 2009, which he could have invested by June 30, 2009 to buy back the six years of service but that she did not do so either through negligence of herself or her financial advisors. He argues that if there was an error made, how long is André responsible for errors made. In this case, the order is 12 years old. Thirdly, he argues that there is a two-year limitation period applies and that Suzanne’s claim is out of time.
Analysis
Limitation period, latches and delay
[23] André argues that Suzanne’s claim to amend the final order was subject to a two-year limitation and is out of time. André’s counsel did not provide any legislative or jurisprudential support for such a claim. I reject that argument. Suzanne is not seeking to commence a claim but rather seeks to amend an existing final order.
[24] What is more concerning is that there has been a significant delay between the date of the final order August 17, 2009 and Suzanne’s commencement of proceedings in April 2020. In Henderson, Justice McDermott addressed the issue of a seven year delay by finding that latches or delay was a defence to an equitable claim such as rectification and that the issue of latches had to be considered in light of how the parties conducted themselves (see para. 114 and 120). In the end, Justice McDermott had evidence from the respective lawyers involved and had a chronology of the events to allow him to consider whether the defence of the latches was applicable. In the end, based on the specific facts of that case, he did not find that latches or delay was a bar to him proceeding.
[25] In this case, Suzanne’s affidavit material is not complete. She did not address how and when she became aware that there was a problem in the valuation of her pension in 2018. There is very little information as to when she requested information about her pension, when she met the second lawyer and what transpired between the date of the report being October 2018 and the commencement of her proceedings in April 2020. There is no explanation for the delay. However on the information that I have reviewed, Suzanne only knew in October 2018 that the value of her pension was significantly less, that she sought legal advice and that by April 2020 she had commence proceedings to rectify the error. While it would have been more helpful to the court had information been provided as to what happened between October 2018 to April 2020, I do not find that the 18-month delay between the amended report and the commencement of proceedings prevents Suzanne from presenting her claim.
Jurisdiction to rule 25(19) Family Law Rules
[26] In my view, I have jurisdiction under rule 25 (19) of the Family Law Rules to amend the order if I find that there are technical errors in the final document caused by inadvertence or oversight of counsel or the parties or that there has been a mistake made that has negated the common intention of the parties. Suzanne relies on the Stephens decision in support of her claim for relief. I have considered following factors in arriving at my decision.
[27] Firstly, there is no evidence that there were technical errors made by inadvertence or oversight in the preparation of the final order. As a result, Suzanne must meet the test that the common intention of the parties has not been fulfilled based on a mistake. If she fails to do so, her motion cannot succeed.
[28] Secondly, on the issue of common intention, I find that the parties negotiated an agreement based on the actuarial value of their respective pensions and agreed that Suzanne would purchase André’s interest in the matrimonial home and that the payment owed by Suzanne to André would be reduced by approximately $40,000 taking into account the value of the equalization payment. The parties’ common intention was met by the final agreement. The problem is that the information provided to Suzanne’s actuary to calculate her pension was wrong based on an assumption that Suzanne had purchased back her pensionable service for a six year period when she was the primary caregiver of her three children. This was not a case where both parties proceeded on the wrong information as in Stephens.
[29] Thirdly, Suzanne’s allegation that her pension administrator provided documentation relied on been by Mr. Martel is not supported by the evidence. Suzanne alleges that Mr. Martel was advised by her pension administrator or Mr. Martel’s report was based on an erroneous understanding or suggestion by her pension administrator regarding the buyback of her pension. Specifically, in Suzanne’s affidavit dated April 14, 2020, she states at paragraph 13 the following:
[13] When Mr. Martel prepared this report, he had been advised by my pension administrator that I had “bought back” pension services during the marriage. This assertion was, in fact, in error based on the information that had been provided to Mr. Martel by my pension administrator.
[30] In her affidavit dated March 23, 2021, she stated at paragraph 11:
[11] In the end, Mr. Martel’s 2008 report was based on an erroneous understanding or suggestion by the pension administrator that I was going to buy back my pension years before the imminent deadline of June 30, 2009. In point of fact, I never did buy back pension credits during the marriage nor after separation or sense.
[31] The problem with these two statements is that there is no evidence of any communication between the pension administrator and Mr. Martel before he completed his October 2008 report. Mr. Martel confirmed that the documentation he received was directly from Suzanne’s counsel. In this case, no information was provided by the pension administrator, while in Stephens, the pension administrator sent the wrong information to both parties. The Stephens decision is of no assistance to Suzanne as it is clearly distinguishable on one major fact related to information from the pension administrator.
[32] There is correspondence from Suzanne’s pension administrator. By letter dated July 31, 2009, Mr. Kayser, a pension specialist employed by the Ontario Teachers Pension Fund, advised Suzanne that since she did not buyback pension credits for the period of January 27, 1998 to May 21, 1998 by June 30, 2009,she could no longer buy back that service. Suzanne did not disclose that letter in her affidavit dated April 14, 2020. It was raised by Mr. Martel in his affidavit dated January 18, 2021. It was not addressed in Suzanne’s affidavit dated March 23, 2021. When the issue was raised in André’s affidavit dated August 1, 2021, Suzanne did not file a responding affidavit. In oral argument, Suzanne’s counsel indicated that she had never seen the document. The problem is that Suzanne had multiple opportunities to file affidavit material to address this letter which appears to be responding to an inquiry about purchasing pension credits. For some reason, she chose not to address the letter in affidavit form which raises questions as to her credibility.
[33] Fourthly, I do not accept that Suzanne had no involvement in providing the service record to her counsel. At paragraph 8 of Suzanne’s affidavit dated March 23, 2021, she stated that she had never personally seen the pension form that was produced to Mr. Martel by her counsel. Mr. Martel confirms that the type of form that he received is usually received from counsel or the pension administrator. Mr. Martel confirms the document was received from her counsel and that he had no communication with the pension administrator. Unfortunately, there is no affidavit filed by Suzanne’s counsel to provide clarification as to the source of the “Relève de service” that was sent to Mr. Martel. Susanna has not explained why her previous counsel has not filed an affidavit in this proceeding.
[34] In paragraph 62 of André’s affidavit dated August 1, 2021, he alleges that Suzanne printed out her service record versus the annual statement. In that same affidavit at paragraph 58, André alleges that Suzanne had until June 30, 2009 to purchase back her six years of pension credits, but she failed to make the payment despite receiving $40,000 in May 2009. Suzanne does not deny this allegation in her affidavit material and did not seek an adjournment of this motion to file a reply affidavit.
[35] Based on my finding that Suzanne’s allegation that the pension administrator provided information to Mr. Martel is not supported by any evidence, that there is no evidence from Suzanne’s counsel at the time and that Suzanne has not filed any reply affidavit to André’s allegations in his affidavit of August 1, 2021, I conclude that Suzanne obtained and produced the statement that was given to her lawyer who provided it to Mr. Martel.
[36] Finally, I find that André had no role in the calculation of Suzanne’s pension. He has moved on with his life and that he accepted the equalization calculation and the other terms of the final settlement. There is no evidence that André was aware of any error in the calculation of Suzanne’s pension. Based on the equalization calculation, André transferred his interest in the matrimonial home to Suzanne for $140,000 less $40,000 to take into account the equalization payment of $33,709 and arrears of support. In the end, Suzanne paid André $100,000 for his interest in the matrimonial home. That was a common intention of the parties. By Suzanne seeking to increase the equalization payment, she is seeking to change the terms of the agreement. André may not have agreed to the final terms contained in the final order dated August 17, 2009, if he was aware that his equalization was $51,000 more.
[37] Based on the reasons set out herein, I dismiss Suzanne’s motion.
Costs
[38] On the issue of costs, I request that the parties attempt to resolve the issue by October 4, 2021. If they cannot, I order that André provide his cost submissions as a successful party by October 14, 2021. I order Suzanne to provide her cost submissions by October 25, 2021. I order that the cost submissions shall be restricted to three pages plus a detailed Bill of Costs and any offers to settle. There will be no right of reply.
[39] Once I adjudicate the issue of costs with respect to this matter, I will defer the payment date of any costs awarded until the issue of costs with respect to Suzanne’s consent to the dismissal of her Motion to Change and the adjudication of André’s motion for support for Cameron.
Date: September 24, 2021
COURT FILE NO.: FC-08-2638
DATE: 2021/09/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Suzanne Lecompte, Applicant
AND
André Paroyan, Respondent
COUNSEL: Marc Coderre, for the Applicant
Frédéric P. Huard, for the Respondent
ENDORSEMENT
Justice Mark Shelston
Released: September 24, 2021