Court File and Parties

COURT FILE NO.: FS-19-19-00 DATE: 2023 03 16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rolfe Bernard Jahnke R. Ian Robertson, for the Applicant Applicant

- and -

Mary Catherine Obermaier J. Barry Eakins, for the Respondent Respondent

HEARD: January 10th, 2023

REASONS FOR JUDGMENT

LEMAY J

[1] The parties originally resolved this matter back in January of 2020 at a settlement conference that I presided over. The parties agreed that I would be seized with any issues arising from the interpretation, application or implementation of these minutes of settlement. There have been ongoing issues with the implementation of these minutes of settlement, and I have convened a number of hearings since January of 2020. The most recent appearance addressed the issues of the cemetery plot, the reinstatement of the Applicant, Mr. Jahnke, on the Respondent, Ms. Obermaier’s, benefits plan and the account into which the Applicant support payments were being made by the Respondent.

[2] The parties agree that the cemetery plot no longer belongs to the Applicant and that he cannot dispose of it or otherwise use it for his own internment or the internment of anyone else. The parties also agree on the further steps that should be taken to facilitate the reinstatement of the Applicant on the Respondent’s benefits plan if that can be done. I have set out the necessary directions on these issues below.

[3] The only issue that remained was the account that the Respondent was depositing the support payments for the Applicant into. Monies paid into the Applicant’s Royal Bank of Canada (“RBC”) account were being seized. He had requested that the monies be paid into his Toronto-Dominion account. The Applicant argues that the payments made to RBC after he requested that the money be deposited into the TD account should not be credited to the Respondent. She disagrees, arguing that even if the Applicant did not get the money personally, the payments were made for his benefit. Finally, the Respondent argues that the costs of $12,000.00 inclusive of HST and disbursements that I ordered as part of the Orders I made on May 10th, 2021 are excessive and should be reduced.

[4] For the reasons that follow, I find that the Respondent should not be required to double-pay for support, except for the month of June 2021. I have provided further directions to the parties and the insurer over the issue of the reinstatement of the Applicant on the Respondent’s benefits plan. Finally, I have determined that the costs award I made on May 10th, 2021 should be revisited at the end of this process.

Background

a) The Parties and the Settlement

[5] The parties began cohabiting in 1993. They were never married. There were no children of the relationship. The Respondent had two children from a previous relationship. One of those children is now an adult and the other has predeceased the Respondent.

[6] The Applicant was a home builder and renovator in the construction industry. The Respondent has been an office manager for the local school board for approximately twenty years. Prior to that, she was a legal secretary.

[7] The parties separated in November of 2017, and this proceeding was commenced in February of 2019. The Applicant remained on the Respondent’s benefit plan as a dependent until August of 2019.

[8] The parties attended a settlement conference before me on January 22nd, 2020. At that time, the parties resolved the issues between them with payments on account of spousal support being made by the Respondent to the Applicant. There were also provisions requiring the Respondent to make efforts to have the Applicant reinstated on the Respondent’s benefits plan and requiring the Applicant to dispose of his interests in the cemetery plots.

[9] The Respondent has benefits from her work through the Ontario Teachers’ Insurance Plan (“OTIP”). The Applicant had been enrolled as a dependent on those plans until he was removed from the plan in 2019.

[10] I understand that the Applicant has had a series of ongoing medical issues. All parties have been aware of that fact since before the mediation. Based on the information that I have received, I concluded that the Applicant was a dependent both at the time of the settlement in January of 2020 and at the time that he was removed from the Respondent’s benefits plans in 2019.

b) The Efforts to Reinstate the Applicant Up to November of 2020

[11] In June and July of 2020, the Applicant indicated that he had not been reinstated on the benefits plan. He also alleged that the Respondent had not taken all reasonable steps to have the Applicant reinstated on her benefits plans, contrary to the agreement of the parties.

[12] In one of her responding Affidavits, the Respondent states that she initially contacted OTIP in February of 2020. She stated that she received a response to her e-mail on February 18th, 2020 and provided it to her then counsel the next day. The Respondent also states that she wrote a further letter to OTIP in July of 2020.

[13] As a result, a further hearing was convened remotely with the parties on July 23rd, 2020. At the conclusion of that hearing, I provided the parties with further directions to assist in implementing the terms and conditions of the agreement. Those terms included directions about the Applicant’s status as a dependent (as described in paragraph 10) as well as an authorization for counsel for the Applicant to write to OTIP and a request that OTIP provide a decision with reasons.

[14] On November 3rd, 2020, counsel for the Applicant wrote to OTIP and provided a copy of the Orders that I had made. A responding email and draft letter were received from Karlie Burt, a Senior Benefits Administrative Representative with OTIP. Both of them were dated November 13th, 2020. This e-mail confirmed that the Applicant would be reinstated on the benefits plan and that an additional benefits card would be issued for the Applicant. However, the benefits card could only be mailed to the Respondent.

[15] On November 20th, 2020, the Applicant’s counsel requested the benefits card from the Respondent’s counsel. I do not believe that this card was ever provided to the Applicant.

c) The Events after November 2020

[16] A further letter was received from OTIP on December 11th, 2020. That letter required a revised Court letter (which I read as a Court Order) providing additional information to the insurer. I understand that most, if not all, of that information would have been within the knowledge of the Respondent. This fact was pointed out to the Respondent’s counsel, but no reply was received.

[17] On January 22nd, 2021, the Respondent served a notice indicating that she would be acting in person. She provided an e-mail address for service of filings.

[18] On February 1st, 2021, counsel for the Applicant wrote to the Respondent asking her to follow up and provide him with the information necessary to respond to OTIP’s request for additional information. In this letter, Applicant’s counsel also asked the Respondent to make the deposits for spousal support to the Applicant’s TD account.

[19] The Respondent responded to this letter on February 13th, 2021. In that correspondence she advised:

a) That she had previously provided all documents to Manulife (OTIP’s policy provider) and that Manulife had denied her request to reinstate the Applicant. As a result, the Respondent stated, “I give no further consent to you to correspond with my benefit provider.”

b) That my Order from the hearing required her to make payments to the RBC account, and that she could not accept counsel’s direction to deposit the payments to the Applicant’s TD account.

[20] Subsequent to this correspondence, the Applicant sent an e-mail on March 2nd, 2021 asking that this matter be brought back before me. He was advised to copy the Respondent on his request, which he did so on March 22nd, 2021. The Respondent did not reply to this correspondence and a further request for the matter to come back before me was made on April 2nd, 2021.

[21] By way of an endorsement dated April 6th, 2021, I provided the Respondent with the guide for self-represented litigants, set a timetable for the exchange of materials, and set a hearing by ZOOM for May 10th, 2021. My endorsement and the attached documents were sent to the e-mail address that the Respondent had provided.

[22] The motion was ultimately returnable before me on May 10th, 2021. The Applicant provided materials which had been served on the Respondent. The Respondent did not provide any materials and did not attend at the hearing. On May 14th, 2021, I released an endorsement and Order and set out the following substantive Orders that I had made at the May 10th, 2021 hearing:

1. All ongoing spousal support payments from the Respondent, Mary Catherine Obermaier, to the Applicant, Rolfe Bernard Jahnke, in the amount of $1,410.23 per month are to be made through the Family Responsibility Office with the exception of May, June, July and August, 2021 which are to be paid by e-transfer to the Applicant’s lawyer, R. Ian Robertson, at [email withheld].
2. The Respondent, Mary Catherine Obermaier, will not be given credit for spousal support payments to the Applicant, Rolfe Bernard Jahnke, in the amount of $2,880.69. This amount is made up of $60.23 from February 2021, $1,401.23 from March 2021 and $1,410.23 from April 2021.
3. The Respondent, Mary Catherine Obermaier, shall pay the Applicant, Rolfe Bernard Jahnke, the amount of $2,880.69 by e-transfer to the Applicant’s lawyer, R. Ian Robertson, at [email withheld] within 10 business days of being served with this order.
4. The Respondent, Mary Catherine Obermaier, shall pay the Applicant, Rolfe Bernard Jahnke, the amount of $4,791.18 for the medical benefits that he has incurred between September 1, 2019 and April 1, 2021 by e-transfer to the Applicant’s lawyer, R. Ian Robertson, at [email withheld] within 10 business days of being served with this order.
5. The Respondent, Mary Catherine Obermaier shall pay all future medical benefits that the Benefit Provider would have covered to the Applicant, Rolfe Bernard Jahnke, within 20 business days of being provided with receipts for the same. The payments for these payments will be made by e-transfer to the Applicant’s lawyer, R. Ian Robertson, at [email withheld].
6. The Respondent, Mary Catherine Obermaier, shall pay the Applicant, Rolfe Bernard Jahnke, costs in the amount of $12,000.00 inclusive of H.S.T. for the two motions, July 23rd, 2020 and May 10th, 2021. Costs are to be paid to the Applicant’s lawyer, R. Ian Robertson, by e-transfer at [email withheld] within thirty (30) calendar days of being served with this order.

[23] The Respondent did not become aware of my May 10th, 2021 Order until May 26th, 2021.

[24] On June 21st, 2021, the Respondent provided an Affidavit in which she challenged the Order that had been made in May of 2021. The Respondent asserted that she thought the matter was mostly resolved and, as a result, did not check the e-mail that she had established to receive the documents in this case.

[25] In this Affidavit, the Respondent also indicated that she had contacted Manulife and/or OTIP on several occasions to have the Applicant reinstated on benefits.

[26] In July of 2021, the Respondent made a further attempt to have the Applicant reinstated on benefits. On July 14th, 2021, OTIP advised the Respondent that the Applicant did not meet the definition of a spouse within the meaning of the plan and denied him coverage.

[27] In the meantime, the Respondent was continuing to make payments to the Applicant on account of the Respondent’s obligations under the Minutes of Settlement. These were paid to the Applicant’s RBC account up until July of 2021. From that date forward, the monies have been paid either directly to Mr. Robertson’s office or deposited to a different account.

d) The Delays in Having This Matter Heard

[28] After receipt of the May 10th, 2021 Order, the Respondent retained her current counsel and they brought a motion to set the Order aside. In spite of the agreement of the parties that I was to hear all motions the Respondent’s counsel brought this motion on the general Walkerton motions list.

[29] I had scheduled an appearance in July of 2021. Counsel for the Applicant and the Respondent attempted to settle the matter and that appearance did not take place. The parties were not able to resolve the matter and I scheduled a further appearance on August 18th, 2021.

[30] At the August 18th, 2021 appearance (by conference call), a hearing on the motion to set aside my May 10th, 2021 order was set for December 16th, 2021. A timetable for the exchange of materials was also set.

[31] Unfortunately, due to an ongoing criminal matter that I was involved with, the December 16th, 2021 hearing date had to be postponed. That criminal matter consumed most of my attention until the summer of 2022. A new hearing date was set for December 14th, 2022. Unfortunately, that date could not be used because of a miscommunication. Ultimately, a hearing was held on January 10th, 2023.

Issues

[32] There are five issues that I am required to resolve on this appearance, as follows:

a) Is the test for setting aside an Order met in this case? b) Is the issue of the cemetery plots resolved? c) What steps need to be taken to address the issue of reinstating the Applicant on the Respondent’s benefits plan? d) Is the Respondent liable to pay the Applicant for the support payments that she deposited into the Applicant’s RBC account that were subsequently garnished? e) Should the costs award from May 10th, 2021 be set aside or otherwise reduced?

[33] I will deal with each issue in turn.

Issue #1- The Test for Setting Aside the May 10th, 2021 Order

[34] The issue of whether I had the jurisdiction to set aside my May 10th, 2021 Order was more of a focus in the parties’ written factums rather than their oral arguments. However, it is still a consideration that I must address. The Applicant argues I should not set my Order aside, while the Respondent argues that I should do so.

[35] I will briefly address the law relating to whether I should set aside the Orders that I made on May 10th, 2021. The jurisdiction to set aside an Order comes from Rule 25(19)(e) of the Family Law Rules. A party seeking to set aside an Order must be able to demonstrate the following factors:

a) A plausible explanation for the circumstances in which the responding party’s default in complying with the Rules and participating in the motion; b) Has the moving party set out an arguable defence to the motion on the merits; c) The motion to set aside is brought promptly; and d) There is no significant legal prejudice to the moving party and the effect of any order the Court might make does not impinge on or undermine the integrity of the administration of justice.

[36] I am of the view that all of the branches of this test are met. There is an arguable defence to the motion on the merits, as there is evidence that the Respondent took at least some steps to try and get the Applicant registered on her benefits plan. The motion to set aside was brought within six weeks of the Respondent learning of it and, at this point, there would be no prejudice to the Applicant to re-hear this matter.

[37] The one area of the test that gives me some pause is the question of whether there is a plausible explanation for the Respondent’s default and failure to participate in the motion. The Respondent says that she had decided to represent herself towards the end of the litigation. She also says that she set up a specific e-mail address to receive service on this file and then did not monitor it because she thought the action was over. I have some concerns with this explanation, in large part because the action was clearly not over as the Applicant had not been reinstated on the Respondent’s benefits and the Respondent ought to have known that this was likely going to be an ongoing issue.

[38] The Respondent argues that her failure to monitor the e-mail address was inadvertent and not an intentional or deliberate omission. In support of this argument, the Respondent cited the decision in Nadarajah v. Lad, 2015 ONSC 4626, in which Molloy J. set out the view that inadvertence was a one-time error and not a deliberate act.

[39] In considering the Respondent’s explanation, I must keep in mind that she is self-represented in this litigation and might very well have thought that the matter was nearly resolved. Therefore, I am of the view that the explanation offered by the Respondent is plausible and that the test to set aside the Order is met.

Issue #2- Cemetery Plots

[40] I will briefly outline the facts in relation to the cemetery plots. These plots are in the Zion cemetery and are adjacent to where one of the Respondent’s children is buried. As part of the settlement, the Applicant agreed to sell these plots so that he would not have use of them.

[41] The Applicant attempted to sell the cemetery plots in the spring of 2020, but could not contact the cemetery. As a result, in my July 23rd, 2020 endorsement, I directed the Acting Secretary of the Cemetery Board to advise as to the steps necessary to sell the cemetery plots.

[42] In September of 2021, the Applicant provided a release of interest in the cemetery plots to the Respondent. This release was signed by the Applicant and witnessed by the caretaker at the Zion Cemetery. This release appears to be irrevocable and transfers title to the plots to the Respondent.

[43] The Respondent does not wish the plots, and the Applicant cannot sell the plots back to the cemetery. The strict terms of the agreement have not been complied with. Given the fact that the plots cannot be sold back to the cemetery, I am not sure that the agreement could ever be complied with. However, the irrevocable release is in accordance with the spirit of the agreement, which is that the Respondent should be able to rest secure in the knowledge that the Applicant can never use the cemetery plots for any purpose.

[44] However, out of an abundance of caution, I am ordering that the Applicant may never use, assign, transfer for bequeath the cemetery lots at the Zion cemetery. This will ensure that the Respondent can rest secure in the knowledge that the Applicant cannot use these plots. The Respondent can do with them what she wishes.

Issue #3- Reinstatement on the Benefits Plan

[45] A considerable part of the hearing was devoted to a discussion of this issue. Ultimately, the parties are ad idem that certain information needs to be obtained from the file and that certain steps need to be taken to involve the benefits insurer in this matter before a final determination can be made as to what should be done with the Applicant’s claim for benefits.

[46] I agree with the parties that it is best, at this point, to seek to involve the insurer. The plan is administered by OTIP, and I understand that it is adjudicated by Manulife. My jurisdiction to involve both OTIP and Manulife comes from the fact that a third party records motion now appears necessary in this matter.

[47] To that end, I am directing that a copy of this decision be provided to both OTIP and to Manulife. They are asked, but not ordered, to produce all correspondence and other relevant documents on the reinstatement request, including any and all copies of correspondence between the parties and the insurer.

[48] There may be good reasons why either OTIP or Manulife may object to the production of these records. If the records are not produced within thirty (30) calendar days of today’s date, then I will convene a further case conference at which I will timetable the third party records motion. The dates set at that motion will become peremptory on the insurers if they do not attend.

[49] The other option may be to add either OTIP or Manulife (or both) as a third party to this action. Given that there may possibly be a Limitations Act, 2002, S.O. 2002, c. 24, Sched. B issue approaching, this is also an issue that we will address at the case conference. In the meantime, if there is a limitations issue, either party is given leave to bring a third party claim as they view appropriate.

[50] As a final matter on this point, I note that the Respondent has asserted that she has taken enough steps to attempt to re-instate the Applicant on her benefits plan. The Applicant does not necessarily agree with that assertion. This question remains a live issue for me to determine if necessary. As a result, the order of May 10th, 2021 requiring the Respondent to pay for the Applicant’s benefits is set aside, but without prejudice to the Applicant’s ability to request that the Order be reimposed.

Issue #4 - Does the Respondent Owe the Applicant for the Payments Made to RBC?

[51] No, except for the payment for June of 2021.

[52] I start with the Respondent’s assertion that there was a direction or requirement that she pay the funds to RBC. Having reviewed all of the Orders and endorsements in this matter, I see no such direction. The Order required the payments to be made to the Applicant’s bank account. No specific account was identified. This argument does not assist the Respondent.

[53] However, the Respondent also directs my attention to the decision in Bandyopadhyay v. Chakraborty, 2021 ONSC 5943. In that decision, Ms. Chakraborty was seeking to have Mr. Bandyopadhyay pay her for spousal support payments that were made through the Family Responsibility Office but were taken out of Ms. Chakraborty’s bank account to pay arrears on the mortgage. At paragraph 236 of the decision, the Court refers to this request for double payment as “patently unfair”. The Court also notes that, since the monies were used to pay the mortgage, Ms. Chakraborty had already received credit for them as a result of other post-separation adjustments.

[54] I accept the Respondent’s argument that, in this case the money paid by the Respondent went to the benefit of the Applicant, as it reduced his debts. The Applicant argues that the Respondent paid the money to RBC out of spite because she knew that the money would be taken away immediately. That may be so. However, it does not change the fact that the monies were paid for the benefit of the Applicant and that they have reduced his debts. It also does not change the fact that, up until May 10th, 2021, there was no specific order about how the support payments were to be made.

[55] This brings me to the one exception on this issue. On May 10th, 2021, I made a specific order that the monies were to be paid directly to Mr. Robertson’s office. On her own evidence, this Order came to the Respondent’s attention on May 26th, 2021. That Order specifically required that the payments were to be made to Mr. Robertson, counsel for the Applicant.

[56] This was not done, and the payment for June of 2021 was made to the RBC branch and immediately garnished. The Respondent ought to have complied with that Order immediately after it came to her attention. The consequences of her non-compliance are ultimately her responsibility, especially since there was an order providing the Respondent with specific directions as to how the money was to be paid. Court Orders are to be followed.

Issue #5- Costs from May 10th, 2021

[57] At the hearing on May 10th, 2021, I ordered costs payable by the Applicant to the Respondent in the sum of $12,000.00 all inclusive. These costs were sought on a full indemnity basis and covered the work and time that was spent on the appearances in July of 2020, as well as the work that had taken place up to the appearance on May 10th, 2021.

[58] I concluded that these costs were reasonable when they were sought in May of 2021 partly on the basis of the amount of time expended and partly on the basis of the conduct of the Respondent. Counsel for the Respondent now seeks to challenge this costs award, and argues that it should be no more than $6,000.00 all inclusive.

[59] While I have determined that I have jurisdiction to set aside the costs award as part of my reconsideration of the May 10th, 2021 order, I have determined that I am not prepared to set the costs award aside at this time. The ultimate outcome of this motion may affect my judgment as to what should be done with the costs from May 10th, 2021. That issue remains open for consideration.

Conclusion and Costs

[60] One other matter should be addressed. There was an issue about expenses that had allegedly been incurred at the Sauble Beach Home Hardware. These are expenses relating to a project that the Applicant may have been involved with but referred out to someone else. However, costs were charged to the Respondent’s account. The parties are to resolve this issue, but I would observe that there does not appear to be any reason why these amounts were charged to the Respondent’s account.

[61] For the foregoing reasons, I am ordering as follows:

a) The Order of May 10th, 2021 is set aside. b) The Applicant may never assign, transfer, bequeath or otherwise dispose of the Zion Cemetery plots. All legal and equitable rights to those plots are irrevocably transferred to the Respondent. c) The Respondent remains liable to pay the support payment for June 2021. d) The costs of the May 10th, 2021 hearing will be revisited at the end of this process. e) I continue to retain jurisdiction to address all of the outstanding issues flowing from the implementation, application or administration of the minutes of settlement.

[62] In terms of costs, I am deferring the costs of the motion to set aside the Order of May 10th, 2021 until the conclusion of this process as the payment of those costs may also be affected by the outcome of the proceedings.

[63] Finally, a further hearing will need to be held in this matter by ZOOM. I expect that it will take approximately forty-five minutes to address the issues that we can address at the next hearing and determine next steps. The parties are to each serve a copy of this endorsement on both Manulife and OTIP, and are to file proof of service with the Court office in Walkerton.

[64] The parties are then to consult with each other, Manulife and OTIP over the dates and choose a 9:15 a.m. appointment on one of April 21, 24, 25 or 28, 2023. This appointment will be by ZOOM. The parties are to advise my assistant as to the date of this appointment by March 31st, 2023.

LEMAY J Released: March 16, 2023