Citation

CITATION : Recoskie v. Lucchitti, 2024 ONSC 2823

Court File and Parties

COURT FILE NO.: FS-20-00000023-0000 DATE: 2024-05-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shelley Barbara Recoskie, Applicant AND: Antonio Lucchitti, Respondent

BEFORE: P.J. Boucher, R.S.J.

COUNSEL: Deborah Lyons, for the Applicant James Bennett, for the Respondent

HEARD: May 14, 2024, via Zoom

Endorsement on Motion to Set Aside Order

[1] The applicant moves for an order setting aside the abandonment of her claim for spousal support as set out in Richard J.’s endorsement of February 16, 2024. The respondent opposes the request.

Background

[2] This matter is scheduled for a nine-day trial starting May 27, 2024.

[3] The case has been before the court since 2020. Regrettably, two prior trial dates were missed in February 2023 and November 2023 because the matter was not reached. Several trial management conferences have taken place, most recently in November 2023.

[4] A trial date was set for March 18, 2024. The parties appeared before Richard J. for a settlement conference on February 16, 2024. At the time, the applicant was represented by David Williams, who had been her counsel from the start of the proceedings.

[5] In her endorsement, Justice Richard noted the settlement discussions at the conference were “lengthy” and “due to the efforts of the parties and counsel today, it is estimated that only 9 days [rather than 4 weeks] will be required [for trial]”. She also noted disclosure was complete and the parties were ready for trial.

[6] Justice Richard made orders with respect to four issues the parties resolved that would “hopefully shorten the trial”, most notably: “The Applicant’s spousal support claim is abandoned on a without-costs basis”.

[7] After the settlement conference the applicant met with Mr. Williams several times. On March 12, 2024, Mr. Williams advised the applicant by email that due to health reasons he could not represent her at the trial scheduled to start on March 18, 2024. He told her LawPro had retained counsel on his behalf. In an email the next day he urged her to get independent legal advice and told her the respondent would not be consenting to the adjournment of the trial unconditionally. The trial was adjourned to May 27, 2024.

Positions of the parties

[8] The applicant submits Mr. Williams had an agenda to shorten the trial because he was “overwhelmed with the prospect of a 9 or 10 day trial” and that he pressured her into waiving spousal support because “he was not prepared”. She states that she suffers from a major anxiety disorder, and she believes she released spousal support to relieve her distress and her symptoms experienced during the settlement conference. In short, she wanted the conference to be over. The applicant argues that her claim for spousal support had been before the court for four years, it was an important part of her case and had merit. It would be severely prejudicial to her to continue without it, whereas any prejudice to the respondent could be cured by costs if she is unsuccessful with this claim at trial.

[9] The respondent argues the abandonment of spousal support should not be set aside. He submits the applicant has failed to meet her onus of establishing the grounds necessary to do so. He takes issue with the applicant’s refusal to waive solicitor-client privilege with respect to Mr. Williams. He further argues that after the settlement conference, Mr. Williams continued to work diligently in trial preparation, completing such tasks as preparing a request to admit, a response to request to admit, the affidavit in chief of the applicant and at least 11 summonses to witnesses.

The law

[10] Subrule 25(19) of the Family Law Rules provides as follows:

25 (19) The court may, on motion, change an 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 inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[11] The word “change” means to “vary, suspend or discharge” as well as to set aside an order: Gray v. Gray, 2017 ONCA 100 at para. 26. This broad definition is consistent with the underlying philosophy, scheme, and purpose of the Family Law Rules, which recognizes that family litigation is different than civil litigation: Frick v. Frick, 2016 ONCA 799 at para. 11; Gray, at para. 29.

[12] Some courts have found that despite this broad definition, the applicant must meet one of the five pre-conditions for r. 25(19) to be engaged: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 70; Van Aman v. Mugo, 2022 ONSC 299 at para. 27. Others have found a residual power in addition to the five pre-conditions: Singla v. Tayal, 2023 ONSC 688 at para. 12. In exercising this residual power, courts have applied the law for setting aside default judgments in the civil context as set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 at paras. 47-48:

(a) whether the motion was brought promptly after the defendant learned of the default judgment; (b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and (c) whether the facts establish that the defendant has an arguable defence on the merits. (d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and (e) the effect of any order the court might make on the overall integrity of the administration of justice.

Analysis

[13] In oral argument, the applicant submitted that r. 25 (19)(a), the fraud provision, provides a pathway to set aside the spousal support provision in the order. In the alternative, she argued the Mountain View Farms test had been met.

[14] For the following reasons, I find the applicant has failed to meet her onus to set aside Richard J.’s order because she has not met any of the five pre-conditions set out in r. 25(19). I also find she cannot meet her onus applying the residual discretion under the Rule.

[15] The only pre-condition in r. 25(19) that could apply to this case requires that the applicant establish the spousal support release was obtained by fraud. The applicant suggests Mr. Williams was not prepared to conduct the trial and pressured her into abandoning her spousal support claim to shorten the trial. She also submits her anxiety disorder coupled with her belief her entitlement to spousal support was minimal, impacted her decision. In hindsight, she argues that her claim has merit and she received nothing from the respondent in return for this waiver.

[16] The applicant submits, without evidence, that Mr. Williams was ill prepared and unable to properly represent her at her trial, and that he accordingly perpetrated a fraud in forcing her to abandon spousal support against her stated wishes. She further submits Mr. Williams has left the practice of law under a cloud of mystery, further evidence he unduly influenced her before his departure. Despite these serious allegations, the applicant notably refuses to waive solicitor-client privilege.

[17] I find the record does not support the fraud allegation. This case had been before the court for four years at the time of the settlement conference. Mr. Williams had represented the applicant throughout that time, including at several trial management conferences. He was counsel of record when the matter was placed on two prior trial lists while spousal support was still at play. The trial did not proceed on those occasions because it was not reached. The settlement conference before Richard J. was lengthy, and the parties resolved four issues that shortened the trial, including the spousal support waiver.

[18] After the settlement conference, Mr. Williams complied with the consent timetable and had witness summonses issued, despite being away from the office for 10 business days, which I find was pre-planned. His preparation stopped due to unforeseen health reasons. Despite the applicant’s allegation, there is no evidence Mr. Williams has left the practice of law.

[19] In short, the evidence falls far short of establishing fraud. The motion must accordingly fail.

[20] Applying the residual power and the test in Mountain View Farms, I arrive at the same conclusion.

Whether the motion was brought promptly

[21] The applicant brought this motion relatively quickly after retaining new counsel. This factor is satisfied.

A plausible excuse for the making of the order

[22] I have already explained why the applicant has failed to established fraud or undue influence on the part of Mr. Williams. In addition, while the applicant states her anxiety caused her to agree to bring the conference to an end, there is no evidence to suggest this was any more than the normal stress associated with family litigation. The medical note she provided from her family doctor confirms she has “a history of anxiety and depression”. However, the balance of the note is based on self-reporting, and there is no medical evidence to support her contention that her capacity was impacted during the conference.

An arguable claim on its merits

[23] On her own evidence, the applicant believed her spousal support claim was not strong. Her affidavit is very brief and does not set out why she now believes the claim arguably has merit.

Potential prejudice to the parties

[24] Parties are responsible for the positions they take in litigation, particularly when they have the benefit of independent legal advice. Spousal support was abandoned on a without costs basis after four years of litigation and a lengthy settlement conference. Giving up the costs associated with defending that claim was clearly a quid pro quo. Suggesting the respondent could recover his costs if the order was set aside and the applicant failed at trial with her spousal support claim does not tip the prejudice balance in favour of the applicant.

Effect the order may have on the overall integrity of the administration of justice

[25] Agreements reached between parties and taken out in a consent order, are final and binding, subject to the court’s discretion to set them aside. Finality is important in litigation: Mohammed v. York Fire & Casualty Insurance Co., [2006] O.J. No. 547 (ON CA) at para. 34. This promotes the primary objective of the Family Law Rules, which is to deal with cases justly: r. 2(2). The court, the parties and their lawyers have an obligation to promote the primary objective: r. 2(4). Dealing with a case justly includes the following factors set out in r. 2(3):

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[26] Allowing the applicant to revive her claim for spousal support in these circumstances would run counter to the primary objective and would impact negatively on the overall integrity of the administration of justice. If agreements reached between parties with the benefit of counsel and judicial input during lengthy conferences, and taken out in an order, could be easily set aside, the process would quickly lose its purpose and meaning. In my view, the applicant has failed to call into question the procedural or substantive integrity of the agreement reached: Rick v. Brandsema, 2009 SCC 10 at para. 50.

[27] Accordingly, when I consider the circumstances of this case through the lens of the Mountain View Farms factors, I find the applicant has failed to establish a case for setting aside the consent order.

Conclusion

[28] For these reasons, the applicant’s motion is dismissed.

[29] In accordance with the agreement reached by the parties, the applicant shall pay to the respondent costs fixed in the amount of $3,000.00 inclusive of applicable taxes and disbursements.

Regional Senior Justice Patrick J. Boucher Date: May 16, 2024