



COURT OF APPEAL FOR ONTARIO

CITATION: Goodfellow v. Tordjman, 2013 ONCA
    376

DATE: 20130605

DOCKET: C55021

Armstrong, Blair and Pepall JJ.A.

BETWEEN

Ian Goodfellow

Applicant (Appellant)

and

Suzanne Tordjman

Respondent (Respondent)

Guy Hunter, for the appellant

Michael J. Polisuk, for the respondent

Heard: January 28, 2013

On appeal from the judgment of Justice Czutrin of the
    Superior Court of Justice, dated January 16, 2012.

By the Court:

Introduction

[1]

The parties to this appeal lived in a common law relationship for 25
    years.  There are four adult children of the relationship. In August or
    September 1998, the parties separated.

[2]

In August 1999, the respondent commenced an action against the appellant
    in Newmarket (the Newmarket action) for child support, custody of the
    children and other relief.

[3]

In September 1999, the appellant filed a statement of defence and
    counterclaim. The appellants counterclaim asserted claims under the
Family
    Law Act
,
R.S.O. 1990, c. F.3,
    for spousal support and other relief including a claim under the
Partition
    Act
,
R.S.O. 1990, c. P.4,
    in respect of the family residence, a claim described as under the law of
    trusts, and a claim for unjust enrichment. The claims included a request for
    50% of the respondents pension and monies accumulated by the parties prior to
    their separation.

[4]

On November 28, 2003, the Newmarket action was dismissed for delay by
    administrative order. During the oral argument of this appeal, both parties
    agreed that such dismissal included the dismissal of the counterclaim. However,
    at the request of the appellant, the court agreed to receive further
    submissions in writing on this issue.

[5]

The dismissal order did not come to the attention of the appellant until
    sometime in 2007. Apparently, the notice of the dismissal was sent to the wrong
    address for the appellants lawyer. No steps were taken to set aside the
    dismissal order until 2012 when the appellant moved to set aside the dismissal of
    the counterclaim. The motion to set aside the dismissal of the counterclaim was
    dismissed and is presently under appeal to this court in separate proceedings.

[6]

About twelve years after the commencement of his Newmarket counterclaim,
    on August 2, 2011, the appellant commenced the current application against the
    respondent in Toronto (the Toronto application) for spousal support, claims
    for constructive trust, unjust enrichment and other relief. In his application,
    the applicant stated that, [t]his
same
Application was brought in 1999
    in Newmarket Court and defended but never adjudicated (emphasis added).

THE MOTION FOR INTERIM SPOUSAL SUPPORT

[7]

On December 12, 2011, the appellants motion for interim spousal support
    in the Toronto application was heard by Czutrin J.  Counsel for the respondent
    raised as a preliminary issue whether the earlier Newmarket action precluded
    the appellant from initiating the Toronto application.

[8]

The motion judge concluded that, as the appellant had commenced his
    action in 1999, he remained subject to the limitation period in the
Limitations
    Act,
R.S.O. 1990, c. L.15 (the former
Limitations Act
).
    Accordingly, he could not avail himself of the changes that removed a
    limitation period for requesting spousal support in the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sch. B.

[9]

At paras. 12 and 13 of his endorsement, the motion judge stated:

[12] Ms. Tordjman takes the position that when considering the
    transitional provisions of the
Limitations Act
at sections 24(2) and
    24(3) of the
Limitations Act
:

1.    There was [a]
    limitation period imposed by former section 50 of the
Family Law Act
on applications for spousal support.

2.    A
    proceeding was commenced by Mr. Goodfellow in 1999.  Section 24(2) of the
Limitations
    Act
governs the transitional rules of this legislation, and makes it clear
    that individuals will only be released from the confines of a former limitation
    period where they declined to commence an action before January 1, 2004.  Since
    Mr. Goodfellow began an action in 1999, he remains subject to that former
    limitation period, and cannot avail himself of the changes that removed a
    limitation period for requesting spousal support.  For this reason, the
    transitional rules of the
Limitations Act
do not govern Mr.
    Goodfellows motion, and his limitation period under the former rules has
    expired.

3.    Further,
    section 24(3) of the
Limitations Act
, also denies Mr. Goodfellow
    access to its transitional provisions since the former limitation period for
    his spousal support claim would have expired by January 1, 2004 anyhow.  This
    is because the parties separated in September of 1998, when the operation of
    section 50 of the
Family Law Act
meant that the limitation period for
    spousal support would have expired in September of 200[0], years before the
    January 1, 2004 deadline provided for in the
Limitations Act
.

[13] I agree with Ms. Tordjmans position. To hold otherwise
    would permit the commencement of a new action seeking the same relief that was
    disposed of under the old limitations regime.
[1]
[Footnote added.]

THE ISSUES ON THIS APPEAL

[10]

The
    appellant raises a great number of issues in this appeal, many of which appear
    to have marginal, if any, relevance to what was decided by the motion judge. 
    The main issues raised by the appellant are as follows:

(i)      the motion judge erred in his conclusion that the
    Toronto application was statute barred pursuant to the provisions of the
Limitations
    Act
, 2002
;

(ii)      the motion judge erred in disposing of the entire
    action by way of a stay when the only issue before him was interim spousal
    support;

(iii)     the motion judge erred in failing to invoke s. 2(8)
    of the
Family Law Act
to extend the time within which the Toronto application
    could be brought;

(iv)     the motion judge failed to consider the conduct of the
    respondent in respect of the following:

(a) the
    respondent failed to inform the appellant until 2011 that their son, Daniel,
    moved out of his mothers home in 2002 while she continued to collect child
    support from the appellant for an additional five years. She also continued to
    collect child support after the Newmarket action was dismissed;

(b)  the
    respondent concealed financial information from the appellant concerning her
    income and assets;

(c) the
    respondent did not speak to the appellant since December 1997 other than
    through lawyers;

(d) the
    respondent abandoned the property located at 40 Fairfax Court, Thornhill,
    Ontario,  which caused it to go into power of sale. Its forced sale created a
    loss of $49,000 to the appellant.

(v)     the motion judge failed to consider the decision of the
    Supreme Court of Canada in
Kerr v. Baranow
, 2011 SCC 10, [2011] 1
    S.C.R. 269;

(vi)    the motion judge failed to consider the merits of the
    appellants claim for spousal support;

(vii)   The appellant raises a number of issues that are
    specific to the dismissal of the Newmarket action which need not be addressed
    here as they are properly matters to be addressed in the motion to set aside
    the dismissal of the counterclaim;

(viii)   In addition, the appellant, contrary to his earlier
    position during oral argument, now asserts that the counterclaim in the
    Newmarket action was not dismissed by the order of November 28, 2003.

ANALYSIS

(i)

Did the motion judge correctly conclude that the Toronto application for
    spousal support was statute barred?

[11]

In
    our view, the motion judge correctly determined that the transition section in
    the
Limitations Act, 2002
, was inapplicable.

[12]

The
    claims in the Toronto application arose when the parties separated on September
    1, 1998. These same claims were included in the Newmarket action commenced in
    August 1999. The transition section of the
Limitations Act, 2002
applies
    only to claims based on acts or omissions that took place before January 1,
    2004 and in respect of which no proceeding has been commenced before that date:
    s. 24(2). Since the proceeding was commenced before January 1, 2004, namely in
    1999, the transition section does not apply.

[13]

One
    must then determine whether the former
Limitations

Act
or the
Limitations
    Act, 2002
is applicable.

[14]

There
    is a presumption against the retroactive application of legislation. As noted
    in
obiter
by Gillese J.A. in
St. Jean v. Cheung
, 2008 ONCA 815, 94
    O.R. (3d) 359, at para. 40: [t]o accept that the new
Limitations Act
applies even if a proceeding has been commenced before January 1, 2004, amounts
    to a retroactive application of its provisions because such an interpretation
    would have the effect of deeming the law to be different from what it was when
    the facts occurred. While procedural legislation is presumed to have immediate
    application, in this case, the appellants substantive rights are affected and
    the impact of the
Limitations Act, 2002
is not simply procedural in
    nature.

[15]

Accordingly,
    the now repealed s. 50(1) of the
Family Law Act
is applicable.  It
    provided that no action or application for support of a spouse could be brought
    two years from the date the spouses separated. As the motion judge correctly
    observed, the two-year limitation period found in that statute expired in
    September 2001. As such, the appellants 2011 claim for spousal support is statute-barred,
    subject to the appellants right, as discussed below, to bring a motion under
    s. 2(8) of the
Family Law Act
for an extension of the two-year
    limitation period.

(ii)

Did the motion judge err in disposing of the entire action by way of a
    stay when the only issue before him was interim spousal support?

[16]

In
    addition to spousal support, the appellant claimed the following relief in the
    Toronto application:

1.

A claim for a
    constructive trust, unjust enrichment and a tracing of the appellants interest
    in furniture and the down payment made on 41 White Blvd., Thornhill. In the
    alternative, a value-survived equitable interest for the appellant in 41 White
    Blvd. under the doctrine of unjust enrichment.

2.

50% interest in the
    respondents Teachers Principals pension for period of cohabitation.

The motion judge made no specific reference to the
    above claims for relief apart from a generic reference to other relief. His
    analysis on the limitations issue was confined to spousal support.

[17]

The
    appellant objects to the fact that the motion judge disposed of the trust
    claim on a motion for interim spousal support. In his factum, the appellant
    submits that:

Given that the Applicant moving party (Appellant) was explicit
    that they did not want to adjudicate the issue of a limitation period in
    respect of the trust claim at the hearing of the interim spousal support motion
    in December, 2011, was it just that His Honour Justice Czutrin essentially
    disposed of Mr. Goodfellows entire application?

[18]

It
    may well be that applying a limitation period or other analysis to the balance
    of the relief sought would produce the result that the application is out of
    time or is improperly brought. This court could presumably conduct that type of
    analysis. However, since only the interim motion for spousal support was before
    the motion judge on December 12, 2011, our view is that the better approach is
    to refer the matter back to the motion judge to resolve the status of the
    balance of the relief sought. This disposition will enable the parties to make
    submissions on these issues and will afford the appellant full procedural
    fairness.

(iii)

Did
    the motion judge err in failing to invoke s. 2(8) of the
Family Law Act
to extend the time within which the Toronto action could be brought?

[19]

Section
    2(8) of the
Family Law Act
provides:

2(8) The court may, on motion, extend a time prescribed by this
    Act if it is satisfied that,

(a)

there are apparent grounds for
    relief;

(b)

relief is unavailable because of
    delay that has been incurred in good faith; and

(c)

no person will suffer
    substantial prejudice by reason of the delay.

[20]

As
    noted above, we agree with the motion judge that the two-year limitation period
    in s. 50(1) of the
Family Law Act
applies to the appellants spousal
    support claim in the Toronto application. However, s. 2(8) of the
Family
    Law Act
permits a party to bring a motion to extend any time prescribed by
    the Act and sets out the criteria for obtaining such an extension. The same
    provision appeared in the
Family Law Act
prior to the repeal of s. 50(1)
    in 2002.

[21]

It
    would be unfair to expect the appellant to have anticipated the need to bring a
    motion to extend the two-year limitation period under the former
Act
in
    conjunction with his motion for interim spousal support. The appellant should therefore
    have the opportunity to bring a motion under s. 2(8) if he so chooses.

(iv)

Did
    the motion judge err in failing to consider the conduct of the respondent as
    specified above?

[22]

The
    motion judge had before him a preliminary motion brought by the respondent in
    respect of the limitation issue. If he had proceeded to hear the appellants motion
    for interim spousal support, some of the alleged conduct of the respondent may
    well have been relevant to the merits of that motion. However, having disposed of
    the motion by way of the preliminary issue, it was unnecessary for him to
    consider the alleged conduct of the respondent.

(v)

Did the motion judge err in failing to consider the decision of the
    Supreme Court of Canada in
Kerr v. Baranow
?

[23]

In
Kerr
, the Supreme Court

conducted a
    comprehensive review of the financial and property rights of unmarried
    cohabiting parties on the break-down of their relationship. The issues
    discussed by the court have no bearing on the limitation issue in the case at
    bar.
Kerr
would only be relevant to a consideration of the merits of
    the appellants case. In light of the preliminary disposition he ordered, the
    motion judge found it unnecessary to engage in the merits of the appellants
    case and, in those circumstances, we find no error in his failure to consider
Kerr
.

(vi)

Did
    the motion judge err in failing to consider the merits of the appellants claim
    for spousal support?

[24]

For
    the reasons already advanced above, we see no error.

(vii)

Did
    the motion judge err in failing to address a number of issues related to the
    dismissal of the Newmarket action?

[25]

The
    motion judge properly declined to address the issues involving the dismissal of
    the Newmarket action. He advised the appellant that the appropriate avenue of
    redress, if any, was to pursue a motion to set aside the 2003 dismissal order.
    The appellant has taken that advice.

(viii)

Was the counterclaim of the appellant dismissed by the order of November
    28, 2003?

[26]

At the opening of the argument of the appeal, the court brought to the
    attention of counsel the language of the order of November 28, 2003:

No party having taken any of the steps set out in subrule 39(11)
    of the
Family Law Rules
, within 30 days after service of the notice of
    approaching dismissal dated June 17, 2002,

IT IS ORDERED THAT: pursuant to subrule 39(12) of the
Family
    Law Rules
, the application is dismissed without costs.

[27]

Subrules
    39(11) and (12) of the
Family Law Rules
, O. Reg. 114/99 provide:

39. (11) The clerk shall serve a notice of approaching
    dismissal (Form 39) for a case on the parties by mail, fax or electronic mail
    if the case has not been settled, withdrawn or scheduled or adjourned for trial
    before the 365th day after the date the case was started, and that time has not
    been lengthened by an order under subrule (3).



(12) A case for which a notice of approaching dismissal has
    been served shall be dismissed without further notice, unless one of the
    parties, within 60 days after the notice is served,

(a) obtains an order under subrule (3) to lengthen that
    time;

(b) files an agreement signed by all parties and their
    lawyers if any, for a final order disposing of all issues in the case, and a
    notice of motion for an order carrying out the agreement;

(c) serves on all parties and files a notice of withdrawal
    (Form 12) that discontinues all outstanding claims in the case;

(d) schedules or adjourns the case for trial; or

(e) arranges a case conference or settlement conference for
    the first available date.

[28]

Under
    the
Family Law Rules
, application means, as the context requires, the
    document that starts a case or the procedure by which new cases are brought to
    the court for a final order or provisional order. The term case means an
    application or any other method allowed in law for bringing a matter to the
    court for a final order or provisional order, and includes all motions,
    enforcements and appeals.

[29]

During
    oral argument, the panel asked counsel if the use of the word application in the
    order above was broad enough to include the dismissal of the counterclaim. In
    response, both counsel advised that it was. However, subsequent to the hearing,
    counsel for the appellant sent a letter to the court in which he advised that
    the appellant wished to make further submissions on this issue. For the sake of
    completeness, the panel permitted both counsel to make further submissions in
    writing.

[30]

In
    his written submissions, counsel for the appellant argues that the counterclaim
    in the Newmarket action was not dismissed. He further argues that only the
    respondents application was dismissed. This position is contrary to his
    initial position in response to the question raised by the court and also
    contrary to the motion that the appellant has brought through a different
    lawyer to set aside the dismissal of the counterclaim.

[31]

Not
    surprisingly, counsel for the respondent maintains the position that the
    counterclaim in the Newmarket action was dismissed by the order of November 28,
    2003. He submits that since neither the word answer nor counterclaim is
    defined in the
Family Law Rules
, the appellants counterclaim falls
    within the definition of application.

[32]

We
    agree with the respondent. The appellants counterclaim falls within the
    definition of both application and case under s. 2 of the
Family Law
    Rules
. We also note that this issue was not raised by either party in the
    court below or in this court. In any event, in separate proceedings, the
    appellant has moved to set aside the dismissal of his counterclaim.

DISPOSITION

[33]

In the result, we would dismiss the appeal in respect of the stay of the
    claim for spousal support subject to the appellants right to bring a motion
    for an extension of time under s. 2(8) of the
Family Law Act
.  In
    addition, we would lift the stay in respect of the other relief sought and refer
    the limitation period issue and any remaining issues back to the motion judge.

[34]

As
    success on this appeal is divided, we would make no order as to costs.

Released:  June 5, 2013 RPA                     Robert P.
    Armstrong J.A.

R.A.
    Blair J.A.

S.E.
    Pepall J.A.





[1]
All references to the 
Limitations Act
 in this quotation are to the
Limitations
    Act, 2002
.


