The Lawyers Weekly - November 11, 2011

THOMAS CLARIDGE TORONTO

Ontario’s highest court has warned family law litigators against trying to use tort law when they aren’t happy about the litigation’s outcome.

The warning came in a per curiam decision issued in June that dismissed an appeal by Toronto lawyer Douglas M. Cunningham against a lower court ruling that his action for damages was an abuse of process.

In a statement of claim filed in March 2009, Cunningham alleged that inadequate disclosure by his former common-law spouse, University of Toronto law dean Mayo Moran, had led to him being ordered to pay too much child support for their son.

In the judgment, Justices
Marc Rosenberg, Janet Sim-
mons and Andromache Kara-
katsanis warned that allowing
such claims to proceed “would
permit family law litigants to
circumvent the statutory
scheme governing family law
claims and introduce a poten-
tially chaotic duplication of pro-
ceedings into an already over-
burdened family law justice
system.”
The court was told the litiga-
tion dated from January 2004,
when Moran issued a statement
of claim seeking joint custody of
the child, child support and sale
of their jointly owned home.
Cunningham responded with a
statement of defence and
counterclaim. In June 2005 a
judge made a temporary order
on consent requiring Cunning-
ham to pay $800 a month in
temporary child support plus
$1,100 a month as his 60 per
cent share of the cost of a nanny.
The payments were “without
prejudice to either party’s right
at trial to challenge the require-
ment for any monthly child sup-
port or the quantum of any such
support following the separa-
tion,” and issues of retroactive
child support and sharing of
expenses were to be determined
by the trial judge.

However, on the day the trial was to have started, the parties agreed to submit their claims in the action to Toronto lawyer Thomas Bastedo, a certified family arbitrator. The appeal court noted that in the mediation/arbitration agreement, “the parties specifically agreed that ‘the courts shall stay all proceedings before the court with respect to the matters dealt with in this mediation/arbitration agreement’ and also waived all rights of appeal,” adding: “Both parties received independent

[Lawyers] are always trying to be creative and look for new claims. A good example of that is claims being made in tort for damages for the transmission of sexually transmitted disease against a spouse.

“

Philip Epstein, Epstein Cole LLP

EPSTEIN

legal advice in relation to this
agreement.”
At the mediation the parties
reached an agreement on some
matters, including continued
joint custody of the child and
his residence schedule. At
Moran’s request, the agree-
ments that had been reached
were incorporated into an arbi-
tration award and court order.

On Jan. 31, 2008, Bastedo issued an arbitration award in which he found that the parties had resolved all issues relating to their child and disposed of all issues remaining in dispute. He found that the appellant had a 70 per cent interest in the parties’ home and the respondent the other 30 per cent, and directed that issues relating to the appellant’s purchase of the respondent’s interest in the home or the sale of the home should be dealt with by way of motion to him on notice to the other party.

The civil action was launched after failed attempts to have the mediation/arbitration agreement declared invalid and the arbitration award set aside.

In agreeing with Moran’s
counsel that the statement of
claim should be struck, Superior
Court Justice Randall Echlin
called the lawsuit a collateral
attack on existing court orders,
adding: “I further find that the
claims contained in this action
against Moran are frivolous,
vexatious, and an abuse of pro-
cess.”
Agreeing, the appeal court
judges said the appellant was
trying to address issues gov-
erned by the Family Law Act,
Ontario’s Child Support Guide-
lines and the Family Law Rules.
“In our view, this attempt, in
itself, amounts to an abuse of
process.”
They noted that although the
action was characterized as a
claim for damages, “in essence,
he seeks repayment of child
support payments and child
care costs he claims he either
overpaid or should not have
been required to make from the
date of separation to April
2007; child support from the
respondent for 2005 and 2006;
repayment of legal costs
improperly assessed against
him; costs awards in his favour
for steps taken in the family law
action; and general, exemplary
and punitive damages arising
from the fact that he was
ordered to pay support based on
allegedly wrongful conduct.”
Noting that the Family Law
Act and the Child Support
Guidelines governed a parent’s
obligations to pay child support
and contribute to child care
expenses, the judges wrote that
if a change is sought, “the proper
remedy is to apply for an adjust-
ment under the applicable legis-
lative scheme. Absent a deter-
mination under such scheme,
there is simply no entitlement
to either a refund for past pay-
ments or compensation for pay-
ments not received and an
action for damages does not
therefore lie in relation to such
amounts.”
The court went on to give
three other bases for dismissing
the appeal. The second related
reason was “that the appellant
is attempting, in a free-standing
action brought under the Rules
of Civil Procedure, to attack
agreements, awards and orders
made in a family law action. In
the absence of a claim to set
aside such agreements, awards
and orders, the appellant’s
statement of claim is an
impermissible collateral attack”
on three court orders.

Reasons: Cunningham v. Moran, [2011] O.J. No. 2880.

MARMER PENNER INC.

Business Valuators & Litigation Accountants
BUSINESS VALUATION
MATRIMONIAL AND OTHER LITIGATION SUPPORT
QUANTIFICATION OF DAMAGES
FORENSIC ACCOUNTING

2 Bloor Street West, Suite 2603, Toronto, Ontario M4W 3E2
Tel: (416) 961-5612 Fax: (416) 961-6158 www.marmerpenner.com
Please contact either:
sranot@marmerpenner.com jdebresser@marmerpenner.com