Matthews v. Dobson, 2016 NSSC 147

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Matthews v. Dobson , 2016 NSSC 147 Date: 2016-06-03 Docket: 1201-063664 SFHD No. 064737 Registry: Halifax Between: Christopher J. Matthews Applicant v. Anne Dobson Respondent Judge: The Honourable Justice Carole A. Beaton Heard: May 27, 2016, in Halifax, Nova Scotia Written Decision: June 3, 2016 Counsel: Deborah E. Gillis, Q.C. for the Applicant Janet M. Stevenson for the Respondent By the Court: Background [ 1 ] The parties were divorced on May 25, 2011.

The Corollary Relief Order (“CRO”) of the same date appended and adopted an Agreement and Minutes of Settlement (“Minutes”) reached several days prior. As to spousal support, the Minutes provided (in part): 8. (

b) Mr. Matthews shall pay spousal support to Ms. Dobson at the rate of $3,000.00 per month, payable on the 15 th day each and every month, effective January 15, 2011 … 9. Mr. Matthews shall pay spousal support to Ms. Dobson for a further period of five years effective January, 2011. The aforesaid spousal support shall terminate absolutely after the December 15, 2016 payment … [ 2 ] Mr.

Matthews seeks an Order rectifying what he asserts is an error in paragraph 9 of the CRO regarding the termination date of December 15, 201 6 which he maintains should read 201 5 so as to be consistent with the duration period of five years discussed earlier in the same clause. [ 3 ] The Court’s authority to issue a Rectification Order is found in Civil Procedure Rule 78.08 (

a) to “correct a clerical mistake, or an error resulting from an accidental mistake or omission, in an order.” [ 4 ] Ms. Dobson maintains the 2016 date is correct as she intended to be the recipient of spousal support up to and including December 2016, not December 2015. [ 5 ] At the outset of the hearing on Mr. Matthews’ Motion the Court ruled, following submissions, that Mr. P. Katsihtis, Barrister and Solicitor who acted for Ms. Dobson at the time of the divorce litigation, could not be compelled to testify as she did not waive

solicitor-client privilege. Counsel for the Applicant requested the Court draw an adverse inference from the lack of Affidavit evidencefrom Mr. Katsihtis. As I indicated in the course of the hearing, I was not prepared to do so as drawing an adverse inference from theabsence of evidence of Mr. Katsihtis would effectively erode the right Ms. Dobson was asserting with respect to solicitor-clientprivilege. As a result of Ms. Dobson’s decision not to waive that privilege the Court can rely only on that evidence which was before meon the Motion. [6] Ms. Y. LaHaye, Q.C. testified on behalf of Mr.

Matthews as to her representation of him during the divorce litigation. (Mr.Matthews waived solicitor-client privilege). Ms. Dobson objected to that portion of Ms. LaHaye’s evidence which revealed settlementdiscussions between the parties conducted prior to reaching their May 2011 agreement. Despite the otherwise privileged nature of suchdiscussions, the Court was satisfied such evidence could be provided where the details were germane to the motion. Issue [7] What did the parties agree to when the Minutes were signed and does any correction need to be made to the CRO? [8] Mr.

Matthews’ evidence, upon which he was not cross-examined, was that he only ever intended to agree to, and that he didagree to only a five year term of spousal support and not a six year term as constituting his obligation as payor. He maintained the CROissued in May 2011 contains an error in reading 2016 instead of 2015. [9] The evidence of Ms. LaHaye outlined in some detail the timing and contents of the settlement discussions between the partiesand the various draft agreements circulated between counsel for the parties. Central to Ms.

LaHaye’s evidence, which I accept on thepoint, was that the discussion of a five year term for spousal support was introduced at a December 2010 judicial Settlement Conferencepresided over by Justice Campbell. That proposed length of term carried through the parties’ on-going settlement oriented discussionsuntil agreement was reached just prior to trial. Several of the exhibits to Ms.

LaHaye’s Affidavit supported that repetition of the notion ofa five year term occurred in various draft agreements exchanged after the Settlement Conference, including a discussion at one pointabout reducing that length of the spousal support term if Mr. Matthews were to forfeit a particular amount of equity in the matrimonialhome. That discussion was in the context of calculations that would have needed to have been done to achieve an equivalency betweenthe equity forfeited and the remainder or balance of the term of spousal support as reduced from the five year figure. [10] The evidence of Ms.

Dobson was that she signed the Minutes with emphasis on her need to have spousal support continue untilDecember 2016 given her projected financial circumstances, such as the matter of two of her children commencing university in 2015and 2016 respectively. Ms. Dobson testified that she “…qualified for a mortgage and purchased a home in the spring of 2015” and that she “would never have purchased a house in 2015 if Iunderstood that spousal support would terminate in December 2015”. However, on cross examination it became clear that Ms. Dobson was notified by Mr.

Matthews in February 2014 that he had discoveredwhat he considered to be the error in the CRO. While Ms. Dobson may not have agreed with Mr. Matthews’

interpretation of the CRO atthat time, I am satisfied she proceeded with the house purchase a full year later, all the while aware that the issue central to this Motionwas a live one. [11] It is most difficult to accept that the misstatement of the calculation of the payment period for spousal support in the CRO asending in 2016 instead of 2015 is anything other than, at worst a mathematical error in computation of time, or at best, a typographicalerror. Either way, the presenting problem does not offend the limitation discussed in Ivey v. Ivey, 2014 NSSC 108: 32.

The slip rule has been applied in the family law context. In Andrews v. Andrews, 2007 NSSC 35 , 2007 NSSC 35(S.C.), Dellapinna, J. utilized the slip rule to equally divide the employment pension of the wife, where the division of the wife’s pensionhad inadvertently been omitted in the court’s earlier decision. Similarly, in Wood v. Wood, 1982 NSJ No. 31, (N.S.S.C.T.D.), Grant, J.applied the slip rule to correct an error in a consent court order, by amending the order to include a term which had inadvertently beenomitted, which term had formed part of the prior settlement. 33.

An opposite result was reached in McDonald v. Trenchard, 2011 NSSC 105 , 2011 NSSC 105 (S.C.). O’Neil,A.C.J. stated that the slip rule should not be applied where there was “nothing inherently erroneous or obviously deficient” about thecontested clause: para. 40. Further, the slip rule was “not designed to be a back door to re-negotiating an agreement ...” para.40(emphasis added) [12] Unlike the situation in Dixon v.

Dixon, 2012 NSSC 342, where the Court declined to change the CRO as originally issued, herethe CRO as it presently reads does not accurately reflect the agreement of the parties and further, one portion of it is inconsistent withanother. [13] Once the concept of a five year term was introduced at the December 2010 settlement conference, all of the draft proposals sentby Mr. Matthews counsel to Ms. Dobson’s contemplated a five year term, and each successive draft unfortunately contained theoffending miscalculation or misprint. Logic dictates that Ms.

Dobson, having had the opportunity to review those drafts, and her counsel,having taken the opportunity to clarify, correct and counter certain other provisions of the drafts, was indeed agreeing to a “furtherperiod of five years”, not six. Clause 9 first set out the duration of support which identified or defined the parties agreement; thecalculation of the payment period which followed later in the same paragraph served to provide the payment sequence, albeit incorrectly,for that agreement of five years of support.

[ 14 ] With respect, while Ms. Dobson may recall or believe in hindsight that she was agreeing to a spousal support arrangement until December 2016, the documentary evidence before me points overwhelmingly to the contrary. It only makes sense that if Ms. Dobson expected to be in receipt of spousal support for a longer period, then she or her counsel would have corrected discussions of “a further period of five years” to a further period of six years. [ 15 ] The evidence persuades me the parties negotiated a five year term for spousal support, nothing more and nothing less.

Neither the parties, their counsel, nor the Court noted the inconsistency in the Minutes in 2011 between setting a five year term for support and subsequently identifying a payment

schedule that spanned six years, not five. It is perhaps not difficult to understand how this might have happened. [ 16 ] Indeed, absent any evidence whatsoever about background leading up to the discovery of the inconsistency in the wording contained in the CRO, the conclusion would have to be the same. When one reads a document that states an event will be of five years in duration and then the payment

schedule following is incorrect, the reader should be entitled to rely on the words “five years” before the calculations of the payment schedule. That is precisely why the payment

schedule information comes after the words setting out or identifying the term. [ 17 ] It would be manifestly unfair to the Applicant to permit the error to continue and to effectively permit a windfall to the Respondent by virtue of a clerical error. [ 18 ] I am satisfied the CRO as it presently reads does not reflect what the parties agreed to in their negotiated settlement. The Motion of Mr. Matthews is allowed and the error in the CRO shall be rectified as requested to reflect a spousal support termination date of December 15, 201 5 . [ 19 ] Both parties sought costs on the Motion and Mr.

Matthews is the successful party. I have taken into account Rule 77 and the principles surrounding costs awards (per Higgins v. Bourgeois Higgins , 2015 NSSC 293 ; Armoyan v. Armoyan , 2013 NSCA 136 ). The “amount involved” is $36,000 equating to the disputed 12 months of spousal support payments at the rate of $3,000 per month. Pursuant to Tariff A on the Basic Scale, costs are set at $6,250 plus $1,000 for a half day hearing, for a total of $7,250 inclusive of disbursements. Costs are payable within 120 days. [ 20 ] Counsel for the Applicant shall prepare the Order giving effect to this decision. Beaton, J.