IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Burills v. Ettinger,

 

2018 BCSC 817

Date: 20180516

Docket: E1650608

Registry: Prince George

Between:

Ingrid Margery Jennifer Ann Burills
also known as Ingrid Margery Jennifer Burills

Claimant

And

Perry Morton Ettinger

Respondent

Before: The Honourable Mr. Justice Milman

Reasons for Judgment

Counsel for the Claimant:

B. Levine

Counsel for the Respondent:

P. LeBlanc

Place and Date of Hearing:

Prince George, B.C.

April 20, 2018

Place and Date of Judgment:

Prince George, B.C.

May 16, 2018


 

Table of Contents

I.            Introduction. 3

II.           Background. 3

III.         Discussion. 7

A.     Am I functus officio?. 7

B.     Is the matter res judicata?. 9

C.     In whose name was the debt incurred?. 10

D.     What is the appropriate order?. 11

IV.         Summary and Conclusion. 12


 

I.                 Introduction

[1]             On September 25, 2017, I made an order in this action giving effect to a settlement agreement that had been concluded between the parties.  The settlement was intended to resolve all of the claims between them in their matrimonial dispute, and to that end, each party released the other from all such claims.

[2]             The respondent, Mr. Ettinger, says that he subsequently discovered the existence of a debt in the amount of approximately $14,500 that the claimant, Ms. Burills, had, unbeknownst to him, accumulated following their separation on a secondary credit card for which he is the primary account holder.

[3]             Mr. Ettinger brings this application seeking a further order to require Ms. Burills to assume that debt herself, despite paragraph 42 of my order of September 25, 2017.  That paragraph states that, other than as set out elsewhere in my order (and there is no other term in my order dealing with that debt), “each party shall retain all debts incurred in their name free and clear from any claims for set off from the other.”

[4]             Ms. Burills responds that the application should be dismissed because the matter is res judicata.

II.               Background

[5]             Mr. Ettinger, who is now 65 years old, lived with Ms. Burills, who is now 69, from 1999 until they separated in June 2016, when Mr. Ettinger moved out of the family home.  Ms. Burills continues to reside there.  They had no children together.

[6]             While they were together, Ms. Burills managed the couple’s finances.  In or around 1998, Mr. Ettinger had opened a TD Visa credit card account.  In or around 2003, he arranged for Ms. Burills to obtain a secondary card on that account, presumably to facilitate her management of the couple’s finances.  Mr. Ettinger never saw the bills as they came in because Ms. Burills would deal with them.

[7]             The last two transactions that Mr. Ettinger charged to the card occurred on August 6, 2015 and January 26, 2016. Thereafter, he says he forgot that he had the card or that Ms. Burills was continuing to use it.

[8]             Ms. Burills says that she generally paid the couple’s bills using a joint chequing account that they shared.  For most of the time they were together, the joint account was funded by Mr. Ettinger’s regular depositing of his paycheques into that joint account.  In May 2016, however, she says Mr. Ettinger stopped depositing his paycheques into the joint account.  In December 2016, Ms. Burills says, Mr. Ettinger also stopped depositing his pension payments into the joint account.  As a result, she was left with no other means to pay the couple’s bills, including a mortgage, utilities, food and other debts.

[9]             According to Ms. Burills, when she confronted Mr. Ettinger with the need to pay these bills, his response was that he did not care and that he wanted “to destroy her credit rating.”  Mr. Ettinger denies having said those things.

[10]         Ms. Burills says that she used the money that she withdrew with the TD Visa card “primarily to pay his half of the family debt.”  She says that she “continued to use my own money” (i.e., money that she earned on her own from her work as a house cleaner), to “contribute to my share towards the family expenses.”

[11]         Ms. Burills commenced this action on December 14, 2017 by way of a Notice of Family Claim, seeking among other things, spousal support and a division of family property.

[12]         On April 18, 2017, Meiklem J. made an order, also by consent, requiring Mr. Ettinger to pay spousal support in the amount of $1,081 per month according to a specified schedule.  That order also directed the family home to be sold, with both parties having joint conduct of sale and any sale being subject to court approval unless the parties agree otherwise.

[13]         Mr. Ettinger says that he paid spousal support as contemplated by the order of Meiklem J. until that order was replaced by my order of September 25, 2017, which raised the amount of spousal support to $1,342 per month.  Mr. Ettinger says he has been paying that amount since then.  Mr. Ettinger says that he has also been paying $757.09 per month towards the couple’s joint debts, as contemplated by my order.

[14]         In or around August 2017, Mr. Ettinger arranged for his mail to be rerouted from the family home to his new address.  On September 29, 2017, four days after I pronounced my order, Mr. Ettinger received a TD Visa statement in the mail.  The statement was dated September 18, 2017.  It referred to two accounts: a “primary account” in his name and a “secondary account” in the name of Ms. Burills.  The statement showed a combined balance owing of $15,758.83.

[15]         According to that statement, the primary account in Mr. Ettinger’s name had incurred a debt of $199.77 in the past month comprised entirely of interest and fees of various kinds.  The secondary account in Ms. Burills’ name showed two cash advances on August 24 and August 25 in the amounts of $700 and $300 respectively, for a total of $1,000 in the previous month.  The statement noted a balance carried over from previous months of $14,559.06.

[16]         Mr. Ettinger says he was surprised to see that statement because he did not remember having a TD Visa card or authorizing Ms. Burills to get a secondary card on his account.  After making inquiries with the bank and obtaining the account records, however, Mr. Ettinger recalled having used the card in the past and authorizing Ms. Burills to have the secondary card as previously described.

[17]         Mr. Ettinger obtained all of the statements he could from the bank and has attached them to his affidavit.  They show that when the couple separated in June 2016, the balance owing on the card was $3,207.51.  As of October 18, 2017, it was $15,950.  That increase in the indebtedness in the account appears to have accumulated as a result of the following transactions on Ms. Burills’ secondary card following their separation:

(a)  November 30, 2016: $114.12 (BCAA membership);

(b)  January 6, 2017: $500 (cash withdrawal);

(c)   January 10, 2017: $160 (cash withdrawal);

(d)  February 7, 2017: $500 (cash withdrawal);

(e)  February 21, 2017: $1,000 (cash withdrawal);

(f)    February 21, 2017: $1,000 (cash withdrawal);

(g)  February 22, 2017: $1,000 (cash withdrawal);

(h)  February 22, 2017: $1,000 (cash withdrawal);

(i)    February 28, 2017: $1,000 (cash withdrawal);

(j)    March 13, 2017: $500 (cash withdrawal);

(k)   March 13, 2017: $1,000 (cash withdrawal);

(l)    March 13, 2017: $500 (cash withdrawal);

(m)March 28, 2017: $500 (cash withdrawal);

(n)  June 1, 2017: $1,000 (cash withdrawal);

(o)  July 5, 2017: $1,000 (cash withdrawal);

(p)  July 28, 2017: $1,000 (cash withdrawal);

(q)  August 24, 2017: $700 (cash withdrawal); and

(r)    August 24, 2017: $700 (cash withdrawal).

[18]         Ms. Burills did not disclose this debt in her financial statement of March 4, 2017.  She did not mention it in the affidavit she relied upon in applying for spousal support on March 6, 2017.  She did not list any of the statements from that account on her list of documents delivered on July 17, 2017.

[19]         The TD Visa account was mentioned in a schedule to the settlement agreement that was the basis of my order, however.  That schedule listed the couple’s debts and identified which of the parties was responsible for them.  Item #6 on the schedule refers to a “TD Visa” indebtedness in the amount of $3,100 which is attributed to Mr. Ettinger.  According to Mr. Ettinger, the schedule was prepared by Ms. Burills.  Mr. Ettinger says that while he read the settlement agreement and saw the schedule he did not appreciate the significance of that entry.  He says that he thought the intention of the settlement agreement was for the parties to split their debts equally.

[20]         After he learned what had occurred in the TD Visa account, Mr. Ettinger instructed his counsel to write to Ms. Burills’ counsel demanding that she take over the TD Visa debt as her own.  She refused.  He brings this application to compel her to do so.

III.             Discussion

A.              Am I functus officio?

[21]         The first question that must be addressed is whether I have the requisite jurisdiction to entertain this application, given that I have already pronounced a final order disposing of this action and my order has since been entered.

[22]         In Sandhu v. Sandhu, 2012 BCSC 1183, Fisher J. explained the rule and its exceptions as follows:

[11]      Although the court is functus officio once an order has been entered, there remains a limited jurisdiction to amend an order after entry. It arises from the Rules of Court as well as this Court’s inherent jurisdiction.

[12]      Rule 15-1(18) of the Supreme Court Family Rules, BC Reg. 169/2009, permits the court to correct or amend an order in certain circumstances:

(18) The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter that should have been but was not adjudicated on.

[13]      This rule does not permit the court to amend a substantive finding and it does not permit parties to provide fresh details of matters already before the court: see Chand v Insurance Corporation of British Columbia, 2009 BCCA 559 at para. 44, citing McLachlin and Taylor, British Columbia Practice, 3rd ed., Frederick Irvine (Markham, Ont.: Butterworths, 2006).

[14]      In addition to Rule 15-1(18), the court has inherent jurisdiction to amend an entered order on the basis that there has been an error in expressing the manifest intention of the court and to avoid the perpetration of an injustice: Buschau v Rogers Communications Inc., 2004 BCCA 142; Chand.

[23]         A question similar to the one before me on this application arose in Montpellier v. Montpellier, 2007 BCSC 1214.  That case, like this one, involved a matrimonial dispute that had been resolved by way of a consent order giving effect to a settlement agreement.  Following the entry of that order the parties, as in this case, were unable to agree on the meaning of a particular paragraph of the consent order.  The paragraph in issue in that case involved the division of a registered retirement savings plan.  The wife applied to enforce the order as she interpreted it.  The husband responded that the impugned paragraph in the consent order was ambiguous.  He argued that the court was functus officio such that the only way the wife could clarify the ambiguity, short of a contempt application that was bound to fail, was to commence a separate action seeking rectification of the settlement agreement and the consent order.

[24]         Beames J. disagreed.  In concluding that the court continued to have jurisdiction to resolve the ambiguity, she explained her reasons as follows, at paras. 6-11:

[6]        I have read the submissions of both counsel and the cases provided.  In my view, there are two questions to be answered in this case.  The first is whether the impugned paragraph is clear and unambiguous, in which case, as an order of the court, it is enforceable.  If the paragraph is not clear and unambiguous, then the second question is what steps may be taken in this action or any other so that the meaning may be ascertained.

[7]        The answer to the first question, I have reluctantly concluded, is that the paragraph is not clear and unambiguous.  I am not able to determine, on the evidence now before me, what the parties intended with respect to the mechanism of “equalization”, nor, on the state of the evidence now before me, what was meant by “current value”.

[8]        I cannot agree with counsel for the plaintiff/respondent that this court is functus, and that there is no remedy available to either party within this action with respect to enforcement of the order, short of a contempt application.

[9]        There is no question that the parties entered into a settlement agreement and that they documented it by way of a consent order.  The consent order is obviously in the nature of a contract between the parties and was intended by the parties to express their intention, as opposed to the court’s intention.  However, the parties chose to enter into a court order and invoke the court’s jurisdiction over the matter.  This court must have jurisdiction to enforce its orders, whether they are granted by consent or otherwise.

[10]      If a necessary precursor to enforcement of the order is interpretation of the order, then this court must have jurisdiction to hear and determine the issue with respect to the communication, whether pursuant to the court’s inherent jurisdiction and by the application of basic contract law and interpretation principles, or pursuant to the slip rule, Rule 41(24), which permits the court to amend an order to provide for any matter which should have been but was not adjudicated on.

[11]      I have concluded that it is not necessary for the parties to commence a new action in order to have this matter resolved.  This court is not functus.  The issue of interpretation of paragraph 10, and then subsequent enforcement of paragraph 10 may be dealt with within this action…

[25]         Like Beames J. in Montpellier, I have concluded that paragraph 42 of my order of September 25, 2017 is ambiguous, in that the parties require clarification as to whose name the TD Visa credit card debt was incurred in.  Was it in the name of Ms. Burills, as the secondary card holder or Mr. Ettinger, as the primary account holder?

[26]         On that basis, I have concluded that I retain jurisdiction to resolve that ambiguity.

B.              Is the matter res judicata?

[27]         Given the ambiguity I have identified, I agree with Mr. LeBlanc, counsel for Mr. Ettinger, that this matter is not entirely res judicata because it falls, at least partly, under R. 15-2(18) of the Supreme Court Family Rules as a question that “should have been but was not adjudicated on.”

[28]         That is only partly true, however.  I accept Mr. Levine’s submission on behalf of Ms. Burills that the settlement agreement clearly stipulated that there was a $3,100 debt that was incurred in Mr. Ettinger’s name on the TD Visa credit card.  I have concluded on that basis that that particular debt in that particular amount was the subject of the parties’ agreement, which was given effect by my order.

[29]         What has not yet been adjudicated on, however, is the question of whose name the remainder of the debt on the secondary credit card was incurred in.  That question was not addressed in the settlement agreement and therefore was not dealt with in my order.

[30]          The reason it was not adjudicated, I have concluded, is that Ms. Burills improperly failed to disclose the debt in her financial statements, in her affidavit sworn in support of her application seeking spousal support and on her list of documents, where it should have been mentioned.

[31]         Ms. Burills says that she did not list the debt on her financial statement because the account is not in her name.  As Mr. LeBlanc points out, however, she did see fit to list other debts in the name of Mr. Ettinger on her financial statement.  Her failure to list this one in that context makes the omission that much more glaring.

[32]         Mr. Levine argues that Mr. Ettinger had at least as much responsibility to disclose the debt, given that he was the primary account holder.  I agree with Mr. Levine that Mr. Ettinger bears at least some measure of responsibility for the fact that this matter was not addressed in the settlement.  But I find that Ms. Burills’ failure to disclose the debt is fundamentally different in nature from Mr. Ettinger’s failure to disclose it.  Mr. Ettinger was not aware of the debt.  His failure was an oversight at worst.  I accept that he probably could have made himself aware of it had he inquired diligently into his own financial affairs when he was supposed to, as the rules require.  Admittedly, he did not do that.  Ms. Burills, on the other hand, clearly knew all about it and deliberately concealed it.

[33]         Having concealed the debt, Ms. Burills cannot properly be heard to say that the question of who should be responsible for it has already been adjudicated.  I therefore reject her argument that the matter is res judicata.

C.              In whose name was the debt incurred?

[34]         There are a number of reasons that lead me to conclude that the TD Visa debt (except for the $3,100 that was listed in the schedule to the settlement agreement as having been incurred in Mr. Ettinger’s name) was incurred in Ms. Burills’ name exclusively.

[35]         First, Ms. Burills does not contest that it was she rather than Mr. Ettinger who actually incurred the debt using the secondary card in her name.

[36]         Second, it appears that Ms. Burills incurred that debt without Mr. Ettinger’s knowledge or approval.  I have difficulty accepting that Mr. Ettinger would, after the couple’s separation, have agreed to give Ms. Burills a blank cheque to run up as much debt as she pleased on his account, using one of his credit cards.

[37]         Third, I do not accept Ms. Burills’ contention that she incurred the debt primarily on Mr. Ettinger’s behalf, in order to pay his half of the family debt.  The evidence does not support that contention.  On the contrary, in her second affidavit made April 12, 2017, Ms. Burills described the family debts then outstanding as totalling $2,281.78.  Of that amount, she claimed to be paying herself the following debts:

(a)  the mortgage payments in the amount of $861 per month;

(b)  the CIBC line of credit payments in the amount of $400 per month; and

(c)   the CIBC life insurance that must be paid in relation to our bank debt of $24.

[38]         Ms. Burills made no mention in that affidavit of what she says today:  i.e., that she was paying half of the family debt on Mr. Ettinger’s behalf, using the secondary TD Visa card that she held in her own name.  If, as Ms. Burills averred on April 12, 2017, the family debt totalled only $2,281.78, then the considerably larger sums she was withdrawing on the card ($2,000 in the previous month of March and $5,500 in the month of February before that) must have been going primarily to some other purpose.

[39]         For those reasons, I find that, for the purpose of para. 42 of my order of September 25, 2017, the TD Visa card debt (other than the $3,100 mentioned in the schedule to the settlement agreement) was incurred in the name of Ms. Burills alone.

D.              What is the appropriate order?

[40]         Mr. Ettinger seeks the following relief:

(a)  an order interpreting and clarifying para. 42 of my order of September 25, 2017 to confirm that Ms. Burills is solely responsible for the debt that she incurred using the secondary TD Visa card;

(b)  alternatively, an order under R. 15-1(18) of the Supreme Court Family Rules amending my order to require that Ms. Burills remove Mr. Ettinger’s liability from the account by paying the debt off herself or transferring it into her name alone;

(c)   alternatively, an order under s. 213 of the Family Law Act, SBC 2011, c. 25, that Ms. Burills pay Mr. Ettinger $14,500 as a penalty for her non-disclosure of that debt;

(d)  alternatively, an order to rectify my previous order to clarify that the TD Visa debt was not in Mr. Ettinger’s name or alternatively that he be credited with the amount of the debt from the proceeds of the anticipated sale of the family home; or

(e)  alternatively, an order permitting Mr. Ettinger to deduct $500 per month from his support payments until the TD Visa credit card debt is paid in full.

[41]         I am satisfied that the appropriate order is to clarify paragraph 42 of my order of September 25, 2017 to specify that the TD Visa debt was incurred in Ms. Burills’ name, except for $3,100 of it, which was incurred in Mr. Ettinger’s name.

[42]         Of the various alternative forms of relief that Mr. Ettinger seeks, my preference is to grant Mr. Ettinger a credit for the amount of the TD Visa debt that was incurred in Ms. Burills’ name against Ms. Burills’ share of the proceeds from the sale of the family home.  That result will allow Ms. Burills to continue to receive spousal support at the current level unabated and will not require her to repay the debt to Mr. Ettinger or the bank until she is capable of doing so.

IV.            Summary and Conclusion

[43]         I am ordering that the TD Visa card debt is to be treated as having been incurred exclusively in Ms. Burills’ name, except for $3,100 of it, which is to be treated as having been incurred in Mr. Ettinger’s name.

[44]         The portion of the TD Visa debt that I have found to have been incurred in Ms. Burills’ name is to be credited to Mr. Ettinger from Ms. Burills’ share of the proceeds from the sale of the family home.

[45]         Mr. Ettinger, having largely succeeded, is also entitled to his costs on the application.

“Milman J”

The Honourable Mr. Justice Milman