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Civil Litigation - Orders - R59.06(1) Amended Orders. Rathee v. Rathee
In Rathee v. Rathee (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal, here from an allowed Superior Court appeal that "ordered the husband to make a lump sum [SS: spousal support] payment of $1,893,603 to the wife", and that from a motion where "the arbitrator ordered the husband to pay the wife a lump sum of $250,000."
Here the appellant sought a R59.06 amendment ['Amending, Setting Aside or Varying Order'] "to correct the amount of lump sum spousal support":[6] The anchor for the husband’s position is Rule 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:An order that contains an error arising from an accidental slip or omission ... may be amended on a motion in the proceeding. [7] The husband submits that this court’s accidental slip in its judgment was its omission of several factors that were required inputs under the Spousal Support Advisory Guidelines (“SSAGs”) – the wife’s income, the amounts paid by both parties for their daughter’s special or ordinary expenses, and the total amount of Table support paid by the husband to the wife. By inadvertently omitting these additional necessary inputs for calculating spousal support under the SSAGs, the court did not achieve the correct mid-point spousal support award under the SSAGs as it intended.
[8] We do not accept this submission. The starting point is, as stated by this court in Liu v. Jin Qiu, 2022 ONCA 544, at para. 3: “Rule 59.06(1) applies where an order contains an accidental slip or omission or requires amendment on a particular on which the court did not adjudicate.”
[9] Justice Perell of the Superior Court of Justice provided a useful discussion of Rule 59.06(1) in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502, at paras. 30 and 32:Rule 59.06 (1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning ... .
Rule 59.06 (1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.
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Under rule 59.06(1), the Court has the power to amend an order where there has been an error in expressing the manifest intention of the Court…. [Cases and citations omitted.] [10] The husband’s submissions on this motion do not come within this framework. The husband’s complaint is that this court did not take proper account of three relevant factors in its analysis and quantification of what he owed in spousal support. This is a substantive attack on the structure of the judgment and the factors considered by the court in the judgment. Accordingly, it is not a slip or omission that is, in Perell J.’s words, “clerical, mathematical or due to misadventure or oversight”.
[11] In short, the proper words on which the husband needs to focus if he wants to challenge this court’s judgment are “leave to appeal”, not “slip” and “omission”. [SS: a judicial joke? that's rare ...] . Pourshian v. Walt Disney Company
In Pourshian v. Walt Disney Company (Div Ct, 2021) the Divisional Court considered the amendment of an order, here with respect to costs:[22] In Kerr v. Danier Leather Inc., 2005 CanLII 23095 (Sup. Ct.), the court relied on Rule 59.06(1) to award costs three years after an unsuccessful motion for summary judgment motion in circumstances where the respondent had failed to raise the issue of costs. In that case, at para. 34, the Court held that “[j]udgments or orders should reflect the true intention of the court and the court retains jurisdiction to amend a judgment or order where it does not reflect the court's intention… In the situation at hand, I would have dealt with the issue of costs had it been raised by the plaintiff before the Orders were finalized.” In my view, the same applies here.
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