Rokach v. Rokach, 2021 ONSC 7361
CITATION: Rokach v. Rokach, 2021 ONSC 7361
DIVISIONAL COURT FILE NO.: 660/19
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
B E T W E E N:
ESTER ROKACH
Ms Rokach, self-represented
Appellant
- and -
AMIRAM ROKACH
Laurie Pawlitza, for the Respondent
Respondent
Heard at Toronto: Feb. 16, 2021
REASONS FOR DECISION
D.L. Corbett j.:
[1] Ester Rokach appeals from the final order of Diamond J. “stepping down” and then terminating spousal support (2019 ONSC 6181), and appeals the costs order of Diamond J. dated December 19, 2019 (unreported) fixing costs of the motion and cross-motion to vary and terminate spousal support at $50,000 inclusive.
[2] The motion judge proceeded on the premise that the parties had agreed that there was a “catastrophic change in circumstances” triggering a variation in spousal support. The motion judge then assessed the spousal support issue de novo. This approach was in error in two respects.
[3] First, Mr Rokach alleged a “catastrophic change in circumstances” – changes to his health, his retirement, and his relocation to Israel. Ms Rokach vehemently disagreed that these events constituted a “catastrophic change in circumstances” for Mr Rokach. Ms Rokach alleged a catastrophic change in circumstances as a consequence of Mr Rokach moving out of Canada and thereby reducing his Line 150 income by a change of residency for tax purposes. Mr Rokach vehemently disagreed that this event constituted a “catastrophic change in circumstances” for Ms Rokach. Two vehement disagreements do not an agreement make: the motion judge erred in finding that the parties agreed there was a “catastrophic change in circumstances”.
[4] Second, this was a variation motion and not an initial determination of spousal support on a final basis. It was an error to assess spousal support de novo without construing the existing final support order and placing the variation motion in that context. The motion judge should have identified the “circumstances” as of the time of the governing final order for support, determined whether events since that final order constituted a “catastrophic change in circumstances” within the context of the governing final order, and then, if he was satisfied that there had been such a change, he should have assessed the variation that should be made using the final order as the status quo against which any variation should be measured.
[5] These two errors in principle undermine the motion judge’s disposition of the variation motions and do not provide this court with a basis on which to dispose of them. Therefore, for the reasons that follow, the appeal is allowed, the decision of the motion judge is set aside, and the parties’ motions to vary spousal support are remitted back to the Superior Court of Justice for a fresh hearing.
[6] Ms Rokach did not seek leave to appeal the costs order. However, in light of my disposition of the main appeal I do not have to decide whether to grant leave to appeal the costs decision or the merits of the costs appeal.
Jurisdiction and Standard of Review
[7] This is an appeal from the final order of a Justice of the Superior Court of Justice. It falls within the monetary jurisdiction of the Divisional Court because the periodic payments in the first 12 months under the order total less than $50,000: Courts of Justice Act, RSO 1990, c. C.34 (the “CJA”), s. 19(1.2)(b). Therefore, the appeal lies to this court as of right, ordinarily before a panel of three judges of the Divisional Court (CJA, s. 21(1)).
[8] The motion judge’s decision was released on October 25, 2019. The costs decision was released on December 19, 2019. The main appeal was commenced in December 2019, and the costs appeal in early 2020. Ordinary court operations were suspended in mid-March 2020 because of the COVID-19 pandemic.
[9] Divisional Court began case managing its entire docket, province-wide, in early April 2020. It began by scheduling urgent matters, and then moved to case managing and scheduling all cases brought forward to the court by any party to a case. Counsel for Mr Rokach requested case management and scheduling of this appeal in May 2020.
[10] Ms Rokach took the position that this appeal should not be scheduled during the pandemic and should await the resumption of ordinary court operations because she could not participate in case management or an appeal hearing during the pandemic as a result of her hearing disability. What followed was a series of efforts to accommodate Ms Rokach culminating in a case management teleconference in August 2020, during which the court established a schedule for exchange of appeal materials and a hearing on February 16, 2021. The court agreed to Ms Rokach’s accommodation request that the hearing be in person: see case management directions are found at: 2020 ONSC 3797, 2020 ONSC 5037 and 2020 ONSC 5596.
[11] In August 2020 it was not clear whether in-person hearings would resume before the hearing date, and if not, what protocols would be in place for in-person hearings in February 2021. I made it clear, in August 2020, that the hearing would proceed in-person in February 2021, but that if it was considered advisable for public health reasons, a direction would be sought that the appeal be heard by a single judge instead of a panel of three judges.
[12] Ms Rokach made it clear that she did not think it fair that her appeal might only be heard by one judge. I explained to her that the court has an obligation to accommodate her disability to the point of undue hardship. In assessing “undue hardship”, the court had to take into consideration Ms Rokach’s need for accommodation, the interests of the court, as an institution, including the health and safety of judges and court staff, and also the interests of Mr Rokach, as a responding party entitled to have the appeal heard and decided within a reasonable period of time.
[13] In January 2021, Ontario entered a further lockdown. That lockdown was then expected to continue at least to February 23, 2021. On January 29, 2021, Chief Justice Morawetz directed as follows:
I designate D.L. Corbett J. as a single judge to hear the in-person appeal in Rokach v. Rokach (660/19), scheduled for an in-person hearing on February 16, 2021, pursuant to s.21(2)(c) of the Courts of Justice Act.
[14] So that it is clear to the parties, by virtue of the Chief Justice’s direction, my decision in this appeal has the same effect as if it had been rendered by a panel of three judges. No review of this decision is available before a panel of the Divisional Court: further appeal is only to the Court of Appeal, with leave from that court (CJA, s.6(1)(a)).
[15] An appellate standard of review applies to this appeal: correctness as to questions of law, and palpable and overriding error in respect to questions of fact. Where there is an extricable legal principle, the standard of review is correctness. With respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, paras. 8, 10, 19 and 27-36 and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 37.
Fresh Evidence
[16] Ms Rokach sought to provide this court with materials that were not before the motion judge. None of these materials satisfy the test for fresh evidence on appeal: they were all available to be put before the motion judge with the exercise of reasonable diligence. I am also not satisfied that the proposed fresh evidence would be dispositive of the appeal. An appeal is not a re-do, on different evidence elicited in response to findings at the first hearing. The request to adduce fresh evidence is denied. See R. v. Palmer, 1979 8 (SCC), [1980] 1 SCR 759, Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 OR (3d) 208 (CA) and Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373.
Background
[17] The parties separated in 1991 after more than 21 years of marriage. They settled their divorce proceedings in a consent final divorce order granted by Smith J. (as she then was) on November 2, 1994 (the “Original Divorce Order”). Further litigation over the next decade culminated in a second consent final order, that of J. Wilson J. dated July 5, 2005 (the “Second Final Order”).
[18] Ms Rokach characterizes both the Original Divorce Order and the Second Final Order as providing for “lifetime spousal support”.
[19] The Original Divorce Order provided that Mr Rokach would pay spousal support of 50% of up to $77,500 of his income annually, and 1/3 of any earned income above $77,500. In certain circumstances, Mr Rokach would be entitled to move to vary his support obligations in the event of a “catastrophic change of circumstances” not voluntarily caused by him. As reflected in para. 10 of the Final Divorce Order, Ms Rokach was precluded from seeking variation of spousal support “in consideration of the ‘lifetime’ aspect” of spousal support.
[20] Starting in 1999, Ms Rokach embarked on a series of litigation steps which eventually culminated in a settlement in 2005 which was embodied in the Second Final Order. The motion judge summarized the material terms of the Second Final Order as follows (paras. 13 - 15):
Paragraphs 21-22 of the [Second Final] Order explicitly provided that, apart from the property provisions of the [Original Divorce Order], all prior court orders and judgments (and in particular the [Original Divorce Order]) were set aside in their entirety and replaced by the [Second Final] Order which would supersede all prior orders and judgments. [In respect to support:]
(a) the respondent was to pay the applicant spousal support equivalent to 33.3% of the respondent’s line 150 annual income in his tax return filed with Canada Revenue Agency;
(b) spousal support payments were to exclude any gifts or inheritances not reflected in the respondent’s income tax return;
(c) the applicant was to receive 33.3% of any net tax benefit received by the respondent from any early retirement package or “golden handshake” not reflected in his line 150 income;
(d) the respondent was to maintain a life insurance policy with a face amount of $100,000.00 designating the applicant as beneficiary as security for the spousal support payments….
Paragraph 25 of the [Second Final] Order provided that the terms therein could not be varied by either party except in the event of a catastrophic change of circumstances.
[21] The issue, then, on both the motion and the cross-motion, was whether there had been a “catastrophic change of circumstances”, and if there had been, what, if any, variation ought to be made to spousal support.
The Decision of the Motion judge
[22] At para. 3 of his decision, the motion judge found as follows:
Both parties agree that there has been a catastrophic change of circumstances (as that term is defined in the [Second Final] Order) entitling the respondent to seek an order varying and/or terminating his obligation to pay spousal support. His motion seeks to do just that, namely end his obligation to pay spousal support pursuant to the [Second Final] Order (albeit to be implemented through a “step down” approach)….
In para. 15 of the Decision, after reviewing the history of the family law litigation, the motion judge restated this finding as the foundation of the decision:
As previously stated, the parties have agreed that this threshold has been met, and the only issue(s) to be determined on these motions is whether spousal support should be terminated, or increased.
In para. 40 of the Decision, the motion judge stated the finding again in this way: “[t]he parties have already agreed that the respondent’s retirement amounts to a catastrophic change in circumstances.” There can be no doubt that this finding was a lynchpin in the Decision.
[23] As a consequence of this finding, the motion judge did not analyse the evidence or the law on whether there had been a “catastrophic change of circumstances”. Instead, he moved directly to assessing the objectives of varying a spousal support order specified in s.17(7) of the Divorce Act, RSC 1985, s.3 (2nd Supp.), as amended (the “Divorce Act”).
The Positions of the Parties Before the Motions Judge
(a) The Parties Did Not Agree on a Catastrophic Change of Circumstances
[24] Ms Rokach argued before the motion judge that Mr Rokach’s relocation of his residence from Canada to Israel, and the resulting reduction in his Line 150 income (because he was no longer a resident of Canada for income tax purposes) was a basis on which the court should intervene to vary the Second Final Order.
[25] Mr Rokach argued that his heart attack and pending retirement from professional practice at the age of 72, and his move from Canada to Israel, taken together, constituted a basis on which his spousal support obligations ought to be terminated or reduced.
[26] Both Ms Rokach and Mr Rokach characterized the bases on which they sought variation as “catastrophic changes in circumstances” to bring their claims within the variation provisions of the Second Final Order. Ms Rokach did not agree with Mr Rokach’s theory of “catastrophic change in circumstances” and she did not agree that Mr Rokach was entitled to seek variation in spousal support in his favour as a result. Mr Rokach did not agree that his relocation to Israel was, by itself, a “catastrophic change in circumstances” and he did not agree that Ms Rokach was entitled to seek a variation in spousal support in her favour as a result.
[27] The motion judge erred in concluding that the parties’ two competing and contested theories of “catastrophic change” could be read together as an “agreement” that there was a catastrophic change in circumstances. The parties did not agree to this and it does not flow logically from their positions. It was incumbent on the motion judge to construe the variation provisions of the Second Final Order and to analyse whether the circumstances established by the parties constituted “catastrophic changes in circumstance” entitling either or both parties to seek a variation of the Second Consent Order. The failure to undertake this analysis is an error of law and requires that the decision be set aside, and the case remitted back for re-hearing.
Discussion of “Catastrophic Change in Circumstances”
[28] As provided in s. 17(4.1) of the Divorce Act, an order for spousal support made under the Act may be varied where there has been a “material change in circumstances”. A “material change in circumstances” is a “substantial” change. There is a wealth of jurisprudence respecting this concept, which need not be reviewed here in detail: it is sufficient to note that a change must be substantial before the court will vary the order.
[29] The phrase “catastrophic change in circumstances” is not a term of art under the Divorce Act and is not a settled concept in Canadian family law. In Bradley v. Bradley, [1997] OJ No 2349, 1997 15689 (ON SC), Mazza J. finds (at para. 13):
By the use of the phrase “catastrophic change”, the parties have agreed that it is not enough for the change to be substantial, a term that would define “material” but it must be “disastrous” or “devastating”, terms that would clearly describe “catastrophic”: Concise Oxford Dictionary, 9th ed. (Oxford: Clarendon Press, 1995). The question to be determined is whether or not the evidence supports the latter definition.
In Kainz v. Potter (2006), 2006 20532 (ON SC), 33 RFL (6th) 62 (Ont. SCJ), para. 83, Linhares de Sousa J. found as follows:
With respect to whether this would constitute a “catastrophic change in circumstances”, the parties have not defined this phrase in their Separation Agreement. One is therefore left to be guided by how the jurisprudence has defined that phrase. There is no question that the threshold is high. The cases use such words as “drastic”, “dramatic”, “radical”, and “gross” (see Pelech v. Pelech, 1987 57 (SCC), [1987] 1 SCR 801; Bradley v. Bradley, [1997] OJ No 2349, 1997 15689 (ON SC); and Ouellette v. Ouellette, [1994] NWTJ No. 47).
In the recent case of Roberts v. D’Amico, 2021 ONSC 707, Kimmel J. found that the effects of measures taken in response to the COVID-19 pandemic did constitute a “catastrophic change in circumstances” for the payor husband, whose employment at Air Canada was affected profoundly by the reduction in air travel during the pandemic.
[30] The motion judge correctly found that
as held by the Court of Appeal for Ontario in Choquette v. Choquette 2019 ONCA 306, whether spousal support is characterized as compensatory or not, the obligation to pay spousal support is not one made in perpetuity unless explicitly agreed to by the parties or ordered by the Court. (para. 33)
The motion judge then found that “[t]here is nothing in the Wilson Order requiring the respondent to pay the applicant spousal support for the duration of her life” (para. 33). I do not agree. The parties agreed that support would be payable without variation unless there was a “catastrophic change in circumstances”. On a plain reading of this term, it seems to imply that support will be payable for life unless the contingency – “catastrophic change in circumstances” – comes to pass. It was agreed fourteen years after separation, in the context of the previous Final Divorce Order that contemplated “support for life”, it was made when Ms Rokach was in her mid-50’s, and was intended to put an end to a decade of litigation strife.
[31] As discussed below, on the caselaw respecting variation upon retirement, it is not clear that Mr Rokach would be able to establish a “material change in circumstances” let alone a “catastrophic change in circumstances”.
Mr Rokach’s Alleged Catastrophic Change in Circumstances
[32] Events leading to retirement at age 72, including health reversals, are foreseeable and it would be open to a motion judge to conclude that events of this kind would have been in the reasonable contemplation of the parties when they settled the litigation resulting in the Second Final Order. Planning for retirement is something all aging persons must do, and it is important that this stage of life be considered and addressed in long-term support orders, particularly so when the parties are of an age where retirement planning ought to be within their contemplation. Here, where the agreed spousal support order was not expressed to be variable upon ordinary retirement, in a context where eventual retirement must have been within the parties’ contemplation, it could be concluded that Mr Rokach was obliged to plan his financial affairs to continue to meet his spousal support obligation after retirement. Thus, on Ms Rokach’s analysis, Mr Rokach’s health challenges and his retirement at age 72, were well within the reasonable contemplation of the parties at the time of the Second Final Order and are not a “catastrophic change in circumstances” but rather part of the normal unfolding of life.
[33] There is a growing body of law that, in some contexts, retirement may not be a “material change in circumstances”. As stated in Cossette v. Cossette, 2015 ONSC 2678 (Div. Ct.):
This is not to say that voluntary retirement can never constitute a material change in circumstances. Every case must be determined on its own facts, with consideration of all relevant factors, including the language of settlement documents. In this case, the minutes of settlement were silent on the issue of retirement. It would be beneficial for parties to turn their minds to this eventuality when crafting terms of resolution. We adopt the comments in Bullock v. Bullock (2004), 2004 16949 (ON SC), 48 RFL (5th) 253 (Ont. SCJ), at para. 1:
Does withdrawal from the workforce at age 62 qualify as a “material change of circumstances” justifying variation of spousal support? While every case must be looked at on the basis of the unique circumstances of the parties, as a general proposition, a payor of spousal support should make his or her retirement plans on the basis that support will continue until aggregate retirement savings can be expected to keep both former spouses at reasonable standards of living. Otherwise, our regime of spousal support will tend to leave payee spouses in positions of financial need, often dire need, at a time in their lives when they cannot take meaningful steps to ameliorate their own condition.
See also this court’s decision in Hickey v. Princ, 2015 ONSC 5596 (Div. Ct.).
[34] Indeed, there is a growing body of law that the normal process of aging, and changes naturally arising from that normal process, does not necessarily suffice as a material change of circumstances (Kenyon v. Kenyon, 2011 BCSC 718, citing Rondeau v. Rondeau, 2011 NSCA 5). The issue may turn on whether the trial judge put their mind to the issue of retirement when setting spousal support (see Hanniman v. Hanniman, 2017 ONSC 7536; DBB v. DMB, 2017 SKCA 59). The analysis has to be undertaken on a careful review of the circumstances of the case, including those giving rise to the order that is the subject matter of the variation motion (McCulloch v. McCulloch, 2013 ABQB 177; MacLanders v. MacLanders, 2012 BCCA 482; Powell v Levesque, 2014 BCCA 33; Graham v. Graham, 2018 BCSC 1888; Henteleff v. Henteleff, 2005 MBCA 50; Wilson v. Wilson, 2017 MBCA 114; Flieger v. Adams, 2012 NBCA 39; Sangster v. Sangster, 2014 NBCA 14; Rondeau; Cossette v. Cossette, 2014 ONSC 2678 (Div. Ct.); Schulstad v. Schulstad, 2017 ONCA 95; Vlasblom v. Monderie, 2018 ONSC 5417).
[35] I conclude that the motion judge’s assertion that the Second Divorce Order does not provide for support “for life” cannot be supported by his analysis and is open to serious question. On the law, it is not clear that Mr Rokach could establish a “material change in circumstances” justifying variation of spousal support. It will be more difficult for him to establish a “catastrophic change in circumstances”. It will be for the judge presiding at the rehearing to construe the Second Final Order, in all of the circumstances in which it was agreed, and then to decide, in light of the governing jurisprudence, whether Mr Rokach has established that the threshold has been met to permit the court to vary spousal support.
Ms Rokach’s Alleged Catastrophic Changes in Circumstances
[36] Ms Rokach argues (among other things) that the plain intention and meaning of the Second Final Order is that Mr Rokach would continue to pay her support based on his total income, and that it was not within the contemplation of the parties that Mr Rokach would reduce his obligations by moving out of the jurisdiction and thereby reducing his support obligations based on his Line 150 income.
[37] This is a tenable argument. It was not addressed by the motion judge, in light of his conclusion on a de novo analysis of entitlement that support should be stepped down and terminated. I do not comment further on this issue (or any of the other arguments advanced by Ms Rokach), since it will be for the judge presiding at the rehearing to consider and decide it on the basis of the totality of the record.
Factors to Consider on a Variation Motion
[38] The motion judge assessed support based on of the factors set out in s.17(7) of the Divorce Act. He did so without comparing circumstances at the time of the motion to circumstances at the time of and the content and effect of the Second Final Order. In my respectful view, this was an error in principle.
[39] An order for spousal support is subject to variation, rescission, or suspension on the motion of either former spouse brought pursuant to s. 17 of the Divorce Act. Subsection 17(4.1) of the Divorce Act permits variation an existing order for spousal support upon proof of a substantial, unforeseen, and continuing change in the condition, means, needs, or other circumstances of either former spouse since the granting of the order that is sought to be varied. See: Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 8th ed (Toronto: Irwin Law, 2020), p. 305.
[40] The majority judgment of the Supreme Court of Canada in LMP v. LS, 2011 SCC 64, [2011] 3 S.C.R. 775 finds that s. 17 provides that, before the court makes an order to vary an existing spousal support order, it must be satisfied that “a change in the condition, means, needs or other circumstances of either spouse has occurred since the making of the spousal support order or the last variation order.” See: Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 8th ed (Toronto: Irwin Law, 2020), p. 305, pp. 297-298. See also (see also: RP v. RC, 2011 SCC 65; McMorran v. McMorran, 2016 ABQB 532; Morey v. Morey, 2017 BCCA 439; Anderson v. Bernhard, 2017 MBQB 191; Black v. Black, 2015 NBCA 63; Haworth v. Haworth, 2018 ONCA 1055).
[41] The majority in LMP v. LS, 2011 SCC 64, [2011] 3 S.C.R. 775, finds that the proper approach under s. 17 of the Divorce Act is found in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 and G(L) v. B(G), 1995 65 (SCC), [1995] 3 S.C.R. 370. The party seeking variation is required to establish a material change of circumstances since the making of the order which is sought to be varied. A “material change” signifies a change with some degree of continuity that, if known, would likely have resulted in different terms. It is presumed that the existing order is correct and that it met the objectives of the Divorce Act when it was granted.
[42] The majority in LMP then addresses the proper analysis under the Divorce Act if a material change is established. The court is to take account of the material change and should limit itself to making only the variation justified by that change, having due regard to the objectives of variation orders set out in s. 17(7) of the Divorce Act, which objectives guide the discretion of the court so as to provide opportunities for a more equitable distribution of the economic consequences of the divorce.
[43] In a variation proceeding, the existing support order must be assumed to have been correct when it was granted. Absent proof of a material change since then, the judge hearing a variation motion has no jurisdiction to vary the order because he or she regards it as inappropriate or unrealistic. See: Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 8th ed (Toronto: Irwin Law, 2020), p. 309.
[44] A variation motion is not an opportunity to re-open issues settled on a final basis already. This case illustrates why this is so. The parties separated in 1991 and spent most of the next fifteen years in litigation, resulting in two final orders. As of the Second Final Order, all matters between them were resolved. It is contrary to the finality principle in litigation, to efficient allocation of judicial resources, to an efficient and ordered system of family law, and to binding Supreme Court of Canada jurisprudence described below, to re-open issues that have been determined finally because a party moves for variation.
[45] In this case, the only account taken of the Second Final order by the motion judge was his finding that it did not require that support be paid in perpetuity. This conclusion was provided as a statement of first principles, without analysis of the Second Final Order or the context within which that order was made. With respect, on the plain language of the Second Final Order, I do not accept the motion judge’s conclusion on this point. In my view, the plain language of the Second Final Order is clear: support is payable “in perpetuity” unless there is a “catastrophic change in circumstances”. Where there has been a “catastrophic change in circumstances”, assessing what variation is appropriate should be undertaken within the context of a status quo that provides for permanent support in all but catastrophic circumstances. The motion judge did not do that. He concluded that the Second Final Order did not require permanent support, and then assessed entitlement de novo pursuant to the Spousal Support Guidelines. This is an error in principle that undercuts the motion judge’s assessment of the factors under s.17(7) of the Divorce Act.
The Costs Order
[46] Since Ms Rokach has prevailed on the appeal it is not necessary to address the merits of the costs appeal.
Accommodation of Ms Rokach’s Disability
[47] I make the following observations to assist the motion judge who hears the variation motion. Ms Rokach has a hearing disability that requires accommodation. I compelled Ms Rokach to attend case management teleconferences for planning and scheduling steps in the appeal. She did attend and participate, and I was satisfied that she was able to do so effectively.
[48] The appeal was heard in a cavernous courtroom at Osgoode Hall, with sound equipment to facilitate Ms Rokach’s participation. Ms Rokach was able to hear and participate in the proceedings. Similar accommodation should be organized for the variation motion: scheduling and procedural matters should be addressed by teleconference, and the hearing of the variation motion should be in-person supported by audio enhancement technology. These are recommendations based upon this court’s experience in this appeal. They are not binding on the motion judge and/or the case conference judge(s), who will make their own assessments of the situation.
The Record and Process for the Variation Motion
[49] The record before the motion judge shall be the record for the rehearing, supplemented only with (a) additional relevant evidence respecting events that have happened since the hearing before the motion judge in 2019; and (b) any additional evidence that may be permitted by order of a judge prior to or at the rehearing. My disposition of the fresh evidence motion on this appeal is without prejudice to Ms Rokach seeking to elicit that evidence at the rehearing.
[50] Argument of the variation motion should not require more than one day. It should be scheduled on an expedited schedule with this time estimate in mind.
[51] Although almost all materials for the variation motion should be readily available now, the litigation history of these parties gives rise to a concern that the trajectory to hearing the motion will be anything but smooth unless there is case management. As noted in Mr Rokach’s factum, “the litigation history is vast”. Judicial oversight to see this matter to a conclusion will almost certainly be required to avoid having matters balloon once again. A copy of this endorsement will be provided to the Family Team Leads for them to consider appointing a judge to case manage the motion so that it moves forward smoothly and promptly.
Interim Terms
[52] This decision sets aside the order of the motion judge. This has the effect of restoring the temporary order of Horkins J. which was made pending determination of the variation motion. That order requires interim spousal support payments of $1,500 per month.
[53] The temporary order of Horkins J. ought to continue until the variation motion is decided. I direct that a monthly payment of $1,500 be made by November 15, 2021 for the month of November 2021, and that monthly payments of $1,500 per month continue thereafter on the first day of every month, starting on December 1, 2021, until final disposition of the variation motion by the Superior Court of Justice or other court order, in accordance with the temporary order of Horkins J.
[54] Arrears may have accrued from the time of the order of the motions judge in 2019 and the date of this decision. Enforcement of those arrears, to October 31, 2021, are stayed subject to the following terms: the Superior Court may make any interim order it considers just in respect to these arrears pending disposition of the variation motion, including, without limitation, fixing the amount of these arrears, making an order that security be posted in respect to these arrears, and/or ordering that some or all of the arrears be paid prior to final determination of the variation motion.
Costs
[55] Ms Rokach, who was self-represented on the appeal, suggested that there be no costs of the appeal. It is so ordered.
[56] Costs of the first variation motion and cross-motion shall be in the discretion of the second variation motion judge.
Disposition and Order
[57] The appeal is allowed, the decision and the costs decision of the motion judge are set aside, and the variation motion and cross-motion are remitted back to the Superior Court of Justice to be heard by a different Superior Court Justice. There shall be no costs of the appeal. Costs of the first variation motion shall be in the discretion of the Justice deciding the second variation motion. The interim spousal support order of Horkins J. is restored in effect, with ongoing payments and arrears to be as set out in paras. 53-54 of this decision. Enforcement of support arrears to October 31, 2021 pursuant to the order of Horkins J. are stayed without prejudice to any order that may be made by the Superior Court of Justice respecting those arrears (both on a final and/or on an interim basis).
D.L. Corbett J.
Released: November 5, 2021
CITATION: Rokach v. Rokach, 2021 ONSC 7361
DIVISIONAL COURT FILE NO.: 660/19
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Ester Rokach
Appellant
- and –
Amiram Rokach
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: November 5, 2021