ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-02-0318-02
Date: 2012-03-08

B E T W E E N:

STANLEY KUZIORA,

Meghan de Souza , for the Applicant

Applicant

• and -

MICHELINE FOURNIER,

Nick Melchiorre , for the Respondent

Respondent

HEARD: March 1, 2012, at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons On Motion

Nature of the Motion

1This is a motion for interim relief brought within a Motion to Change a final order. The Applicant, Stanley Kuziora (“Mr. Kuziora”) is the moving party on the Motion to Change. In the Motion to Change, Mr. Kuziora requests, amongst other relief, an increase in the amount of spousal support paid to him by his ex-wife, Micheline Fournier (“Ms. Fournier”) pursuant to a final order of Smith J. dated December 19, 2002 (the “2002 order”). The 2002 order requires Ms. Fournier to pay spousal support to Mr. Kuziora in the amount of $275.00 bi-weekly, or $590.00 per month. The spousal support provision in the 2002 order is not subject to a cost of living adjustment clause.

2In the Amended Response to the Applicant’s Motion to Change, Ms. Fournier resists any increase in spousal support. Ms. Fournier also asks that the 2002 order be varied such that her spousal support obligation to Mr. Kuziora terminate effective July 31, 2012.

3In this motion, Mr. Kuriora requests an interim order varying the 2002 order such that Ms. Fournier pay “retroactive and ongoing spousal support” to him in the amount of $1,790.00 per month retroactive to July 7, 2011, the date on which the Motion to Change was issued.

BACKGROUND

4Mr. Kuziora and Ms. Fournier began to live together in 1981 and married in 1983. There are three children of the marriage, namely Jonathon Pascal Kuziora, born April 18, 1982, Michael Benoit Kuziora, born November 11, 1988 and Stephane Kuziora, born October 21, 1993.

5Ms. Fournier has been the primary caregiver to the children since separation. Jonathon is now independent. Michael is attending 3 rd year of a Business Program at Lakehead University. Stephane is in Grade 12 and plans to attend post secondary education next year. Michael and Stephane continue to reside with their mother.

6In 1994, at age 38, Mr. Kuziora was diagnosed with early onset Atypical Parkinson’s disease, a chronic, progressive, neurodegenerative condition with no cure. Mr. Kuziora’s health has deteriorated rapidly since 2003. Mr. Kuziora has undergone surgery in an attempt to better manage this condition – twice in 2006 and again late in 2009.

7Mr. Kuziora has attached letters from two doctors to his affidavit in support of this motion. Dr. Jog, MD, FRCPC, Professor of Neurology, of the National Parkinson Foundation in London, Ontario, states that because of the progression of the disease over many years, Mr. Kuziora’s symptoms are not able to be well controlled. Dr. Jog states that because of speech dysfunction and “many other disabling functions” Mr. Kuziora is unfit for employment.

8Dr. Parent, MD, FRCSC, Neurosurgeon, of the London Health Sciences Centre Department of Clinical Neurological Services, states that Mr. Kuziora is unable to work in any capacity as a result of his advanced Parkinson’s disease.

9For the purposes of this motion, I accept that Mr. Kuziora is unable to work and therefore unable to contribute to his own support. Mr. Kuziora resides alone in a two bedroom apartment. He receives $893.76 per month as a CPP disability pension, $590.00 per month spousal support pursuant to the 2002 order and $31.75 per month as a GST refund. Mr. Kuziora’s total annual income from these sources is slightly in excess of $18,000.00. Mr. Kuziora’a income has not changed significantly since the 2002 order was made.

10Mr. Kuziora’s financial statement states that he receives healthcare coverage through Ms. Fournier’s employment benefit package. In fact, the 2002 order requires Ms. Fournier to ensure that Mr. Kuziora “remains fully covered by all health care insurance coverage that she has through her place of employment.” If for any reason Ms. Fournier does not provide such coverage, the 2002 order makes her responsible “for all of the costs of (Mr. Kuziora’s) health care, equivalent to the coverage he is not receiving through her place of employment.”

11Mr. Kuziora’s financial statement suggests monthly expenses of $2,272.00. There are no significant medical expenses shown in the financial statement.

12Ms. Fournier is a teacher. Her recent income history is as follows:

1. 2007 - $82,000.00
2. 2008 - $82,500.00
3. 2009 - $92,100.00
4. 2010 - $90,340.00
5. 2011 - $92,812.00

13There is no information in the motion record as to her income when the 2002 order was made, but she was a teacher at that time.

14Ms. Fournier’s financial statement suggests total monthly expenses for her and the two boys who reside with her to be $10,920.00 per month. Of significance, these expenses include $478.00 per month for house repairs, in addition to $150.00 per month “repairs and maintenance”, $390.00 per month for clothing and $415.00 per month for hair care and beauty.

MR. KUZIORA’S POSITION

15Mr. Kuziora’s affidavit in support of his motion states that he is seeking “additional funds for self-coverage for medical coverage that would last in perpetuity, and that would cover me after the age of 65 to 67.” This was not explained in oral argument.

16Counsel for Mr. Kuziora submits that this court should make an interim order varying the 2002 order based on the increased income of Ms. Fournier, her ability to pay more support and Mr. Kuziora’s obvious need for more support. The expenses that Ms. Fournier has for herself and the two boys who live with her are acknowledged. However, it is submitted that these expenses are incurred to sustain a standard of living far in excess of that enjoyed by Mr. Kuziora, who it is submitted “barely gets by.”

17Counsel for Mr. Kuziora provided the court with the relevant Spousal Support Advisory Guidelines (SSAG), which suggest a range of spousal support of between $1,149.00 per month to $1,532.00 per month for a duration of 9 to 18 years from the date of separation. It is submitted that spousal support should be increased, on a temporary basis, pending the hearing on the Motion to Change, to $1,500.00 per month.

MS. FOURNIER’S POSTION

18Counsel for Ms. Fournier submits that Mr. Kuziora has not met the threshold test for the variation of a final order for spousal support on a temporary application. It is submitted that a moving party must establish a prima facie case of hardship or urgency to enable them to argue for an interim variation of a final order. If this threshold is met, it is submitted that the appropriate analysis to determine if there should be an increase is the “means and needs” test and that little or no weight should be placed on the SSAG on an interim variation application.

19Counsel for Ms. Fournier submits that she is in compliance with the 2002 order, both in regard to her spousal support obligation and her obligation to maintain full health care coverage for Mr. Kuziora. It is submitted that all of Mr. Kuziora’s significant health care costs are covered by her health care plan and that no medical expenses are claimed on Mr. Kuziora’s tax returns.

20Counsel for Ms. Fournier submits that she has been paying spousal support for 13 years for an 18 year marriage. It is also submitted that the 2002 spousal support provision was not compensatory as Mr. Kuziora was an educated professional throughout the period of marriage.

21Counsel for Ms. Fournier urges the court to bear in mind that Ms. Fournier was responsible for the maintenance of three children after separation and remains responsible for two children, one of whom is in third year of university and the other who will attend university next year. It is submitted that Ms. Fournier has received only nominal assistance toward these costs from Mr. Kuziora.

22Counsel for Ms. Fournier acknowledges her high monthly expenses. However, it is submitted that this represents expenses for herself and two grown children. Housing, transportation, food, clothing and many other expenses are said to be at their peak at this point in the children’s lives. It is submitted that any increase in spousal support would negatively impact on the children, who are doing very well.

23Even if the threshold test is met, counsel suggests that the application of the means and needs test should not result in an increase of spousal support on an interim basis.

DISCUSSION

24This court has jurisdiction to make a temporary order varying the spousal support provision in the 2002 order pending the resolution of Mr. Kuziora’s Motion to Change. Family Law Rule 15(28) states that a motion for a temporary order brought under Rule 14 may be made on a motion to change a final order or agreement. The issue is obviously when and in what circumstances this jurisdiction should be exercised.

25In Clark v. Vanderhoeven , 2011 ONSC 2286 , Justice Mitrow of the Ontario Superior Court of Justice thoroughly reviewed the relevant authorities and provided the following summary of factors to be considered on an interim application for a variation of a final order for spousal support. At paragraph 67 of that decision, it was stated as follows:

“In summary, when deciding whether there should be an interim variation of a final spousal support order pursuant to the Family Law Act , the following are some of the factors the Court should consider:

1. Where the moving party has demonstrated a prima facie case on the merits of the variation application;

2. In addition to 1) above, it may also be appropriate to consider whether the moving party has come to court with “clean hands” (see in particular para. 35 in Hayes where Spies J. reviews the decision of Quinlan J. in Garneau v. Ontario (Director, Family Responsibility Office , 2010 ONSC 2804 , [2010] O.J. No. 2109 (Ont. S.C.J.) which dealt with a stay of enforcement and where Quinlan J. indicated that this should only be granted where a support payor has demonstrated a prima facie case on the merits of a variation application and has come to court with “clean hands”);

3. There must be a clear case of hardship or the continuation of the order must be “incongruous and absurd”;

4. In assessing the meaning of “incongruous and absurd”, these terms would suggest the order is “inappropriate, unreasonable or ridiculous”; and

5. The court should also consider whether the need for a variation is urgent (the test for urgency having been set out in Crawford v. Dixon and approved in Fredette and in Hayes) .”

26The jurisdiction to make an interim order varying a final order for support should only be exercised if the moving party has demonstrated a prima facie case for the variation. In addition, the moving party must demonstrate a clear case of hardship or urgency. I find that Mr. Kuziora has not established this threshold and his motion for a temporary order varying the 2002 order is dismissed for the following reasons.

26Although there is no evidence of Ms. Fournier’s actual income in 2002, I accept that it has increased since then, based on the evidence of her increases in income since 2007. However, her income increases are modest, at just over 10% over the last 4 years.

27Mr. Kuziora’s income has remained relatively constant and there is no evidence that his expenses have increased in any material fashion since 2002, although there would obviously be some increases due to inflation. There is also no evidence that he is incurring increased medical expenses or any medical expenses that are not fully covered by Ms. Fournier’s health care coverage.

28Based on Mr. Kuziora’s income and expenses in 2002 and Ms. Fournier’s income and expenses in 2002, Ms. Fournier was ordered to pay $590.00 per month spousal support and to provide coverage for Mr. Kuziora’s medical expenses. This she has done without default. In the circumstances, I do not see a clear case of hardship or urgency which would justify an interim variation of the 2002 order.

29Counsel for Mr. Kuziora pointed out the differences in both the incomes and the standards of living of the parties. However, this, in and of itself, cannot be the basis for an interim variation. In any event, Ms. Fournier has been supporting the children of the marriage since separation. Mr. Kuziora, through absolutely no fault of his own, has had a very limited ability to assist. The expenses set out by Ms. Fournier represent not just her own expenses. They are expenses to house, feed, clothe and maintain herself and two adult children who are applying themselves diligently to their education. There are no obvious excessive expenses in her budget which could be eliminated without impacting the children.

30The Applicant’s motion is dismissed. In the circumstances, I find that this is not an appropriate situation to award costs and there will therefore be no order as to costs.

_______ ”original signed by”_ ___

The Hon. Mr. Justice J.S. Fregeau

Released: March 8, 2012

COURT FILE NO.: FS-02-0318-02

DATE: 2012-03-08

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: STANLEY KUZIORA, Applicant - and – MICHELINE FOURNIER, Respondent REASONS ON MOTION Fregeau J.

Released: March 8, 2012

/mls