ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-07-FA014697
DATE: 20120427

BETWEEN:

Julie Kilbreath Applicant – and – Christopher John Morgan Respondent

James A. Hunter, counsel for the Applicant
David Frenkel, counsel for the Respondent

HEARD: November 21, 22, 23, 24, 25, and December 2, 2011

KITELEY J.

REASONS FOR DECISION

[ 1 ] The central issue in this case is whether Mr. Morgan is entitled to ongoing spousal support.

Background

[ 2 ] Ms. Kilbreath was born in January 1967 and at the time of the trial, was almost 45 years old. Mr. Morgan was born in February 1959 and at the time of the trial was almost 53 years old. They cohabited for 15 or 16 years. They separated in 2006 when Ms. Kilbreath told him the relationship was over. They remained living under the same roof until January 6, 2007 at which time Ms. Kilbreath left.

[ 3 ] After she left, Ms. Kilbreath made efforts to have Mr. Morgan vacate the condominium. On April 4, 2007, she commenced this Application in which she sought possession of the condominium and costs. In his Answer dated June 29, 2007 he asked for equalization of net family properties (although they were not married), exclusive possession of the matrimonial home and contents, spousal support in the amount of $4500 per month and costs.

[ 4 ] A case conference was held on July 18, 2007. The following endorsement was made by Perell J.:

This is a case conference. There appear to be two main issues: (a) ownership to the condominium; and (2) whether the respondent is entitled to spousal support. The respondent’s entitlement to spousal support, if any, will depend in part on his ability to work. He alleges that his mental health has disabled him. Both parties require psychiatric evidence and disclosure about this issue. I order the respondent to undergo a psychiatric medical assessment. This case conference is complete, and the parties are at liberty to bring interlocutory motions.

[ 5 ] The parties signed Minutes of Settlement dated September 12, 2007 which provided that Mr. Morgan would vacate the condominium on or before December 1, 2007. There was little equity in the condominium. On December 1, 2007, Ms. Kilbreath was to pay him $5300 in full and final settlement of all property issues. The parties agreed that, before November 1, 2007 they would sign a separation agreement containing releases of all property claims. The parties agreed to divide the contents of the condominium. Ms. Kilbreath agreed to pay temporary spousal support in the amount of $2000 per month commencing December 1, 2007. When Mr. Morgan supplied evidence of obtaining a new rental premises, Ms. Kilbreath was required to pay up to $2500 on or after November 1 st to cover first and last month’s rent which amount would be deducted from the payment required on December 1, 2007.

[ 6 ] On January 10, 2008, Czutrin J. made an endorsement in which he indicated that the motion had been settled some time ago and the draft order had been submitted for signing. He had sent it back to counsel with questions. However, the new draft had not come to his attention and the order had not been signed before December 1, 2007. Mr. Morgan had not vacated. In signing the consent order, Czutrin J. changed the date for him to move to March 1, 2008. After February 1, 2008, if Mr. Morgan’s counsel advised that he had verified that Mr. Morgan had obtained new accommodations, Ms. Kilbreath was required to provide $1000 as an advance of the first spousal support payment due March 1, 2008 as well as the balance of the $5300 due under the Minutes of Settlement of September 12, 2007, after deducting the costs of the motion due to Ms. Kilbreath in the amount of $3500. If Mr. Morgan failed to vacate the property by March 1, 2008, the Toronto Police Services were directed to enforce the order. The amount of spousal support in the Minutes of Settlement was varied to commence March 1, 2008 in the amount of $2000 per month with the advance payment of $1000 being made in February and deductions of $500 per month from March 1, 2008 through and including June, 2008 on account of costs. Attached to the order was a three page list of contents. Mr. Morgan was directed to leave certain specified contents and to take others. The order was to be enforced through the Office of the Director of the Family Responsibility Office.

[ 7 ] Mr. Morgan left on March 1, 2008.

[ 8 ] Another case conference was held on July 22, 2009. The endorsement on that occasion by Herman J. was as follows:

It is ordered, on consent, that Mr. Morgan will attend for a psychiatric assessment to be scheduled by counsel for the applicant on any date in August 2009. Mr. Morgan is to receive at least 10 days’ notice of the appointment, through his counsel and by email to Mr. Morgan. Mr. Morgan was advised that the applicant may bring a motion to strike his pleadings if he does not comply with the order. Mr. Morgan will provide his 2008 tax return by August 31, 2009 and the notice of assessment once it is received.

[ 9 ] Mr. Morgan was notified that the appointment with Dr. Chad was on August 12, 2009. As will be explained below, the assessment did not occur on that occasion. A motion was brought on behalf of Ms. Kilbreath to compel him to attend on a new date. On December 22, 2009, Czutrin J. adjourned the motion to March 9, 2010 on the following conditions:

A’s counsel to arrange a new appointment with a psychiatrist of their choosing for the Resp. to attend for a psychiatric assessment. The name of the doctor and time of appointment to be conveyed to R’s counsel by A’s counsel and provide at least two week’s notice.

In the event of the R’s failure to attend, the support will be suspended and the court will consider striking his Answer.

Costs of today and other relief will be addressed on return including costs of failed attendance before Dr. Chad.

[ 10 ] On February 1, 2010, Mr. Morgan attended at Dr. Larry Chad’s office. Dr. Chad delivered a report dated February 4, 2010.

[ 11 ] In a letter dated April 16, 2010, Mr. Morgan’s treating psychiatrist Dr. Michael G. Sumner responded to that report.

[ 12 ] On July 5, 2010 a settlement conference was held. Perkins J. was asked to deal with the costs that had been reserved on December 22 nd . He declined to do so and left them to be determined on the return of the motion or at the trial. On February 2, 2011, the parties attended a combined Trial Management Conference and Settlement Conference. The trial date was set for the week of November 21 st .

(continues exactly as in the source text…)

Kiteley J.
Released: April 27, 2012