COURT FILE AND PARTIES

COURT FILE NO.: 04-FA-12907-0001
DATE: 20120530
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALICE NEWMAN, Applicant

AND:

HOWARD GINSBERG, Respondent

BEFORE: PENNY J.

COUNSEL: Alex Finlayson for the Applicant
Judith M. Nicoll for the Respondent

HEARD: April 30, 2012

ENDORSEMENT

[ 1 ] This is a motion by the respondent, Howard Ginsberg, to vary the spousal support order of Justice Backhouse of June 22, 2006. The motion was issued December 29, 2010.

[ 2 ] There is also before the court a cross-motion by the applicant, issued April 24, 2012, seeking an order that the respondent pay alleged child support arrears of $30,450 and spousal support of $13,420 to $16,338 per month (should the applicant’s application to train in Internal Medicine be accepted for September 2012) until the completion of her Internal Medicine program.

[ 3 ] For the reasons that follow I grant the respondent’s motion in part and dismiss the applicant’s motion in part.

Motion to Adjourn

[ 4 ] At the outset of the motion, the respondent also asked for an order adjourning the motion and directing a five day trial of the issues on the basis of alleged conflicting evidence and credibility issues.

[ 5 ] After hearing submissions on this point for over an hour, I held that the motion was premature. I instructed the parties to proceed with the argument of the issues on the motion, including the conflicting evidence and alleged need for a trial, and indicated that I would deal with the question of whether a trial is necessary after I had heard all the submissions. At the close of submissions, I took the entire matter under reserve.

[ 6 ] In my view, a trial is not required. I say this for essentially two reasons.

[ 7 ] First, there is a relevant history to the issue of whether a trial of the issue should be ordered.

[ 8 ] This motion was issued December 29, 2010. The parties held a case conference with the DRO on February 10, 2011. On the same date, the parties agreed to a long motion date for May 9, 2011. Questioning took place in early May.

[ 9 ] At the request of the applicant, the long motion was adjourned to August 8, 2011 on terms. These terms are embodied in a July 28, 2010 order of Goodman J. and include the proviso that the new August 8, 2011 date for the motion was peremptory to the applicant, that spousal support payments were terminated, effective June 1, 2011 pending further court order or agreement (at that point, over $30,000, representing spousal support paid from January 1, 2011 to May 1, 2011 stood as a credit to the action with the FRO pending a determination of whether the respondent had any further right to spousal support after December 31, 2010) and that the applicant was precluded from filing any further affidavits.

[ 10 ] In June 2011, the applicant changed lawyers. At the request of the applicant, a further adjournment was sought of the August 8, 2011 long motion. It was ultimately agreed that the matter would be adjourned to be argued on affidavit evidence on January 9, 2012. The respondent only consented to that adjournment, however, “in exchange for [the applicant] not proceeding with [the applicant’s] motion to have [a] viva voce hearing.” The terms of that adjournment were set out in the July 28, 2011 consent order of Herman J. The new date was again peremptory to the applicant. Both parties were permitted to file certain specific affidavits but neither party was entitled to serve any additional affidavits of any nature whatsoever other than those specifically provided for in the order.

[ 11 ] On January 5, 2012 the applicant again brought a motion to adjourn the January 9, 2012 long motion date and requested an order directing a trial of the issues. Mesbur J. granted the adjournment because applicant’s counsel was on trial in Brampton. The motion was put over to April 30, 2012, again peremptory to the applicant. With respect to the request for an order directing a trial of the issues, Mesbur J. said:

…the complexities (or not) of this case have been known for months. The parties have agreed to proceed on the basis of affidavit evidence. Using the reasoning of the OCA in its recent decision under rule 20 of the [Rules of Civil Procedure], it seems to me the application judge is in the best position to determine whether he or she will have a full appreciation of the evidence without oral evidence. I decline to order a trial of the issues.

[ 12 ] In response to the applicant’s request to deliver yet another affidavit, Mesbur J. said: “The affidavit war must end somewhere. It ends here. Dr. Ginsberg was to have the “last word.” Leave to file a further affidavit is denied.”

[ 13 ] On April 24, 2012, six days prior to the scheduled long motion before me, the applicant again brought a motion seeking an adjournment of the motion and again sought an order directing a trial of the issues.

[ 14 ] The April 24, 2012 request was the fourth adjournment request by the applicant. The adjournment in August 2011 was specifically premised on the withdrawal of the applicant’s motion for an order directing a trial.

[ 15 ] In my opinion, these repeated adjournment requests and the repeated flouting of court orders making new dates peremptory to the applicant are tantamount to an abuse process.

[ 16 ] Choices in litigation have consequences. The applicant, with full knowledge of the alleged complexities of this case, waived her right to seek a trial in exchange for the August, 2011 adjournment. Having obtained the benefit of that adjournment, it does not lie in her mouth now to renew her request for a further adjournment and an order directing a trial.

[ 17 ] I accept the proposition that in cases where there are extensive facts and issues in dispute or material credibility issues, a court may direct a trial of a motion to change. I also accept the proposition that procedural orders regarding the conduct of the case may be reconsidered or varied in subsequent proceedings.

[ 18 ] I also accept, and agree with Mesbur J., that the motion or application judge is in the best position to determine whether a trial is necessary in circumstances such as these. This brings me to my second reason for denying the applicant’s motion.

[ 19 ] While the numerous and lengthy affidavits filed on this motion clearly contain some facts in dispute, in my opinion the facts in respect of which there is serious dispute are not material to the issue requiring determination. There has been a tendency on the part of both parties in this “affidavit war” to replay the entire history of their relationship, assign blame, allege wrongdoing and, generally, to attack one another's character, motivation and personal lifestyle.

[ 20 ] As discussed in more detail below, the issue on this motion is a relatively narrow one. The resolution of this issue does not, in my opinion, require me to make credibility findings or otherwise to resolve conflicting evidence on material facts.

[ 21 ] For these reasons, the applicant’s motion to adjourn this motion is dismissed.

Motion to Change

Background Facts

[ 22 ] The parties resolved all matters arising from their common-law relationship in the form of a consent order signed by Justice Backhouse on June 22, 2006 (the 2006 Order). The 2006 Order provides comprehensively for custody and access, child support, spousal support, property, life and disability insurance and other matters. The applicant had custody of their two children. The respondent had the children every other weekend, one night per week and on various summer and other holidays (about, he says, 35% of the time). Spousal support, following 2006, was adjusted based on the parties’ line 150 incomes. The applicant's income was based on the greater of line 150 income and an imputed amount ranging from $80,000 (2006) to $100,000 (2010).

[ 23 ] Paragraph 15 of the 2006 Order is at the heart of this motion. Paragraph 15 provides:

The spousal support terms will continue until and including December 2010 at which time the Applicant and the Respondent will review them and, if warranted, either the Applicant or the Respondent may seek to vary the payments by arbitration or court proceedings as the Applicant and the Respondent agree. Pending the review, the Applicant acknowledges that she has an obligation to work towards self-sufficiency. On the review, the Applicant will have the onus to demonstrate that she has made reasonable efforts in this regard and that she requires further spousal support from the Respondent. Until the outcome of the review or variation process, the Respondent will continue his child and spousal support payments in the amounts then payable under this order, unless a court or arbitrator orders or the Applicant and Respondent agree otherwise, and the arbitrator or court will have the jurisdiction to relieve the Respondent retroactively for any overpayment he may have made from January, 2011 until the date of the court or arbitrator's determination.

[ 24 ] Paragraph 16 of the 2006 Order is also relevant. It provides:

The Respondent will transfer his interest in the jointly owned home, municipally known as 34 Parkway Ave., Toronto, to the Applicant in full and final satisfaction of retroactive child and spousal support, including retroactive s. 7 expenses, and on condition of the Applicant assuming all liability for the loan owing to Yvette Newman, including interest on the loan. The Respondent will transfer his interest by signing the requisite documents (to be prepared by the Applicant”s real estate counsel).

[ 25 ] The parties agree that a review of a spousal support order is not a variation application and does not engage the variation provisions of the relevant statutes. A review motion is a “fresh look.” On a hearing to determine spousal support as between unmarried former partners, the parties also agree that the appropriate statutory conditions are to be found in section 33 of the Family Law Act .

[ 26 ] In particular, subsection 33(8) provides:

An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relief financial hardship, if this is not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[ 27 ] The factors to be considered in determining the amount and duration of support are listed exhaustively in subsection 33(9) and include the current and likely assets and means of the parties, the dependent’s capacity to contribute to his or her own support and the payor’s capacity to provide support.

[ 28 ] Before the parties began cohabiting, the applicant had graduated from medical school (1990), completed her rotating internship (1991) and started specialty training in anesthesiology (1993). She dropped out of anesthesiology after 1995, in part because of the birth of the parties’ first child and because she felt “she did not have the skills to be a good anesthesiologist.”

[ 29 ] The parties’ second child was born in 1998. The applicant enrolled in an internal medicine residency on a part-time basis in the fall of 2000 and completed the first of a four year program (four years for a specialty in internal medicine is considered part time; full time, the program takes two years) by 2002. Her specialty training in internal medicine was interrupted after the first year by the parties’ separation in 2002.

[ 30 ] The respondent graduated from medicine in 1993. This was also before the parties began cohabiting. Between 1993 and 1997, the respondent pursued a specialty in neurosurgery. From 1997 to 2001, he took a PhD in bio-mechanical engineering. This was followed by another year in neurosurgery, from January 2002 to December 2002. The respondent pursued additional neurosurgical specialization in 2003 and 2004. Although there is a dispute about the length of their cohabitation (the respondent says it ended in 2002; the applicant agrees there was a separation in 2002 but says this was followed by a reconciliation in 2003 and further cohabitation until early 2004), it is clear that the respondent conducted a good deal of his postgraduate training during the period of the parties’ cohabitation.

[ 31 ] The parties’ income history is summarized in para. 35 of the applicant’s factum. The parties’ incomes were roughly similar until 1998. Once the respondent completed his neurosurgery specialty training in 2004, his income began to increase quite dramatically. In 2010, the respondent’s income was $657,525 and the applicant’s income was $158,548 (including spousal support of $71,616). Her present income, she says, is about $132,000 (support ceased, by virtue of the consent, without prejudice order of Goodman J., effective June 1, 2011).

[ 32 ] After 2006, the respondent’s child and spousal support obligations increased in accordance with the formula established by the 2006 Order. In 2008, Czutrin J. varied the 2006 Order to reflect the reality of those increases and to allow for the release of those increased amounts to the applicant by the FRO. Since 2008, the applicant has not sought any further variation. Accordingly, the FRO currently holds approximately $60,000 of accumulated paid increases in spousal support to the applicant's credit. In addition, the FRO holds another $38,550 representing spousal support paid by the respondent from January 1, 2011 to May 30, 2011 (at the rate of $7,710 per month). This latter amount is in dispute, as the respondent claims a return of these funds as “overpayment” of spousal support post-December 2010.

The Parties’ Positions

[ 33 ] The respondent argues that the purpose of para. 15 of the 2006 Order, and specifically the provision for four years of support to December 2010 followed by a review, was to provide spousal support to the applicant while she completed her part-time specialty in internal medicine . Had she completed the specialty in the allotted time period, she would likely now be earning in excess of $350,000 and have achieved substantial self-sufficiency.

[ 34 ] The respondent further argues that the applicant failed, through her own choice, lack of motivation, untoward reliance on his support, or for whatever reason, to even enroll in, much less complete, that specialty training.

[ 35 ] The respondent says that by virtue of the support paid prior to 2006 and the settlement of all pre-2006 arrears (by assigning to the applicant his interest in their home) together with ongoing support for an additional four years (2006 to 2010), he has paid support for six to eight years in an eight year (maximum 10 year on the applicant’s theory) relationship. The respondent argues he has paid spousal support long enough.

[ 36 ] The respondent, therefore, argues that, having squandered the opportunity to obtain her specialty between 2006 and 2010, the applicant has failed to discharge the onus of demonstrating that she has made reasonable efforts to work towards self-sufficiency in accordance with para. 15 of the 2006 Order. Accordingly, further support ought not to be paid. The respondent relies on authorities such as McIntyre v. McIntyre , [2007] S.J. No. 8 (Sask. C.A.) ; Ames v. Ames, [2008] B.C.J. No. 291 (B.C.S.C.) ; and Williams v. Williams , [2010] S.J. No. 2006 (Sask. C.A.) .

[ 37 ] The applicant says that it would have been too difficult for her to complete her specialty training in internal medicine while taking care of two school-age children on her own. She has now been in a stable relationship with a new partner for 2 1/2 years. The children are 15 and 13, with the youngest about to start high school in the fall. The children are doing well. Accordingly, the applicant says she is now in a position to complete her training in internal medicine. She has applied to resume this training in the fall of 2012 and is awaiting word on her acceptance. When she restarts this training, she will make about $50,000 per year and will require spousal support to complete it.

[ 38 ] The applicant argues that whether she has been diligent in completing her specialty training is but one of the factors to be taken into account in assessing the need for spousal support. No single objective is paramount, she argues. Self-sufficiency is a goal; not an absolute principle and does not deserve “unwarranted preeminence.” Her need, the respondent's capacity to pay, the length of their relationship and other factors enumerated under section 33 of FLA are also relevant. She relies on cases such as Moge v. Moge 1991 Carswell Man 143 (S.C.C.) and Bergeron v. Bergeron , 1999 CarswellOnt 2712 (S.C.J.) .

[ 39 ] The applicant also argues that only limited support was paid prior to 2006 and seeks to go behind the settlement which resulted in the 2006 Order to show that she did not get much in exchange for her release of all claims for arrears of support. She argues that support has only been paid for an equivalent of four to six years in the context of a 10 year relationship – a relationship in which the applicant also supported the respondent's own pursuit of specialty training by both working and looking after their children.

Analysis

[ 40 ] By the standards of most litigants appearing in the family courts, an income in excess of $130,000 (exclusive of any support) would be sufficient evidence of financial self-sufficiency. However, each case must be considered in the context of its own facts and the facts of this case show quite clearly the economic value of obtaining a specialty in the practice of medicine.

[ 41 ] The respondent's theory of the purpose behind the payment of support from 2006 to 2010 (to enable the applicant to complete her specialty training in internal medicine) is consistent with the surrounding circumstances at the time and the language of the 2006 Order itself. Indeed, the applicant essentially agrees that this was the purpose of spousal support because she now concedes that payment of continued support should be contingent on her being accepted into and completing an internal medicine program, for which she has applied to start in the fall of 2012.

[ 42 ] The real issue on this motion is whether the applicant had reasonable grounds for not pursuing her residency training part-time between 2006 and 2010.

[ 43 ] Her reason, in essence, is that because she had custody of the children and was the primary residential parent, the demands of the internal medicine training were too great. She did not enroll because she was the primary parent for two young children.

[ 44 ] The applicant’s child care responsibilities were to some extent reflected in the term – four years – of the period for payment of support to December 2010. The evidence was unchallenged that a full-time internal medicine residency takes two years; part-time, it takes four years. This factor, to some extent, supports the respondent's argument.

[ 45 ] I also agree with the respondent that it is not appropriate to go behind the settlement which led to the 2006 Order for the purpose of determining what support was actually paid pre-2006. The fact is that, for reasons she deemed sufficient at the time, the applicant, represented by very experienced and competent counsel, decided to waive all claims for arrears of support in exchange for an assignment of the respondent’s interest in their home. This is the home in which she still lives and in which she has raised their children.

[ 46 ] Having said that, the rigors of the internal medicine residency were well documented and unchallenged in this proceeding. I do not think it can be said that the applicant's decision to defer her specialty training until the children were a little older was entirely unreasonable.

[ 47 ] The problem is that, having taken no training at all in the 2006 to 2010 period, the applicant now wants to start a four-year part-time residency and receive full spousal support until she completes the program.

[ 48 ] I do not think the applicant’s demand is reasonable or justified in the circumstances of this case. Acceding to the applicant’s request would gut the 2006 consent order of all meaning. The applicant used the four-year period, during which she was paid spousal support, to fulfill what she perceived to be her obligations to her children and chose not to enroll in any specialty training at all. While I do not fault her for this decision, as far as it goes, no one can now pretend that four years of support was never paid and start the “spousal support for purposes of completing specialty training clock” running all over again. To do so would be, in effect, to let the applicant have it both ways.

[ 49 ] Now that the applicant is in an established relationship with a new partner and the children are older and in high school, the applicant is much better positioned to participate in and complete her training in internal medicine on a full time basis. The economic consequences of her choice to do the program part-time over four years starting in 2012 ought not, in my opinion, to be visited entirely upon the respondent.

[ 50 ] Accordingly, I find that the applicant shall be entitled to spousal support in accordance with the formula established in the 2006 Order for the economic equivalent of the next two academic years, contingent upon the applicant both enrolling and remaining in a specialty training program. If the applicant chooses to complete the training over a four-year period, that is a choice available to her but, in that event, she shall only be entitled to two years worth of monthly spousal support payments spread evenly over four years, i.e., if she takes four years to do the program, she will receive, per month, precisely half of what she would be entitled to if support were paid for only two years. The formula for determining the quantum of that support (i.e., the calculation of the respondent’s income) shall be based on the relevant income during the next two academic years (2012/2013 and 2013/2014), again spread over four years in the part-time scenario.

[ 51 ] Spousal support was suspended effective June 1, 2011by the order of Goodman J. dated May 9, 2011. Spousal support shall commence when the specialty program starts (I understand this will be in September 2012) and end upon the program’s completion in 2014 (in the two year scenario) or 2016 (in the four year scenario).

[ 52 ] The applicant shall advise the respondent whether she will be enrolling in a specialty program this fall as soon as she knows, and in any event, no later than August 15, 2012. The applicant shall also, at the same time, advise the respondent whether she intends to take the program in two or in four years.

[ 53 ] To the extent the parties require further directions or orders to implement these Reasons, counsel may make written submissions or arrange with the Family Law office for an appointment to attend before me for that purpose.

[ 54 ] The approximately $38,000 in alleged overpayments by the respondent held by the FRO shall operate as a credit towards further support if and when the applicant enrolls in and carries on with her specialty training in internal medicine.

[ 55 ] An order shall issue, therefore, varying the 2006 Order in accordance with my Reasons set out above.

Accumulated Increases Held by FRO

[ 56 ] An order shall issue varying the 2006 Order to provide for payment of the accumulated pre-January 1, 2011 increases in spousal support paid by the respondent which are currently held by the FRO to the applicant's credit. I understand this amount is approximately $60,000. If the parties require further direction or assistance from the court in this regard, submissions may be made in writing or an appointment made to appear before me for that purpose.

Alleged Child Support and Section 7 Arrears

[ 57 ] The applicant seeks payment of alleged outstanding child support arrears going back to June 2006 in the sum of $30,450 (this was later updated during submissions to $43,600).

[ 58 ] Section 13 of the 2006 Order provides:

If the Applicant and Respondent have any dispute about the annual spousal and child support adjustments, or an issue about any s.7 expenses, to and including 2010, they will have the issue arbitrated under the Arbitration Act , as recently amended.

[ 59 ] In my view, the parties agreed, and the court ordered with the consent of the parties, that any issues dealing with annual spousal and child support adjustments up to and including 2010 were to be arbitrated. The applicant’s motion before this court for arrears of child support and s. 7 expenses is, therefore, contrary to the terms of the 2006 Order. The applicant should be held to her bargain with respect to arbitration. Accordingly, the applicant’s motion for an order for payment of alleged child support arrears is dismissed, without prejudice to her right to bring the matter to arbitration under para. 13 of the 2006 Order.

Costs

[ 60 ] Any party seeking costs of this motion shall do so by filing brief written submissions (not to exceed three typed, double spaced pages), together with a Bill of Costs and any other supporting material, within three weeks of the release of these Reasons. Any party wishing to respond to a request for costs shall do so, subject to the same page limit, within a further two weeks.

PENNY J.

Date: May 30, 2012