ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: OO-FL-334-2
DATE: 20120830

BETWEEN:

ALONA SOCHIN Applicant – and – MICHAEL TABATCHNIK Respondent

Kourosh Farrokhzad, for the Applicant.
Steve Duplain, for the Respondent.

HEARD: August 30, 2012

T.D.RAY, J

REASONS FOR JUDGEMENT

[ 1 ] This is a motion by the respondent for summary judgement under rule 16 of the Family Law Rules which provides that — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly . [^1] Like the civil rule equivalent, the onus is on the moving party to file sufficient evidence to meet the test. The applicant is required to file sufficient responding evidence, and may not rely on mere denials.

[ 2 ] The applicant’s claim is for spousal support even though both parties waived claims for support in a separation agreement; and in which the respondent transferred his interest to her in the matrimonial home, at a time when she was employed at MIT, Cambridge as a Ph.D., and apparently in good health. While the applicant’s claim (and factum) is very extensive with voluminous affidavit materials, counsel for the applicant advised, at the opening of argument, that the applicant’s claim was now limited to the second stage of Miglin v. Miglin . [^2] I take from that that the applicant has abandoned her claim that the separation agreement she executed in June, 2006, was unenforceable. However, her affidavit evidence continues to assert that she was pressured by the respondent at the time to sign the agreement.

[ 3 ] The applicant’s evidence is that her many and severe health issues which she says prevent her from working were caused by the respondent’s sexual and physical abuse during their marriage. There is no contemporaneous evidence of any assaultive behaviour by the respondent. Medical opinion attached to her affidavits is based entirely on her reported history. The respondent denies any assaultive behaviour.

[ 4 ] For the applicant to succeed, she must show on a balance of probabilities that her current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties in a manner that puts them at odds with the objectives of s. 15.2 , Divorce Act [^3] .

[ 5 ] On the basis of the affidavit evidence, I have serious doubts that the applicant can meet the threshold. However, I cannot conclude that there is no genuine issue requiring a trial.

[ 6 ] The motion for summary judgement is therefore dismissed, and the matter is to proceed to trial, limited to the issue in paragraph 2.

[ 7 ] If the parties cannot agree on costs, they may make written submissions of two pages or less within 14 days and with a further 5 days for reply.

Honourable Justice Timothy Ray

Released: August 30, 2012

COURT FILE NO.: OO-FL-334-2
DATE: 20120830

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ALONA SOSCHIN Applicant – and – MICHAEL TABATCHNIK Respondent REASONS FOR JUDGeMENT Honourable Justice Timothy Ray

Released: August 30, 2012

[^1]: Rule 16(6), Family Law Rules
[^2]: Miglin V. Miglin , [2003] S.C.J. No. 21, 2003 SCC 24 (S.C.C.)
[^3]: Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), as am.