SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 93-467937

RE: KENNETH STAFFORD DUNN – Applicant v. JUDITH ANN MURCHISON and MINISTRY OF COMMUNITY AND SOCIAL SERVICES – Respondent(s)

BEFORE: Maranger J.

COUNSEL:
Timothy N. Sullivan, for the Applicant
Dianna Carr, for Judith Ann Murchison (Dunn)
Graeme Fraser, for the Ministry of Community and Social Services

HEARD: 2012-11-02

ENDORSEMENT

[ 1 ] This was an application to retroactively vary and rescind all arrears accumulated pursuant to a divorce judgment dated December 19, 1995.The judgment provided that the applicant was to pay the respondent $1500 a month effective July 30, 1993.

[ 2 ] The arrears as of the end of October 2012 exceed $300,000.

[ 3 ] While I agree with counsel representing the responding parties that the evidentiary basis for granting the relief requested by the applicant is deficient, I nonetheless find that there is some evidence upon which certain findings of fact and conclusions can be drawn. Based upon the evidence filed in this case I come to the following conclusions:

• The failure of FRO to take steps to enforce the support order is at least part of the reason for the current arrears of $300,000.

• The divorce judgment was obtained in default, if the applicant was unaware of the monthly support order it was because he was wilfully blind to it, he was aware of the proceedings, the petition for divorce stipulated the relief requested. It was served upon him personally, regardless of his possible health difficulties, he chose to ignore the proceedings.

• Since 2005 the applicant's income has never exceeded $16,000 per year, he has some health difficulties and is currently 69 years of age.

• There are no income tax returns to support what the applicant’s income might have been from 1993 to 2005.

• There is little in the way of medical evidence to support the applicant’s statements respecting the deterioration of his health.

• The applicant has not complied with reasonable disclosure requests on the part of the Ministry of Community and Social Services.

• The respondent, Ms. Murchison, has had health difficulties, she was on and off social assistance at various times since the divorce order of 1995, the enforcement of the support was properly left in the hands of FRO.

• The applicant continues to owe the respondent Ms. Murchison a judgment for the equalization of family property which with accumulated interest now exceeds $80,000.

[ 4 ] In order to succeed at a variation of a spousal support an applicant must establish that there has been a material change in circumstances justifying the variation. Sopinka J. in Willick v. Willick 1994 28 (SCC) , [1994] 3 S.C.R. 670 (SCC) at para. 22 defined material change as follows:

In deciding whether the conditions for variation exists, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied upon as the basis for variation.

[ 5 ] The evidence presented at this application justifies a change in the amount of support payable from 2005 to the present day. The evidence discloses that the applicant has no ability to pay ongoing support, and the amount should be reduced to zero effective January 2005.

[ 6 ] I cannot based on the evidence presented conclude that the inability existed prior to that date. The lack of evidence to support the general propositions contained in the affidavit filed by the applicant, coupled with the applicant's failure to provide basic disclosure requests to the respondents, disallow any kind of a variation prior to 2005.

[ 7 ] Consequently, I would grant the application in part, the arrears of support accumulated from January 1, 2005 to October 30 2012 are hereby eliminated. I calculate the amount to be $123,000. The ongoing support is also reduced from $1500 a month to zero.

[ 8 ] With respect to the issue of costs, given that there was divided success in this case coupled with the applicant and respondents very modest incomes, I am very strongly inclined towards a no cost order. However, I will allow counsel one page of written argument to try and convince me otherwise, if nothing is received within 15 days of the release of this decision, then there will be a no order as to costs.

Mr. Justice Robert L. Maranger

Date: November 5, 2012

COURT FILE NO.: 93-467937

ONTARIO SUPERIOR COURT OF JUSTICE RE: KENNETH STAFFORD DUNN – Applicant v. JUDITH ANN MURCHISON and MINISTRY OF COMMUNITY AND SOCIAL SERVICES – Respondent(s) BEFORE: Mr. Justice Robert L. Maranger COUNSEL: Timothy N. Sullivan, for the Applicant Dianna Carr, for Judith Ann Murchison (Dunn) Graeme Fraser, for the Ministry of Community and Social Services ENDORSEMENT Maranger J.

Released: November 5, 2012