ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Erin Alice Clement
Applicant
– and –
Jean Paul Clement
Respondent
Liisa Parisé, for the Applicant
Richard Guy, for the Respondent
HEARD: May 15, 16 and 17, 2013
DECISION ON MOTION TO CHANGE FINAL ORDER
Poupore j.:
[1]
Background
Erin Clement (the applicant) born February 22, 1966, and Jean Paul Clement (the respondent) born September 26, 1956, commenced cohabitation in May of 1999 and subsequently separated on May 29, 2005.
2No children were born of the union. However, during the time of their cohabitation, the respondent assumed parental care guidance and control for the applicant’s child Brittany Lawrence born January 12, 1993.
3After separation, the parties entered into a consent order on December 12, 2006. Child support was ordered in the amount of $601 per month. This obligation has since ceased.
4Paragraph 8 of the consent order states:
The Respondent shall pay spousal support to the Applicant commencing on the 10th day of January 2007 in the amount of $1,478.00 every month based upon an income of $65,000. This amount shall be reviewed by the Respondent four (4) years after commencement and at any time based on a material change of circumstances.
5On January 5, 2011, the respondent brought this motion to terminate the child and spousal support effective January 1, 2011.
6The Order of December 12, 2006 also provided for an equalization payment from the respondent to the applicant. However, this debt was discharged by the respondent’s subsequent bankruptcy.
7The parties agree upon the following:
The respondent assaulted the applicant on two occasions: The first time in or about June 2004; the second approximately one year later.
Ordinarily because of the short duration of the union, the applicant would no longer be entitled to any further spousal support.
[8]
Issues
It is further agreed that the issues to be decided are:
Is the applicant in need of spousal support?
Is the respondent able to pay spousal support?
Is the applicant physically incapable of remunerative employment as a result of injuries she received during the June 2004 assault?
9Based on all of the evidence, the answer to questions one and two is yes.
10The applicant currently has no real income other than from the applicant. As well, the respondent’s income has substantially increased to $84,324 annually.
11The answer to the third question, which is to be decided on a balance of probabilities, is more difficult.
[12]
Analysis
Neither party could really assist me on the matter of which one has the onus in these proceedings.
13The respondent brought this matter on as a motion to change. He states that it is a review of the current Order and should be treated as a trial ab initio with the applicant having the onus of proving her entitlement to support.
14The applicant argues that these proceedings should be treated as a motion to change a final non-time-limited Order and therefore the respondent must prove a material change of circumstances.
15The wording of the Order which was drafted by the parties is of little assistance. It calls for a review but does not define the circumstances under which the review is to be conducted or decided.
16In the end however, it is the parties who have agreed that ordinarily the applicant would no longer be entitled to support. The intervening event was the assault in 2004. It is the applicant who claims she suffered debilitating injuries rendering her unable to be remuneratively employed. It is the applicant who must prove on a balance of probabilities that she therefore continues to be entitled to spousal support. She is in the best position to martial the evidence to support this position. Indeed she has attempted to do so.
[17]
The June 2004 Assault and Medical Evidence
The applicant described the June 2004 assault. She recalls being at home in the kitchen. The respondent was very late for supper. When he came in she threw something at him. She then testified that he put his arm up and dropped her to the floor. He jumped on her lower abdomen and held her down to the floor pressing all his weight upon her.
18The applicant was not brought to the hospital. She did not at the time complain of an injury. She did not call the police. The couple remained together until the second assault one year later, which resulted in charges being laid and a plea of guilt. No lasting injuries are claimed to have resulted from the second assault.
19It was not until after the separation that the applicant attributed her sore back to the June 2004 assault. She sought therapy and read numerous books. This is what she now states convinced her that her problems were not stress related but rather directly attributable to the first assault.
20In 2003 the applicant complained to her physician about a sore back. This she stated in cross examination was only a minor short-term injury to a different area of her back.
21The applicant has seen a number of physicians for her back pain. She had X-rays in 2005, an M.R.I. in 2007 and a C.A.T. scan in 2011. It is fair to say that none of these tests are conclusive. It is further fair to say that none of her physicians can confirm that her claims of back pain are definitively tied to the June 2004 assault. At best they state this is a possibility.
22Though the applicant is convinced that she is physically incapable of remunerative employment as a result of injuries she received during the June 2004 assault, she was unable to prove this on a balance of probabilities. The applicant has not sought any retraining or alternate employment since her separation. She has had ample opportunity to do so.
23The answer to question three, therefore, is no.
[24]
Retroactivity
The respondent has requested that the spousal support order be terminated on January 1, 2011. I decline to make the Order retroactive for a number of reasons:
The consent Order of December 12, 2006 was poorly drafted and unclear;
The motion to change was unclear;
The applicant’s answer raised serious questions of spousal abuse.
[25]
Order
This court orders that the respondent’s obligation to pay child support for the child Brittany Lawrence born January 12, 1993 shall be retroactively terminated effective December 31, 2010.
26This court further orders that the respondent’s obligation to pay spousal support shall be terminated effective May 31, 2013.
[27]
Costs
If they are unable to agree, the parties may address the question of costs within 15 days in writing of no more than three pages each exclusive of time dockets.
Mr. Justice J.S. Poupore
Released: June 11, 2013
COURT FILE NO.: A10,763-05
DATE: 2013-06-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Erin Alice Clement
Applicant
– and –
Jean Paul Clement
Respondent
decision on motion to
change final order
Poupore J.
Released: June 11, 2013