ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F558/13

DATE: 2014-03-04

BETWEEN:

Brenda Danielle Marie Dale
Applicant

– and –

Christopher Wayne Lockley
Respondent

Self-Represented

Self-Represented

HEARD: February 26, 2014

THE HONOURABLE MR. JUSTICE PAZARATZ

1. This an application to establish spousal support, brought pursuant to the Interjurisdictional Support Orders Act, 2002 (“ISOA”). The Applicant Brenda Dale resides in British Columbia. The Respondent Christopher Lockley resides in Ontario.

LITIGATION CHRONOLOGY

2. As happens almost inevitably on these ISOA files, the process of advancing the claim has been slow and lacking in up to date information.

a. The Applicant signed her Application and Financial Statement in B.C. on August 15, 2012.

b. A Notice of Hearing was issued in Ontario on April 25, 2013.

c. On September 16, 2013 the matter came before me in chambers, for a determination based only on the Applicant’s materials. I issued an endorsement requesting more complete information from the Applicant; and financial disclosure from the Respondent. I also endorsed that the matter was sufficiently complex, both factually and legally, that an oral hearing should be scheduled in Hamilton for the Respondent to attend and give evidence.

d. The Respondent filed an Answer and Financial Statement on November 27, 2013.

e. The hearing took place February 26, 2014. I received the written and oral evidence of the Respondent.

f. I received no reply materials from the Applicant. By the time the hearing took place, the Applicant’s materials were 18 months old.

APPLICANT’S EVIDENCE

3. The Applicant’s materials set out the following:

a. She is 55 years old. The Respondent is 50.

b. They lived together on an unmarried basis – here in Hamilton -- from September 1, 2001 to September 12, 2011.

c. At all material times the Respondent was employed as an ironworker at a local steel mill. The Applicant didn’t know his income, but filed a government website print-out in support of her request that an annual income of $74,152.00 should be imputed to the Respondent.

d. The Applicant was steadily employed for seven years, 3 months of their 10 years of cohabitation. She said this amounted to 72.50% of their relationship. Specifically, from August 17, 1997 to December 3, 2008 she was employed at Henderson Hospital here in Hamilton. In her final position as an Environmental Aid & Technical Health Care Aid she earned $23.00 per hour.

e. She left that employment for medical reasons. Eventually she moved to British Columbia where she has family members. She is currently on public assistance and also receives a small widow’s pension (in relation to a former relationship).

f. She says she cannot work as a result of medical problems. She hopes her medical situation will improve to allow her to pursue employment in the future, but she is unsure of her chances of recovery.

g. She requested spousal support of $1,255.00 per month. She filed a Divorcemate calculation which set out that if the Applicant’s annual income is $4,704.00 and the Respondent earns $80,000.00, the range of (indefinite) spousal support is between $941.00 and $1,255.00 per month.

4. In support of her application the Applicant filed some limited medical evidence:

a. A three line letter from Dr. Manjunath Bhatt dated March 23, 2012, setting out that she “is suffering from widespread body pain with fibromyalgia, chronic pain syndrome disorder, depression and anxiety. As a consequence of this, she is unable to work and would need to receive welfare payments.”

b. The same doctor filled in a pre-printed physician’s statement dated May 24, 2012. It listed the Applicant’s problems as including fibromyalgia; chronic pain syndrome/disorder; severe arthritis; low back pain; carpal tunnel syndrome; severe depression; anxiety with panic attacks; left knee replacement.

RESPONDENT’S EVIDENCE

5. The Respondent’s materials and oral evidence set out his position:

a. He challenged the accuracy of much of the Applicant’s evidence.

b. He disputed the length of the relationship. He denied they started living together in 2001. He said they didn’t even meet until late 2002 and she moved in with him in 2003.

c. In the fall of 2003 they purchased a house which was placed in joint names even though he contributed the entire down payment.

d. He said they separated under the same roof in 2008 – while she was still working - but the Applicant refused to move out because she was a co-owner of the property.

e. He said thereafter they co-existed under the same roof simply because neither had anywhere else to go. But they were no longer in a spousal relationship. He said after she lost her job he ended up paying all of the household expenses. He tried to buy her out but she was uncooperative. He tried selling the house, but again she was uncooperative.

f. He said eventually they sold the house with a closing in 2011. He presumes she is characterizing 2011 as the “date of separation” because that’s when they both moved to separate residences. But he insisted their spousal relationship ended back in 2008.

g. The Respondent said the Applicant accumulated significant debt on a joint line of credit after the relationship was over. That line of credit was paid from joint monies on the closing of the house sale.

h. The net proceeds of sale – approximately $30,000.00 – were divided approximately equally between the parties (even though the Respondent had contributed the entire down payment and paid most of the ongoing carrying costs).

i. The Respondent testified he had to apply all of his share of the net proceeds toward $19,000.00 of debts which the Applicant had accumulated on his credit and bank cards, without his knowledge or permission. He said he was left with all her debts. She walked away with $15,000.00 of net proceeds, free and clear.

j. He disputed that her health problems were nearly as serious as the Applicant had described. He disputed that she was unable to pursue any employment. He noted that when she moved from Hamilton to British Columbia she had no difficulty loading up her car and driving across the country.

k. He admitted the Applicant had fairly accurately estimated his income. His base salary is $70,000. In 2012 he earned $74,887.00.

l. But he said the Applicant failed to consider that he is still paying $673.00 per month in child support for his son of a former relationship.

m. He denied that during their approximately five years in a spousal relationship (2003 to 2008) the Applicant ever became dependent on him, or that she suffered any economic disadvantage.

n. He said the health problems she came to experience after the relationship broke down (but while they were still both living in their jointly owned house) had nothing to do with him or anything that happened between 2003 and 2008.

o. He said far from being disadvantaged, the Applicant enjoyed many financial benefits including becoming a joint owner of a house she contributed virtually nothing to; living there rent free for several years after the relationship was over; walking about with $15,000.00 of equity; and leaving the Respondent with all her debts.

6. In essence, the Respondent challenged virtually every aspect of the Applicant’s claim: entitlement; quantum; duration.

ISOA PROCEDURE

7. The ISO Act is a uniform statute that all Canadian jurisdictions have agreed to implement. It applies to the registration for enforcement in Ontario of orders made in reciprocating jurisdictions, and to the establishment or variation of an order when one party lives in Ontario and the other party lives in a reciprocating jurisdiction.

8. Under the Act, an Ontario court may be involved at three possible stages:

a. An initial application for support
b. Registration of a support order
c. A variation of support application

9. This was an initial application for support with the claimant residing outside of Ontario. The legislation sets out the following process for these types of claims:

Claimant Outside Ontario

8. 8(1) Application of ss. 9 to 16

Sections 9 to 16 apply in respect of,

(a) provisional orders referred to in clause (b) of the definition of "provisional order" in section 1; and

(b) documents from reciprocating jurisdictions corresponding to a support application described in subsection 5(2).

8(2) Meaning of "support application"

In sections 9 to 16, "support application" refers to the orders and documents described in subsection (1).

9. Steps taken by designated authority

If the designated authority receives a support application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent ordinarily resides in Ontario, it shall take the following steps:

1. Verify the information about the respondent's ordinary residence.

2. If the information is confirmed, send the support application to the Ontario court.

3. If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in another reciprocating jurisdiction in Canada,

i. send the support application to the appropriate authority in that other reciprocating jurisdiction, and

ii. notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.

4. If the information is not confirmed and the designated authority has no information about the respondent's ordinary residence, return the support application to the appropriate authority in the originating reciprocating jurisdiction.

5. If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in a jurisdiction outside Canada, return the support application to the appropriate authority in the originating reciprocating jurisdiction with any available information about the respondent's location and circumstances.

6. Notice of hearing

When the Ontario court receives a support application under paragraph 2 of section 9, the clerk shall serve on the respondent, in accordance with the regulations,

(a) a copy of the support application; and

(b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the prescribed information or documents.

11. 11(1) Information to be considered

In dealing with a support application, the Ontario court shall consider,

(a) the evidence provided to the Ontario court; and

(b) the documents sent from the reciprocating jurisdiction.

11(2) If further information or documents needed

If the Ontario court needs further information or documents from the claimant to consider making a support order, the Ontario court shall,

(a) send the designated authority a direction to request the information or documents from the claimant or the appropriate authority in the reciprocating jurisdiction; and

(b) adjourn the hearing.

11(3) Temporary order

When the Ontario court acts under subsection (2), it may also make a temporary support order.

11(4) 18-month delay

If the Ontario court does not receive the information or documents requested under subsection (2) within 18 months after the request is made, it may dismiss the support application and terminate any temporary support order made under subsection (3).

11(5) New application

The dismissal of the application under subsection (4) does not preclude the claimant from commencing a new support application.

12. 12(1) Parentage

If a child's parentage is in issue and has not previously been determined by a court of competent jurisdiction, the Ontario court may determine the matter.

12(2) Restriction

A determination of parentage under this section has effect only for the purposes of proceedings relating to support for the child.

13. Choice of law rules

The following rules apply with respect to determining entitlement to support and the amount of support:

1. In determining a child's entitlement to support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law.

2. In determining the claimant's entitlement to support, the Ontario court shall first apply Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence.

3. In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law.

4. 14(1) Order

On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,

(a) make a support order;

(b) make a temporary support order and adjourn the hearing to a specified date;

(c) adjourn the hearing to a specified date without making a temporary support order; or

(d) refuse to make a support order.

14(2) Retroactivity

The Ontario court may make a retroactive support order.

14(3) Periodic payments or lump sum

A support order may require support to be paid in periodic payments, as a lump sum, or both.

14(4) Reasons for refusal

If the Ontario court refuses to make a support order, it shall give written reasons for its decision and send them to the designated authority.

15. 15(1) Order if notice not complied with

If the respondent does not appear as required in the notice or does not provide the information or documents required under clause 10(b), the Ontario court may make an order in the absence of the respondent or of the information or documents and in making the order may draw any inference it considers appropriate.

15(2) Copies of order

If the Ontario court makes an order under subsection (1), it shall send copies of the order to the designated authority and to the respondent, in accordance with the regulations.

16. Sending order to reciprocating jurisdiction

When it receives an order that is made under section 14 or 15, the designated authority shall promptly send a certified copy of it, with reasons, if any, to the appropriate authority in the reciprocating jurisdiction that sent the claimant's support application.

10. Rules 37(7)-(9) of the Family Law Rules set out that an application under the Interjurisdictional Support Orders Act shall be in writing, unless the court orders otherwise. The provisions are as follows:

37(7) Unless the court orders otherwise under subrule (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court. O. Reg. 56/03, s. 6.

37(8) The respondent may request an oral hearing by filing a motion (Form 14B) within 30 days after being served with the notice of hearing. O. Reg. 56/03, s. 6.

37(9) The court may order an oral hearing, on the respondent's motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly.

11. In this case I directed an oral hearing as I felt the issues and evidence were too complicated to proceed by written materials.

ISOA CHALLENGES

12. The ISOA legislative scheme for dealing with these types of support claims may be well intentioned – it may even have looked good on paper when it was drafted – but this case provides a classic example of the common experience in our courts that ISOA applications are simply too cumbersome and fragmented to allow both parties to receive a fair and timely determination of their issues.

13. Geography and proximity (or the lack thereof) does not change the onus which Applicants must address in pursuing claims. Both parties are entitled to procedural fairness; adherence to rules of evidence; and a meaningful opportunity to cross-examine and respond to current evidence.

EVIDENCE ANALYSIS

14. In the case before me, the onus is on the Applicant to establish every component of her spousal support claim, including entitlement, quantum and duration.

15. Based on the evidence before me, I am not satisfied that the Applicant has yet met that onus:

a. The basic factual background is in dispute. The Applicant claims it was a 10 year relationship. The Respondent says it was a five year relationship. He produced a letter his lawyer wrote the Respondent in 2010 offering to settle the house issue. Clearly, the Applicant’s alleged September 12, 2011 date of separation cannot be correct.

b. The Applicant’s materials do not yet establish an entitlement to support. She lists the dates she says the relationship started and stopped. She says she can’t currently work. She attaches a Divorcemate calculation and picks the high end of the Spousal Support Advisory Guideline range.

c. But apart from listing dates and current employment status, the Applicant provides virtually no factual basis or explanation for her claims.

d. Among the potentially relevant areas of discussion in this complex area of the law, the Applicant provided little or no evidence in relation to the characterization (or basis) of the support claim; compensatory considerations; contractual considerations; roles or functions adopted during the relationship; economic advantage, disadvantage or consequences flowing from the relationship; apportionment of financial consequences including debt; efforts toward self-sufficiency or reduction of need; lifestyles; agreements.

e. The Applicant’s medical evidence is limited and outdated. And a fundamental issue arises as to the admissibility of a three line typed letter, and a physician’s statement. The Respondent disputes that there is any medical limitation on the Applicant’s employment. The recent Ontario Divisional Court decision in Westerhof v. Gee Estate 2013 CarswellOnt 9059 makes it clear that if a treating physician is going to give evidence as an expert, the physician’s evidence must comply with the requirements of Rule 20.1 of the Family Law Rules, relating to experts.

16. Perhaps as an aside, I can comment that the Respondent gave his evidence in a very credible manner, supported by extensive documentation. I had the benefit of hearing his explanations, and requesting clarifications as required.

17. But I did not have the benefit of having the Respondent undergo cross-examination, nor could I be presented with any reply evidence on behalf of the Applicant to contradict any of what I heard.

18. I realize the Applicant is at a disadvantage, not having been present when the Respondent gave his evidence. In reality, both parties are at a disadvantage in these ISOA cases – and the court is at a distinct disadvantage – because there is no simultaneous participation in the process. The judge never gets to see both parties. Often the judge sees neither.

19. In my original in chambers endorsement of September 16, 2013 I ordered that both parties file certain basic tax information, but beyond that I added: “It is not my place to identify what additional information each party should produce to advance their position.”

20. No matter what logistical and procedural hurdles and frustrations the parties – particularly the Applicant – may face, it doesn’t change the fact that I have to make a decision on the claims herein based on the evidence and the merits.

21. Of the options available to me:

a. I could make a support order if I deemed it appropriate, but I decline to do so as the current evidence does not support the Applicant’s claims in relation to entitlement, let alone quantum.

b. I could make a temporary support order and adjourn the matter. Again, I decline to do so based on the lack of evidence justifying even temporary relief.

c. I could adjourn the hearing to a specified date without making a temporary support order. I see no purpose in simply adjourning the matter. If it returns to court with the same paucity of evidence, nothing will have been accomplished. And, as stated, it is not my place to provide either party with legal advice or a checklist of additional evidence they might wish to present.

d. The last available option is to refuse to make a support order. In my view this is the only appropriate option based upon the current evidence.

THE ORDER

22. The Application for spousal support is dismissed, without prejudice to the Applicant’s ability to commence a claim again, if she is able to adduce more complete evidence.

Pazaratz, J.

Released: March 4, 2014

COURT FILE NO.: F558/13

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

BRENDA DANIELLE MARIE DALE

-AND

CHRISTOPHER WAYNE LOCKLEY

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: March 4, 2014