ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-17,466-06
DATE: 2014-09-02
BETWEEN:
Louise Litalien
Applicant
– and –
Lucien Desormeaux
Respondent
Applicant, self-represented
Respondent, self-represented
HEARD: August 11, 2014
DECISION ON MOTION
GAUTHIER j.:
The Motion:
[1] The Applicant, Louise Litalien , has brought a motion to terminate her obligation to pay spousal support to the Respondent, Lucien (Luc) Desormeaux, effective July 1, 2013.
[2] The parties were married in July, 1986. There are two children of their union, both of whom are adults.
[3] Justice I. M. Gordon determined that, after the trial in this case, the valuation date (the date the spouses separate and there is no reasonable prospect that they will resume cohabitation) to be November 1999, although the Respondent continued to reside in the matrimonial home and did not move out until January 2007.
[4] The Applicant supported the Respondent until January, 2007.
[5] On June 11, 2007, Justice J.S. Poupore made a temporary Order that the Applicant pay spousal support to the Respondent, in the amount of $1,200 per month. The Applicant’s monthly income was in the amount of $6,581. The Respondent’s monthly income consisted of a Canada Pension Plan disability pension in the amount of $857.
[6] On June 15, 2009, following the trial in this matter, Justice Gordon made the final spousal support order, in the amount of $1,050 per month. This was based on the Applicant’s yearly income of some $83,000.
[7] Justice Gordon imputed income to the Respondent in the amount of $20,000, for the period ending September 1, 2010.
[8] Justice Gordon ordered that the spousal support “will be payable beginning on the 15th of July and will be made on the 15th day of each month thereafter until September 15, 2010, at which time it will terminate unless before that date or such other date as may be ordered, either party has filed a notice of return to list for review with accompanying affidavits in support. Response will be served and filed within 30 days thereafter and questioning will be carried out if it is requested within 30 days after the filing of the response. Should a Notice of Return to List be served and filed, the monthly support will continue until the review hearing.” (See paragraph 114 of the Reasons for Judgment released on June 15, 2009.)
[9] The Applicant delivered a Notice of Return to List on October 30, 2009, with a supporting Affidavit.
[10] On January 25, 2010, the Respondent delivered an Affidavit in response to the Applicant’s material enclosing, among other things, the following documentation:
(a) Letter dated March 9, 2007, from Human Resources Development Canada, confirming that the Respondent was in receipt of a Disability and Disabled Contributor’s Child’s benefits in the amount of $857.35.
(b) Letter dated July 30, 1997, from Dr. D.F. Marr, stating that he was not sure if the Respondent is able to work at that time by reason of his illness, and, other material in support of the Application for disability benefits. (I note that this material was before Justice Gordon at the trial in 2009).
(c) Letter dated December 18, 2008, from Dr. D. F. Marr confirming that there had been no positive change in the Respondent’s employability since 1997.
(d) Letter dated December 13, 2009, from Dr. D.F. Marr, confirming, among other things, that the Respondent continued to suffer from a Major Depressive Disorder that has impacted his vocational career.
(e) Letter dated January 11, 2010, from Dr. Angele Brabant-Trottier, doctor of internal medicine, setting out that the Respondent has chronic medical issues, including diabetes and hypertension which require ongoing medical therapy in prevention of secondary complications.
[11] No further steps were taken in the proceeding for more than two years. A case conference was held on March 29, 2012, and again on September 18, 2012.
[12] The Applicant retired from her employment in July, 2013. Her income went from $92,000 per year to $57,164. She sought to terminate the spousal support, by way of Notice of Motion dated August 13, 2013. She indicated her intention to lead evidence that the Respondent was capable of being employed.
[13] The matter proceeded to a Case Conference on September 26, 2013, and on to a Settlement Conference on December 10, 2013. On this latter date, the presiding Judge ordered that a full day hearing be scheduled before a bilingual Judge. For some unknown reason, no such date was set.
[14] The next event in the case was the delivery, by the Applicant, of a Notice of Motion dated March 7, 2014, returnable on March 13, 2014, requesting a Temporary Order suspending the spousal support until August 11, 2014, which the Applicant understood to be the date for another Settlement Conference, although no Notice of Settlement Conference was ever prepared or delivered.
[15] On March 27, 2014, I made a Temporary Order that the spousal support be reduced from $1,050 per month to $450 per month, to reflect the change in the Applicant’s income. The matter was adjourned to August 11, 2014, to deal with the matter on a final basis.
[16] On August 11, 2014, I heard submissions from the parties who, by that time, were both representing themselves. I reserved my Ruling.
[17] After having thoroughly reviewed the court file, it is now clear that the matter has not proceeded according to the directions of Justice I.M. Gordon, contained in his Reasons for Judgment of June 15, 2009.
[18] Justice Gordon ordered that, following the exchange of Affidavits, and questioning if requested, the matter would be scheduled for a single settlement conference along with a date for a trial of issues upon viva voce evidence. At such review hearing, the court was to determine the issues of further entitlement, quantification and term of the order. (Paragraphs 117 and 118).
[19] A reading of the Reasons for Judgment indicates that Justice Gordon was concerned about the lack of current evidence to support the Respondent’s position that he could not sustain employment because of his health/medical issues. It was precisely for that reason that he ordered a review “expressly so that psychiatric and such other current professional evidence as may be relevant can be produced clarifying that his condition is a disability with regard to employment.” See paragraph 111 of the Reasons for Judgment.
[20] At paragraph 116 of his Reasons, Justice Gordon said this:
This alternative to dismissal or a time limited or indefinite support order reflects the purpose of the Family Law legislation that a disabled or ill spouse is entitled to support where hardship arises from marriage breakdown. It is recognized that there may well be evidence available to support indefinite entitlement which is not before the court at this hearing. To dismiss such a support claim would be unfortunate if such evidence is available. An unlimited and indefinite support order if evidence of continuing inability to work is not available would likewise be unfortunate.
[21] Over the course of the litigation, there were changes of counsel and ultimately the removal of counsel for each of the parties. This may have contributed to the confusion in terms of how the matter was to proceed, following the Judgment.
[22] Clearly the review hearing contemplated by Justice Gordon’s Judgment has not occurred. Neither party has had the opportunity of leading viva voce evidence, or of filing further and more current material.
[23] In these circumstances, it appears appropriate to have the parties return to court to participate in a Trial Management Conference to discuss the parameters of the review hearing contemplated by Justice Gordon in 2009.
[24] In these circumstances, I decline to make a Final Order. The matter should proceed to a review hearing by way of trial of issues, including viva voce evidence if it is required.
[25] I am ordering that the parties, or either of them, shall communicate with the Trial Co-Ordinator, within 15 days, to set a date for a Trial Management Conference before myself. One hour will be required. Following the Trial Management Conference, a hearing date (trial date) will be set. The parties should bring with them to the Trial Management Conference all relevant and current documentation that they intend to rely upon at the hearing.
[26] If the parties have not communicated with the Trial Co-Ordinator within 15 days of this Order, she shall set a date for the Trial Management Conference and serve a Notice of the Trial Management Conference on both parties by mail.
The Honourable Madam Justice Louise L. Gauthier
Date: September 2, 2014
COURT FILE NO.: D-17,466-06
DATE: 2014-09-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Louise L’Italien
Applicant
– and –
Lucien Desormeaux
Respondent
DECISION ON MOTION
Gauthier J.
Released: September 2, 2014