SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-13-76817-00
DATE: 2014-12-12
RE: K. v. M.
BEFORE: JUSTICE VAN MELLE
COUNSEL:
M. Kurz, for the Applicant
Respondent in person
DATE HEARD: December 11, 2014
E N D O R S E M E N T
[1] This is a motion brought by the Applicant Dr. K. who seeks to adjust an order for spousal support made in favour of the Respondent Manaka M. Today at the commencement of the hearing of the motion, a lawyer, Ms. E. Adams-Idode appeared with Ms. M. and asked that this motion be adjourned to January. The date for the argument of this motion was arranged on October 9, 2014. Ms. M. was served with the motion materials at the end of September. She served her affidavit material on December 4, 2014. I agreed to adjourn the hearing of the motion provided that Ms. Adams-Idobe was actually retained for the return of the motion and on the condition that the issue of costs for today would be argued at that time as well. After a brief recess to allow Ms. Adams-Idobe to discuss the conditions with Ms. M., Ms. Adams-Idobe advised me that Ms. M. was not agreeable to those conditions and the arguing of the motion proceeded.
[2] On March 1, 2013 Justice Price ordered Dr. K. to pay spousal support of $4,251.00 per month to Ms. M. The payments were subsequently ordered (by Justice Edwards) to be paid on the 1st and 15th of each month. The figure was based on Dr. K.’s 2011 income of $174,000.00. Dr. K. seeks an adjustment now based on several changes that have occurred since the Price Order was made.
[3] On March 19, 2014 I made an Order granting Dr. K. sole custody of the two children of the marriage. This order was based on my finding that Ms. M. had alienated the daughter, V., from her father and that there was a danger she would alienate the son, J., as well. At that time I ordered that Dr. K. would no longer have to pay child support but I ordered him to continue paying spousal support pursuant to the Price Order.
[4] Subsequently I ordered $63,000.00 in costs in favour of Dr. K. and that $1,000.00 per month toward the costs could be off set against spousal support.
[5] Dr. K. deposes that his income, as confirmed by Notices of Assessment has been as follows:
2011 $174,444.00
2012 $142,173.00
2013 $149,000.00
He anticipates that his income for 2014 will be the same as 2013.
[6] Dr. K. deposes that his income has decreased since 2011 because of the significant amount of time he has devoted to fighting to see the children and defending himself against his wife’s false charges.
[7] He has also incurred additional expenses in hiring a nanny to assist in the care of the children while he is at work. As well, he is the sole emotional support to the children and thus does not have the ability to work as many hours as he did before the children were in his sole custody.
[8] The Spousal Support Advisory Guidelines, taking into account the present custodial arrangements and assuming that Ms. M. has no other income, suggest a range of spousal support: Low: $1690, Mid: $1971.00 and High: $2253.00.
[9] Ms. M. takes the position that the support payments as ordered by Justice Price should continue. She submits the following:
There has been no material change in circumstances to justify varying the spousal support order;
The increased expenses relating to Dr. K.’s care of the children are the result of his own inability or unavailability to care for the children;
She continues to have the same need for spousal support now as in 2013;
Dr. K. is a qualified doctor who has the ability to earn more income;
Dr. K. has an obligation to compensate her for the years she spent supporting him as he advanced his career as a doctor;
She is completely dependent on spousal support and has significant debts arising from the litigation.
[10] She also seeks an order that, from this point forward, Dr. K. assume full responsibility for all of Dr. Goldstein’s costs related to his involvement in this matter. Additionally she asks for $5,000.00 in costs from her October 9, 2014 motion to appoint Betty Stockley as her therapist which she argues was successful.
[11] I accept Dr. K.’s argument that there has been a change in his circumstances since the Price Order. There is now a custodial order in his favour and I accept that attendant financial consequences that have come about as a result. I see no reason not to apply the mid-point of the Spousal Support Advisory Guidelines.
[12] In her submissions, Ms. M. is trying to shift the financial consequences of this litigation, particularly costs orders made against her as a result of her behaviour, to Dr. K. As well, to allow her to continue to receive the spousal support as ordered by Justice Price would be unconscionable in the present circumstances where the children live with and are fully financially supported by Dr. K.
[13] Ms. M. continues to present herself as a victim of Dr. K. but her allegations in this regard have yet to be proven. She has an obligation to contribute not only to her own support, but to the support of the children as well.
[14] Ms. M.’s claim to compensatory support will have to be decided at trial.
[15] I have several comments regarding Ms. M.’s claim for costs from the October 9 motion. That motion was to appoint Ms. Stockley as a therapist for Ms. M. Ms. M. did not ask for her costs on October 9 which is normally the way that the issue of costs are pursued. Although I agreed that Ms. Stockley could in fact act as a therapist, her appointment was subject to various conditions, conditions which were not agreed to prior to the argument of the motion. Ms. Stockley was not originally one of the therapists that I thought should be used by Ms. M. but at the Court hearing on October 9 I was persuaded that Ms. Stockley was a viable option and Ms. M. was able to afford to pay her as her hourly fee is somewhat lower than that of other therapists. Part of the difficulty arose from the fact that Ms. Stockley refused to communicate with Mr. Kurz, Dr. K.’s lawyer. Had Mr. Kurz had an opportunity to talk to Ms. Stockley he might well have agreed that she would be an appropriate therapist. Indeed once Mr. Kurz and Dr. Goldstein spoke to Ms. Stockley (I recessed court to permit this) an agreement in this regard was reached.
[16] There is no basis in the materials before me to order costs at all and absolutely no basis upon which to order the amount of $5,000.00. Ms. M.’s request for costs for October 9 is therefore dismissed.
[17] I also decline to make the order that Dr. K. be solely responsible for Dr. Goldstein’s fees. This would ignore the fact that Dr. Goldstein is involved with this family directly as a result of Ms. M.’s behaviour. She must bear responsibility for this behaviour and that includes sharing financial responsibility. My previous Order regarding Dr. Goldstein’s fees remains in effect.
[18] In the result, an Order will issue varying the Order of Justice Price to provide that the spousal support payable by Dr. K. will be $1971 per month payable in two equal monthly installments, half on the first day of each month and half on the 15th day of each month commencing with the January 2015 payment. This payment is based upon Dr. K.’s annual income being $149,000.00. A new Support Deduction Order will issue.
[19] As a result of the reduction in the spousal support, the amount of $1,000.00 will no longer be withheld by Dr. K. to be applied to the outstanding costs order (as outlined in my order of April 4, 2014). The costs order will have to be addressed at a later time.
[20] I will entertain brief written submissions on the issue of costs of this motion. The Applicant is to have his submissions to me on or before January 9, 2015. The Respondent is to have her submissions to me ten days after receiving the Applicant’s submissions.
Van Melle J.
DATE: December 12, 2014
COURT FILE NO.: FS-13-76817-00
DATE: 2014-12-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: K. v. M.
BEFORE: JUSTICE VAN MELLE
COUNSEL: M. Kurz, for the Applicant
Respondent in person
ENDORSEMENT
JUSTICE VAN MELLE
DATE: December 12, 2014