Litalien v. Desormeaux, 2015 ONSC 1796
COURT FILE NO.: D-17,466-06
DATE: 2015-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Louise Litalien
Applicant
– and –
Lucien Desormeaux
Respondent
Plaintiff, Self-represented
Respondent, Self-represented
HEARD: March 17, 2015
REASONS FOR JUDGMENT
GAUTHIER, J.:
Overview
[1] On March 17, 2015, I heard evidence and received submissions from the Applicant, in connection with the Review of the Final Order of I.M. Gordon J. made on June 15, 2009.
[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; and
(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] 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.
[12] 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.
[13] On November 19, 2014, I conducted a Trial Management Conference in this matter. The Respondent was not present and had indicated by way of letter dated November 17, 2014, that he would no longer participate in the proceeding.
[14] On December 3, 2014, the date set for the hearing of both the Applicant’s Motion and the Review hearing, the Respondent again failed to attend, citing medical reasons. The matter was adjourned to March 17, 2015.
Issue
[15] Whether the Respondent continues to be entitled to spousal support by reason of his inability to be employed due to medical/emotional issues.
The Evidence
[16] The court file contains an affidavit of the Respondent, sworn September 11, 2013. In that affidavit, the Respondent states that he suffers from numerous medical conditions, including depression, and that he is unable to work, having been unemployed since 1997. The Respondent indicates further that Dr. Marr confirms the Respondent’s inability to be employed. No report from Dr. Marr was attached to the affidavit.
[17] The court file also contains the Respondent’s financial statement, sworn September 11, 2013, and his 2012 income tax return, showing his yearly income as $19,548, consisting of spousal support and disability benefits.
[18] The earlier affidavit of the Respondent, dated January 25, 2010, attached the documentation referred to at paragraph 10 of these Reasons.
[19] The Respondent also provided the court, by way of correspondence received on February 24, 2015, the following:
(a) photocopy of a letter to the Respondent, from Health Care Connect, dated September 12, 2013, indicating that the Respondent is registered in the program which is meant to assist him in finding a health care provider;
(b) photocopy of a list of medications for the Respondent, from Lasalle Clinic Pharmacy Ltd, dated February 19, 2015;
(c) photocopy of Referral, from Lasalle Walk in Clinic, to the Sudbury Mental Health and Addictions Centre, dated April 23; the year is indecipherable. The reason for the referral is indicated as “depression”;
(d) photocopy of a note from the Lasalle All Day Walk –in Clinic, dated January 17 (year indecipherable), indicating that the Respondent is suffering from severe depression and is having suicidal thoughts; and
(e) photocopy of a note from the Lasalle All Day Walk-in Clinic, dated February 9, 2015, indicating that Dr. Zaidi has seen the Respondent on numerous occasions, that the Respondent suffers from depression with suicidal thoughts, is on medication, and is being referred to a psychiatrist.
[20] The Applicant’s evidence is that the Respondent historically did work for cash while in receipt of his disability benefits. The Respondent is a talented upholsterer and carpenter. He recently constructed two balconies onto his residence.
[21] The Applicant’s position is that the Respondent is capable of working and that, despite the Respondent’s complaint that he is poor, he owns his own home and has two vehicles.
[22] The Applicant further offered that the Respondent is a good actor. He feigns an inability to work, and he did so during the parties’ cohabitation. He was content to be supported by the Applicant.
[23] I received evidence from Liz Herd, the Applicant’s niece. She testified that, when the parties separated (but continued to live under the same roof), the Respondent told her that, although he was gay, he would not leave the Applicant because then he’d have to get a job. This evidence supports the Applicant’s position.
[24] The Applicant submits that she has exceeded any moral or legal obligation to provide support to the Respondent having paid support for some eight years, over and above having equalized her pension. She should now be relieved of that obligation.
Analysis
[25] The Trial Judge set the parameters for the Review. He directed a trial of issues by way of viva voce evidence. The issues to be determined were (a) further entitlement to spousal support by the Respondent, (b) quantum, and (c) term of the Order.
[26] The Reasons for Judgment of the Trial Judge make it clear that he 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 is precisely for that reason that he ordered a review “expressly so that psychiatric and other current professional evidence as may be relevant” would be produced, to clarify whether or not the Respondent suffered a condition that constitutes a disability with regard to employment.
[27] The Respondent has failed to provide admissible evidence to establish that he suffers from such condition. The letters and photocopies of notes and referrals etc. are not admissible evidence. In addition, there is no “psychiatric” or other “professional evidence” which establishes that the Respondent is disabled from employment because of health or medical issues.
[28] The documentation provided with the affidavit of January 25, 2010, included material that had already been before the Trial Judge. The balance of the material provided on January 25, 2010, and on February 24, 2015, is not evidence, but rather inadmissible hearsay. It does not establish that the Respondent continues to be entitled to spousal support.
[29] The Respondent has failed to establish that he is entitled to continued spousal support, and, in the circumstances, it is appropriate to terminate the support.
[30] In accordance with the Final Order of June 15, 2009, the spousal support would have automatically terminated on September 15, 2010, but for the fact that the Respondent initiated the Review process by way of a Notice of Return to List on October 30, 2009.
[31] Whatever the reason may be, no admissible evidence to support the Respondent’s position that he is entitled to continued spousal support has been adduced by the Respondent since that date. The Respondent’s entitlement to spousal support is therefore terminated forthwith.
[32] The Applicant’s obligation to pay spousal support to the Respondent, pursuant to the Order of I.M. Gordon J. made on June 15, 2009, as varied by my Order of March 27, 2014, is terminated effective today’s date.
The Honourable Madam Justice Louise L. Gauthier
Released: March 19, 2015
CITATION: Litalien v. Desormeaux, 2015 ONSC 1796
COURT FILE NO.: D-17,466-06
DATE: 2015-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Louise Litalien
Applicant
– and –
Lucien Desormeaux
Respondent
REASONS FOR JUDGMENT
Gauthier, J.
Released: March 19, 2015