SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: F984/99

DATE: 2015/09/14

RE: JUDITH ANN CAPITANO (Applicant)

And:

BRIAN ERNEST BUCKLEY (Respondent)

BEFORE: Justice I. F. Leach

COUNSEL: Donald W. Kilpatrick, for the applicant
The respondent, self-representing

HEARD: September 14, 2015

ENDORSEMENT

[1] Before me, for trial, is a “motion to change” brought by Mr Buckley, (although he is formally designated the “Respondent” in this proceeding, because of roles assumed by the parties in earlier litigation).

[2] The motion requests a formal and retroactive change to Mr Buckley’s existing court-ordered spousal support obligations to Ms Capitano, (formally designated the “Applicant” to this proceeding because of the same earlier litigation).

[3] Trial of Mr Buckley’s motion to change is scheduled to commence today.

[4] However, at the outset of trial, Ms Capitano has moved, through her counsel Mr Kilpatrick, for formal dismissal of Mr Buckley’s “motion to change”.

[5] The “motion to dismiss” is based on Mr Buckley’s alleged failure to comply with various rules, (as well as an order made by Justice Vogelsang at the trial management conference in May of this year supplementing those rules), requiring the necessary and timely disclosure and production of information and documentation relevant to any fair determination, on the merits, of Mr Buckley’s motion to change.

[6] By way of context, the motion to dismiss, brought at the outset of trial, was argued having regard to:

• various exhibits marked for identification, which nevertheless were already in the court file, including an outline of “Undisputed Facts” found at Tab 4 of the trial record, a Consent Endorsement Request dated July 14, 2014, and an order made by Justice Campbell on August 25, 2000; as well as

• documents that were exchanged prior to trial, and which were marked as formal exhibits in the proceeding, including a letter from a Calgary lawyer representing Mr Buckley’s spouse dated October 16, 2014, and addressed “To whom it may concern”, as well as a letter sent by Mr Kilpatrick to Mr Buckley on January 16, 2015.

[7] The alleged rule and order non-compliance by Mr Buckley, and associated production and disclosure failures, include the following:

• Mr Buckley’s failure to provide, before trial, and within the timelines set by the Family Law Rules, a new and updated financial statement, as required by Rules 13(12)(a) and 13(12.2).4, which in turn included a failure to provide copies of his 2014 income tax return and notice of assessment for 2014;

• Mr Buckley’s failure to comply with a similar direction made by Justice Vogelsang, at the trial management conference held in May of this year, requiring Mr Buckley to provide, before trial, such a new and updated financial statement in a timely way; and

• Mr Buckley’s failure to disclose and produce, through his dated financial statement or otherwise, the personal financial information of his current spouse, Pauline Buckley, with whom he admittedly now lives in the province of Alberta.

[8] Mr Buckley does not dispute these failures, and I independently find that they exist.

[9] Mr Buckley essentially says, in relation to the failure to provide a new and updated financial statement, (including his tax return and notice of assessment for 2014), within the timelines set by the rules, that he is apologetic but simply did not understand and/or appreciate the need for the filing of such documentation and information.

[10] In relation to the ongoing failure to provide disclosure of his wife’s personal financial information, Mr Buckley says that he asked his wife to make such disclosure but, as confirmed by the correspondence provided by Mrs Buckley’s Alberta lawyer, Mrs Buckley then refused to make such disclosure based on the advice of counsel. Mr Buckley admits that he then took no steps to compel the disclosure of that information, after being advised of his wife’s refusal in that regard.

[11] I have great sympathy for a litigant in Mr Buckley’s position, insofar as a self-represented lay person may well have difficulty learning and understanding all of the rules applicable to such a proceeding, including rules of relevance and the requirements of necessary and timely disclosure.

[12] However, the Family Law Rules are there to ensure fairness to all concerned and, particularly in relation to the timely disclosure of relevant documentation and information in advance of a trial on the merits, such rules cannot be overlooked and disregarded without jeopardizing a fair determination of the substantive issues raised by the proceeding.

[13] In this case, having reviewed Mr Buckley’s relevant “motion to change” and “change information form”, (which outline the nature of the relief he is requesting, and which formally commenced the current litigation leading to this scheduled trial), as well as the outline of “undisputed facts” mentioned above, it is clear to me that the documentation and information which Mr Buckley has failed to disclose and produce is highly relevant, and indeed necessary, for a fair determination, on the merits, of his motion to change his court-ordered support obligations.

[14] In that regard, I think it indisputable that Mr Buckley’s current income and “means” form part of the “circumstances” relevant to a determination of whether there has been a “material change” warranting an order varying the current support arrangements ordered by the court, as contemplated by s.37(2) of the Family Law Act, R.S.O. 1990, c.F.3. In particular:

• I note that, pursuant to s.33(9)(a) and s.33(9)(b) of the Family Law Act, supra, in determining the amount and duration, if any, of support for a spouse in relation to need, the court must have regard to the current assets and “means” of both parties, as well as the assets and “means” that both parties are likely to have in the future.

• Moreover, as confirmed by authorities such as Otis v. Gregoire, [2008] O.J. No. 3860 (S.C.J.), and Watt v. Watt, [2011] O.J. No. 1048 (S.C.J.), and commentary such as that found at pp. 66-67 of Spousal Support in Canada, (3d.ed.), “means” in this context is not limited to the personal annual income of the parties to the litigation, but also requires consideration of the household income available to each party, and therefore a consideration of the personal financial information of a new spouse with whom a party cohabits. This acknowledges, I think, the reality that such a party effectively has additional resources to draw upon to subsidize his or her ongoing existence, if only through such matters as shared accommodation and utilities to which that person and his or her new cohabiting partner may contribute.

• All of that has resonance in this case, where Mr Buckley comes before the court, asking the court to reduce and indeed eliminate his obligation to pay Ms Capitano spousal support, and his request is based, in part at least, on the alleged ground that his means to pay such support have been reduced substantially by a significant post-retirement reduction in his annual income.

• Furthermore, Mr Buckley himself acknowledged the relevance of such information, (i.e., the personal financial information of his wife), through the Consent Endorsement Request noted above; i.e., when Mr Buckley agreed, on July 15, 2014, that he should produce copies of his wife’s entire T1 income tax returns for the years 2010, 2011, 2012 and 2013.

[15] While it may be unfair to require a party experiencing an alleged substantial reduction in his or her income to continue paying court-ordered spousal support on the same basis, in the face of such a reduction, our rules and caselaw confirm that it is also unfair for a party advancing a request for such relief to come before the court, requesting a formal determination in that regard, without first providing the dependent recipient spouse, in a timely way, with all documentation and information relevant to that determination.

[16] As emphasized by Mr Kilpatrick on behalf of Ms Capitano, the obligation to make such timely and required disclosure is that of Mr Buckley.

[17] In my view, there really is no acceptable excuse for the failure of Mr Buckley to provide disclosure of his personal income tax return and notice of assessment for 2014. That is something which was entirely within his control.

[18] Moreover, the need to file an updated financial statement, including such information, was something in respect of which Mr Buckley had a timely reminder and direction from Justice Vogelsang just this past May, at the relatively recent trial management conference.

[19] The disclosure and production of Mrs Buckley’s personal financial information does not lie entirely within Mr Buckley’s personal control. However, when advised of her refusal to produce such information voluntarily, I think it was incumbent on Mr Buckley, (rather than Ms Capitano), to take formal steps to force such disclosure if he wished to proceed with his formal motion to vary his support obligations, (given the relevance of that information to such a determination, for the reasons I have outlined).

[20] In that regard, Mr Buckley also was provided with written notice, as far back as January of 2015, that Ms Capitano would be making the request for dismissal of this proceeding, with costs, if there had been no disclosure, by the time of trial, of Mrs Buckley’s personal financial information.

[21] In the circumstances, I feel compelled to grant Ms Capitano’s motion to dismiss Mr Buckley’s motion to vary his existing court-ordered support obligations, owing to his identified failures in relation to timely production and disclosure required by the Family Law Rules, and his failure to comply with Justice Vogelsang’s related direction and order in that regard made at the trial management conference. In light of those failures, the trial cannot proceed to a fair determination of the substantive issues raised by Mr Buckley.

[22] An order therefore shall go, formally dismissing Mr Buckley’s motion to vary his existing court-ordered spousal support obligations vis-à-vis Ms Capitano.

[23] Notwithstanding the earlier written indication that Ms Capitano would be seeking costs, if such a dismissal order was made at the outset of trial, she graciously indicated, through Mr Kilpatrick, that was no longer her intention. In the result, no costs of the litigation were requested, and none are ordered.

“Justice I.F. Leach”

Justice I. F. Leach

Date: September 14, 2015