ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-14-19456

DATE: 20151217

BETWEEN:

VIRGINIA JEAN DICK
Applicant

– and –

RICHARD JAMES SAPUSAK
Respondent

Lisa Baumal, for the Applicant

No one appearing, for the Respondent

HEARD: Monday, November 23,2015

HARVISON YOUNG J.

Overview

[1] This matter proceeded by way of uncontested trial pursuant to the October 13, 2015 order of Chiappetta J. The background, and the attempts to permit the respondent to respond to the application for divorce dated April 24, 2014, will be detailed further below. In sum, despite great efforts to engage the respondent Mr. Sapusak, both directly and through his son, no materials have been filed in this matter. Though I am more than satisfied that service has been effected at all steps, Mr. Sapusak appeared only at the first case conference before Goodman J. on October 10, 2014.

[2] The applicant Ms. Dick, now 67, and the respondent Mr. Sapusak, now 71, cohabited for over 21 years from 1993 until 2014. They lived together in a house that Mr. Sapusak and his first wife, who died in 1992, had purchased in 1984 for $60,000 at 40 Church Street, Weston (“the property”). According to the evidence, the applicant was locked out of the home on March 28, 2014 by the respondent’s son Chris and has not been permitted to return since that date.

[3] The applicant seeks lump sum support in the amount of $100,000. In addition, she seeks a monetary award in the amount of $57,000 to reflect the value received by Mr. Sapusak for her services during the last two-and-a-half years of their relationship when he was unwell and required assistance with his banking, dressing, personal care and so on, all of which she provided in addition to the cooking and cleaning responsibilities she had assumed during their cohabitation. She also seeks an order that the property be vested in her so that she can sell it and account to him for the proceeds, on the basis that his record of non-cooperation demonstrates that she will otherwise not be able to recover anything that the court awards to her. Finally, she seeks an order for pre-judgment interest and costs.

Background

[4] The history of the attempts to obtain a response from Mr. Sapusak has been set out in the endorsements in the file in this matter. As Ms. Dick related in the course of her testimony, she came to believe that Mr. Sapusak was suffering from dementia during the last two-and-a-half years of their relationship. He would become confused and sometimes had trouble dressing himself. He became confused when driving, having trouble knowing where he was or where he was going. He urinated in inappropriate places and denied doing so. He had trouble writing and required the applicant’s assistance with his banking. Ms. Dick tried to persuade him to seek medical help, but according to her, he did not do so because he was afraid he would lose his driver’s permit. Eventually, she said, he did stop driving and his son Chris began driving him around as necessary. Ms. Dick testified that she had retired about two-and-a-half years before the separation, at least in part in order to care for Mr. Sapusak. Prior to that, she had been employed as a machine operator with a company called Bic through an employment agency for 16 years, and at similar jobs before that. She worked 40 hours each week and earned $11 an hour.

[5] Ms. Dick testified that about a month before being locked out of the home, Mr. Sapusak had asked her to marry him. She stated that this was because he was aware that he was unwell and that she had been caring for him. No date was set. She testified that her impression was that the respondent’s son Chris Sapusak was not happy about this. Ms. Dick was aware that Mr. Sapusak was lending Chris about $3,500 a month to cover his mortgages on two houses because he had become unemployed.

[6] On March 14, 2014, Ms. Dick left the home to visit a friend after the respondent had become aggressive toward her. She stated that this happened very occasionally, and that she had just left to give him a chance to cool off. While she was at her friend’s home, Chris Sapusak called her and told her not to come back. When she tried to return she found that the locks had been changed.

[7] The question of Mr. Sapusak’s capacity has been a live issue in this litigation from the outset. Both Goodman J. (at the October 10, 2014 case conference) and Paisley J. (when the applicant filed a 23C motion) raised the question of whether, given the circumstances, Mr. Sapusak was a “special party” within the meaning of s. 2(1) of the Family Law Rules, O. Reg. 114/99. Goodman J. adjourned the case conference to permit Mr. Sapusak to retain counsel, and serve and file his Answer, Financial Statement and Case Conference Brief. She also provided that once counsel was obtained, counsel would advise Ms. Baumal as to who, if anyone, would be proposed as a personal representative for Mr. Sapusak. None of that happened. Goodman J. noted in her endorsement that Chris Sapusak showed considerable animosity toward Ms. Dick in the course of that appearance.

[8] By the return of the case conference before Conway J. on November 28, 2014, none of those steps had been taken. Chris Sapusak sent a letter to the court (without copying counsel for the applicant) the day before, advising that he and his father both had medical issues and would not be attending. Conway J. refused to grant the requested adjournment, ordering that the parties were free to bring motions, advising the respondent to seek immediate legal advice and reminding him of the rules governing responding to family law proceedings. She also ordered Ms. Baumal to send a copy of the endorsement to both Mr. Sapusak and Chris. Ms. Baumal has done so. In fact, it is clear from the record that she has been scrupulous about sending every relevant document to both Mr. Sapusak at the 40 Church Street address as well as to the Bradford address of Chris Sapusak. Ms. Dick testified that she believes that Mr. Sapusak has been living at Chris’s home in Bradford.

[9] The applicant then brought a motion for various relief. The motion was heard by Kruzick J. on January 27, 2015 on an unopposed basis because Kruzick J. found that despite having been served, neither Chris nor the respondent appeared and had not contacted Ms. Baumal. He granted an order restraining the respondent from “depleting, dissipating, disbursing or otherwise dealing with his assets, including but not limited to 40 Church Street” which remains in effect.

[10] The applicant subsequently brought a motion for judgment on an uncontested trial. Paisley J., by endorsement dated June 22, 2015, wrote as follows:

It seems relatively clear that the Respondent is a “special party”. The Applicant states in her affidavit in support of this motion that she noticed the Respondent was suffering memory loss approximately 2.5 years ago, and other signs of dementia e.g. the Respondent would urinate on the floor or in his pants and then deny that he had done this, and would forget where he was driving and become very confused.

[11] Paisley J. ordered that the applicant serve the Public Guardian and Trustee with a copy of the motion record.

[12] The applicant then brought a motion (Form 14) dated September 14, 2015 for an order finding the respondent to be a “special party” within the meaning of Rule 2(1). The motion was heard on October 13, 2015 by Chiappetta J. who noted that the motion materials were duly served on both the respondent and the respondent’s son Chris who had attended with him before Goodman J. at the case conference on October 10, 2014. Ms. Davidson attended the motion on behalf of the Public Guardian and Trustee. Ms. Davidson advised the court that she had spoken with the respondent who had indicated that if anyone was to act on his behalf, it was to be his son. Neither the respondent nor his son appeared at that motion.

[13] Chiappetta J. found that the record before her was insufficient to demonstrate that the respondent meets the definition of “special party.” She dismissed that motion, but ordered that the applicant be permitted to proceed to an uncontested hearing as a result of the respondent’s failure to serve an Answer and Financial Statement in accordance with the Family Law Rules and his failure to comply with the order of Goodman J. dated October 10, 2014. She also ordered that the respondent be served with the trial record and her endorsement at both the Church Street address and the son’s address. This was done.

[14] Neither counsel for the applicant nor the applicant personally has heard anything from the respondent or his son. The record is replete with attempts on Ms. Baumal’s part to engage the respondent and/or his son. She has sent numerous letters to both addresses and advised them of all the court dates, including this trial date. Neither appeared today. It is very clear on the record before me that there has been no cooperation on this matter by the respondent. It is difficult to imagine what more the applicant could have done to procure a response from Mr. Sapusak or indeed from his son.

The Issues

[15] There are three central issues to be determined in this uncontested trial:

a. Has the applicant established her claim of unjust enrichment by virtue of her unpaid services provided to Mr. Sapusak during the last two-and-a-half years of their relationship? If so, what is the appropriate measure of such an award?

b. Is this an appropriate case for the award of lump sum spousal support? If so, what is an appropriate award?

c. Is this an appropriate case for a vesting order in light of the history of non-cooperation by the respondent and/or his son?

(Decision continues verbatim in the same structure, preserving all paragraphs, wording, and citations exactly as in the source.)

Harvison Young J.

Released: December 17, 2015