CITATION: Phillip v. Phillip, 2016 ONSC 1818

COURT FILE NO.: FS-07-FD-330476-0001

DATE: 20160314

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Glenda Phillip, Applicant; Respondent in the Motion to Change

AND:

Roderick Phillip, Respondent; Applicant in the Motion to Change

BEFORE: Kiteley J.

COUNSEL: Self-represented, Applicant

Self-represented, Respondent

HEARD: March 14, 2016

ENDORSEMENT

[1] In a final consent order dated June 19, 2009, Mesbur J. ordered Mr. Phillip to pay child support for Matthew, born February 27, 1999 in the amount of $660 per month in accordance with the Child Support Guidelines and pay $500 per month for spousal support. The order provided that commencing June 1, 2010 and annually, the parties were required to exchange full tax returns and notices of assessment and that the parties would adjust child support for each year based on Mr. Phillip’s actual income, and retroactively adjust it up or down based on actual income for that year. The order also provided for a review of spousal support by either party on or after July 1, 2012 and that the spousal support was variable under certain conditions. I do not have the Support Deduction Order and the order by Mesbur J. did not indicate the income of Mr. Phillips but based on the current Child Support Guidelines, it would have been around $70,000.

[2] In October 2014, Mr. Phillip started this motion to change final order. He asked that the child support be terminated effective December 1, 2013. His Motion to Change appears to ask for a reduction in child support payments effective January 1, 2014. At page 5, Mr. Phillips asks that the spousal support be terminated. The grounds are he had a heart attack on December 2, 2013 and was no longer employed. He had been receiving long term disability effective August 2014 as a result of which he earned approximately $2,000 per month. He said that FRO was garnishing 50% of his disability income. In his affidavit, he asked that the child support be reduced to be in accordance with his long term disability income effective December 1, 2013 and that the court terminate the spousal support order effective November 30, 2013. He also asked for an order that Ms. Phillip finalize the divorce immediately. He provided documentation to confirm his health status and receipt of long term disability income. He provided a copy of his Tax return summary for 2013 that reflected Line 150 employment income of $59,402. His line 150 income for 2012 was $67,021 and for 2011 it was $71,391.

[3] Ms. Phillip filed a Response to Motion to Change sworn December 8, 2014 which provided little information and in which she asked that the child support order and spousal support order remain the same; and in the alternative that his income be imputed at $67,000. In her affidavit in support she insisted that he had not had a heart attack or a stroke but he had had a bypass stemming from a blockage to one of his heart valves which she said was fully repaired. Having visited him at the hospital, she believe that he had fully recovered from his “medical incident” and could return to work fully. She said that they had been married for more than 18 years and that at the time of the separation she had been employed as a labourer earning $22,000. She had suffered an injury at work and was on workers compensation receiving $510 per month from WSIB. She said that Mr. Phillip had refused to spend more time with Matthew which left her with more child care responsibilities and that Mr. Phillip did not contribute to extracurricular activities including soccer. According to her form 13 financial statement sworn December 5, 2014 her income consisted of WSIB $510, spousal support of $500 and child tax benefits in the amount of $498 for a total of $1,508 per month. Her line 150 income in her 2013 Notice of Assessment was $7,144; in her revised Notice of Assessment for 2012 it was $9,249; and her 2011 Notice of Assessment indicated line 150 income of $6,258. She did not indicate that the support order had been assigned.

[4] Ms. Phillip served a form 13 financial statement sworn February 26, 2015 in which she disclosed her income as follows: WSIB $530; spousal support $500; child tax benefits $419; other sources of income $900 for a total of $2,349 per month or $28,188 per year. In that form 13, she disclosed an interest in a residential property valued at $450,000 and a locked in pension plan.

[5] Mr. Phillip provided a supplementary affidavit sworn March 23 attached to which was his T4 for 2014 which indicated total income employment income of $24,277. He also provided a supplementary affidavit sworn April 23 in which he confirmed that he received LTD in the amount of $2150 less 50% paid to Ms. Phillips through FRO. He stated that he expected surgery for both hip and knee replacement followed by 8 weeks of physiotherapy. He asked that the Motion to Change be dealt with soon.

[6] The parties had DRO case conferences on December 9, 2014, February 14, 2015 and March 24, 2015. The first case conference with a judge was April 29, 2015 and I did the second on October 23, 2015. On that occasion, I adjourned to January 15, 2016 so as to enable all steps to be taken to make it a productive case conference. Mr. Phillip complied with my order. In his affidavit sworn January 12, 2016, he provided his Notice of Assessment for 2014 which indicated line 150 income of $25,388. Attached to his case conference brief is a copy of his 2014 Tax Return Summary. He also provided a letter from the insurer dated October 23, 2015 which indicated that effective November 1, 2015, the amended support deduction was $1,160 month and, applying that to his LTD benefit, he would receive $990 per month.

[7] Ms. Phillip failed to comply with the order dated October 23, 2015. As my endorsement dated January 15, 2016 indicates, Ms. Phillip had consulted a lawyer, Mr. Hagler, but he was not present. Ms. Phillip brought with her a 2 page letter from Mr. Hagler dated January 14, 2016. She gave a copy to me and to Mr. Phillip. Amongst other things, in that letter, Mr. Hagler made a request for the following documents:

(a) pension valuation of any existing pension that he has acquired;

(b) medical authorization so that the Applicant can look at his medical file

(c) authorization for the co-operators, since this is the LTD provider

(d) Revenue Canada authorization so that the Respondent (sic, Applicant) can obtain copies of notices of assessments for the last three years, etc. and copies of any attachments that he submitted along with his tax returns for the last three years.

[8] Mr. Hagler also attached a statement purportedly signed by the parties daughter born February 16, 1988 in which she said that her father had confirmed that he did not have to pay any rent to his common law wife.

[9] In my October 23 endorsement I had directed that such a request for documents should be made by November 16 so that Mr. Phillip would have had time to respond. In October I had also directed Ms. Phillip to provide by December 11 proof that Matthew was in school full time. She had not done so. After searching through her papers and insisting that she had given it to Mr. Hagler who had given it to Mr. Phillip, she did find a form dated December 11, 2015 “to whom it may concern” verifying that Matthew Daniel Phillip born Feb 17, 1999 has been registered at St. Basil-The-Great College School in grade 11” and under “dates of attendance” there is a notation “2015 Sept 08 to present”. In other words, Ms. Phillip had provided some documentation to confirm that Matthew was still in school but not by December 11. Furthermore, by January 15, a further school term had commenced and confirmation of continued attendance was not provided.

[10] Ms. Phillip had not served and filed a case conference brief as I had directed but instead appeared to rely on the letter from Mr. Hagler which was inappropriate.

[11] In his letter dated January 14, 2016, Mr. Hagler indicated that Ms. Phillip wanted to make a claim against Mr. Phillip’s pension. Mr. Hagler acknowledged that such claims might require an amendment. As I noted in my endorsement dated January 15, 2016, it would require more than an amendment. The Application had started in 2007. The only part of the file before me was the Motion to Change. I pointed out that a claim against a pension cannot be made in response to Motion to Change or even in a Motion to Change. I observed that the claim might be barred by limitation period.

[12] In that endorsement I indicated that Mr. Phillip was entitled to have his day in court and, after another unproductive case conference, I set this date for the hearing. I made an order that if Ms. Phillip or her counsel intends to make a request for documents or information, it had to be done in writing no later than January 29, 2016 and that if Mr. Phillip received such a request, he should consult a lawyer as to whether he is required to answer. I ordered that Mr. Phillip was not required to provide any documents or information with respect to his pension. I directed Ms. Phillip to serve and file a factum and I ordered her by February 1, 2016 to provide to Mr. Phillip another statement from the school that confirms that Matthew continues to be registered at the school and that provides the dates of non-attendance from September 8, 2015 to the date of the letter. I directed the Registrar to send a copy of the endorsement to Mr. Hagler by fax.

[13] Mr. Phillip sent a letter to Mr. Hagler dated March 7, 2016 in which he responded to Mr. Hagler’s request for documents in his January 14 letter. His response to each request was “no/denied” including the request that Mr. Hagler had made for a pension valuation. In that letter, Mr. Phillip pointed out that he had asked for a copy of the marriage certificate.

[14] Ms. Phillip arrived today at 10:35. She brought with her an affidavit dated March 11, 2016 which had not been served on Mr. Phillip. I took a recess to read the 2 page affidavit with the 14 pages of attachments which related to her care arising from her workplace injury in 2006 and her claim for WSIB. In that affidavit, she explains that Legal Aid would not allow her lawyer agent to prepare a factum and in any event, the lawyer could not prepare it because Mr. Phillip had not responded to the request for disclosure. In the endorsement made January 15, I had directed Ms. Phillip to provide by February 1 a statement from the school that Matthew continues to be registered at that school and that she provide the dates of non-attendance from September 8, 2015 to the date of the letter. Mr. Phillip had received a 3 page attendance profile as well as Ms. Phillip’s T5007 Statement of Benefits for 2015 indicating receipt of $6,912 in WSIB benefits. Ms. Phillip brought with her a note that her daughter had written at her request in which she said she did not think it was fair that the motion continues under these circumstances and it was her position that I was not being objective and I was showing bias. She asked that a different judge be assigned.

[15] I see no basis for withdrawing from this case.

[16] I agree that Mr. Phillip’s March 7 letter responding to the request for disclosure was appropriate. I had ordered that he need not respond to the pension valuation issue. He had already provided medical documentation. The request for authorization for the LTD insurer was not comprehensibe and he had already provided copies of notices of assessment. Given the disclosure provided, I do not consider it necessary that he provide copies of his tax returns.

[17] There is no question Mr. Phillip has had a material change in circumstances which started no later than August 2014 when his LTD began. His total income is approximately $25,000 per year. Without spousal support, Ms. Phillip’s income is approximately $22,000 plus child support that she has regularly been receiving. The consent order of Mesbur J. contemplated a review of spousal support in 2012. That did not happen but her circumstances are similar to his, except that she has an interest in a residential property which she values at $450,000 and has been able to pay a mortgage in the amount of $379,000. While Ms. Phillip suffered a workplace injury in 2006, at page 2 of the letter of Dr. Tozman dated February 11, 2016, he indicates the following: “I got injured. I almost died on my job. WSIB stressing me out not my husband. WSIB put me in a program and I could not get a job.” From that I infer that her current financial circumstances do not arise from the marriage or the breakdown of the marriage. Given Mr. Phillip’s material change in circumstances I am satisfied that the spousal support should terminate.

[18] As for the termination date for spousal support, Ms. Phillip has known since late 2014 that he was pursuing a change in support. As the many attendances above indicate, this matter has gone on almost 18 months. While she has known from the outset that a termination of spousal support was possible, she continued to resist and to a certain extent, she contributed to delay. I find that it is reasonable that spousal support be terminated effective October 23, 2015 which was the case conference I adjourned. However, that would create an overpayment that would have an impact on the payment of child support. For that reason, I will make the termination of spousal support effective April 1, 2016.

[19] As for child support, Matthew was born February 27, 1999. He was almost 16 years old when the Notice of Change was commenced in December 2014 and he is now 17 years old. Ms. Phillip did not provide confirmation from the school that Matthew remains in school but the attendance profile indicates that he was in school as of January 12, 2016. I accept that he continues to be entitled to child support. However, the amount ought to be reduced to reflect Mr. Phillip’s much reduced income. Because it is child support, I am not prepared to reduce it retroactively.

ORDER TO GO AS FOLLOWS:

[20] Paragraph 5 of the final order dated June 19, 2009 is varied to terminate spousal support effective April 1, 2016.

[21] Paragraph 4 of the final order dated June 19, 2009 is varied as follows:

Effective April 1, 2016, based on income of $25,000, Mr. Phillip shall pay to Ms. Phillip for the support of Matthew Phillip born February 27, 1999 the sum of $200 per month.

[22] Mr. Phillip shall take out this order without approval from Ms. Phillip and he shall prepare an amended Support Deduction Order.

Kiteley J.

Date: March 14, 2016