A.P. (Formerly A.D.) v. F.D. (aka F.D.), 2016 ONSC 5369

Court File and Parties

Newmarket Court File No.: FC-15-048668-01 Date: 20160824 Ontario Superior Court of Justice

Between: A.P. (formerly A.D.) Applicant – and – F.D. (aka F.D.) Respondent

Counsel: Self-represented (for the Applicant) A. Abramian, for the Respondent

Heard: July 6, 2016

Ruling on Motion

McGEE J.

Overview

[1] This motion primarily decides a claim for temporary spousal support against the applicant’s first husband whom she divorced in 1985. Earlier this year the claim survived a March 2016 motion for summary judgement, in which all her remaining claims against the respondent were dismissed.

[2] The applicant is 61 years of age and divorced from her second husband. She receives CPP disability payments, and rental income that she does not report for tax purposes. [^1] The respondent is 69 years of age. He retired in 2003. His monthly income consists of CPP, OAS and an employment pension. His second spouse retired in July 1998. Her only source of income is CPP. The respondent’s evidence is that their joint expenses exceed their income and that they are drawing down savings to meet their financial needs. Each of the parties owns their own home.

[3] Their 1985 decree nisi contains a bar to future claims for spousal support and mirrors a support release clause incorporated into the parties’ Separation Agreement, which had been executed about six months earlier. In 1985 both parties were fully employed. They acknowledged in the Agreement that its terms for property division made them financially independent. Each has since remarried. Each has made very different financial decisions over the past 30 years.

[4] I decline to award temporary spousal support. There are contradictory and contested facts on the record before me that can only be decided at trial, and must be decided in the applicant’s favour before she can establish an entitlement to support. This court’s earlier decision that entitlement to support is a genuine issue requiring a trial does not equate to a finding that the applicant has a prima facie entitlement to support.

Chronology of Relevant Events

[5] The reader is referred to Justice Douglas’ reasons for decision on a motion for summary judgement heard March 22, 2016, released April 15, 2016. Those reasons contain a fulsome chronology of the parties’ marriage, separation, divorce and the circumstances leading to this Motion to Change, and subsequent Application(s). I adopt, and rely upon that chronology, and reproduce certain sections within this decision, augmented by additional relevant events within this motion record.

(a) The parties are former spouses who were married on October 11, 1969 at the very young ages of 15 and 22.

(b) It was a relatively short marriage. The parties had no children.

(c) Each party fully participated in the work force during their marriage, to their respective potential.

(d) According to their October 3, 1984 Separation Agreement, the marriage came to an end during the summer of 1976. Each party released any claims for spousal support and equalization. Both had counsel representing them in the negotiation, drafting and execution of the Separation Agreement.

(e) On September 15, 1983 the matrimonial home was transferred from the parties’ joint names to the applicant’s sole title for no consideration.

(f) Pursuant to para. 6 of the Separation Agreement, the respondent released his claim for an interest in the matrimonial home in consideration of the release by the applicant of her claims to an interest in his RRSPs, pension and savings. If the applicant remarried, she was to pay the respondent $40,000.

(g) The Separation Agreement also included the following release regarding spousal support:

Financial support

The wife and husband each acknowledge that neither requires support for themselves and that they have fully and carefully considered their present situations, future prospects and the risks in life both financial and otherwise and they agree neither will claim support or maintenance from the other regardless of the circumstances and if such claim is made this agreement shall be a complete defence thereto.

(h) There were no certificates of independent legal advice appended to the Separation Agreement; but the Separation Agreement did include a standard form clause (for the time) in which each party acknowledged having made full disclosure, that the agreement was reasonable and fair, its terms were understood, entered into freely and that independent legal advice had been received. Each of the respective lawyers witnessed his or her client’s execution of the Separation Agreement.

(i) On October 6, 1984, three days after the execution of the Separation Agreement, the respondent moved out of the former matrimonial home, leaving his former spouse in sole possession.

(j) In October 1984 (which the applicant now states was the actual date of separation, not summer of 1976) she was employed on a full-time basis earning about $22,700 per year as a Legal Secretary. The respondent was employed as a tool and dye tradesman for Ontario Hydro. His income at the time is not yet in evidence.

(k) On April 9, 1985 Justice Ferguson signed the decree nisi. It issued on July 16, 1985 with terms mirroring the Separation Agreement. It states at paragraph 4:

AND THIS COURT FURTHER ORDERS AND ADJUDGES that the wife and the husband each acknowledge that neither requires support for themselves and that they have fully and carefully considered their present situations, future prospects and the risks in life both financial and otherwise and they agree neither will claim support or maintenance from the other regardless of the circumstances and if such claim is made this Agreement shall be a complete defence thereto.

(l) The applicant married her second husband on June 9, 1990. In October of that year she paid $40,000 to the respondent in accordance with the Separation Agreement.

(m) On February 14, 1996 the respondent married his current spouse.

(n) In January 1999 the applicant separated from her second husband, Mr. P.. Shortly after separation, she stopped working. In July 1999 she applied for and obtained CPP Disability - which she continues to receive to the present. Qualification was based on an assessment that she was suffering from a major depressive reaction associated with long-term dysfunction in her marriage and separation from Mr. P..

(o) The applicant sought treatment for depression and consulted with various psychiatrists and psychologists. Parts of these reports were summarized by Justice Douglas in his April 15, 2016 reasons. At no time did she allege that she had been sexually abused by her first husband. I have included some of the parts summarized, in chronological order.

Report of Dr. Finkelstein dated March 17, 1999:

The Applicant described to Dr. Finkelstein “both long standing depressive patterns and more acute symptomatology brought about by the most recent “desertion” of her husband” (the seventh such incident during their nine-year long marriage)….. The Applicant “has suffered from dysfunctional attachments throughout her life. Her parents’ marriage was filled with violence, threats, and intimidation and the children were often beaten with a belt and thrown down the stairs”…

“Much anguish was expressed with regard to her first marriage at age fifteen which led to a decade and a half of violence, short-lived protection during the first part of the marriage under the auspices of the Children’s Aid Society due to her young age, police involvement, and finally, annulment. Mrs. A.P. felt considerable pride in being able to knit her life back together and function independently until she met her current partner, with whom she has had steady torment, grief, intrusion from his interfering parents and physical wear and tear…”

Dr. Finkelstein’s report of May 10, 1999:

Under the heading “The Impact of the Marital Separation on the Patient”: “Mrs. A.P.’s depressive reaction is pervasive and severe. She is tormented, anguished and preoccupied with all the minute details of the marital relationship and the accumulating emotional hurt and rejection which she believes she has suffered in a repetitive and relentless fashion. Although she recognizes that she played a role in the failure of the relationship by “putting up walls and shooting defensive arrows”, she believes that this coping pattern was inevitable in light of the perceived failure of attachment, commitment, loyalty and affection on her husband’s part.”

Under the heading “Diagnosis and Prognosis”: “The diagnosis is of a major depressive reaction associated with long-standing marital dysfunction, further complicated by the inevitable stresses of a separation process. There are also depressive character traits which lead to a propensity for suffering and lack of fulfilment in her most intimate relationships. The prognosis indicates that there will probably be a prolonged period of impaired functioning with intense feelings of pessimism, anger, depletion, shame and paralysis of will…”

(p) The various reports were submitted into evidence within Mr. P. and Mrs. A.P.’s high conflict litigation. The matter was fully heard at trial. In June of 2000, Justice Quinn released reasons awarding the applicant spousal support from her second husband in the amount of $1,000 per month commencing July 1, 2000.

(q) On a contested proceeding in October 2004 Justice Donohue made a Final Order terminating the spousal support. Mrs. A.P. appealed the decision.

(r) The Psychological Assessment of Dr. Heather Wheeler, psychologist, dated February 18, 2005 states:

…Ms. A.P. described herself as being a relatively happy person before 1997. She grew up in what she called a “normal” and happy home, although she reported her family was “very poor”. She married young, at fifteen years old, to the eight years older “boy next door”….she divorced her first husband after many years of non-intimacy….Ms. A.P. reports feeling chronically depressed since approximately February 1999 prior to which she said that she was managing as best she could…she believes that the onset of the symptoms was in February 1999 when her husband left her….she denied having any past depressive episodes… taken together the above symptoms are consistent with a diagnosis of major depressive disorder (severe without psychosis, chronic with anxiety features).

(s) The applicant’s Appeal of Justice Donahue’s Order was dismissed by the Ontario Court of Appeal on July 5, 2005. The applicant was denied leave to appeal to the Supreme Court of Canada on December 15, 2005.

(t) In early 2006 the applicant called the respondent and told him that her marriage to her second husband had failed. According to the respondent, the applicant contacted him two more times, the last time in 2014. On each occasion she requested that he repay to her the $40,000 that she had paid in October 1990.

(u) After the respondent’s 2014 refusal to pay, the applicant initiated a criminal complaint against the respondent on allegations of sexual assault between 1968 and 1984. The charges were withdrawn by the Crown in June 2015.

(v) On July 2, 2015 the applicant issued a Motion to Change the decree nisi of April 9, 1985. She sought expansive relief, much of which is unavailable in a Motion to Change.

(w) On September 21, 2015 she issued an Application for spousal support, benefits, life insurance and pension, equalization, the sale of property, enforcement of an oral Marriage Contract between her and the respondent’s now-deceased mother, and a claim against his mother’s estate. The Application cited sexual assault and beatings never previously alleged, the full impact of which she only discovered in September 2014.

(x) The respondent’s motion for summary judgement was heard on March 22, 2016.

(y) On April 25, 2016 the applicant met with Dr. Wheeler, asking her to reconsider her psychological assessment report of February 18, 2005. Dr. Wheeler concludes in her amendment that, “my assessment and brief description of her first marriage was not intended to summarize her experience of her first marriage.”

(z) In Justice Douglas’ reasons released April 15, 2016, the motion for summary judgement was partially granted. The claims of equalization and division of property were dismissed; leaving only the issue of spousal support open for future adjudication.

(aa) On June 2, 2016 the applicant withdrew her Application. On the same day she issued a second Application. In that Application she makes claims for all of the previously sought relief with an additional claim of $100,000 against the respondent’s mother’s estate for breach of fiduciary duty resulting from alleged acts by her son. The various claims seem to be for damages, including “loss of equalization rights.” Both the Motion to Change and the Application appear to be ongoing, active proceedings.

June 7, 2016 Motion Heard July 6, 2016

[6] On June 7, 2016 the applicant issued this Notice of Motion for ten itemized orders which can be summarized as follows:

(a) Temporary spousal support of $2,500, or 40% of the respondent’s gross income from all sources; and a retroactive lump sum of spousal support to be calculated. (Paragraph 1) In oral submissions on the motion, the applicant sought half of the respondent’s income.

(b) That the respondent be imputed with income of $65,000 in 1984 and $100,000 in 2016. (Paragraph 2)

(c) An order that the respondent cannot deplete property. (Paragraph 4)

(d) Orders for extensive disclosure that relate to the respondent’s income from 1980 to 1986, and rental income records from 1995 and 1996. (Paragraph 5(a) (f))

(e) Orders for extensive disclosure that relate to the respondent’s savings, pension, RRSPs retirement package, his inheritance from his deceased mother, rental income records from 1995 and 1996. (Paragraph 5(b) (c) (d) (e))

(f) Payment of $4,000 towards an unidentified medical expert. (Paragraph 6)

(g) Contact information for the respondent’s brother and other family members. (Paragraph 8)

[7] Paragraph 5(a) is on consent. To the best of his ability, the respondent will obtain his 1980 to 1986 Income Tax Returns. Order to go accordingly.

[8] The applicant’s claim for equalization and a division of property have been dismissed. The estate claim is not before me, nor was the estate served with this Notice of Motion. The relief set out in paragraphs 4, and 5(b) (c) (d) (e) of the June 7, 2016 Notice of Motion is dismissed.

[9] Paragraph 5(f) is dismissed for reasons that are set out below. (Records for 1995 and 1996 rental properties) The respondent’s post separation increases in income are not relevant to a determination of support until the applicant has established entitlement and a compensatory basis for her claim.

[10] Paragraph 6 is dismissed. The applicant has placed no evidence before the court on the necessary prerequisites for a determination under [Rule 24(12) of the Family Law Rules][^2].

[11] Paragraph 8 is dismissed. The named persons are entitled to privacy and ought not to be drawn unnecessarily into a proceeding in which there is no basis to believe that their evidence would be relevant to the issues available for litigation.

[12] Remaining is the claim for temporary spousal support.

Temporary Spousal Support

[13] I have made a careful review of the applicant’s affidavits, expansive exhibits and the many loose attachments filed in support of this motion. Much of it does not relate to a claim for temporary spousal support. For example, fifteen pages of the applicant’s nineteen page April 27, 2016 affidavit, relitigates the March 22, 2016 summary judgement motion. The applicant gives lengthy responses, some with capitals and underlining, to certain excerpts from Justice Douglas’ April 15, 2016 reasons for decision, and to paragraphs within the transcript of the motion. She makes fresh responses to the March 22nd submissions of respondent’s counsel.

[14] The remaining four pages take issue with the respondent’s budget within his April 25, 2016 Financial Statement, [^3] his spouse’s contributions to their expenses, his pension payout, the value of his health care benefits and his inheritance.

[15] The applicant’s focus on the respondent’s ability to pay support is premature. When parties enter into domestic contracts, or consent court orders and release claims of support, they are entitled to rely on those covenants.

[16] [Driscoll v. Driscoll][^4] lists a number of factors to be considered by the court on motions for temporary spousal support, citing [Robin v. Kuhn][^5]. These factors include, but are not limited to the following:

(a) Interim support should only be awarded where it can be said that a prima facie case for entitlement has been made out; and,

(b) Where there is a need to resolve contested facts, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order temporary support.

(c) The court does not embark on an in-depth analysis of the parties’ circumstances at the interim stage. Such an inquiry is best left to trial.

[17] Black’s Law Dictionary defines prima facie as, “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” The onus is on the support seeker. It is a very different analysis than that required on a motion for summary judgement. In the latter, the respondent must demonstrate that there is no genuine issue requiring a trial of the claim. A finding that a claim raises a genuine issue requiring a trial does not predetermine, or presume that the evidence sufficiently supports the claim.

[18] Justice Douglas specifically set out this limitation in paragraph 88 of his April 15, 2016 reasons, in which he states, “[m]y function on a motion for summary judgment is not to arrive at conclusions on the substantive issues in dispute; rather, the issue is whether there is a genuine issue requiring a trial.” [^6]

[19] In variation applications, there is a presumption that the order made was a correct and proper order. [^7] This motion is brought within a Motion to Change commenced thirty years after the parties released their entitlement to spousal support within a separation agreement; and consented to terms in a decree nisi that confirmed their Separation Agreement was a complete defence to any future claim for support.

[20] Even if the court considers the relief sought within the context of the applicant’s second Application – to set aside the Agreement, rather than vary it – there are significant deficiencies.

[21] The respondent conflates the tests for de nova spousal support, and those that follow a [Miglin][^8] analysis. In the latter, courts are to exercise caution in overriding an agreement that the parties have made and relied upon. A moving party has the burden of establishing the factual foundation for overriding the agreement, failing which the interim order should not be made. The applicant has not yet put her mind to [section 56(4) of the Family Law Act][^9]. It is not sufficient to simply compare the parties’ current financial circumstances and seek an order for the difference.

[22] On the record before me, there is no factual foundation to override the Separation Agreement. The applicant’s escalating allegations of abuse, sexual assault and predatory behaviour are stridently denied by the respondent. As I am unable to assess credibility on a motion, I am unable to resolve the contradictory evidence in the affidavits. It is therefore not open to me to conduct the Miglin analysis that is a precondition to a temporary order for spousal support.

[23] Even assuming entitlement, there must be a consideration of the intervening factors, as well as the reasons for the applicant’s considerable delay in pursuing her claim. Temporary support in these circumstances would be based on an assessment of the present means and needs of the parties having regard to the roles assumed by the parties and the standard of living enjoyed during the marriage.

Post separation increases in income are not automatically shared with support recipients. [^10] Absent a compensatory claim, it is the uncommon case in which a recipient spouse will share in any post separation increase in the payer’s income. [^11] Compensatory claims must be assessed at trial. On this record the applicant asserts no facts that would even initiate such an analysis.

The applicant’s motion for temporary spousal support is dismissed.

Costs

The respondent has been successful on this motion. He is to serve and file his costs submissions by September 8, 2016. The applicant is to serve and file her response by September 21, 2016 reply, if any, by September 28, 2016. Submissions are limited to two pages, exclusive to Offers to Settle and Bills of Costs.

Madam Justice H.A. McGee Released: August 24, 2016

Footnotes

[^1]: Her evidence on the net amount of her rental income varied significantly between her affidavit materials and her answers on Questioning. It is not necessary to determine her actual rent received within these reasons. [^2]: O. Reg. 114/99 [^3]: Which she describes in paragraph 82 as “false.” [^4]: Driscoll v. Driscoll, Lemon J. [^5]: Robin v. Kuhn, 2009 BCSC 1163, 2009 B.C.J.No. 1699 [^6]: For the balance of his reasons as to why the claim for spousal support raised a genuine issue requiring trial, see paragraphs 89 and 90 of his April 15, 2016 reasons. [^7]: Gray v. Rizzi, 2016 ONCA 152 [^8]: Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24 [^9]: Family Law Act, R.S.O. 1990, c. F.3 [^10]: Kohan v. Kohan, 2016 ABCA 125 [^11]: Hersey v. Hersey, 2016 ONSC 3990