Court File and Parties

COURT FILE NO.: 831/16 DATE: 2017-06-08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua Hastings Applicant – and – Rebecca Hastings Respondent

COUNSEL: Nicole Matthews, for the Applicant Raymond Sowley, for the Respondent

HEARD: June 7, 2017

THE HONOURABLE MR. JUSTICE A. PAZARATZ

Judgment

[1] Endless motions for temporary orders with no apparent interest in proceeding to trial – this emerging trend is protracting litigation, driving up costs, frustrating litigants, and needlessly placing judges in the untenable position of having to decide complex issues based on inadequate information.

[2] That was the main problem with this long motion I heard on June 7, 2017. The timing and context is important.

[3] The Applicant husband is 42. The Respondent wife is 39. The parties have two children, Fynnigan age 10 and Penelope age 8.

[4] The parties were married on February 16, 2006. They separated for the first time on January 10, 2010. They went to court in Milton. On July 9, 2010 they obtained an endorsement from the court that the divorce application was severed from the corollary relief, and a final order was to be issued in accordance with a Memorandum of Agreement.

[5] However that endorsement was never turned into a court order because the parties reconciled a few months later, in October 2010, and seemingly they forgot about the Milton court file.

[6] They separated again on June 1, 2016. On June 2, 2016 the Applicant commenced this fresh application in Hamilton seeking to deal with all of the same issues which arose after the first separation. In his Application the husband mentioned the previous Milton Order (which he incorrectly referenced as being issued in 2011). He noted in his application: “but the parties reconciled and withdrew the” (sic).

[7] Commencing in June 2016 the parties aggressively pursued parenting issues through a series of motions. The OCL ended up issuing a section 112 report on November 23, 2016. The long motion included a request by the Respondent mother for comprehensive relief in relation to parenting issues, largely along the lines recommended by the OCL.

[8] At the outset of the hearing – and at my urging -- the parties agreed to stand down while they tried to draft a settlement document in relation to non-contentious issues. To their credit, they ended up filing final minutes of settlement resolving all parenting issues. The final agreement basically entails joint custody and equal time-sharing, which appears to have been the approximate arrangement since the parties separated.

[9] That left the Respondent’s claims for spousal and child support (including retroactivity all the way back to the date of separation). That’s where I had problems with the approach the parties have taken to this litigation. a. Despite intensively litigating a series of motions since literally the day after separation in June 2016, the Respondent did not bring a formal motion for temporary spousal or child support until April 27, 2017. b. At a February 7, 2017 Settlement Conference in which Justice Brown gave opinions, the parties elected to adjourn the matter to the timelines. Effectively, they elected to put their case “on hold”. Justice Brown endorsed that the parties could arrange a Trial Management Conference “when ready and if necessary”. But the parties have still done nothing to advance this case to trial. c. But now, they have suddenly asked the court to address complex support issues in which credibility, factual determinations, and the legal effect of the 2010 Milton order are all hotly contested.

[10] The Applicant’s counsel asked that I make no order on any support issues and that I adjourn the matter to another Settlement Conference. The Respondent’s counsel objected to any adjournment on the basis that they’ve already had a Settlement Conference, and the Applicant shouldn’t be allowed to stall things off any farther because he hasn’t paid a penny of support since the parties separated one full year ago.

[11] There is no legitimate reason why the parties should present all of these complex issues to the court by way of such voluminous, conflicting and incomplete affidavit materials at such a late stage in this action. a. Each party complains about inadequate and delayed disclosure by the other party, but it doesn’t appear that either party took sufficient steps to either produce or compel disclosure in a timely way. b. There are factual disputes which could have been tested by Questioning, but the parties elected not to take such a basic and obvious step. c. On the morning the motion was to be argued, just before entering the courtroom, the Respondent’s counsel revealed to the Applicant’s counsel that the Respondent had just started a new job. Her financial situation would now be completely different. But her lawyer provided no disclosure as to the Respondent’s new income.

[12] This is not how court cases are supposed to proceed. If the Respondent had raised these support claims as far back as last summer, the disclosure and factual determinations could have been addressed long ago. Indeed, if the parties hadn’t adjourned the matter to the timelines almost four months ago, they probably would have had a trial date within weeks. That would have afforded an opportunity for all of these issues to be properly and thoroughly considered, based on much more complete and tested evidence.

[13] Motions for temporary relief are often an unavoidable but notoriously imperfect method to address urgent issues, where parties haven’t had enough time to fully prepare their case, and/or where the court system doesn’t have enough resources to give litigants an early trial. Proceeding by way of motion shortly after separation is understandable.

[14] But if parties elect to take a lackadaisical approach; if they do nothing to advance their case for months and months; and if they adjourn their case to the timelines thereby forfeiting opportunities for timely resolution – then at a certain point they may lose the right to expect judges to wrestle with inadequate affidavit materials on busy motions lists.

[15] Don’t wait almost a year and then suddenly call it an emergency.

[16] Based on the evidence presented, I am not able to fully determine the various factual and legal disputes the parties have raised in this motion. But by the same token, no spousal and child support has been paid for a year now, in circumstances where there is clearly need, entitlement and an ability to pay. So I am forced to create a temporary regime based upon imperfect evidence, with all determinations being without prejudice to revision by the trial judge once more complete information is available to the court.

[17] The Applicant’s primary objection to the Respondent’s spousal support claim is based on the Memorandum of Understanding which the parties signed in July 2010 after their first separation. The Applicant submits that this amounts to a “forever waiver” of spousal support, unaffected by the fact that the parties then reconciled for six years (longer than the four years they were together during their first period of cohabitation). I reject the Applicant’s argument. a. The uncontroverted evidence is that the Applicant was by far the primary breadwinner. b. There was a sustained period of economic dependence by the Respondent throughout both segments of this medium term relationship. c. When the parties signed the July 2010 memorandum of agreement they did not foresee that they would reconcile for such a significant period of time. They certainly didn’t address or contemplate the possibility that they would arrange their future lives so that once again the Respondent would become dependent on the Applicant. d. There is no doubt the Respondent is entitled to non-compensatory support. I would anticipate that at trial compensatory entitlement would also be established.

[18] The Applicant’s income is disputed. a. In 2014 he earned $132,756.00. b. In 2015 he earned $164,358.00. c. In 2016 – the year of final separation – he earned $85,495.00. The Applicant proposes that this is the income level which should be considered for support purposes. d. The Respondent asks that additional income be imputed to the Applicant, alleging that he deliberately reduced his work hours after separation, to reduce his exposure to support payments. e. The Applicant counters that for a period of time he reduced some of his work hours because after separation the parties implemented an equal time sharing arrangement which they both deemed to be in the best interests of the children. He says his responsibilities toward the children required that he work less. f. Neither party provided very much evidence on this topic. A court should only impute income based upon cogent evidence. This is a classic example of an issue which should not have been left to be dealt with by conflicting and inadequate affidavits. For the moment I will accept the Applicant’s $85,495.00 figure, without prejudice to the trial judge re-determining this income level once better evidence is available.

[19] The Respondent’s income was also disputed. a. It didn’t help that the Respondent swore a financial statement on February 24, 2017 in which she mistakenly listed her annual income as $42,976.00. The Applicant’s counsel attempted to seize upon that figure, even though it quickly became obvious that there was a mathematical mistake (an annual income figure had been mistakenly listed as a monthly amount). b. It also didn’t help that the Respondent insisted that her real annual income was $2,440.74 – even though it was obvious that from two part-time jobs she was earning significantly more than that. The Respondent did not provide proper disclosure with respect to her part-time income prior to starting her recent full-time job at the end of May 2017. But the Respondent’s disclosure suggested an annual income commensurate with approximately $13,000.00 from just one of those two part-time jobs. Accordingly, in the absence of better evidence from the Respondent, I accept the Applicant’s submission that for the period prior to June 1, 2017 the Respondent’s income should be calculated at $24,000.00 per year. Again, this is without prejudice to redetermination at trial. c. As stated, the Respondent provided no written verification of her income from her new job. There appeared to be some minor disagreement between counsel as to how her hourly rate should be multiplied. I accept the Applicant’s estimate that her income will be $37,000.00. Again, any lack of precision is the direct result of inadequate disclosure.

[20] With respect to retroactivity, there is no apparent reason why the Respondent waited so long to seek temporary support. This does not preclude entitlement to retroactivity, but given all of the uncertainties and remaining factual disputes, I do not believe it is appropriate for a motions judge to determine or quantify retroactivity for one full year. This can be left to the trial judge. However, since there is no doubt that the Applicant has underpaid, I find that it is appropriate to determine – on a without prejudice basis – retroactivity back to January 1, 2017. This will entail two relevant periods: a. January 1, 2017 to May 31, 2017 when the Respondent’s income is determined to be at the annual rate of $24,000.00. b. June 1, 2017 onward when the Respondent’s income is determined to be at the annual rate of $37,000.00.

[21] I have also considered the Applicant’s claim that he is paying significant support for a child of another relationship – and the Respondent’s retort that he’s not actually making those payments and that he’s $60,000.00 in arrears. That’s yet another factual dispute the parties could and should have resolved by now.

[22] I have considered the financial statements filed by the parties, their respective budgets (particularly in the context of shared parental responsibility), and the Spousal Support Advisory Guidelines.

[23] Final Order: a. Per partial minutes of settlement (22 paragraphs resolving all parenting issues).

[24] Temporary order: a. Commencing January 1, 2017 until and including May 31, 2017 the Applicant shall pay to the Respondent child support in the sum of $873.00 per month and spousal support in the sum of $900.00 per month, based upon shared custody, with the Applicant’s income being $85,000.00 and the Respondent’s income being $24,000.00. b. Commencing June 1, 2017 the Applicant shall pay to the Respondent child support in the sum of $698.00 per month and spousal support in the sum of $500.00 per month, based upon shared custody, with the Applicant’s income being $85,000.00 and the Respondent’s income being $37,000.00. c. No later than July 15, 2017 both parties shall serve and file updated sworn financial statements, together with their 2016 tax returns and notices of assessment; along with proof of 2017 year-to-date income from all sources. d. By July 31, 2017 both parties shall produce copies of their bank records from January 1, 2016. e. By July 31, 2017 the Respondent shall provide written verification from her current employer as to all terms of employment including commencement date; hours; wages; benefits; availability of life insurance; and shift schedules. f. By July 15, 2017 each party shall forward to the other, through counsel, a request for any further disclosure still being requested. Requests for disclosure shall be responded to within 30 days, by either producing the disclosure or setting out in writing why the disclosure cannot or should not be produced. g. There shall be a mutual order for Questioning, if requested. Any such questioning should be organized by July 15, 2017 and it should be completed by August 31, 2017. h. SDO.

[25] Counsel should immediately contact the trial co-ordinator to schedule a next event. If they cannot agree on what the next event should be, they should set a date to be spoken to before me. If they wish to have a further Settlement Conference or Trial Management Conference, it should be before their case management judge if this can be arranged within a reasonable time.

[26] If counsel wish to address any remaining issues other than costs, they should arrange a time to see me and their clients should be present.

[27] If only costs remain in dispute, counsel may make written submissions on the following timelines: a. The Applicant’s submissions by June 26, 2017. b. The Respondent’s submissions by July 10, 2017. c. Any further submissions by the Applicant by July 17, 2017. d. If appropriate, any final reply by Respondent by July 24, 2017.

[28] I would urge counsel to reflect on whether it is appropriate to seek costs, having regard to the following Family Law Rules: 24(1); 24(4); 24(5); 24(6); 24(7); 24(9); and 24(11).

Pazaratz, J. Released: June 8, 2017