Court File and Parties
CITATION: Tyrrell v. Tyrrell, 2017 ONSC 6499
COURT FILE NO.: FS-14-81974
DATE: 20171101
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gregory Tyrrell
AND:
Corrie Lee Tyrrell
BEFORE: Van Melle J.
COUNSEL: Stephanie Okola for the Plaintiff
Michelle M. Abel, for the Respondent
HEARD: October 27, 2017
ENDORSEMENT
[1] The motions before me are the applicant’s motion for spousal support and the respondent’s motion for a defence medical and for an order severing the request for divorce from the corollary relief. After reviewing the materials, but before hearing the motion, I felt and thus indicated to the parties, that a defence medical was not necessary in the circumstances, given that the onus was on the applicant to prove his inability to work. The parties agreed then that I would hear the motion for temporary spousal support.
[2] The applicant and respondent moved in together in 1999 and were married in 2005. They separated on January 27, 2014. The application was commenced in October, 2014. The applicant is 41 and the respondent is 40 years of age. There are no children of the relationship.
[3] The applicant seeks an order for temporary spousal support on a compensatory and non-compensatory basis.
[4] His claim for temporary support on a compensatory basis has not been made out on this motion. There is no evidence before me which would lead me to conclude that he was economically disadvantaged or suffered a loss as a result of the roles adopted during the marriage. There are also none of the common markers of compensatory claims (i.e. being home with children during the marriage; having primary care of children after separation; being a “secondary” earner; moving for the respondent’s career, and supporting the respondent’s education or training.) Although the applicant states that the respondent was the primary earner and that he organized his life to accommodate her work schedule, the respondent disagrees with his interpretation and presentation of their relationship.
[5] A claim for non-compensatory support is based on economic interdependency and loss of the marital standard of living.
[6] The applicant stopped working and applied for CPP Disability on August 19, 2014. He was denied CPP Disability on October 15, 2014. He applied for ODSP and his application was dismissed on February 9, 2015. He appealed the decision and in July 2016 his appeal was allowed.
[7] The applicant’s support claim is based primarily on his inability to work as a result of his health. He deposes that he suffers from severe anxiety manifesting in physical pain. He details his problems with and his immunity to medication. He provides an affidavit from Dr. Cristina Stircu, his primary care physician since 2011. She deposes that she first saw the applicant in her office for his panic attacks which have been occurring since January 2011. She states that between 2013 and 2015 his symptoms became progressively worse, to the extent that he could not perform at his construction job anymore. She states that his symptoms became so severe that at certain points, he could not leave the house, and any mild to moderate physical activity has triggered anxiety associated chest discomfort and shortness of breath. She says that the applicant has had several emergency room visits for chest pain and palpitations, but no admissions.
[8] She does not say that the applicant is immune to pain medication. She says that he advised her that none of the medication he has taken has had any effect on his pain or panic attacks.
[9] She details that the applicant has been diagnosed with vanishing lung syndrome. She says it is a progressive condition that is also associated with several forms of emphysema. She did not diagnose him, she does not describe what kind of illness it is, nor does she explain how it would affect his employability.
[10] There is no corroboration of the diagnosis of vanishing lung syndrome other than an emergency room note. The emergency room note also indicates and it is corroborated by the applicant’s Financial Statement in that he shows an expenditure of $250 per month for alcohol and tobacco, that the applicant is a smoker. Given all the research that has been done on smoking and the connection to illness, I can take judicial notice of the fact that smoking is often a contributor to lung issues. If the applicant wishes to pursue entitlement to spousal support at trial the applicant must produce admissible medical evidence of this condition and the impact on his ability to work. The affidavit of Dr. Stircu is insufficient to establish this.
[11] While Dr. Stircu deposes: “Given Mr. Tyrrell’s current diagnoses, he is unable to participate physically in sustained activity, including working as a construction worker,” nowhere does she say that Mr. Tyrrell is unable to be employed in any field whatsoever. She simply says he is unable to work as a construction worker.
[12] In lieu of reliable medical evidence, Mr. Tyrrell claims that his qualification for ODSP supports the fact that he is disabled and unable to work. He was initially denied benefits, but after an appeal, he was approved for benefits in 2015. The letter allowing his appeal is dated July 8, 2016 and contains the following: “We will review your disability again on July 5, 2018. You have been given a medical review date because your condition may get better over time.”
[13] The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. At paragraphs 72 and 73 of Maltese v. Coghri, 2016 ONCJ 48, Justice Sherr said (and his comments are applicable to recipients as well as payors):
Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that they will be unable to work.
Support payors must use reasonable efforts to address whatever medical limitation they may have to earn income. This means following up on medical recommendations to address these limitations.
[14] The cases of Alves v. Alves, 2016 ONCJ 679 and Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074 stand for this proposition as well.
[15] The emergency room note and indeed the ODSP decision, indicate that the applicant was to have a follow up meeting with a psychiatrist, yet it appears that he did not follow up. A person claiming support has to take whatever steps possible to obtain and maintain employment. Failing to follow up on doctors’ instructions is not taking all steps possible. It is incumbent upon the applicant to follow doctors’ recommendations.
[16] The applicant states in his affidavit that his anxiety is so bad, that when he suffers from an attack he is completely immobilized and must stay perfectly still until the attack passes. Again this is based solely on his report and there is no evidence to support this allegation. He does however, have a drivers’ licence and since separation has travelled without difficulty, to the Dominican Republic, Cuba and Costa Rica.
[17] Under questioning from the respondent’s counsel on April 27, 2016, after stating that he was moving to Costa Rica when this case was finished, he was asked (at question 182):
Do you have any intention of working when you get to Costa Rica?
He replied:
I’m going to slowly start doing what I’m doing now which is doing what I can on my property, and as I get better and better and better, really, I don’t intend to work off the property. I just intend to make the property go way up in value.
[18] At Question 185 he said:
After the court case is all done, I have no intentions of looking for any work for a minimum of a year. I will do some work on my own property. From that point on, it’s difficult to get licence to work in Costa Rica, and basically any work I will be getting done, even around my own house, will not be being done by me. Labour down there is less that $2 an hour, so for literally, like $500 a year, I can have a guy every day working at the place, doing everything that I can’t do.
Question: Okay, and why can’t you stay here and look for work?
Answer: if I stayed here with the amount that I’m going to receive after this settlement, I would be living in a basement apt not able to work. So I’d be sitting in a hole, miserable, unable to do anything for anyone. Going down there, even if I’m never able to work again, I’m helping at least four people out.
[19] This exchange demonstrates that the applicant is not making any efforts to contribute to his own support. The Divorce Act requires that each person contribute to his or her own support to the best of his or her ability. The mere fact of a marriage, the mere fact that one party may earn more than the other, is not sufficient to establish entitlement.
[20] It appears that the applicant’s inability to work arose after the separation. In the applicant’s own answers to the ODSP questionnaire, he stated that he was employed on a full-time basis from 1997 to 2012. The ODSP decision of July 5, 2016 says at page 5, that “the applicant’s last full-time position was for 4 years and ended in 2014. Now he does odd jobs for his parents usually unpaid.” This suggests that he was employed until after the parties’ separation.
[21] In summary, the applicant’s failure to provide sufficient medical evidence corroborating his inability to work due to medical issues and the fact that for the most part the disability, if it exists, arose after the separation means that his motion for temporary spousal support must fail.
[22] The case law suggests that on interim motions, needs and ability take on greater significance. However, the case law also sets out that interim support should only be ordered where a prima facie case for entitlement has been determined. Here the applicant has not made out a prima facie case for entitlement. The medical evidence is sorely lacking. He has not demonstrated that he has followed all the recommendations of his doctors. There is no medical evidence demonstrating that he is unable to work at any job. He has not established that his inability to work arose during the marriage
[23] During the last years of the marriage the respondent had a regular income. She earned as much as $79,000 in 2016 although her base salary was $70,000. She is not working at her job, as of March 24, 2017, due to a pre-existing back injury and recent back surgery. She is relying on disability insurance for her income. She has recently been notified that her coverage is being terminated although she has not been cleared to return to work. She has appealed that decision. If her appeal is not allowed, she will be relying on Employment Insurance of approximately $28,000 annually until she returns to work.
[24] Therefore, even if entitlement were established, on the respondent’s present income, she is unable to pay support as a result of her own properly documented medical issues.
[25] The respondent asks as well that the divorce be severed from the corollary issues. The applicant opposes this request as spousal support had not been established. Pursuant to paragraph 11.(1)(b) of the Divorce Act, prior to granting a divorce, a court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines. Here there are no children. The court need not consider financial arrangements for a spouse. I have, in any event, dealt with that issue herein. Thus an order will issue severing the divorce from the corollary issues.
[26] In the result, the applicant’s motion for spousal support is dismissed. The respondent’s motion for a defence medical is dismissed without prejudice to her ability to bring the motion back on for hearing prior to trial.
[27] The respondent has been successful on this motion. At the conclusion of the argument on the motion, both counsel supplied me with their costs outlines. The respondent is entitled to her costs which I fix at $5,000 inclusive of disbursements and H.S.T.
Van Melle J.
Date: November 1, 2017
CITATION: Tyrrell v. Tyrrell, 2017 ONSC 6499
COURT FILE NO.: FS-14-81974
DATE: 20171101
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gregory Tyrrell
AND:
Corrie Lee Tyrrell
BEFORE: VAN MELLE J.
COUNSEL: Stephanie Okola for the Plaintiff
Michelle M. Abel, for the Respondent
ENDORSEMENT
Van Melle J.
DATE: November 1, 2017