Court File and Parties
COURT FILE NO.: 305-2017 DATE: 2018/12/27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Rodney Donald Embree, Applicant – and – Gina Claire Persaud, Respondent
COUNSEL: Jonathan S. Solomon, for the Applicant Not present
HEARD: December 18, 2018
Endorsement
Charbonneau, J.
Introduction
1This is a continuation of a confirmation hearing under the Divorce Act, which started on February 23rd, 2018. The purpose was to see whether or not the order of New Brunswick, Court of Queen’s Bench, Justice Noble’s order of the 14th of November, 2017 should be confirmed. In his Reasons for Decision, Justice Noble found that the financial situation of Mrs. Persaud had changed as a result of post-traumatic stress disorder, which was diagnosed in June 2009. It has to be understood here that the application by Mrs. Persaud to vary was under s.17(10) of the Divorce Act, which provides that when there’s an application to resume support which has terminated, then the Court may resume that support if variation is necessary to relieve economic hardship that is related to the marriage, and there’s a change of circumstances which had they existed at the time of making the order would likely have resulted in a different order.
2At the hearing, Justice Noble heard the evidence of two experts, a psychologist and a psychiatrist. He came to the conclusion that the section had been met and that, in fact, there was a change of circumstances and, therefore, ordered that the support be resumed at an amount to be fixed by the confirming court once the financial details of Mr. Embree’s income were determined. He made his order retroactive to the 1st day of August, 2015.
3The husband was not present at the New Brunswick hearing, and I allowed him to provide his own expert evidence so that the matter could be reviewed by this Court with a more ample record, and also seek to get some of the medical records on which Justice Noble’s order was based.
4Since then, the husband has filed two expert reports in the form of affidavits answering questions. The husband’s expert disagreed with the wife’s experts and gave a contrary opinion. The wife provided reply to this expert evidence.
5Now, in the ordinary course, if this had been a normal trial, the wife’s experts would have testified and also replied at the same time to the counter-expertise provided by the husband. Everybody would have filed their expert reports in advance, and then the experts would have testified and been cross-examined. That’s not what we have.
6Now, that’s where we are, and I have to decide now whether to confirm or not the order of Justice Noble.
Analysis
7I had already indicated at the initial confirmation hearing that I had serious doubts that this was a proper case for a bifurcated hearing.
8At this hearing, counsel for Mr. Embree referred me to the decision of Justice Pazariatz J, in Chree v Chree [2015] O.J. No 546. At paragraph Justice Pazariatz refers to section 18(2) of the Divorce Act. As a result, I first became aware that the bifurcated hearing process provided by section 18(2) of the Divorce is only available where the issues can be adequately dealt with by a bifurcated hearing.
9I am of the view that the issue of the wife’s PST and its cause cannot be adequately determined by a bifurcated hearing. It is impossible to properly assess the experts’ evidence and the new factual evidence filed by the parties at such a hearing.
10I therefore find that the threshold requirements of section 18(2) have not been met. For that reason alone, I do not confirm the provisional order.
11My order is totally without prejudice to Mrs. Persaud’s right to bring a new application to vary but without resort to the provisions of section 18. Mr. Embree will have to be personally served with the new applications. The new hearing will be before the same Judge hearing all the evidence at once.
12In the circumstances, each party to bear his or her own costs of the present application.
The Honourable Justice M. Z. Charbonneau
Released: December 27, 2018
COURT FILE NO.: 305-2017 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: Rodney Donald Embree, Applicant – and – Gina Claire Persaud, Respondent
REASONS FOR JUDGMENT Charbonneau, J.
Released: December 27, 2018