COURT FILE NO.: FS-95-MP216627-0002
DATE: 20190405
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Cronish
Applicant
– and –
Sandra Cronish
Respondent
Steven Benmor for the Applicant
Director, Family Responsibility Office for the Benefit of Sandra Cronish
Maha Mashadi for the Director
HEARD: April 4, 2019
DECISION ON PROVISIONAL HEARING
C. gilmore, J.
OVERVIEW
[1] This is the applicant’s motion for a termination of spousal support retroactive to August 31, 2018, and a temporary stay of enforcement pending the confirmation hearing of this matter in Vancouver, British Columbia.
[2] The motion is brought pursuant to section 5(2)(b) of the Divorce Act and Rules 37 and 37.1 of the Family Law Rules, on a provisional basis and pending the confirmation hearing, to terminate the order of Justice Stevenson dated August 20, 2015 and the British Columbia order of Justice Weatherill dated June 15, 2016 effective August 31, 2016.
[3] Section 19 of the Divorce Act permits the court to make a provisional order where the respondent resides in a different province and where the respondent does not accept the jurisdiction of the court where the applicant resides.
[4] The respondent had no standing in this matter given that it was a provisional hearing. She did, however, call in to the court and on the consent of counsel was permitted to listen to the hearing but not participate in it. It should be noted that the respondent was given the opportunity to agree to attorn to the Ontario jurisdiction. She had filed materials and was invited to make submissions based on those materials if she chose to accept Ontario as having jurisdiction in this matter. The respondent declined and preferred to wait to make her submissions at the confirmation hearing in British Columbia.
[5] As the Director is not a party to the provisional hearing, Ms. Mashadi was present only in relation to making submissions on the temporary stay sought by the applicant.
FACTUAL AND LITIGATION BACKGROUND
[6] The applicant is 76 years old. He is a former lawyer who practiced law for 48 years as a sole practitioner.
[7] The parties were married on June 26, 1967. They have two children who are now independent adults. The parties were divorced on September 11, 1995. The respondent lives in Vancouver, British Columbia.
[8] The applicant was ordered to pay spousal support of $3,000 per month on May 25, 1998. On August 20, 2015 that order was varied and the applicant was ordered to pay $1,800 per month. The British Columbia order of Justice Weatherall dated June 15, 2016 confirmed the August 20, 2015 Ontario order.
MATERIAL CHANGE IN CIRCUMSTANCES
[9] The applicant moves to terminate support based on a material change in circumstances. Section 17 of the Divorce Act permits a support variation where there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the first order.
[10] The court must determine if the conditions for a variation exist and if so, what order ought to be made in light of the change in circumstances. Counsel for the applicant was clear that there did not appear to be any change in the respondent’s need. That is, her need for spousal support continues.
[11] The applicant’s request for a variation is based on the change in his means and his conditions.
[12] In 2018 the respondent began to suffer from dementia. His cognitive functioning declined to the point where the Law Society of Ontario became involved and requested that the applicant undergo a neuropsychological evaluation to determine his capacity to continue the practice of law.
[13] The report of Dr. Angela Carter, dated July 12, 2018, was before the court on this motion. Dr. Carter interviewed the applicant for 3.25 hours on May 17, 2018. The applicant was also subjected to a total of 9.5 hours of psychological testing over two days on May 17 and 18, 2018.
[14] The referral to Dr. Carter came about when the Law Society of Ontario learned that the applicant had been a psychiatric inpatient at Sunnybrook hospital and had been found to be incapable of managing his property.
[15] After the interview, psychological testing and a review of various documents, Dr. Carter concluded that the applicant met the criteria for a Major Neurocognitive Disorder with features of a Personality Disorder. As a result of the cognitive disorder, Dr. Carter concluded that the applicant was at risk of exercising poor judgment in carrying out his duties as a lawyer. She noted that it was highly likely that he would make inadvertent errors, fail to recognize his own limitations, and suffered a lack of insight. An example of this used by Dr. Carter was the applicant’s involvement with Nigerian fraudsters to whom he had given substantial sums of money despite repeated warnings and education from family members. The applicant continues to believe he holds large land holdings in Nigeria.
[16] The prognosis for the applicant’s dementia was a gradual decline in functioning, regardless of any treatment. Dr. Carter felt that further investigation or follow up was not merited.
[17] As a result of Dr. Carter’s findings, the applicant signed an Undertaking and Consent to the Law Society of Ontario on April 6, 2018. He acknowledged he was no longer capable of providing legal services in Ontario and ceased to do so. His law practice formally closed on August 31, 2018.
[18] Counsel for the applicant advised that although the applicant was not capable of continuing with the practice of law, he was able to instruct counsel and, as such, Special Party status was not required.
[19] As a result of his mental health issues and the closure of his practice, the applicant is no longer able to pay spousal support. His income now consists solely of CPP and OAS payments totaling $751 per month. His spouse provides care for his daily needs.
[20] The applicant’s financial statement sworn March 18, 2019 shows that he has minimal assets. He does not own a home. His credit card debt is approximately $40,000. He owes his sister $50,000 and CRA $441,000. Lines of Credit from his former law practice exceed $187,000. The applicant may well need to consult a bankruptcy trustee. Clearly, his financial situation is not a positive one.
Ruling on Material Change
[21] I find that the respondent has met the test for a material change. He is unable to practice law and is suffering from dementia. The prognosis for his condition is that it will continue to decline. His condition has been investigated and diagnosed by a psychologist who produced an extensive report to substantiate her findings.
[22] As a result of his dementia, the applicant is no longer able to earn an income and has signed an Undertaking to the Law Society of Ontario that he will not practice law in future. His income from government pension sources is nominal and insufficient to satisfy his current spousal support obligation.
[23] The applicant’s current means are insufficient to enable him to provide support to the respondent. Dr. Carter’s report supports the finding that the applicant’s current situation will not improve, only decline.
[24] Given all of the above, I find that there has been a material change in the means and conditions of the applicant and spousal support shall terminate.
THE REQUEST FOR A TEMPORARY STAY
[25] While FRO is aware of the applicant’s circumstances, they require an order to suspend enforcement of support pending the results of the confirmation hearing in British Columbia.
[26] The test for a stay of enforcement is set out Garneau v. Director, Family Responsibility Office, 2010 ONSC 2804. In order to succeed, the applicant must come to court with “clean hands” and make out a prima facie case for variation.
[27] I find that the applicant has made out a prima facie case for variation based on the facts and my ruling set out above.
[28] As for the “clean hands” argument, the Director submits that there has been some delay in moving this matter forward and that the applicant has outstanding arrears of support. I am not persuaded that either of these issues should prevent a stay.
[29] After the applicant retained counsel he wrote to the respondent indicating that he intended to seek a termination of support. She did not respond. Counsel then issued a Motion to Change. The applicant’s counsel had difficulty serving the respondent. He had to obtain an order for substitutional service on the respondent. That order was obtained on November 30, 2018. The rules then required the applicant to attend before a DRO who directed a Case Conference. A Case Conference was held before Justice Nakonechny on March 11, 2019. Only after the Case Conference was counsel permitted to book the provisional hearing date. In all, it took about eight months from the time counsel was retained to bring the matter to this point.
[30] Counsel for the applicant submits there have been no delays. The matter was moved forward as quickly as possible given the conferencing requirements under the Rules and the delays related to service.
[31] Counsel on behalf of the Director provided a Statement of Arrears current to April 1, 2019. The applicant’s CPP and OAS payments have been garnished but given the small amounts of those payments arrears of $3,704.79 have accumulated.
[32] I do not see the arrears as a reason not to grant the requested stay. It was only after the applicant gave his Undertaking not to practice law in April 2018 that arrears began to gradually accumulate.
[33] As well, the arrears are not significant given the applicant’s support obligation in comparison to his actual income.
Ruling on the Temporary Stay
[34] I find that the applicant meets the test in Garneau for a stay. He has taken steps as quickly as he could after he could no longer practice law. He has continued to pay support both by way of garnishment and direct contribution to FRO. However, given his nominal income it was inevitable that arrears would accumulate.
[35] A temporary stay of enforcement pending the confirmation hearing in British Columbia shall therefore issue.
COSTS
[36] The applicant seeks costs of $5,000. This is a nominal amount given the amount of time and effort it has taken to bring matters forward. Since the matter is only provisional and the British Columbia court will have an opportunity to hear from the respondent on costs, I see no reason not to award the amount sought by counsel.
ORDERS
[37] The draft order attached as Schedule A to the applicant’s Notice of Motion dated March 19, 2019 shall issue.
[38] The following materials shall be photocopied and delivered to the British Columbia Supreme Court and the enforcement agency (FRO equivalent) for the purposes of the confirmation hearing:
a. All of the material in Volume 2 of the Continuing Record.
b. A copy of all of the material in the Endorsement Record.
c. The FRO statement of arrears dated April 3, 2019.
d. The report of Dr. Angela Carter dated July 12, 2018.
e. The applicant’s factum of law.
f. The Director’s factum of law.
g. The issued order resulting from this hearing.
C. Gilmore, J.
Released: April 5, 2019
COURT FILE NO.: FS-95-MP216627-0002
DATE: 20190405
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Cronish
Applicant
– and –
Sandra Cronish
Respondent
REASONS FOR JUDGMENT
C. Gilmore, J.
Released: April 5, 2019