AMENDED CITATION : Roberts v. Roberts, 2020 ONSC 2354 Court File Number / Numéro de dossier du greffe FS-12-12068-02
Ontario Superior Court of Justice (Windsor) 245 Windsor Ave., Windsor, ON N9A 1J2
Endorsement / Page d’inscription
Applicant(s) / Requérant(e)(s): Jolene Ann Roberts Counsel / Avocat(e) : I. Fisher
Respondent(s) / Intimé(e)(s): Alfred Edwin Roberts Counsel / Avocat(e) : J. Sinopoli
THIS MOTION HAS BEEN BROUGHT PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
DATE: April 17, 2020
APPEARANCES: In writing by the respondent (moving party)
Endorsement
HEBNER J.
[1] The applicant and the respondent were married on July 15, 1986. They separated on November 6, 2011. I understand, from the material filed, that the respondent is required to pay spousal support to the applicant in the sum of $17,224 per month pursuant to the order of Verbeem J. dated May 14, 2014. The respondent seeks to bring an urgent motion for an order adjusting the amount of support downward.
Urgency
[2] This matter comes before the court during a time when the court has suspended its normal operations due to the global COVID-19 pandemic. At this time, the court is only hearing matters that meet the definition of urgency set out in the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (the “Chief Justice’s notice”). The Chief Justice’s notice includes the following:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
a) requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b) urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
c) dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.
[3] My task is to rule on whether this matter meets the definition of urgency as provided in the Chief Justice’s notice. I point out that a determination as to whether a matter meets the definition of urgency is intended to be simple and expeditious. It is not intended to be a motion in and of itself. (see Onuoha v. Onuoha, 2020 ONSC 1815)
[4] The respondent’s position appears to be that this matter fits within the definition of urgency in that it involves a “dire issue regarding the parties’ financial circumstances”. The applicant disputes the issue of urgency. She suggests that the matter is not urgent for the reasons set out in her affidavit evidence.
[5] According to the respondent’s evidence, he is an anaesthesiologist by profession. Until recently, he has been employed at Windsor Regional Hospital. In 2018, his income was $634,747. In August 2019, he was diagnosed with cardiac arrhythmia and congestive heart failure and had to stop working. He claims his income now is in the form of disability payments from the Ontario Medical Association disability group insurance in the amount of $104,400 per annum. He seeks an order reducing the spousal support payable to an amount consistent with the spousal support advisory guidelines based on his reduced income.
[6] As I indicated above, a determination on the issue of urgency is meant to be simple and expeditious. The respondent claims that his income has been substantially reduced such that he can no longer continue to pay the ordered spousal support. Given the extent of the claimed reduction in income, I conclude that this matter meets the definition of urgency as an alleged “dire issue regarding the parties’ financial circumstances”.
[7] My determination on the issue of urgency is without prejudice to any position the parties wish to take on the motion. Moreover, the determination is preliminary only and is without prejudice to any determination that may be made by the motions Judge, who will have the benefit of the submissions of counsel.
Disposition
[8] The motion may proceed.
[9] The parties have already filed an affidavit, a responding affidavit and a reply affidavit along with financial statements. I point out to counsel that the judiciary does not have access to the continuing record, including the endorsement record. I direct that the moving party respondent file a copy of the Verbeem J. order along with any reasons by email. In the event counsel feel there are other endorsements, orders or documents in the continuing record that ought to be reviewed by the motions judge then they may file same by email.
[10] In the event counsel wish they may provide brief facta of no more than 10 pages by Tuesday, April 21 at 4:00 pm. The hearing of the motion by conference call shall be arranged by the trial coordinator to take place as soon thereafter as possible.
Electronic signature signed and released by Hebner J. Pamela L. Hebner Justice
RELEASED: April 17, 2020