Court File and Parties

Newmarket Court File No.: FC-11-39187-01 Date: 2020-05-29 Superior Court of Justice - Ontario

Re: Patricia Dawn Surdyka, Applicant And: Jaroslaw (Larry) Surdyka, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: Patricia Dawn Surdyka, Self-Represented Jaroslaw (Larry) Surdyka, Self-Represented

Heard: In Writing

Ruling on Urgent Motion Order Request

[1] On November 22, 2013 Kaufman J. made a final Order (“the Order”) that the respondent (“the husband”) pay $2,118 monthly spousal support to the applicant (“the wife”) [1]. This Order was made on consent: the wife was recorded as having a $21,000 income and the husband a $90,167 income.

[2] The husband started a Motion to Change on April 18, 2019 asking that his obligation to pay spousal support be terminated based on a material change in circumstances. The wife has opposed the motion. Kaufman J. has been the case management judge. On March 9, 2020 he conducted a Trial Scheduling Conference and directed that a Trial Management Conference procced on May 11, 2020 and that any trial be held during the May 2020 trial sittings of the court. Since then the courts have closed pursuant to a direction from the Chief Justice of Ontario due to the current COVID-19 pandemic. It is unknown exactly when the courts will re-open or, if re-opened, the range of cases that can be heard and how they may be structured.

[3] The husband retired on February 29, 2020. The Continuing Record indicates that disclosure from both parties has been an issue. In the Trial Scheduling Endorsement Kaufman J. noted that a Request for Information (“RFI”) had not been complied with, presumably by the wife although that is not entirely clear.

[4] The husband’s materials were served on the wife by regular mail on May 17, 2020. Pursuant to Family Law Rules 6(3) and (4) the wife had until May 27, 2020 to deliver her response. She has filed nothing.

[5] The husband’s evidence is that his $6,764.94 monthly income from employment will reduce to his pension income of $4,271.59 as of June 1, 2020. He turned 57 years old on May 22, 2020 and there is filed with his material a supporting doctor’s note that the husband’s health was such that he should consider retirement. The husband also filed copies of income information for 2015 to 2018 for the wife that disclosed her line 150 income as follows:

(a) 2015 - $55,395; (b) 2016 - $180,469; (c) 2017 - $117,162; (d) 2018 - $53,307.

[6] Paragraph 3 of the Order required annual exchange of income information. There is no evidence whether the parties complied with this term but, at the very least, and given the husband’s (now former) occupation as a firefighter, it is inferentially clear that the wife earned income greater than the husband for a couple of years (i.e. 2016 and 2017) and that for the other two years for which information was provided (i.e. 2015 and 2018) double the income referenced in the Order. The husband has, though, only asked for the spousal support to be terminated effective April 1, 2019.

[7] The husband alleges that the wife has failed to provide disclosure requested in his RFI but has not identified what that comprises. In his endorsement made on March 9, 2020 Kaufman J. noted certain items of disclosure from the wife that remained outstanding. She has the incentive to delay a more timely resolution of the husband’s Motion to Change.

[8] Regular Superior Court of Justice operations have been suspended as set out in a Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”]. Only urgent conferences or motions may be heard.

[9] The Chief’s Notice frames what may be considered urgent:

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; d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

[10] The Central East Region (“CER”) Notice to the Profession effective May 19, 2020 expands the range of matters permitted under the Chief’s Notice to include matters qualifying as “pressing”. Although decided under a previous iteration of the Chief’s Notice, Kurz J. in Thomas v. Wohleber, 2020 ONSC 1965 [2] framed the general outline for the requisite test which, in my view, should be only modestly relaxed:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[11] In Clemente v O’Brien, 2020 ONSC 3287 [3] McGee J. held that the test for “pressing” must be applied in a manner consistent with the long-standing test for urgency that pre-existed the current pandemic and as set out in Rosen v Rosen [4], an approach with which I agree. In my opinion, the husband in this matter has met the “pressing” test for his motion given the unchallenged evidence before the court about the change in his income, his health and concerns about the wife’s disclosure efforts but he is only entitled to an Order suspending the support Order at this time. I am making no determination about the ultimate merits of the husband’s motion.

[12] The court has the jurisdiction to make an interim Order suspending the support Order. As Kurz J. observed in Ivens v. Ivens, 2020 ONSC 2194 [5] there is

… no express jurisdiction in the Divorce Act to allow an interim variation of a final … order. Nonetheless, judges have previously made such orders in clear and urgent cases. In Crawford v. Dixon, [2001] O.J. No. 466 (S.C.J.), Granger J. cites with approval James G. McLeod’s commentary on Dancsecs v. Dancsecs (1994), 5 R.F.L. (4th) 64 (Ont. Gen. Div.). That commentary states:

On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay…

75 In Berta v. Berta, 2019 ONSC 545, I reviewed a number of authorities with regard to the test for an interim variation of a final support order. I found that the test has four components, requiring the moving party to prove:

1. A strong prima facie case;
2. A clear case of hardship;
3. Urgency; and
4. That the moving party has come to court with “clean hands”.

[13] The husband has satisfied the four Berta components of the test. Accordingly, the following is ordered:

(a) Paragraph 1 of the Order of Kaufman J. dated November 22, 2013 (the support Order) is suspended on a without prejudice basis effective immediately; (b) There shall be no further enforcement of the support Order until further Order of this Court. Any support collected as of June 1, 2020 and following shall not be remitted to the support recipient but returned forthwith to the support payor; (c) In the event that the wife moves to set aside or vary this Order, she must file a properly completed, current financial statement and provide satisfactory proof that she has provided to the husband the information requested in his RFI and as modified by the case management judge (Kaufman J.); (d) Subject to (c), the next event in these proceedings may be scheduled by either party once the court reopens; (e) Costs of the husband’s motion are reserved.

[14] The husband included in his material an Offer to Settle these proceedings. No consideration to that was given in this Ruling but it must be expunged from the Continuing Record. The court administration is directed to remove from the husband’s affidavit sworn on May 11, 2020 at Tab 2 the husband’s April 13, 2020 letter to the wife. In the event that another motion must proceed in this case, it cannot be conducted by me.

[15] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable immediately without any need for a signed or entered, formal, typed Order. The court shall prepare a formal Order for signing and issuance once court operations permit.

Justice David A. Jarvis Date: May 29, 2020

[1] Although they are divorced, the parties shall be called “husband” and “wife” for convenience. [2] 2020 ONSC 1965 at para 38. [3] 2020 ONSC 3287. [4]. [5] 2020 ONSC 2194.