Court File and Parties
COURT FILE NO.: 786/19
DATE: 2021-07-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: James Murphy, Applicant
AND:
Ester Ann Tomson, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: James A. Hunter, for the Applicant
Jennifer Cooper, for the Respondent
HEARD: July 8, 2021
judgment
[1] Today was scheduled to be the final determination (by way of long motion based on affidavit materials) of the Applicant’s motion to change spousal support, which was originally determined in a separation agreement dated January 18, 2008.
[2] This was a long-term relationship with two children, now adults. Entitlement isn’t really an issue. It’s mainly ability to pay, and to a lesser extent need.
[3] This is a retirement case.
[4] The Applicant payor is 66. He previously had a moderately high income and was paying significant spousal support.
[5] The Respondent is 65. She has very little income.
[6] He says he has retired and now also has very little income, so he wants to terminate spousal support completely. The Respondent opposes that request on the basis that she still needs and is entitled to spousal support; and stopping her payments would create extreme hardship for her. She advances alternate positions about step-down orders and future termination dates.
[7] Predictably, he says continuing the payments would create extreme hardship for him.
[8] Given the parties’ ages, circumstances, and uncertain futures, it goes without saying that the result of this motion – the determination of spousal support – is extremely important for both of them.
[9] It should also go without saying that the court has a heightened responsibility to ensure that these complicated and important issues are dealt with comprehensively, efficiently, and fairly.
[10] In that context, after several hours of receiving submissions (and attempting with limited success to ascertain whether some progress could be made with respect to resolution or at least narrowing the issues) I made the difficult decision that the motion could not proceed as currently advanced by counsel.
[11] There are still very important factual disputes which have not been properly presented, nor have they been properly tested.
[12] There are credibility issues which need to be determined. It is extremely difficult and usually inappropriate to make vital factual and credibility determinations based upon untested affidavits.
[13] Despite the fact that this motion was commenced two years ago, some obvious and important steps in the litigation process have been skipped.
[14] Each party challenges certain aspects of the other’s narrative, but cross-examination on affidavits has never taken place.
[15] No apparent effort has been made to prepare an agreed statement of facts. Indeed, it only appears to have become apparent during submissions that the parties disagree on significant facts.
[16] And neither counsel provided me with comprehensive submissions or caselaw in relation to some very important and predictable issues.
[17] It would be tempting to say that this is the Applicant’s motion. The onus is on him. If he doesn’t establish his case, his motion will be dismissed.
[18] But in this case neither party has properly advanced their case. Each of their materials are deficient in failing to properly set out certain fundamental aspects of their legal arguments. They haven’t clearly set out where they agree and where they disagree. And they haven’t done some very simple things which would have avoided this court date being wasted.
[19] As stated, the court has a heightened sense of responsibility when dealing with variation of spousal support motions involving pensioners. I fully understand that perhaps litigation shortcuts were taken with a view to saving legal fees.
[20] But you can’t present a partially prepared case to the court, and ask the judge to fill in the blanks because you wanted to save money. I’m not going to be forced to guess about the facts.
[21] Maybe these parties can’t afford all of the legal steps required to explore the many arguments they chose to raise. But that’s part of the cost-benefit analysis all litigants have to undertake. Some questions could and should have been asked long ago. Questions like,
a. How many issues and legal arguments should I really raise?
b. Are some arguments stronger than others? Should I focus on my strengths, or advance every conceivable argument I can think of?
c. Are some arguments easier and less expensive to present?
d. Do weak arguments undermine or distract from strong arguments?
e. Are there things I can do to reduce the scope of the litigation, and reduce the resulting legal expense?
f. Should I consider making some concessions on less important issues or topics, if it will allow me to present my more important requests more quickly and less expensively?
g. Are there things the lawyers can do to explore the facts and reach certain agreements, so they will have fewer things to argue about once they are in front of the judge?
h. Does my evidence prove my case and/or disprove my opponent’s case?
[22] For oral reasons given I dismissed the Respondent’s preliminary request that the Applicant’s motion be stayed. This was scheduled as a long motion. It was the only matter I had from 10 a.m. for the rest of the day. I was fully prepared to give the matter as much time as it required.
[23] But I can’t decide a case which isn’t ready. And simply dismissing it won’t help anyone, because these issues won’t go away. And both parties are responsible for the impasse we reached.
[24] Not on consent, the motion is adjourned because it is not ready.
[25] On consent:
a. Cross-examinations are to be completed by August 31, 2021.
b. Counsel are to attempt to prepare an agreed statement of facts by September 30, 2021.
[26] Adjourned to October 21, 2021 3:30 p.m. for Trial Scheduling Conference.
[27] On the return date I will consider whether counsel have sufficiently developed the file to allow the matter to continue based upon updated affidavit evidence (with an agreed statement of facts and possibly transcripts of cross-examinations) or whether an oral hearing is required.
[28] The Applicant’s counsel expressed concern about the delay, given the fact that Applicant is falling into arrears and the Family Responsibility Office may take enforcement steps. In the event that FRO takes any action, counsel should alert them to this endorsement and the fact that the Applicant attempted to have his motion determined, but it was the court’s decision that the matter could not proceed as currently constituted.
Pazaratz J.
Date: July 12, 2021
COURT FILE NO.: 786/19
DATE: 2021-07-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Murphy
Applicant
- and -
Ester Ann Tomson
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: July 12, 2021