COURT FILE NO.: FC-20-553
DATE: 2021/10/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Suzanne Bloom, Applicant
AND
Clayton Bloom, Respondent
BEFORE: Blishen J.
COUNSEL: Bruno Sharpe, for the Applicant
Stephanie Murray, for the Respondent
HEARD: September 21, 2021
ENDORSEMENT
Introduction
[1] The Applicant(A) filed a Notice of Motion requesting an interim without prejudice order that the Respondent (R) pay Spousal Support (SS) in the amount of $1697 per month in two equal installments on the first and fifteenth of each month retroactive to November 1, 2020, pursuant to interim without prejudice Minutes of Settlement signed by the R on November 29, 2020. In essence, the motion was to enforce the Minutes of Settlement.
[2] On February 11, 2021 Justice Roger ordered SS of $776 per month on an interim without prejudice basis, given some evidence of a material change in circumstances due to the R’s recently disclosed mental health difficulties. The matter was adjourned to a Case Conference on March 3, 2021.
[3] The R contested the A’s motion to enforce the Minutes of Settlement and requested an order further reducing SS given the R’s recent knee replacement surgery. The R did not file a Notice of Motion and made this request in his Affidavit and Confirmation Form (CF). During submissions R’s counsel acknowledged there was no motion before the court to reduce payments and therefore argued the existing order should continue until a Case Conference is held, further evidence provided, and submissions made for a reduction. An adjournment of the A’s motion was not requested.
[4] There is no issue as to entitlement to SS on the motion. The only issue is quantum.
Background
[5] The parties began cohabiting in November 2006 and were married on July 22, 2017. They separated on September 28, 2019 after a 13-year relationship. There are no children of the marriage.
[6] The A is 56 years old and has been on CPP disability since 2010. Her 2021 income from all sources is $14,028 which is unchanged from 2020. Her 2019 income was $10,129 and her 2018 income $8405. She continues to receive CPP and ODSP.
[7] The R is 61 years old and employed as an electrician at Lamarche Electric Inc. His 2019 income from all sources was $113,267. His October 9, 2020 Financial Statement (FS) disclosed income of $121,331.40.
[8] Given mental health issues and a reduced work schedule to be discussed below, the R’s most recent pay stub July 15, 2021 indicates a year to date gross income of $30,515 which results in an estimated gross annual income this year of approximately $56,335. His FS sworn February 26, 2021 indicated a projected gross annual income for 2021 of $54,323.
[9] Given knee replacement surgery on August 13, 2021, the R indicated he is now receiving Employment Insurance benefits of $524 per week and will not be able to return to work until February 21, 2022.
Court History
[10] In March 2020, the A filed an application for a divorce, SS and equalization of net family property pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. and Family Law Act, R.S.O. 1990, c.F.3, as am.
[11] On November 29, 2020 the parties, who both had counsel, signed interim without prejudice Minutes of Settlement which indicated in para 7:
- On an interim without prejudice basis and commencing on November I. 2020. until further agreement or court order. the Respondent husband shall pay spousal support to the Applicant wife in the amount of S 1.697 monthly. in two equal installments on the first and the fifteenth day of each month. This amount is the low range spousal support guideline attached as schedule A. and without prejudice to the wife's claim of spousal support.
[12] This agreement was in the low range of the Spousal Support Advisory Guidelines[^1] based on the R’s income of $113,267 and the wife’s income of $8,850.
[13] In January 2021, R’s counsel disclosed to A’s counsel that her client was suffering from adjustment disorder with anxious affect and requested a reduction in SS to $776 per month on a projected income of $56,634.
[14] The A did not consent and on February 4, 2021 filed a motion in writing requesting an interim without prejudice order for SS in accordance with the Minutes of Settlement.
[15] Two of the exhibits filed for the motion were letters to the R’s employer from the R’s treating physician, Dr. Renee Prince of the Montfort Hospital Family health Team, one dated December 17, 2020 and the other January 25, 2021.
[16] The December 17 letter stated:
Mr Bloom suffers from an adjustment disorder with anxious affect.
The combine effect of stress at work, in what I understand is a demanding job, and in his personal life are such that he has a hard time performing at a level that allows him to meet the expectations of his employment. In view of his decreased performance the patient has suggested that working half days would allow him to get some rest without leaving his position vacant.
For that reason we have agreed on this following schedule:
This patient was seen on Wednesday, November 25, 2020. Return to regular work on Monday, December 28, 2020.
Will need to work reduced hours during this period.
He will work full days Tuesdays and Wednesdays and mornings on Thursdays
[17] The January 25, 2021 letter indicated Mr. Bloom’s condition had not much improved and he would need to continue to work on a modified schedule. She stated: “Return to regular work schedule unknown.”
[18] On February 11, 2021 Justice Roger dismissed the A’s motion to enforce the Minutes of Settlement and ordered $776 per month SS which was the low range per the SSAGs on the R’s projected income of $56,634.
[19] In his endorsement Roger J. stated:
On a without prejudice basis, I dismiss the applicant’s motion because the respondent has provided some proof of a material change in circumstances since the signing of the minutes of settlement. This is to be visited at the upcoming case conference and, if a resolution is not possible, then, as noted, my dismissal is without prejudice to the applicant seeking to enforce the settlement after the case conference.
[20] At the Case Conference on March 3, 2021 before Justice Summers the issues were discussed. There was no change to Justice Roger’s order but an order was made for the R to provide his medical records and physician’s notes regarding the diagnosis of adjustment disorder and any other condition/diagnosis that impacts his ability to work full time. She further ordered R’s counsel to request a report from the treating physician after receiving any questions in writing regarding the diagnosis and treatment plan from A’s counsel. Justice Summers indicated she would case manage the file.
[21] On May 19, 2021 the R’s medical records along with a covering letter/report from Dr. Prince dated April 30, 2021 were disclosed to the A.
[22] No other appearances were requested or set before the Case Management judge. Instead the A filed this motion.
Evidence
[23] The medical records from November 2020 to April 2021 and a letter from Dr. Prince dated April 30, 2021 were filed as exhibits.
[24] The evidence is as follows:
All meetings with the doctor were by telephone due to the pandemic.
Mr. Bloom expressed he was having severe pain in his knees on several occasions. He was receiving injections on a regular basis, but they were not working well.
The R first mentioned mental health symptoms on November 9, 2020 involving anxiety and flashbacks regarding the aggressive incident with his ex-spouse (the A). The doctor noted – “PTSD?” He didn’t want to take medication at that time but agreed to a referral for counselling.
There were several attempts to reach the R by telephone regarding referral to community resources. He called back once.
On November 25, 2020, the R again reported anxiety, irritability, insomnia and flashbacks. Diagnosis was adjustment disorder with anxiety affect. He consented to treatment and medication.
The doctor suggested Mr. Bloom stop work for a month with a gradual return. The R was concerned about finances and suggested reducing his hours. The doctor noted “Mr. Bloom will work reduced hours from November 25 to December 28, 2020”.
On November 29, 2020, the R signed the Minutes of Settlement. At that time, he had been diagnosed but only had medical approval for reduced hours until December 28.
He did not disclose any of his mental health difficulties prior to signing the Minutes.
On December 15, 2020, Mr. Bloom was tolerating the meds but was not seeing a reduction in symptoms.
On December 17, 2020, Dr. Prince wrote the letter to his employer referred to above indicating her agreement to Mr. Bloom’s suggestion to work half days from November 25. She stated, as she had in her notes, he was to return to regular work on Monday December 28, 2020.
In January 2021, counsel for the R disclosed Mr. Bloom’s mental health concerns and reduced hours to counsel for the Applicant.
On January 20, 2021, the R reported continuing symptoms of anxiety, worry and disorganized thoughts but wanted to keep working.
On January 25, 2021, Dr. Prince wrote the second letter referred to above indicating “he will need to work on a modified schedule” and “Return to regular work schedule unknown”.
On February 11, 2021, Justice Roger found some evidence of a material change in circumstances and on a without prejudice basis reduced Mr. Bloom’s SS payments to $776 per month.
At the first Case Conference on March 3, 2021 Justice Summers ordered further disclosure of medical records. No change was made to the court order. The case was to be case managed by Justice Summers.
On April 12, 2021, Mr. Bloom reported to Dr. Prince he was still working reduced hours as he continued to have anxiety and flashbacks. He had stopped medication as it was causing him stomach problems but would like therapy. The doctor indicated there had been many previous attempts to reach him regarding counselling and community resources, but she agreed to refer him for therapy. A referral was made on April 16 with a wait time of about 6 months. A list of counselling available in the community was also provided.
In her letter to counsel for the R dated April 30, 2021, Dr. Prince indicated her concern that Mr. Bloom had stopped taking the prescribed medication and could not be reached by phone regarding a referral to counselling. She concludes by stating:
From a mental health perspective, given his shifting symptomatology, it is unclear to me if Mr. Bloom still benefits from working reduced hours.
However, given that a therapeutic relationship is based on mutual trust I would hope that Mr Bloom will indicate in our conversations
his readiness to go back to work full time. No return to work plan has been elaborated.
Mr. Bloom indicates that he has not yet accessed therapy or counselling and is still trying to find suitable medication for his psychological condition.
A medical certificate filed by Mr. Bloom on this motion indicates that on August 13, 2021 he had a total right knee arthroplasty (replacement). The orthopaedic surgeon, Dr. Mark Steeves, notes Mr. Bloom is incapable of working until February 21, 2022.
Mr. Bloom indicates he has been attending physiotherapy, following up with his surgeon and is limiting his physical activity to ensure a proper recovery. His recovery from surgery has taken precedence over dealing with his adjustment disorder.
Mr. Bloom deposes he began receiving employment insurance of $524 per week on August 27, 2021.
Analysis
[25] I note this motion was brought without an appearance or discussion with the Case Management judge and without cross-examination on the affidavits or questioning of the doctor as to the medical evidence provided. The credibility of the R was not tested.
[26] Based on the April 30, 2021 letter of Dr. Prince and the medical records filed there is sufficient reliable evidence to find on a balance of probabilities a material change in circumstances since the R signed the Minutes of Settlement on November 29, 2020.
[27] Regarding the Minutes I note the following:
The Minutes settled SS only on an interim without prejudice basis until further agreement or court order.
SS of $1697 was in the low range of the SSAGs based on Mr. Bloom’s 2019 income of $113,267 and Mrs. Bloom’s 2019 income from all sources of $8850.
When he signed the Minutes of Settlement, Mr. Bloom was aware of his diagnosis but had been told by his doctor that he should work reduced hours until December 28, 2020, a period of one month.
Mr. Bloom’s October 2020 Financial Statement indicated a projected income for 2020 of $121,331 so even with reduced working hours for 1 month his income would have been close to what it was in the Minutes.
[28] After signing the Minutes there were the following changes in circumstances:
At appointments in December and January 2021, Dr. Prince confirmed the diagnosis of adjustment disorder and wrote to Mr. Bloom’s employer indicating her medical opinion that as of January 25, 202, he would need to work reduced hours and a return to a regular work schedule was unknown. This was new information.
Mr. Bloom has in fact worked reduced hours as per the doctor’s letter.
Based on recent pay stubs his projected income for 2021 was $56,335 which is very similar to the income of $56,664 upon which the existing without prejudice court order was made.
Mrs. Bloom’s income from all sources has changed from $8850 at the time of the Minutes and court order to $14,028.
The low range of the SSAGs for these new incomes would result in a different amount of SS payable by Mr. Bloom. No SSAG calculations were provided by counsel.
In her April 30, 2021 letter Dr. Prince notes that “with a diagnosis of adjustment disorder with anxious affect in someone, like Mr. Bloom, with no history of mental health problems, a complete recovery is a reasonable prospect.” She concludes her report by indicating it is unclear to her if Mr. Bloom still benefits from working reduced hours.
On August 13, 2021 Mr. Bloom had a complete right knee replacement. The medical evidence to date is that he will be off work until February 21, 2022 (six months). He indicates he is now receiving Employment Insurance.
[29] As of April 30, 2021, the Dr. Prince was unclear as to whether Mr. Bloom still required reduced working hours due to his mental health issues. In addition, he had been non-compliant with prescribed medication and had not accessed counselling despite many attempts by the hospital Social Worker to speak to him regarding possible options. The R has had further appointments with the doctor. Further medical evidence is required as to Mr. Bloom’s mental health and ability to work full time as of May 1, 2021 or earlier. I am prepared to find based on the medical evidence available on the motion and without cross-examination or questioning, that given his adjustment disorder with anxiety affect, he was unable to work full time from November 25, 2020 to April 1, 2021.
[30] I am satisfied on a balance of probabilities that Mr. Bloom had knee replacement surgery on August 13, 2021 which will require him to be off work for some months. The brief medical record provided indicates he will not be able to return to work until February 21, 2022. Further medical evidence is required as to whether a full six months off work is required or whether he could return earlier on a part-time or full-time basis. In addition, records as to R’s receipt of Employment Insurance since his knee replacement are to be provided along with an up to date Financial Statement.
[31] All disclosure outlined above is to be provided by the R to the A within 45 days after which a conference is to be set before Justice Summers as Case Management judge with a view to resolution.
[32] The evidence provided to me on this motion is insufficient for me to order a specific amount of SS payable by the R or to determine a starting date.
[33] The A’s motion is dismissed. The existing order of Justice Roger is to continue for payment of SS in the amount of $776 per month without prejudice to a retroactive and/or ongoing adjustment by agreement or court order after disclosure as outlined above or as ordered by the Case Management judge.
Costs
[34] If the parties are unable to resolve the issue of costs, I will hear oral submissions for a maximum of 15 minutes each to be booked through Trial Coordination. Any Offers to Settle and Bills of Costs are to be submitted to me three days in advance of the costs motion through Trial Coordination
Date: October 4, 2021 Blishen J.
COURT FILE NO.: FC-20-553
DATE: 2021/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Suzanne Bloom, Applicant
AND
Clayton Bloom, Respondent
BEFORE: Blishen J.
COUNSEL: Bruno Sharpe, for the Applicant
Stephanie Murray, for the Respondent
ENDORSEMENT
Blishen J.
Released: October 4, 2021
[^1]: Spousal Support Advisory Guidelines, prepared for the Department of Justice Canada, July 2008, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html