COURT FILE NO.: FC-20-1131
DATE: 2022/10/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Janice Eva Wallace, Applicant
-and-
Robert Bruce Wallace, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jeffrey Langevin, for the Applicant
Paul Jakubiak, for the Respondent
HEARD: Motion Heard in Person August 4, 2022
ENDORSEMENT on motion
Overview
[1] Both parties brought motions seeking interim relief that were heard on August 4, 2022.
[2] The Applicant seeks several motions relating to disclosure, and to enforce spousal support. The Applicant also served a motion to find the Respondent in contempt for failing to pay spousal support and disclosure.
[3] The Respondent seeks to vary the interim spousal support order of Justice Laliberte dated July 13, 2021, to terminate or reduce spousal support. The Respondent also seeks disclosure from the Applicant relating to the status of repairs on the matrimonial home.
[4] Counsel did not confer in advance of the motion to narrow the issues. This is unfortunate and does not meet their duties under the Rules, including under Rule 2 to help the court to promote the primary objective. A significant amount of time was spent at the outset of the motion to confirm the issues that the parties were proceeding with on their motions, and what relief was not contested. The parties were able to confirm that they were not contesting several orders sought by the other side. I have made these orders below, under Part A.
[5] The Applicant confirmed that she received the Respondent’s valuation of Grandview Maintenance Inc. (“Grandview”) the day before the motion, but had not had an opportunity to review it, and so was not proceeding with her contempt motion at this time.
[6] The Respondent takes the position that he has provided information regarding the sale of the 2016 Dodge Ram Truck and the business known as “Rob’s Restoration Body & Paint Inc”. in his affidavits filed for these motions. He does not contest orders being made requiring him to provide this disclosure but takes the position that this has been provided. I am not determining on this motion whether the information provided complies with his obligation.
[7] There were some issues raised on the motion that I addressed quickly, as follows:
• The Applicant seeks an order that the Respondent pay arrears and ongoing spousal support under Justice Laliberte’s interim order of July 13, 2021. I decline to make such an order because there is already an interim order requiring the Respondent to pay spousal support, which means that another order requiring him to do the same thing is unnecessary. I also note that spousal support is being enforced through the Family Responsibility Office and the Applicant has chosen not to withdraw the support order from FRO’s enforcement. On a similar point, I comment that contempt is not available for breach of a payment order, which includes an order to pay support – see Rule 31. I make this comment because although the Applicant did not pursue her motion for contempt at this hearing, her notice of contempt motion includes that she is seeking a finding of contempt due to the non-payment of spousal support.
• The Respondent seeks an order that if the Applicant fails to provide the update on the repairs to the matrimonial home (to which she agrees), the home be listed for sale. I am not prepared to make this order. The parties have not been able to make progress on simple issues that I would have expected them to easily resolve (for example, on scheduling questioning). I am concerned that making an order that purports to set out what happens if there is a failure to comply will lead to a dispute about whether the information provided is sufficient and one party, or another, asserting to force certain steps as a result. The parties have agreed to questioning. If there is an issue about what information the Applicant provides regarding the status of the house, this can be canvassed at questioning and, if the parties then disagree on whether there has been compliance with the order, or whether the home should be listed for sale, this will need to be brought back to court for determination in the appropriate fashion.
[8] The main issues argued by the parties on August 4, 2022, that need to be determined, are as follows:
Should the Respondent be required to pay costs to the Applicant for failing to attend at questioning on July 12, 2022?
Should the interim spousal support order of Justice Laliberte, made July 13, 2021, be reduced or terminated on an interim basis?
Issue #1 Should the Respondent be required to pay costs to the Applicant for failing to attend at questioning on July 12, 2022?
[9] I find that the Respondent should be required to pay the Applicant costs due to his failure to attend questioning on July 12, 2022, including failing to notify the Applicant that he would not attend, fixed at $650.
[10] On May 12, 2022, the Applicant served the Respondent, through counsel, with notice of questioning scheduled for July 12, 2022. The Respondent’s counsel did not respond to that notification to advise that he was not available on that date, to suggest other dates, or that he would not be attending. The Applicant’s counsel prepared for and attended the questioning on July 12, 2022, but the Respondent did not show up. The Applicant obtained a certificate of non-attendance.
[11] I find that costs are payable to the Respondent due to his non-attendance at the questioning because of the Respondent’s failure to advise the Applicant that he would not be attending, or to respond to the notice of questioning, that his counsel acknowledges receiving, in any way. I do not accept that the Respondent’s counsel’s email to the Applicant’s counsel of January 14, 2022, constitutes a response to the May 12, 2022, notice of questioning. In his email sent January 14, 2022, the Respondent’s counsel stated that he would only agree to dates for questioning if the Applicant committed to a date for the Respondent’s motion to reduce spousal support. The Respondent’s counsel added that if the Applicant did not confirm a motion date, he would proceed to schedule one. The January 14, 2022, email does not justify failing to respond to the note sent on May 12, 2022. Leave for questioning had been granted on June 1, 2021. There is no court order that stipulates questioning shall only take place after the Respondent schedules a motion to reduce interim spousal support. Questioning was scheduled, and notice was served, in accordance with the Rules. The Respondent should have attended, or, at the very minimum, responded or brought a procedural motion seeking to have questioning delayed if he thought he had a reasonable excuse not to attend.
[12] The Applicant’s counsel sought costs of $1,000 because of his preparation time at his hourly rate of $340. The Applicant was not able to provide me with information about any disbursements wasted due to the Respondent’s failure to attend. At the motion on August 4, 2022, the parties were able to schedule questioning for dates in October of 2022, as provided for below. Not all of the Applicant’s preparation time will be lost, but I accept that some time was wasted. I find the sum of $650, inclusive of tax, is just, reasonable and proportional, and furthers the purposes of a cost award which include sanctioning of inappropriate conduct, such as described above.
Issue #2 Should the interim spousal support order of Justice Laliberte, made July 13, 2021, be reduced or terminated on an interim basis?
[13] I do not find that the evidence before me justifies making a further interim order varying the interim spousal support of July 13, 2021.
[14] Justice Laliberte’s interim spousal support order dated July 13, 2021, was made under the Divorce Act.
[15] The primary purpose of an interim support order is to make reasonably adequate provisions pending trial. Motions to vary interim support orders are not encouraged. Parties should instead focus on moving the matter to trial, where the issues may be finally adjudicated on a full evidentiary record. The court does, however, have jurisdiction to order an interim variation of an interim order where there has been a substantial change in circumstances since the first interim order, such that it is necessary that a change be permitted prior to trial.
[16] The parties were married in 1984. They separated in 2019, after 35 years of marriage and raising four children. For most of the marriage, the family was supported by the family business, Grandview. It is apparent that Grandview provided the family with a comfortable lifestyle, given the parties raised four children, the Applicant primarily worked in the home while also helping with the business, and that by the time of separation they had acquired a principal residence, cottage property, and a condominium in Florida.
[17] Significant issues in this Application are the value of Grandview and the Respondent’s income. On July 13, 2021, interim motion, the Respondent consented to an order for him to produce a valuation and current financial statements for Grandview. His affidavit filed on that motion stated that the valuation was already underway. Despite the order, the Respondent did not produce this valuation to the Applicant until the day before this motion. He has still not produced the current financial statements for the company. The Applicant’s counsel has not yet been able to review the valuation report.
[18] The Respondent’s evidence is that after separation, Grandview had two employees – the Respondent and the parties’ youngest son. The Respondent states he earned $79,800 from Grandview in 2020. He had additional income from CPP and CERB, for a total income in 2020 of approximately $93,000. His evidence is that after separation he was forced to downsize the company, such that only his son is now employed by Grandview, although the Respondent still owns the company. His son earned income from Grandview of $85,833 in 2021. The Applicant states that the son’s income in 2021 was $20,000 more than the son earned in 2020.
[19] It appears that the Respondent has stepped aside from the business in favour of his son, although the Respondent also states that he has health reasons for stepping aside for his son, and that he needs to retire, because he is turning 65 in September of 2022.
[20] At the motion on July 13, 2021, the Respondent’s evidence was that he was no longer working at Grandview and was instead working for a window washing company, earning $20 per hour, 40 hours per week, for an annualized income of $38,000. The Respondent’s evidence on the July 13, 2021, motion was that this work was seasonal, and there was no guarantee of this income continuing in the fall.
[21] The Respondent’s material before the court on the July 13, 2021, motion also argued that additional income should be imputed to the Applicant because she had the ability to work full-time. At the time, the Applicant was working two days a week earning $15 per hour.
[22] It is based on the above evidence that, on July 13, 2021, Justice Laliberte made the interim spousal support order. After hearing a contested motion, Justice Laliberte ordered the Respondent to pay interim spousal support to the Applicant in the amount of $1,094 per month, commencing August 1, 2021. This amount was based on imputing incomes of $55,000/yr to the Respondent and $25,000/yr to the Applicant. Aside from indicating the interim support was at the mid-range of the SSAGs, Justice Laliberte’s endorsement does not contain his reasons, including his reasons for imputing income amounts set out in his order. Neither party provided me with a transcript of any additional reasons.
[23] It seems clear, though, that the imputed incomes were based on Justice Laliberte’s interim assessment of each party’s ability to earn income. Detailed inquiries into all aspects and details of a case are not expected, nor required on interim motions. Interim support orders are intended to provide a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
[24] Again, I do not find that the evidence before me justifies making a further interim order varying the interim spousal support of July 13, 2021. I dismiss the Respondent’s motion for an interim order varying, downwards, interim spousal support. I do not find that the Respondent has met his onus to show that there has been a substantial change in circumstances since the first interim order, such that it is necessary that a change be permitted prior to trial. In particular:
• The Respondent has provided very little evidence in support of his motion that goes to his ability to earn income. Rather, the focus of the Respondents’ argument is that he was laid off from his window washing employment in November of 2021. But this was not unexpected at the time of the July 13, 2021, motion – in fact the Respondent’s own evidence on the motion was that his window washing work was seasonable and not guaranteed into the fall;
• Notably, the Respondent has not provided any evidence about what steps he took to find replacement income after he states his work hours were reduced in August of 2021, or after being laid off from his window washing employment on November 30, 2021. He does not provide evidence that he made any effort to seek other employment. In contrast, the Applicant’s evidence is that the Respondent spent the winter in Florida. The Respondent admits that he spent the winter in Florida, but then explains that this is not unusual, as he normally “winters” in Florida. This suggests that the Respondent was able to earn approximately $80,000 per year from Grandview, which he did in 2020, while wintering in Florida. This does not support reducing support;
• The only evidence put forward by the Respondent that his ability to earn income has changed since the motion on July 13, 2021, is the Respondent’s argument that he injured his knee and required knee surgery on July 14, 2022. But while the Respondent’s evidence is in his affidavit sworn April 19, 2022, is that his knee injury prevented him from any strenuous activity, his evidence in his affidavit sworn July 26, 2022, is that he worked, window washing, from his return to Ottawa in May up to his surgery on July 14, 2022. This is inconsistent with his evidence in his April 19, 2022, affidavit;
• The Respondent’s evidence in his affidavit sworn July 26, 2022, is that he was unable to work for 12 to 14 weeks because of his knee surgery. He has not provided supporting medical evidence to confirm this. In fact, the only medical evidence provided in either of his affidavits sworn April 19, 2022, and July 26, 2022, is a copy of his doctor’s request for an x-ray of his knee. This medical note does not confirm the nature of his knee injury, its impact on his ability to earn income, or his prognosis;
• Although the Respondent argues that one reason why his income has decreased is because of his age, I do not find that this is a substantial change since the July 13, 2021. The Respondent’s age was before the court on July 13, 2021. It was anticipated that the Respondent would get older;
• I also reject the Respondent’s argument that he simply should be allowed to retire, given he is now 65. My impression from all of the evidence before me is that the Respondent’s real motivation in bringing this motion to reduce spousal support is because he wants to retire and believes he should be allowed to do so, at this time. At what age it is reasonable for the Respondent to retire, including whether it is reasonable for him to step aside from Grandview in favour of his son, is an issue that will need to be addressed at trial. It is impossible to assess this issue at this interim stage, given the lack of financial information before the court, including the Respondent’s delay in providing a valuation for the business and other disclosure.
• Nor do I accept that the delay in moving this matter to trial justifies an interim variation in interim spousal support. This is particularly the case given that the Respondent has been responsible for many of these delays. This includes not producing the valuation report for Grandview until the day before this motion, when it was ordered on July 13, 2021, and failing to attend questioning on July 12, 2022.
• I do not accept the Respondent’s arguments that the Applicant should be capable of earning more income as a basis to change the interim support. The Respondent takes issue with the fact that the Applicant is only working part time – he argues that she should be working full time. These arguments do not call out for an interim variation of the interim order. These arguments were made and considered on the July 13, 2021, motion, and little has changed since then. This is particularly so given that the Applicant’s income, such as it is, is still higher than what the Respondent claims he earned for the same period prior to his knee surgery.
• The Applicant’s occupancy of the matrimonial home and the Respondent’s allegations that she took $90,000 from the family safe were also before the court at the time of the July 13, 2021, interim order. These are not changes; and,
• Overall, the Respondent’s arguments impress as his attempt to get a “second kick at the can” on spousal support rather than being one of those unusual situations where there has been such a substantial change that a variation of an interim support order is necessitated prior to trial.
[25] The Respondent’s motion to reduce interim spousal support is dismissed.
Accordingly, I make the following orders:
Part A - Orders made because they were not contested on this motion:
Pursuant to the Family Law Rules
The parties’ consent to this matter being case managed by one judge. Whether this matter is case managed or not is subject to the approval of the Local Administrative Judge and depends on the court’s capacity to do so. Counsel shall send a joint letter to Justice Audet requesting that a case management judge be assigned to this matter.
The Respondent shall provide the current financial statements for Grandview Maintenance Inc. within 30 days of August 4th, 2022
The Respondent shall provide a sworn affidavit confirming that there is no entity known as Wallace Enterprises and explain why this name was included in his financial statement. This affidavit to be provided within 30 days of August 4th, 2022.
The Respondent shall provide the Applicant with details surrounding the sale of the 2016 Dodge Ram truck.
The Respondent shall provide valuations for all of his outstanding assets within 60 days of August 4, 2022.
The Respondent shall provide full disclosure on the business known as “Rob's Restoration Body & Paint Inc.”
The Applicant shall provide an update as to the status of the repairs to the former matrimonial home and its suitability for sale, within 30 days of August 4, 2022.
The parties shall attend questioning on October 5 and 6, 2022, to be conducted in person. The Respondent shall be questioned on October 5, 2022. The Applicant shall be questioned on October 6, 2022. Each party shall have up to one day to question the other party, unless otherwise agreed or further court order.
Part B - Issues Disputed on the Motion Heard August 4, 2022
Pursuant to the Family Law Rules, the Respondent shall pay the Applicant costs fixed at $650 due to his failure to attend questioning on July 12, 2022, or to otherwise respond to the notice of questioning. These costs shall be payable forthwith.
Under the Divorce Act, the Respondent’s motion to reduce or terminate the interim spousal support payable under Justice Laliberte’s interim order dated July 13, 2021, is dismissed.
Part C – Other Orders
The Applicant’s contempt motion is adjourned for the Respondent to provide the outstanding disclosure and for the parties to attend questioning.
If the parties are unable to agree on the costs of this motion, the Applicant may file cost submissions on or before October 27, 2022. The Respondent may file cost submissions on or before November 3, 2022. The Applicant may file a reply, if needed (proper reply only) on or before November 8, 2022. Cost submissions of both parties shall be no more than three pages in length (except for reply submissions which are limited to 2 pages), plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Justice P. MacEachern
Date: October 11, 2022
COURT FILE NO.: FC-20-1131
DATE: 2022/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Janice Eva Wallace, Applicant
-and-
Robert Bruce Wallace, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jeffrey Langevin, for the Applicant
Paul Jakubiak, for the Respondent
ENDORSEMENT on motion
Justice P. MacEachern
Released: October 11, 2022