COURT FILE NO.: FS-16-39024
DATE: 20221013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.L.C., Applicant
AND:
P.B.C., Respondent
BEFORE: Conlan J.
COUNSEL: Mr. P. Callahan, Counsel for the Applicant
Ms. D. Squires, Counsel for the Respondent
HEARD: October 13, 2022
ENDORSEMENT on motion
I. The Underlying Proceeding
[1] The Respondent husband, P.B.C. (“husband”), has brought a Motion to Change the Final Order (made on consent) of Justice Miller dated April 26, 2018 (“Order”). That Order, among other things, requires the husband to pay spousal support to the Applicant wife, M.L.C. (“wife”), at the rate of $13,000.00 per month. Unfortunately, nowhere in the Order does it indicate what income for the husband resulted in such an award.
[2] The husband’s Motion to Change has not yet proceeded to a settlement conference.
II. The Interim Motion
[3] The husband moves for (i) an order staying arrears of spousal support that have accrued since January 2022, (ii) an order, effective January 2022, staying the enforcement of the monthly spousal support provision contained in the Order, (iii) an order terminating ongoing spousal support, or alternatively reducing it to $2155.00 monthly (said to be half of the husband’s current net pay), all of the aforesaid relief pending a hearing of the Motion to Change, plus (iv) an order fixing a date for a settlement conference, (v) an order fixing a date for the hearing of the Motion to Change by way of a long motion (as opposed to a trial), and (vi) costs.
[4] The motion is contested by the wife in its entirety, but for perhaps the fixing of a date for a settlement conference.
[5] In fairness to the husband, (v) above was not pressed in his counsel’s able submissions at Court (via Zoom) on October 13th. It was acknowledged by Ms. Squires that the case may very well have to proceed to a trial with viva voce evidence.
III. Decision
[6] This Court orders that the trial office shall schedule, in consultation with both counsel, the earliest available date for a settlement conference. Unless permission from the Court is granted otherwise, that settlement conference shall take place in person (not by Zoom).
[7] The husband’s motion is, in all other respects, dismissed.
[8] If the parties cannot settle the issue of costs, which I encourage them to do, then written submissions will be accepted by the Court, which submissions shall comply strictly with the following. The wife shall file her written costs submissions within thirty (30) calendar days of today. The husband shall file his written costs submissions within fifteen (15) calendar days of his counsel’s receipt of the wife’s submissions. No reply is permitted by the wife. Each submission shall not exceed two (2) pages in length excluding attachments.
IV. Reasons for the Decision
[9] The husband has simply not satisfied on balance what this Court considers to be the test for the relatively drastic relief that he seeks. In Hayes v. Hayes, 2010 ONSC 3650, a decision of Justice Spies, a decision cited approvingly by many courts since, and a case strikingly similar to ours in terms of the relief sought, the following was stated at paragraph 40, which this Court agrees with.
[40] In my view a test that considers the merits of the motion to change and in particular whether or not the moving party has established a prima facie case that there has been a material change; hardship to the moving party and whether or not the moving party has come to court with clean hands, which is applied regardless of the specific remedy sought, would be preferable to the current state of law.
[10] Applying that test to our facts, the husband has established only that there is a prima facie case to conclude that there has been a material change in circumstances. His income, it is alleged, has decreased significantly to about $70,000.00 per annum. That alone, never mind the husband’s cancer diagnosis and the alleged impact of the COVID-19 pandemic on his business, establishes a material change on a prima facie basis.
[11] This Court is not satisfied, however, that there is any hardship to the husband being required to comply with the Order until his Motion to Change has been determined, and neither is the Court persuaded that the husband has come to court with clean hands. Consequently, the husband’s motion must fail.
[12] On that first point, I agree with Mr. Callahan that the evidence demonstrates that the husband has the ability to maintain the spousal support payments by drawing down on his retirement savings and investments. That the husband would rather not do so is understandable but irrelevant. The husband chose to sell his business to a friend. The husband chose to start working part-time for the same business but for a lot less money. Those choices this Court understands, even sympathizes with, especially when one considers what the husband had to confront with his frightening cancer diagnosis, but those choices were also made well before any determination of the husband’s Motion to Change, and the husband ought to have known that those choices would not necessarily, or even likely, result in any temporary change to his spousal support obligations. It must be remembered that the husband’s cancer, fortunately, is in remission.
[13] On that second point, the husband made a serious mistake when he unilaterally stopped paying any spousal support, in clear contravention of the Order, and then only resumed making any payments after the matter came before a dispute resolution officer. In fact, my colleague Justice Mills, in the adjudication of a motion to strike brought by the wife, characterized the husband’s non-compliance as deliberate, intentional, and premeditated (see Her Honour’s Endorsement dated August 11, 2022). That Justice Mills has already imposed upon the husband some sanction for his flagrant non-compliance (his Motion to Change was stayed pending his payment of half of the spousal support arrears that had accumulated to that point, which payment of $51,000.00 the husband did make) does not turn unclean hands into clean ones.
[14] Ms. Squires submitted that the husband does not want to face continual arguments by the wife that he cannot take certain interlocutory steps in the proceeding or even go any further with his Motion to Change while spousal support arrears climb higher and higher. Well, there are two easy answers to that submission. First, the husband can stop the accumulation of further arrears by complying with the Order. Second, any future motion to strike brought by the wife would have to be very carefully considered as it could amount to an abuse of process given the Endorsement of Justice Mills referred to above.
[15] As for the request to fix a date for a long motion to determine the Motion to Change, that relief is, in my opinion, both premature and probably inappropriate at any stage of this proceeding. The wife’s credibility and her income are also now in serious dispute, as the husband believes that she has failed to disclose her interest in an ongoing business that he discovered online. It is very unlikely that this case could be fairly adjudicated on affidavit evidence alone, but certainly a long motion date cannot be fixed before the parties have had a settlement conference or a trial management conference.
Conlan J.
Date: October 13, 2022