Court File and Parties

COURT FILE NO.: FS-21-00026523 DATE: 20231010 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sandra DeFrancesco Applicant (Responding Party) – and – Frank DeFrancesco Respondent (Moving Party)

Counsel: Mykhaylo Poluektov for the Applicant/ Responding Party Joy Nwawe for the Respondent/ Moving Party

HEARD Sept 26, 2023

L. Brownstone J.

Overview

[1] The parties separated in 2001 after 18 years of marriage. In 2005, Nelson J. issued a consent order based on minutes of settlement the parties had executed. The order requires the respondent father, the moving party on this motion, to pay child and spousal support based on an imputed income of $73,000 per year.

[2] The parties were entitled to seek to vary support if there was a material change in circumstances. The respondent’s income being below $73,000 was deemed not to be a material change. A review of support could also be sought after May 1, 2008.

[3] In 2012, Penny J. heard the respondent’s first motion to change. At that motion the respondent argued that he had been unable to work since he lost his job in 2008. He sought a change to his support obligations, and to his deemed income, based on this material change in circumstances. He argued that there were two reasons for his inability to work: the first was the loss of his driver’s license and the second was that he suffered from depression. Penny J. rejected both bases for the motion. He found the evidence did not support the existence of a material change in circumstances that would lead to the alteration of the support payments owing. Penny J. found that the evidence adduced was insufficient to support the allegation that the father was unable to work, but expressly stated that he was not finding that such evidence could never be adduced.

[4] The respondent commenced this motion to change in August of 2021. He argues that he has been unable to work since 2008 for circumstances that could not have been foreseen at the time of the order of Nelson J., and that would have changed that order. He argues that the change is his inability to work due to his chronic debilitating mental illness. He seeks orders that all ongoing support be terminated, and that all arrears be rescinded or canceled. For the reasons that follow, I find that the respondent has discharged his burden of proving a material change supporting a variation to support as of May 1, 2012. Therefore, arrears accruing after May 1, 2012 are to be rescinded, and ongoing support is terminated as of May 1, 2012.

Has the respondent proven that there has been a material change in circumstances that warrants a variation of the support order?

If so, what is the operative date of the material change and variation?

The Order Sought to be Changed

[5] The parties were married in 1983 and separated in 2001. On April 27, 2005, Nelson J issued a final consent order based on minutes of settlement executed by the parties. The relevant provisions of that order are the following:

1 The Respondent, Frank DeFrancesco, shall have imputed to him an income of $73,000,00. The Applicant, Sandi DeFrancesco, shall have imputed to her an income of $15.000.00.

12(1) Either party may seek to have the amount of child and spousal support varied in the event change of circumstances. However, the following will not constitute a material change in circumstances:

(a) The Applicant obtaining an income from any source up to and including $15,000.00 per year.

(b) The Respondent's income falling below $73,000.00 per year;

12(2) In any event either party may ask for the issue of spousal support, both quantum and entitlement, to be reviewed after May 1, 2008, or upon both children ceasing to be eligible for child support. Until the review is resolved or adjudicated payment shall continue in accordance with this agreement. Unless otherwise agreed to by the parties, any adjudication or resolution shall be retroactive to the date the review is triggered by way of Court application.

[6] The respondent was required to pay both child and spousal support based on his imputed income level. Under s. 10(2) of the order, once the two children ceased being children of the marriage, the amount he would have paid in child support was added to the spousal support owing to the applicant. The two children completed their studies and became independent in May, 2008 and April, 2010, respectively.

Reason the Change is Sought

[7] The respondent worked for Talmolder Inc., a company in the polyurethane industry, for almost all of his career. His formal education ended after grade 10. According to his résumé, he began working at Talmolder in 1982 as a machine operator, became a plant manager in 1984, and a general manager in 1986. In 1996 he became the president of and a partner in Talmolder and from 2001-2008 he worked in product development and sales. In 2003 the nature of his employment arrangement with Talmolder changed, and he became an external consultant, providing product management consulting services.

[8] The respondent suffered from mental health challenges starting in about 1994. He was treated by various methods at various times, and treatment was generally successful (although not problem-free) until 2008, at which time the respondent suffered a significant set-back. In September 2008, he signed a voluntary separation proposal with Talmolder. Aside from a relatively brief period in 2009 and 2010, the respondent has not worked since the end of his arrangement with Talmolder. His evidence is that during the brief period of employment post-Talmolder, he again suffered a serious mental breakdown which led to his hospitalization. From 2009 to 2022, his income has ranged from a low of $7,791.00 in 2011 to a high of $15,100.00 in 2022. His income currently derives from Canada Pension Plan disability benefits.

[9] He continued to make payments to the Family Responsibility Office, who is enforcing the support order, until December 2008. He is now in arears to FRO in the amount of $221,210.00. He lives with his parent or parents and, according to his financial statement, spends $1114.52 of his monthly income of $1258.33 on rent. He has no assets of any kind and has been borrowing from his family to make ends meet.

[10] In October 2012, about 8 months after the release of the decision of Penny J, denying his motion to change, the respondent was advised that he had been approved for the Ontario Disability Support Program with an effective date of May 1, 2012. He received ODSP payments until he begam receiving Canada Pension Plan disability benefits, reportedly because of the severity and prolonged nature of his disability which prevented him from working.

[11] The respondent states he made “frantic efforts” to get another job but could not get one that could accommodate the difficulties posed by his mental health. The evidence indicates that he has not sought work since 2010.

[12] The respondent commenced a motion to change in 2010, which was heard and dismissed by Penny J in January 2012. The substance of that motion was, like this one, that the respondent’s depression makes it impossible for him to hold a job: De Francesco v. De Francesco, 2010 ONSC 594 at para 16. The evidence before Penny J. was that the respondent was denied ODSP benefits in December 2011. The medical evidence before him was not in affidavit from, nor did that evidence explain the context in which it was produced or comment on the respondent’s health status or employability: De Franceso at para 19. Penny J. found the evidence before him to be wholly inadequate. He stated: “I do not say the Respondent could never demonstrate that he is unemployable due to depression but he has not done so on the record in this case.”: De Francesco at para. 31.

[13] The respondent commenced the motion to change that is before me in August 2021. He swears that he was unable to bring it before that date due to the effects of his mental illness and some unspecified periods of hospitalization. He produced affidavit evidence and some clinical reports from Dr. Eva Styrsky, his treating psychiatrist. She had attended the respondent in hospital prior to his first motion to change and started treating him in her clinic in October 2013. She has seen him, on average, about four times a year. Her evidence is that the respondent suffers from symptoms of clinical depression, that he takes various medications, and that in her opinion, he is disabled due to his chronic depressive illness and not able to work in any capacity full or part-time. At times, she has referred to him as “chronically disabled” and as suffering from “severe intractable depression”. She notes that his response to medications has been “minimal at best”. She states that he “lost the drive or desire to do any tasks or engage in a meaningful conversation that can earn him any gainful employment.” As of September 2020, she reported that he also suffers from symptoms of ADHD and PTSD, which makes it difficult for him to focus on tasks to completion.

[14] The applicant takes issue with the respondent’s evidence, although she did not cross-examine him or his treating professional. She claims that much of the evidence is recycled from his previous motion to change, with very little that is new, and that the medical evidence is based largely on the respondent’s self-reports. She points out that the respondent has provided no records of hospitalizations, although he states that there have been several. The medical evidence underlying his ODSP application or his CPP disability application are also not produced. She argues that his job searches were lackluster and insufficient – they were narrowly focused and relied on telephone calls and emails, with no evidence of responses received or follow-ups undertaken. She points out that he has not sought work since 2010.

Governing Principles and Analysis

[15] In order to consider changing the order of Nelson J., I must first find that there has been a material change in circumstances. A material change means a change that, if known at the time, would likely have resulted in different terms of the order: Willick v Willick, [1994] 3 SCR 670. In order to be material, the change must be lasting, and not a temporary set of circumstances. The onus is on the moving party to show a material change: s. 17(4) and (4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp); Favero v Favero, 2013 ONSC 4216 paras. 65-69. If I find that there has been a material change, I must go on to consider whether a variation to the order should be made in accordance with the factors set out in s. 17(7) of the Divorce Act: Favero at para. 70; Allaire v. Lavergne 2014 ONSC 3653 at para. 21. I must then limit myself to making only the variation justified by that change: Allaire at para 21; LMP v LS, 2011 SCC 64 at para 47. None of the objectives set out in s. 17 of the Divorce Act are to be given more weight than any other. The court is to undertake a contextual review: LMP at para 49.

[16] The relevant Divorce Act provisions are as follows:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change in consideration.

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

Position of the Parties

[17] The respondent claims thar the material change in this case is his complete inability to work, given the severe downturn in his mental health. That downturn, he argues, was not foreseen at the time of the Nelson Order, as previously he had been successfully treated for his mental health issues in a manner that allowed him to continue to work. The change is not brought on by choice, but by debilitating illness. The respondent has no assets, a significant mental health issue, very limited income, and no ability to pay retroactive or ongoing support.

[18] The respondent also states, but did not press the points, that quantum and entitlement to support are reviewable under paragraph 12(2) of the order of Nelson J., and that under paragraph (12)(1)(b), a material change has occurred as the applicant is earning more than $15,000 annually.

[19] The applicant takes the position that the applicant is capable of earning an income, and that income is therefore properly imputed to him: Drygala v Pauli (2002), 61 O.R. (3d) 711. She notes that Penny J. found his job search efforts, the same that were reproduced in this motion to change, to be unpersuasive. She acknowledges that although his depression is not his choice or his fault, he did choose to remain underemployed, and to neglect to deal with the support arrears for more than a decade. She argues that he should not be permitted to rely on the stress resulting from a situation that arose as a result of his own misconduct as a change in circumstances: Ontario (Director, Family Responsibility Office) v. Felizardo, 2021 ONCJ 133 at para 101-102. Further, the medical evidence provided is unpersuasive as it was largely based on his self-reporting: Felizardo at para. 105.

[20] In terms of the effective date of the variation, if granted, the respondent takes the position that the material change commenced on October 30, 2008. The applicant takes the position that, if there has been a material change (which she denies), the order can only take effect in April 2021 when this motion was brought, according to s. 12(2) of the Nelson Order. That paragraph permits a review to be sought by either party after May 1, 2008. It provides that any order made would be retroactive to the date the application was commenced. As I noted above, the respondent did not press s. 12(2) as a basis for this variation. The motion was argued as seeking a variation based on a material change in circumstances under s. 12(1) of the Nelson Order, and not as a review under s. 12(2). I therefore find that the retroactivity date in s. 12(2) has no effect.

[21] The applicant argues in the alternative that any material change can only begin in October 2013 when Dr. Styrsky began treating the respondent regularly. She further argues in the alternative that any material change found and resulting order made cannot pre-date the order of Penny J. dismissing the first motion to change: Skinner v Skinner, 2019 ONSC 6949 at para 5; appeal dismissed 2021 ONCA 658. The support arrears up to and including January 25, 2012 are fixed and cannot be cancelled or varied. Anything else would amount to an (improper) appeal of the order of Penny J: Gordon v Goertz, [1996] 2 SCR 27 at para 15.

Findings

[22] Applying the principles to the facts before me, I find that the respondent has shown, on a balance of probabilities, that a material change occurred starting on May 1, 2012, the date on which his ODSP benefits began. I do not find that a material change existed before that time for two reasons: I agree with the applicant that to make such a finding would be an impermissible appeal of the order of Penny J. Further, the evidence before me simply does not support that a material change existed before May 1, 2012. The respondent had been looking for jobs, and there was no medical evidence produced that he was unable to work prior to May 1, 2012.

[23] The material change is not that he has not earned the $73,000.00 of income imputed to him. Nor is the change that he began to suffer from mental health issues, which had clearly been present for many years prior to the Nelson Order. Rather, the change is that his mental health could no longer be successfully managed and began to impair him to such a degree that he became unable to work. Given that his mental health had previously responded well to treatment, I find that this eventuality was unforeseen at the time of the Nelson Order, and that, had it been foreseen, the order as written would not have been made. It is clear that the change has been material - in the words of his treating psychiatrist, he is “unable to work in any capacity full or part-time”. It is equally clear that the change has been long lasting – the respondent has not been able to work for more than a decade. He lives with his mother; he has no assets and the only income he has is from his disability pension.

[24] I find that there is no basis upon which to impute income to the respondent after May 1, 2012. While the applicant relies on the Drygala case, its application depends upon a determination that the payor is intentionally earning less than he is capable of earning. Given the evidence in this case, I find that the respondent has not been capable of earning anything more than the disability payments paid to him since May 1, 2012.

[25] Given that I have found the material change occurred as of May 1, 2012, this is a request for a variation in respect of spousal support only. That is, as the last child became independent in the spring of 2010, all payments and arrears from that point forward were in respect of spousal, not child, support.

[26] Having found a material change I must consider whether a variation to the support order should be made considering the factors set out in s. 17(7) of the Divorce Act. The most important factor in this case is the serious economic hardship that the order causes the respondent. He is unable to earn any income. He survives on his disability pension. He has no assets. I find that a variation is necessary to relieve serious economic hardship for the respondent.

[27] The variation to the order must be limited to what is justified by the material change. While I do not discount the applicant’s need for support, I find that, due to his chronic, debilitating illness, the respondent is simply unable to pay, and has been unable to do so since May 1, 2012.

Disposition

[28] The respondent’s obligation to pay support is terminated as of May 1, 2012. Arrears accrued after that dare are hereby rescinded or cancelled.

[29] The parties are strongly encouraged to agree on costs. If they cannot agree, the respondent may provide written costs submissions of no more than three double-spaced pages, plus any offers to settle and a bill of costs, by October 17, 2023. Applicant may provide responding submissions with the same page limits by October 24, 2023. There will be no reply submissions without leave. Submissions shall be sent to my judicial assistant at linda.bunoza@ontario.ca.

L. Brownstone J.

Date: October 10, 2023