Court File and Parties

Court File No.: FS-08-30247-0004 Date: 2024-09-23 Superior Court of Justice - Ontario

Re: Dawn-Marie Demeter (Blainey), Applicant And: Kevin Ross Blainey, Respondent

Before: Kurz J.

Counsel: Ms. Demeter, Self-represented

Heard: September 18, 2024 – in writing

Endorsement

[1] The Applicant brings what she describes as an urgent, ex parte motion for “leave from the court to bring a motion to change a final order before six months dated July 22, 2024.” I assume that she is seeking that leave under s. 37(3) of the Family Law Act, R.S.O. 1990, C. F-3 which reads as follows:

(3) No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court.

[2] It is not clear from the Chang J. endorsement whether his order was made under the Family Law Act or the Divorce Act, R.S.C. 1985, s.3, as am.

[3] Under the support variation provisions of the Divorce Act, a change since the last support order is prerequisite for a variation of that order. For child support orders, under s. 17(4), there must be a “change of circumstances as provided for in the applicable guidelines … since the making of the child support order or the last variation order made in respect of that order.”

[4] Under s. 17(4.1), in order to vary a spousal support order, the court must find “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 into consideration.”

[5] I will consider this motion under both statutes.

[6] The grounds cited in the notice of motion are unclear but appear to refer to financial hardship. The Applicant’s affidavit offers little further clarity but it reads as an attempt to reargue the issues she raised before Chang J.

[7] Reading the Applicant’s affidavit, the grounds for the motion remain unclear. However, it appears that she is unhappy with the trial order of Chang J. of July 22, 2024 and is in the process of appealing it. Chang J.’s decision was released less than two months ago. It followed a seven-day trial.

[8] The proceeding before Chang J. was a) a request by the Applicant to push back the date that Gibson J. had set for a review of his spousal support order; b) a request by the Respondent to terminate spousal support; and c) a request to vary the Gibson J. order to grant her retroactive child support for the parties’ child, Eric.

[9] In his July 22, 2024 decision, Chang J. terminated the Respondent’s spousal support obligations, effective July 7, 2022. He also dismissed the Applicant’s claim for retroactive child support between November 1, 2016 and August 31, 2020. Chang J. found no material change in circumstances since the time of the Gibson J. order in January 2018 which would call for a change in the timing of the spousal support review called for in the Gibson J. order. Regarding spousal support after July 7, 2022, Chang J. found that “[t]aking into consideration the parties’ eighteen-year relationship, their respective roles during it, and the consent orders made, Ms. Demeter has failed to prove a meritorious claim to spousal support beyond that date.”

[10] Chang J. also referred to the fact that the Respondent had paid spousal support to the Applicant for 15 years. The duration of those spousal support payments fell well within the 9 – 18-year duration range suggested by the Spousal Support Advisory Guidelines. Chang J. found that the payments already made were “sufficient to, among other things, recognize any economic (dis)advantages arising from the marriage or its breakdown, relieve any applicable economic hardship arising from the breakdown of the marriage and promote Ms. Demeter’s and Mr. Blainey’s economic self sufficiency within a reasonable time.”

[11] Chang J. also pointed out that the Applicant’s claim that she suffers from PTSD was self-reported. He rejected the diagnosis of Dr. Patelis-Siotis because of a lack of any independent testing or verification of the patient’s self-reporting.

[12] Regarding a variation of child support to allow for retroactive support, Chang J. rejected the request because of a lack of evidence of a material change in circumstances regarding the child.

[13] In total, the Applicant’s affidavit reads as her argument for an appeal. There is no reference to a material change in circumstances since the order of Chang J. was made since July 22, 2024 (less than two months ago).

[14] Under r. 2(2) of the Family Law Rules, O. Reg. 114/99, as am., the primary objective of those rules is to enable the court to deal with cases justly. Doing so under s. 2(3) includes:

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[15] Under r. 2(4), the court is required to promote the primary objective. It does so, as set out in r.2(5), by active management of cases, including the following steps:

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with all or any part of the case without requiring parties, witnesses or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order under clause 1 (7.2) (i) or (i.1).

[16] Here, whether I consider the proposed motion to change under the Family Law Act or the Divorce Act, I find that the Applicant’s proposed motion to change is an abuse of process. It simply seeks to reargue allegations and positions that were rejected by Chang J. just two months ago (see: Glycobiosciences Inc. v. Herrero and Associates, 2023 ONSC 4143, at para. 16, as cited in Drizen v Capital One Bank (Canada Branch), 2024 ONSC 4274, at para. 18 and the analysis of the principles of issue estoppel and res judicata at paras. 11-17 of Drizen).

[17] The proper venue, if any, for the Applicant’s proposed proceeding is the appeal that the Applicant appears to have commenced.

[18] Thus, I would not grant leave under s. 37(3) of the Family Law Act. Even if this proceeding is brought under the Divorce Act, applying my duty of active case management under rr. 2(2)-(5) of the Family Law Rules, I would dismiss this proceeding at this stage. I would do so because, based on the affidavit of the Applicant, there is no air of reality to any claim that the parties have experienced the prerequisite material change in circumstances since the time of the Chang J. order.

[19] Motion dismissed. A copy of my endorsement shall be sent to the Respondent’s counsel, Janet Miliaris.

Kurz J. Date: September 23, 2024