COURT FILE NO.:  1369/02

DATE:  20060621

 

 

SUPERIOR COURT OF JUSTICE - ONTARIO

 

 

RE:                 MICHAEL FRANCIS WALSH v. JOANNE CONSTANCE WALSH

 

BEFORE:     M.G.J. Quigley J.

 

COUNSEL:  Harold Niman/Anita Volikis, for the Applicant

 

                        JoAnne Constance Walsh, on her own behalf

 

HEARD:        January 16, 2006

 

 

E N D O R S E M E N T

 

 

[1]                 On this motion, the applicant JoAnne Walsh (“JoAnne”) asks for a final order for child support for 2004 in accordance with the federal Child-Support Guidelines (the “Guidelines”) based on the 2004 income of Michael Walsh (“Michael”) of $515,212.  She asks that Michael be required to pay the 2004 child support retroactively with effect from January 1, 2004.  JoAnne also asks for a $200 per month increase in her spousal support from $2800 per month to $3000 effective January 1, 2004.

[2]                 Michael brings a cross-motion.  He says the order of Tulloch J. of January 11, 2005 precludes this Court from making any retroactive adjustment to child support for the 2004 year. He also requests that spousal support be terminated, or alternatively, substantially reduced.  Finally, he seeks an order striking JoAnne's pleadings, having regard to her failure to pay certain costs, as previously ordered. 

Background

[3]                 Joanne and Michael married in 1986, and they separated in 1995.  They have two children, Jordan born May 13, 1992 and Danielle born September 2, 1993.  Michael and JoAnne share joint custody of the children. In the 10 years that have passed since their separation, as is well known in the context of matrimonial litigation in Ontario, Joanne and Michael have been engaged in protracted, acrimonious, and extremely costly litigation in connection with their divorce proceedings.

[4]                 This litigation commenced with a lengthy and bitter divorce trial before Mr. Justice Clarke in 1997.  It continued with proceedings in which JoAnne retroactively sought very substantial amounts of child support. Joanne’s request for retroactive child support was ultimately considered by the Court of Appeal of Ontario.  Its decision, which is reported at [2004] O.J. No. 254, denied JoAnne's claims for retroactive child support. 

[5]                 Most recently, Joanne again brought the matter of child support back to the courts on a motion heard by Mr. Justice Tulloch in the fall of 2004. That motion gave rise to Tulloch J.’s October 12, 2004 Order.  JoAnne was not satisfied and sought clarification of that Order, which resulted in the parties returning to court to obtain Justice Tulloch’s assistance.  It turned out that JoAnne was really seeking additional support, however, and not merely clarification.  Michael agreed to pay JoAnne a further $8,781.20 in retroactive child support. This was incorporated into Justice Tulloch’s January 11, 2005 Order, as was a stipulation based on agreement of Joanne and Michael that neither one of them would make a further claim for retroactive support.   Under the January 11, 2005 Order, Michael is to pay child support to JoAnne of $3,260 per month, while he continues to pay her spousal support of $2,800 per month.  In addition, Tulloch J. ordered JoAnne to pay Michael’s costs of $3,000. JoAnne has not complied with that Order and those costs remain outstanding.

[6]                 Both the judgment of the Court of Appeal and the judgment of Mr. Justice Tulloch recount the sad but extensive history of the litigation between JoAnne and Michael.  I have no intention of repeating that history here.  It will suffice for present purposes to simply state that since the time of their separation in 1995, Joanne has pursued Michael in the courts with unflagging vigour, with extraordinary dedication and with considerable apparent bitterness and emotion.  Apart from raising and serving as principal caregiver to their two adopted children, it appears that pursuing Michael in the courts continues to be JoAnne's principal occupation.

[7]                 In January of 2005, Joanne was charged with breaking and entering and theft.  These charges arose from her unauthorized entry into Michael's home, and removal and destruction of certain of his personal belongings.  She recently pleaded guilty to those charges.  Now, notwithstanding the agreed terms of Justice Tulloch’s January 11, 2005 Order and JoAnne’s continuing failure to satisfy the costs Order which remains outstanding against her, she has returned to court again with a motion to adjust the 2004 child support amount on a retroactive basis to January 1, 2004 based on Michael’s final 2004 income as finally determined, and for increased spousal support.

Child Support

[8]                 Michael was paying child support to JoAnne in accordance with the Order of Justice Tulloch of $3,260 per month until the parties entered into Minutes of Settlement at a case conference held on October 25, 2005 (“Minutes”).  At that time, the parties agreed to increase the child support to $5,160 per month effective January 1, 2005 on a without prejudice basis.  The terms of the Minutes were incorporated into a temporary order of Madam Justice Coats, dated October 25, 2005 (the “Temporary Order”).  The Temporary Order adjourned JoAnne’s motion for an increase of child support and spousal support and adjustments (if any) to January 16, 2006 and permitted Michael to serve a counter-motion returnable on the same day.  The parties agreed to make themselves available for questioning and the issue of costs in relation to questioning was reserved to the January 16, 2006 date.  Finally, it was agreed that Michael would pay child support on a temporary without prejudice basis commencing January 1, 2005 in the amount of $5,560.00 per month based upon his 2004 income of $515,252.  Michael was permitted to file additional materials with respect to JoAnne’s claim for spousal support.

[9]                 Michael continues to be employed by Manulife Financial (as he was when the order of Justice Tulloch was made).  His income is comprised of a salary and bonus but the bonus amount is not guaranteed from year to year.  He previously participated in an executive flexible spending account program (“EFSA”) whereby an amount calculated as 10% of his salary went into this account.  As Michael previously disclosed to the Court, however, all expenditures under the EFSA were for business development purposes.  They were not considered to be part of his annual compensation.  This program was discontinued effective January 1, 2005. Michael’s income in 2004 was significantly higher than his income in 2003.  The increase in his income in 2004 was not as a result of an increase in his salary.  Rather, it was due solely to sale commission amounts.  It should be noted that Michael’s commission based income component  may not be sustainable in future years or may vary materially from the amount earned in 2004.

[10]           Michael gave JoAnne a copy of his 2004 Income Tax Return and Notice of Assessment in accordance with the order of Justice Tulloch of July 15, 2005. Shortly thereafter, they had a conversation.  Notwithstanding Justice Tulloch’s order regarding retroactive support, Michael explained that he was prepared to give JoAnne a cheque in the amount of $29,863.20 to top up the child support he has paid since January 2005 in order to reflect the Guideline table amount of child support payable for an annual income of $515,252, his 2004 income.  He volunteered to give JoAnne the total “top up” at one time to avoid further legal proceedings.  The Court notes that he did not have to do this and could instead have simply relied on Justice Tulloch’s order.  In response, Michael states that JoAnne told him bluntly that she would not agree to this as she intended “to go back to court” to make more claims against him, including asking for increased spousal support.  This is exactly what JoAnne has done.

[11]           At paragraph five of her affidavit sworn July 29, 2005, JoAnne acknowledges that both she and Michael are “precluded”, under Justice Tulloch’s order, “from making a further claim for retroactive support from the date of Mr. Justice Clarke’s judgment or a variation of the retroactive support already ordered by this Court.” 

[12]           In his October 12, 2004 endorsement, Justice Tulloch denied JoAnne’s claim for retroactive child support from the date of Justice Clarke’s order (September 1997).  He expressly found that if an order was made for retroactive child support effective prior to the date of JoAnne’s original motion, it would have nothing to do with the needs of the children and would create substantial hardship to Michael and a financial windfall to JoAnne.  Justice Tulloch was only prepared to vary the child support retroactive to the date JoAnne commenced her proceeding (i.e. April 26, 2002) and his order makes that clear.  When JoAnne took Michael back to court in January 2005 to “clarify” the order, Michael agreed to pay her an additional $8,781.20.  Once again, he volunteered to do this to put an end to JoAnne’s continuing requests and attendances at court for clarification of the decision.

[13]           As part of the temporary order of Coats J. in October 2005, Michael agreed to pay, and did pay, child support to JoAnne in the amount of $5,560 commencing January 2, 2005.  JoAnne acknowledged receiving $31,000 during recent questioning.  Her evidence was that she was going to use the money to pay her debts, including her credit card debt.  Now, on this motion, as previously noted, JoAnne returns to court seeking increased retroactive child support for 2004.

[14]           The Guidelines do not give a court inherent discretion to recalculate or adjust the amount of child support to reflect a payor’s increase in income.  Nothing in the Divorce Act, the Guidelines or appellate case law gives this Court a freestanding right to recalculate and then adjust child support retroactively and as the Court of Appeal’s decision in this case makes clear, there is no automatic right to retroactive support: see Walsh v. Walsh (supra).

[15]           Appellate decisions in Ontario, Manitoba, and Alberta establish beyond doubt that a retroactive child support order must relate only to the ongoing needs of the child; see Drygala v. Pauli 2002 CanLII 41868 (ON C.A.), (2002), 61 O.R. (3d) 711 (Ont. C.A.); Brett v. Brett, [1999] O.J. No. 1384 (Ont. C.A.); Wishlow v. Bingham, [2000] A.J. No. 809 (Alta. C.A.); Andries v. Andries 1998 CanLII 14093 (MB C.A.), (1998), 36 R.F.L. (4th) 175 (Man. C.A.).

[16]           In Evans v. Gravely, 2000 CanLII 22593 (ON S.C.), (2000), 14 R.F.L. (5th) 74 Ont. S.C.), the Honourable Madam Justice Benotto of this court makes the following observation with respect to claims for retroactive child support:

The mother requested retroactive support to May 1997.  This, in my view, would amount to a windfall to her and not relate to the needs of the child.  Also, it would be unfair to the father, in these circumstances, to create immediate and substantial arrears.  The support shall commence on February 1, 2000, the first day of the month following the commencement of the Application.

In so concluding, Justice Benotto followed a long line of cases and established jurisprudence ordering support to commence on the first day of the month following the commencement of the application.  In the present case, JoAnne has proffered no evidence that a retroactive order would be of benefit to the children.  On the contrary, it is clear to me that such an award in this case would be a pure windfall to JoAnne: see Evans v. Gravely and Andries v. Andries (supra).  It would effectively reward her for her continuing legal persecution of Michael and her continuing failure to honour earlier orders of this court.

[17]           A payor should not ordinarily be required to pay support for a period during which none was sought, or for a period during which the amount was fixed by interim order or agreement.  Generally speaking, support payers structure their financial affairs on the basis of known obligations.  In the usual course of things, it would be quit unfair to impose an additional obligation retroactively: see Andries v. Andries (supra); Njegovan v. Melnuk, [2000] M.J. 409 (Man.Q.B.).  As well, the Court of Appeal’s decision in Walsh (supra) makes it clear that the discretion to award retroactive support is one to be exercised sparingly. 

[18]           In Brett, the Court of Appeal for Ontario denied a claim for retroactive child support observing that:

If a retroactive child support order were to be made now, as a purely practical matter, the support paid would have nothing to do with the needs of the children or their support.

In this case, in my opinion, an order for retroactive child support effective prior to the date of JoAnne’s original motion would have nothing to do with the needs of the children, but would instead create substantial hardship for Michael and provide an undeserved windfall to JoAnne.

[19]           In order to depart from the principle that the effective date of the variation is the date of the application or the demand for the disclosure, and to make an order retroactive to an earlier date, the variation must be justified on the basis of need, the payor’s ability to pay, and other relevant factors set out by the British Columbia Court of Appeal in L.S. v. E.P. 1999 BCCA 393 (CanLII), (1999), 50 R.F.L. (4th) 302 (B.C.C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 444, (affirmed by the Ontario Court of Appeal in Drygala, (supra); Walsh (supra)). 

[20]           In my opinion, there has been no evidence put forward by JoAnne that supports her claim for a retroactive variation of child support.  However, JoAnne’s claim for a retroactive increase in child support to January 2004 is not only unjustified on the facts, but as well it is legally precluded by the provisions of Justice Tulloch’s order; see order of Justice Tulloch, dated January 2005.  This Court has no legal or factual basis upon which it can override Justice Tulloch’s order.  For the foregoing reasons, JoAnne’s application for increased retroactive child support is dismissed.

Spousal Support

[21]           Michael’s counsel argues that  there is no valid basis pleaded by JoAnne justifying an increase of spousal support.  JoAnne’s position seems to be, quite simply, that since Michael’s income increased in 2004, spousal support to her should also increase.  However, it is well known that an increase in a payor’s income alone does not merit an increase in spousal support.

[22]           Not only does Michael claim there is no basis to increase spousal support, but instead he argues that there is justification for an order terminating the existing spousal support.  During the trial in 1997, Justice Clarke found that JoAnne could find a job in the Oakville/Toronto area paying between $60,000 to $100,000 per year within four to six months.  Justice Tulloch specifically referred to this in his endorsement of October 12, 2004 when addressing JoAnne’s claim for increased spousal support.  Justice Tulloch agreed with Michael’s position and stated that there was no reason why JoAnne could not be working during the day since the children are in school full time.  At paragraph 43 of his endorsement he said:

Again, Mr. Walsh’s argument is very persuasive.  During the trial in 1997, Mr. Justice Clarke found that Mrs. Walsh could find a job in the Oakville/Toronto area paying between $60,000 to $100,000 per year within 4 to 6 months.  Mrs. Walsh holds a Bachelor of Business Administration Degree.  She enjoyed a career in the financial services field up until the time the parties adopted Danielle and Jordan.  Mrs. Walsh has also worked as a supply teacher.

I find that it was the parties’ mutual intention during the marriage that Mrs. Walsh would stay at home until the children were in school at which time she would return to the workforce.  I agree with Mr. Walsh that as the children are in school full-time (Danielle in grade 5 and Jordan in grade 6) there is no reason Mrs. Walsh cannot be working during the day.  Mrs. Walsh is “fluently” bilingual (French and English) and has advanced knowledge in computer usage including familiarity with Windows, the internet, Office 2000 and Front Page.  I am of the view that in the circumstances, it would be inappropriate to make an order for increased spousal support.

[23]           Justice Tulloch dismissed JoAnne’s motion for increased spousal support.

[24]           Given the totality of the current circumstances, including but not limited to the fact that JoAnne is now receiving child support in the amount of $5,560 per month, an amount substantially higher than the previous child support she was receiving, Michael argues that it is now appropriate for his spousal support obligation to end.  With the significant increase in child support, JoAnne’s family unit (JoAnne and the children) now has the benefit of significantly more funds.  Should the current spousal support of $2,800 be terminated, JoAnne’s family unit would still be in a far better financial position than before.  This reality, he argues, must be considered.

[25]           Michael argues that spousal support should terminate given the length of time that JoAnne has had to become self-sufficient and the fact that she has not taken any steps in this regard even though it has been eight years since Justice Clarke made his order.  If this Court is not prepared to make an order terminating spousal support, he argues that the spousal support obligations should be substantially reduced with a termination date.

[26]           Frankly, I agree with the submissions made by Michael’s counsel that if JoAnne spent as much time seeking employment as she does relentlessly pursuing Michael in court, she would now be employed and not in need of support.  Michael argues that the children’s financial needs are being met and that JoAnne’s lifestyle does not appear to have changed since the previous variation proceedings. 

[27]           JoAnne continues to maintain, however, that she is unable to work as she is being “treated for depression and anxiety reactions since 1996”.  This was essentially her position before Justice Tulloch at which time she presented documentation from her treating physician, Dr. Eddenden, in an effort to support her claim that she was unable to work.  Justice Tulloch refused JoAnne’s request to increase her spousal support.  In these proceedings, JoAnne has not provided any further evidence of her claim that she is unable to work for health reasons, including providing updated health information.

[28]           JoAnne has a Bachelor of Commerce Degree. She enjoyed a career in the financial services field up until the time the parties adopted Danielle and Jordan.  She was formerly employed as the Director of Marketing for a major bank.  Frankly, JoAnne’s qualifications are quite impressive.  JoAnne also has experience working as a supply teacher.  It was the parties’ mutual intention during the marriage that JoAnne would return to the workforce once the children were in school.  The children are now 13 and 12 years of age.  They have been in school full time for many years (Jordan is in grade eight and Danielle is in grade seven). Quite simply, the evidence makes clear that JoAnne chooses not to work.

[29]           During her examination in March 2003, JoAnne stated that she had hoped to start her own photography business.  Her evidence was that she had documented her career plans (indeed, at the time, JoAnne produced a binder containing her curriculum vitae, or “Executive Summary” and attached “Career Plan”).  She stated that she hoped to turn her hobby of photography into a ‘lucrative business”.  Her evidence was that she expected her income to be $95,000 (gross) “at year five”.  During her questioning in December 2005, JoAnne produced a similar document setting out a similar plan.  Again, the plan stated she expected her income to be $95,000 (gross) at year five.

[30]           JoAnne’s recent affidavit evidence (specifically her affidavit sworn July 29, 2005) was that she was “pressed for cash” in January 2005.  If this is true, Michael argues, she should have taken steps to become gainfully employed.

[31]           JoAnne’s evidence given during her questioning in December 2005 is of direct relevance to her entitlement to spousal support:

(a)        She said she was employed for a time in 2004 and also in 2005 (two different jobs), but she quit both jobs.  She acknowledged that this was the first time this information was being disclosed. 

(b)        She acknowledged she had a legal obligation to support herself.

(c)        She acknowledged that she would rather go without than take a job and be away from the children.  (She repeated this assertion in court before me on the argument of this motion.)

[32]           There was no evidence before this Court on this motion of JoAnne’s other circumstances suggesting that she is in need of increased spousal support.  She continues to reside in a comfortable three bedroom (potentially four bedroom) home (the same home she was residing in during the previous variation proceedings).  She has traded her Mercedes Benz vehicle for a late model Jaguar.  According to her financial statement, sworn July 29, 2005, she is making car loan payments of $645 each month (this is even more than what she said she was paying for her car lease two years ago).  She also claims to be making credit card payments of $2,560 per month.  JoAnne does not disclose any bank accounts (savings or investments) in her financial statement.  She previously had a savings account, investment account  and RRSPs.

[33]           With current child support of $5,560. per month, Michael argues vigorously that Joanne is receiving sufficient support.  If she chooses not to work that is her choice, but that it should not be at his expense.   He says spousal support must terminate.

[34]           Further, Michael is increasingly concerned by the example that JoAnne is setting for their children.  She has involved them in all of the legal wrangling that has gone on between them.  He says that Jordan and Danielle are aware that their mother’s day-to-day activities centre on incessantly litigating against their father in the courts in an attempt to support her lifestyle.  JoAnne refuses to obtain employment and to become a contributing member of the community.  Michael is very concerned about the message this sends to the children and, in particular, the example JoAnne is setting for their daughter.

[35]            In summary, Michael argues that spousal support should terminate given the following factors:

•        Michael and JoAnne’s marriage was not a lengthy or traditional one.

•        Michael has been paying spousal support to JoAnne since 1997 (over eight years).  JoAnne should have been self-sufficient by now.

•        The children are 13 and 12 years of age.  They do not require JoAnne to be at home on a full-time basis.  JoAnne should be working during the day.  JoAnne claims that “the children are at a critical age... where a parent is required to ensure proper behaviour”.  It is unclear what JoAnne is trying to communicate, but it seems that she is suggesting she can either parent the children or work, but not both.  Michael disagrees. 

•        JoAnne has acknowledged under oath that she has a legal obligation to support herself.

•        JoAnne’s evidence was that she would rather go without than take a job and be away from her children.

•        With the level of child support Michael is currently paying, JoAnne is receiving sufficient support to meet her needs.

•        If JoAnne chooses not to work that is her choice, but spousal support must terminate.

[36]           The objectives of spousal support are set out in Section 15.2(6) of the Divorce Act as follows:

Objectives of spousal support order - An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

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

b)   apportion between the 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 spouses arising from the breakdown of the marriage; and

d)   in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.  [emphasis added]

[37]           In considering whether a spousal support order should be varied, s. 17(7) of the Divorce Act stipulates that the court must:

a) recognize any economic advantages or disadvantages to the former spouse 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)   insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.                                                                                     [emphasis added]

[38]           In the circumstances, Michael argues that JoAnne’s failure to make reasonable efforts to achieve self-sufficiency constitutes a change in circumstances sufficiently material to justify a termination of spousal support.  His counsel observes that limits on the quantum and duration of support have been imposed by the courts as an effective way of underscoring a support recipient’s obligation to contribute to his or her own support and to achieve self-sufficiency:  see Archer v. Archer, [2005] (Ont. C.A).; Bergeron v. Bergeron, [1999] O.J. No. 3167 (Ont. S.C.J.); Bildy v. Bildy, [1999] O.J. No. 501 (Ont. C.A.); Shankman v. Shankman, [2001] O.J. No. 3798 (Ont. S.C.J.).   He argues forcefully that a termination (or substantial reduction) of spousal support and/or the imposition of a limited term order will promote JoAnne’s economic self-sufficiency and encourage her to take this objective seriously: see Pickering v. Marcil, [2004] N.B.J. No. 350 ((N.B. C.Q.B.).

[39]           In Bradley v. Bradley, an order was made continuing the wife’s support for a further period of 12 months at which time the husband’s support obligation would terminate. Justice Zarzeczny stated the following, at paragraph 57 of the decision:

Because of the choices [the wife] has made she has committed herself to annual expenses considerably in excess of what she can afford from an income point of view unsupplemented by asset liquidations.  Nevertheless, as the Court has observed, these are choices which she is entitled, and using some of her own resources can afford, to make.  The resultant financial consequences should not be visited upon [the husband] alone nor endlessly.

[40]           In my opinion, JoAnne has had a very lengthy period of time to secure meaningful full-time employment that is commensurate with her abilities.  See C.J.A. v. L.R.G., [2004] O.J. No. 1769 (Ont. S.C.J.)

[41]           Instead, JoAnne has chosen not to return to a career for which she is professionally qualified and not to obtain other gainful full-time employment.  I agree with Michael that in these flagrant circumstances, he should not be required to pay for the financial choices JoAnne has made.  I agree with him JoAnne should bear the consequences of her own decisions.  See Bradley (supra)

[42]           The jurisprudence clearly establishes that where a spouse makes no attempt to become self-sufficient or to contribute to his or her support, he or she should not be entitled to increased spousal support.  It is appropriate in such cases for a court to place limits on quantum and duration of support as an effective way of emphasizing his or her self-support obligations under section 17(7)(d) of the Divorce Act.  See Talbot v. Talbot, [1996] O.J. No. 3191 (Gen.Div.); Bildy (supra); Bergeron (supra), Cavanagh v. Cassidy 2000 CanLII 22514 (ON S.C.), (2000), 7 R.F.L. (5th) 282 (Ont. S.C.J.); Purcell v. Purcell (1996), 26 R.F.L. (4th 267 (Ont. C.A.)

[43]           It was JoAnne’s evidence that she does not intend to get a job.  She acknowledged having  a plan in 2003, over three years ago, to start her own photography business and she also acknowledges not doing this or pursuing any alternative employment.

[44]           In the annotation to Read v. Read, 4 R.F.L. (5th) 126 (N.S.C.A.), the late Professor James McLeod observed that “although a Court should not over-emphasize a dependent’s duty to make reasonable efforts at self-support, neither should it ignore such a duty by making an order that reinforces a dependent’s refusal to make any effort to contribute to his or her needs.”  In my opinion, this is a case where an order increasing spousal support would reinforce JoAnne’s refusal to take steps to contribute to her own support.   Further, JoAnne has produced no explanatory or vitiating evidence concerning her failure to fulfill her statutory obligations.  She has referred to being “treated for depression and anxiety reactions”, but there is no medical report in support of this.  It was Michael’s submission, on the authority of Sopinka and Lederman, The Law of Evidence in Canada, page 297, that an adverse inference should be drawn by JoAnne’s failure to produce this evidence. 

[45]           I agree with Michael that this is an appropriate case to draw such an adverse inference.  Quite simply, JoAnne’s presentation to this Court, not only on her need for increased spousal support, but also on her alleged medical inability to obtain work, lacks credibility. 

[46]            For all of the foregoing reasons, I agree that the time has come where Michael’s spousal support obligations of JoAnne must terminate.  Happily, Michael’s success in his career has created the economic wherewithal that permits his children to enjoy child support in amounts that most Canadian families can barely conceive of.  To permit JoAnne to either have increased spousal support, in addition to that child support, or even to continue with the existing spousal support, in the face of her continuing legal persecution of Michael and her self-acknowledged refusal to take steps to contribute in any way to her own economic self-sufficiency, would, in my view, be quite unconscionable.  Accordingly, JoAnne’s motion for increased spousal support is dismissed.  Michael’s cross-claim for a termination of JoAnne’s spousal support will succeed.  However, consistent with the approach taken by this court in other similar cases, it will be terminated over a relatively brief phase out period to permit JoAnne to adjust to providing for herself.  Accordingly, Joanne’s spousal support of $2,800 per month shall be reduced to $1,400 per month effective July 1, 2006 and it shall terminate on December 31, 2006.

Costs and Future Proceedings

[47]           JoAnne has brought her motions for increased child support and spousal support at a time when she continues to be in breach of orders of this court.  In October 2004, over 20 months ago, Justice Tulloch ordered that JoAnne pay costs to Michael in the amount of $3,000.  JoAnne has not paid those costs.  It is astonishing to the Court that JoAnne has had the temerity to bring her variation proceeding in the face of her continuing disregard of Justice Tulloch’s order.  JoAnne’s contemptuous behaviour has not subsided even though she has previously been found in contempt of court for failure to comply with the access provisions of Justice Clarke’s judgment.

[48]           During her recent questioning, JoAnne acknowledged that she has not paid the $3,000 costs award.  She confirmed that she does not intend to pay that amount.

[49]           Nevertheless, in the face of her contempt, JoAnne has proceeded to file interim motions, motions which were unmerited and which Michael incurred legal fees to defend against.  Sadly, it appears evident that JoAnne has little respect for this Court or the court process.  In the circumstances, Michael asks the Court to exercise its jurisdiction to bring an end to JoAnne’s claims by striking her pleadings.

[50]           As well, Michael asks this Court to make an order requiring JoAnne to pay Michael’s costs of these proceedings on a full recovery basis, (including the costs that have been reserved on several occasions).  JoAnne has chosen to represent herself thereby avoiding paying legal fees.  Michael argues that JoAnne must face the consequences of bringing forward frivolous actions and motions.  More particularly, he asks that JoAnne pay:

(a)        The costs of the unnecessary attendance before Justice Kruzick on August 22, 2005.  JoAnne chose this date unilaterally, knowing that Michael would be away with one of the children.  She would not agree to adjourn the matter to a mutually convenient date even though neither Michael nor his solicitors were available.  Michael had to incur the unnecessary expense of having another lawyer from his solicitors’ office attend to request an adjournment.

(b)        The costs of the unnecessary attendance before Justice Coats on September 29, 2005.  JoAnne brought an urgent motion prior to a case conference having been held.

(c)        The costs of defending JoAnne’s motion to question non-parties on November 10, 2005.  Michael was successful in having the motion dismissed  However, the matter of costs was reserved to the judge hearing the long motion.  That motion had no merit whatsoever and was nothing more than a costly continuation of JoAnne’s continuing legal warfare against Michael.

(d)        The costs of defending JoAnne’s motions to vary child and spousal support (and other relief set out in JoAnne’s 14B motion).

(e)        The costs of Michael’s motion terminating or, alternatively, reducing the spousal support he is paying to JoAnne pursuant to the judgment of Justice Clarke, dated September 23, 1997, and striking JoAnne’s pleadings.

[51]           Michael also respectfully requests the Court’s assistance to collect the $3,000 of costs that JoAnne was ordered to pay in October 2004.

[52]           The Court is required to decide in a summary manner who, if anyone, is entitled to costs, and to set out the amount of costs, promptly after each step in the case.  In this case, the Court must consider (among other things) the reasonableness or unreasonableness of each party’s behaviour in the case.  If a party has acted in bad faith, the Court shall award costs on a full recovery basis and shall order the party to pay them immediately.  Case law in Ontario makes clear that full recovery costs shall be awarded only in the face of egregious conduct by a party in the course of the litigation.

[53]           Michael submits that JoAnne’s actions in these proceedings justify a costs award in Michael’s favour on a full recovery basis.  For the reasons above, I am of the view that JoAnne’s egregious and unrelenting behaviour in the course of these proceedings requires that substantial indemnity costs be awarded. 

[54]           The costs of each of the August 22, 2005, September 29, 2005, November 10, 2005 and January 16, 2006 motions and proceedings will be fixed on a substantial indemnity basis upon receipt of the relevant bills of costs by the Court from Michael’s counsel.  JoAnne shall be permitted to provide a submission to the Court, in writing only, respecting these costs.  JoAnne’s submissions shall be no more than three pages in length, typed and double spaced in type no smaller than 12 point font with one inch margins on the top and sides of each page.  JoAnne shall provide her submissions on costs within two weeks of the service upon her of Michael’s bill of costs.  Should no submissions on costs be received by the Court within that time frame, the Court will fix costs on the basis of the materials submitted by Michael’s counsel alone.

[55]           While the behaviour of JoAnne in these proceedings provides a strong temptation to the Court to accede to Michael’s request to strike JoAnne’s pleadings, in fairness to JoAnne, I consider this to be a remedy beyond what is required in the circumstances.  However, I do hereby order that JoAnne shall not be at liberty to bring any further proceedings of any kind in this ongoing litigation until all costs orders made against her and in favour of Michael in the past and pursuant to this order are satisfied in full.  Further, if the costs payable pursuant to this order, once fixed, are not satisfied in full within 90 days of the date of such order, then Michael shall be at liberty to move to strike JoAnne’s pleadings at that time.

 

 

 

___________________________

M.G.J. QUIGLEY J.

 

 

DATE:         June 21, 2006