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Decision opens floodgates to challenges by mentally ill spouses

The Ontario Court of Appeal (OCA) has thrown any family law judgment involving a mentally ill spouse into doubt after it set aside a final trial order a decade after it was made, Toronto family lawyer Gene C. Colman tells AdvocateDaily.com.

The unanimous three-judge panel stressed the “highly unusual circumstances” of the case, which involved a trial order finally determining the issues of equalization, spousal support and child support for the couple’s children, who are now in their 30s.

After admitting fresh evidence filed by the wife, the appeal court found she had been incapable of preparing for or attending the original trial and set aside the order, made in December 2007.

“This is a horrid judgment. As much as they talk about the exceptionality of the facts, in an effort to limit the precedential value of the decision, I maintain that they have really opened the floodgates,” says Colman, principal of Gene C. Colman Family Law Centre. “If you can get a health professional to opine that you lacked capacity, even as much as 10 years ago, then you can get a default judgment set aside. There is no good reason that this decision should be confined to the facts of this particular case.

“It throws everything we know about setting aside court orders out the window,” he adds.

The couple in the case had been married 22 years when they split in 2003. They received a divorce in 2006, with a trial to settle equalization and support following in November 2007. However, the trial proceeded in the absence of the wife, who failed to show.

The trial order dismissed the woman’s claims for spousal and child support and required her to pay her former husband an equalization payment of more than $100,000.

She filed a motion to set aside the final trial order in March 2008, but that too was dismissed when the woman failed to appear and resulted in a further order that she pay her ex almost $175,000, according to the appeal court.

In the following years, the woman lived in her mother’s home, with an income largely derived from a long-term disability pension. When her mother died, the woman’s former husband started garnishment proceedings against the estate to collect on his outstanding judgments and had recovered $250,000 by the time of the appeal court hearing, with a further $100,000 still owed.   

The OCA admitted fresh evidence from a psychologist that showed, in addition to physical ailments, the woman had suffered from serious mental health issues since at least 1995. Relying on his assessment that she was emotionally paralyzed at the time of the proceedings, the judges were “satisfied that the [woman] lacked the capacity to prepare for and attend at trial and the motion.”

“The uncontested trial and motion resulted in orders that had disastrous financial consequences for the appellant,” the panel wrote, adding “in our view, the outcome would likely have been dramatically different had the appellant been present at the trial and her motion, and had she been given the opportunity to challenge the respondent’s evidence with her own evidence and through cross-examination and submissions.”

The panel also ordered the husband to pay back his garnished funds with interest and set aside the trial order. The husband must also pay $80,000 towards the woman’s costs of the appeal.

Although a new trial could result, the judges urged the two sides to avoid the need by settling the dispute themselves.

Colman says he’s troubled by the court’s acceptance of the psychologist’s evidence, considering he never treated her at the time of the trial.  

“In my respectful opinion, the court's discussion on this topic is far from convincing. How can an assessment in 2017 establish an inability to instruct counsel 10 years before? He says that she’s emotionally paralyzed, but I think that could describe most people in family law litigation. It’s an overwhelming process," he says.

“You can see that the Court of Appeal wanted to help this lady, which is very human. But as sitting judges, they have a wider responsibility to our legal system,” Colman adds.  

In addition, he says it’s hard to fault the husband for his actions, either in the lead up to the trial or in its aftermath.

According to the decision, he attempted to have the Public Guardian and Trustee appointed as her legal guardian due to his concerns about her mental health. In hindsight, Colman says the husband should have renewed that request closer to the trial or afterwards.

The costs award against the husband, and the requirement that he pay back the garnished funds so quickly also appears unfair, considering that his actions were based on the enforcement of valid orders made by a respected judge, he says.

“What else was he supposed to do,” Colman says.

He always cautions clients whose former spouses suffer from mental illness to tread carefully when negotiating separation agreements because of the danger they could subsequently be overturned.  

“Now I’m going to have to do the same about court orders that are financial in nature because this decision shows you can’t rely on them,” Colman says. “No judgment with a mentally ill spouse will ever be final.” 

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