Wells (Hodgson) v. Hodgson, 2011 ONCJ 704

Orangeville Registry No. 128/09 DATE: 2011·X·24 CITATION: Wells (Hodgson) v. Hodgson , 2011 ONCJ 704 Ontario Court of Justice Family Court at Orangeville BETWEEN Jean Anne Wells (Hodgson) Applicant (Responding Party) and Thomas Pearson Hodgson Respondent (Moving Party) Justice Bruce E. Pugsley Heard: 12 October 2011 Released: 24 October 2011 Appearances: The Applicant appears in her own behalf Mr. Allen Wilford for the Respondent Decision on Respondent’s Motion for

Summary Judgment 1 . JUSTICE B.E. PUGSLEY:— The parties were formerly husband and wife; they married in 1976 and divorced in or about February of 1992. Neither party has filed material with regard to that divorce, nor what issues the court adjudicated at the time of the divorce, if any. 2 . The Respondent was presented with an agreement by the Applicant on or about August 6 th , 2007, some fifteen years post-divorce. The Applicant stated that this agreement only gave effect to an earlier handwritten agreement in substantially the same terms purporting to have been signed on January 15 th , 1992.

The 2007 agreement purported to establish retroactive child support and what is referred to as the “education amount” for the five children of the parties (now all adults) dating back to 1992. The agreement was signed by the Respondent. Nine days later the Applicant filed the agreement with the family court at Orangeville for enforcement by the Director, Family Responsibility Office. On August 12th of 2008, a third agreement purporting to confirm the support arrangements and purporting to direct payment from the Respondent’s aunt’s estate was signed by the parties.

No agreement was entered into with any independent legal advice. 3 . The Director subsequently started active enforcement proceedings on the arrears of child support and extras (over $300,000.00) created by the agreement. 4 . On July 15 th , 2009, the Respondent commenced a motion to change the filed separation agreement, retroactive to the date of the agreement, to reduce child support payable by the Respondent to zero, and to fix the arrears of child support owed to the Applicant at zero. At the time the ages of the children ranged from 21 years to 31 years of age.

The Applicant, who has been represented by counsel in the past from time to time, now represents herself, and vigorously resists the motion to change. She herself at one stage produced a cross-motion to change the 2007 agreement to add to the on-going obligation in that agreement to support the parties’ children. 5 . At an early stage in the proceeding this court stayed enforcement of the agreement by the Director, Family Responsibility Office on an interim basis for reasons that will shortly become clear.

For a time the matter was being adjourned to allow the Applicant to obtain much needed legal advice, which, on occasion, she appears to have obtained if, perhaps, she did not follow. A series of adjournments to allow the Applicant to take advice on a proposed challenge to the Respondent’s aunt’s Last Will and Testament also delayed the progress of this matter through the courts. 6 . By motion the Respondent now seeks an order for

summary judgment herein ending the matter. 7 . The Applicant resists the order sought and seeks other relief with regard to the Public Guardian and Trustee, and in the realm of Estate law, which is not within the jurisdiction of this court. Although her material filed is apparently sincere and certainly voluminous, it scarcely touches on the issues raised by the Respondent in the motion now before me, and demonstrates a through lack of

understanding of what the real issue is and what the jurisdiction of this court encompasses. This is unfortunate given the attempts made by the court in the past to try to keep the Applicant on track here, and the fact that on at least two occasions she has been represented by counsel. 8 . The un-contradicted evidence before me is that the Respondent, Mr. Hodgson, has been incompetent to manage his property for many years. He suffers from schizophrenia and has so suffered since the latter 1970’s.

Since approximately 1998 his sole apparent source of income has been in the form of Ontario Disability Support Programme benefits (“ODSP”) totalling less than $7,000.00 per year. In 2009 he was the subject of an assessment under the Substitute Decisions Act, 1992 wherein the Office of the Public Guardian and Trustee was appointed the statutory guardian of the property of the Respondent. For a time before that one of his children held his Power of Attorney. 9 .

The 1992 agreement, the 2007 agreement, and the 2008 agreement set out a child support arrangement and a provision for payments towards the educational needs of the children that are fixed by these agreements without regard to actual need, nor the Respondent’s ability to pay, nor by the application of the Child Support Guidelines, Ontario . The 1992 agreement purports to secure payment based on money that the Respondent (or, more to the point, the Applicant) expected he would eventually inherent when his aunt died.

Indeed, the 2007 agreement was signed soon after the death of the Respondent’s aunt and the 2008 agreement while the issue of the Estate trustee was being debated in the courts. 10 . Notwithstanding her divorce in 1992, and subsequent remarriage the same year, the Applicant has repeatedly sought to take on a role as the representative of her ex-husband, the Respondent. As subsequent events disclose, that role has been continued in the face of the appointment of the Public Guardian and Trustee, up to and including an attempt to purportedly transfer this proceeding to Toronto on the consent of Mr.

Hodgson, and to have Mr. Wilford, the Respondent’s own counsel, fired - purportedly by the Respondent but clearly at the suit of the Applicant. 11 . The Respondent’s aunt, Zoe Marguerite Hodgson, died on April 23 rd , 2007. In her Will and Codicil she provided for, inter alia, the right of the Respondent to reside in her house in the hamlet of Hornings Mills, Ontario, for as long as he wished to do so, created a trust for the benefit of the Respondent, and directed her trustees to make provision for his on-going support.

The children of the parties are the residuary beneficiaries of the Hornings Mills house, but not of the entire residue of the estate. The balance of the estate is left to charities to be chosen by the Estate trustees. Soon after the death of the testator, the Respondent, supported by some of his children, sought to have the surviving Estate trustee, one Mr. Webb, removed as Executor and trustee of the Estate, and that the Estate solicitors be removed as well. It was proposed that the Applicant, her husband, and Mr.

Wilford become the Estate trustees of the aunt’s estate, (but interestingly, not the Respondent, the most interested party, who the Applicant takes pains to point out was seen to be competent at the time of the settlement). By that time the Applicant had been divorced from the Respondent for some fifteen years. It is not clear what relationship her second husband had with either the Respondent or the deceased, if any. 12 . The Estate in turn sought to have a second Estate trustee appointed to act in concert with Mr. Webb.

The matter was scheduled to be dealt with in the Superior Court in the summer of 2008 and a hearing on these issues was directed to be heard in the fall of 2008. As it appears from material filed herein by the Applicant, in the process of preparing for the hearing, Mr. Osyany of the Estate solicitors, wrote to Mr. Wilford (the Respondent’s solicitor then as now) indicating that Ms. Wells had written demanding over $300,000.00 from the estate and Mr. Hodgson as child support, with the threat that the Applicant would turn the file over to the Family Responsibility Office if the money was not paid. 13 .

On September 9, 2008, The Director, Family Responsibility Office, sent a garnishment notice to the estate solicitors garnisheeing any money owed by them to the Respondent. This was in support of the enforcement of the 2007 agreement relied upon by the Applicant setting out over $300,000.00 in unpaid child support arrears and

section 7 guideline extra education expenses fixed by the agreement at $25,000.00 per child - apparently without any link to any actual educational expense incurred by each child. 14 . Given that any money flowing from the estate directly to the Respondent was entirely at the discretion of the trustees, no money was then paid by the estate to the Respondent since it would have immediately been forwarded to the Applicant as support arrears under the disputed agreement. In effect, therefore, the garnishment diminished the Respondent’s meagre income by roughly one half. 15 .

Within the voluminous materials filed by the Applicant are some of the affidavits filed by the parties to the 2008 Estate action. Part of that material is a copy of an affidavit sworn by Andrew Osyany, of the Estate solicitors, and a witness to the September 6 th , 2000, Will of Ms. Hodgson. The affidavit provides a background for the decision made by the testator not to leave the residue of her estate to the Respondent. Further, amounts to be advanced to the Respondent under the terms of the Will were capped so that they would not lead to a decrease in the Respondent’s ODSP benefit. 16 .

Also contained within the materials is an affidavit filed in the estate action sworn by Robert Webb, the sole surviving Executor until the order of November 3 rd , 2008. Mr. Webb speaks to his observation of the steps taken, in the name of the Respondent, to extract money from the aunt’s estate. 17 . On November 3 rd , 2008, on consent, Mr. Webb was continued as Estate trustee, supplemented by Mr. Wilford and another solicitor, Larry Haskell of Shelburne.

The order provided that leave of the court be obtained before the Respondent could institute any related proceedings against the estate, the trust, or the trustees. The Applicant notes that the order states on its face that the Respondent was competent to make the consent (although not apparently competent enough to be proposed as an estate trustee). It appears that this is a key feature of her thesis that the Respondent is in fact competent. Presumably, if he is competent then he can make legal decisions for himself including giving her large sums of money. 18 .

The Respondent however has been professionally assessed at least three times to determine his ability to manage his property. The first certificate as to his incapacity to do so was dated February 10 th , 2009. Subsequently, at the Respondent’s request, although reading the assessments perhaps motivated by the advice of the Applicant, there have been yearly reassessments in 2010 and

2011 wherein the Respondent sought to return to the management of his own property. Additionally, for some unknown time prior to the first assessment one of his children held a Power of Attorney for property granted by the Respondent. 19 . In the course of this motion to change proceeding it has been made abundantly clear by the evidence that the Applicant continued to blatantly interfere with the Respondent’s conduct of the case against her. For example: (

a) the court was asked by the Respondent to restrain the Applicant from contacting the Respondent (a motion never adjudicated); (

b) the Respondent signed a document created by the Applicant to transfer the matter to the court near her home in Toronto, without the knowledge of his solicitor; (

c) the Respondent (then represented by the Public Guardian and Trustee) signed a document clearly created by the Applicant purporting to dispense with his own lawyers’ services; and (

d) the Applicant asserted that the Respondent’s lawyer was in a conflict of interest (a claim dismissed by the court in May, 2010). 20 . In spite of the settlement of the estate litigation, and the order that prevented the Respondent from moving to challenge the trustees without leave, the Applicant has continued to interfere in the trustees’ administration of the trust set up by Ms. Hodgson for the benefit of the Respondent.

In May of this year, according to a letter filed by the Applicant, the Public Guardian and Trustee had written to her to ask that she cease to deal directly with the Respondent with regard to his property when she knew the Public Guardian and Trustee was charged with the care of that property. The letter went so far as to state that the matter was being referred to the police. Comments by the Respondent to the assessors, and in the material filed here, indicates the distress he feels when the Applicant continues to, as he put it, chase after him about the money he will get from his aunt’s estate.

In the summer of 2011 the Applicant hired a private detective to investigate the use of the Melancthon farm property (a property forming part of the residue of the estate of Ms. Hodgson but a property that neither the Respondent nor his children have any legal interest in) by one of the trustees to cut and sell hay. 21 . The Respondent moves for

summary judgment, stating that there is no genuine issue between the parties that requires a trial. As the responding party the Applicant is required to demonstrate by means of admissible evidence, that there is a genuine issue to be tried between the parties. The Applicant cannot simply state that evidence, as yet undisclosed, will support her position at a trial, or that issues of credibility would require the assessment of a trier of fact at a trial. She must put her best foot forward and demonstrate why a trial must be held to accomplish justice between the parties. 22 .

The Respondent’s motion is on its face convincing. The conduct of the Applicant throughout has been to try to circumvent the process of the law in this case. Her material is rambling and replete with irrelevant press clippings and detours into issues far beyond this case and the jurisdiction of this court. She, supported by one of the children, seeks to revisit, again, the issue of the Respondent’s capacity, an issue wherein she has essentially no standing and a clear bias.

She notes that in the past the court has attempted to underscore that this court has no power to adjudicate an estate issue, and seeks to have me transfer this matter to the Superior Court. In the course of this court case the Applicant has repeatedly sought and obtained adjournments to allow her to take advice on a challenge to the Will of Ms. Hodgson. No steps whatsoever have been apparently taken in that regard, which is hardly surprising given that the Will was long ago settled and that the validity of the Will is, simply put, unassailable. 23 .

The above narrative, sustained and amplified by the Applicant’s material and submissions on this motion, illustrate a single-minded campaign by the Applicant to try to secure over $300,000.00 from the estate of Ms. Hodgson ostensibly for her children and in the guise of child support and extras, whether paid for or not. It has been a campaign unguided by any understanding of the law, or any apparent attempt to learn the law. 24 .

The Applicant, and perhaps at some level the Respondent, apparently long believed that when the Respondent’s aunt died the Respondent would inherit over one million dollars either directly from her estate or as the heir apparent of his father, Ms. Hodgson’s brother (who ultimately predeceased Ms. Hodgson in 2005). The Applicant’s modus operandi , clearly expressed in the agreements, has always been to try to get a large amount of retroactive child support by way of a lump sum payment from the estate through the Respondent’s presumed legacy when he received it. 25 .

Unfortunately the plan was not capable of being given effect to because (

a) Ms. Hodgson did not leave her assets to the Respondent but rather a life interest, and (

b) the Respondent, seemingly unable to refuse to sign any document placed before him by the tireless Applicant, was found to be a person incompetent to manage his own property. The persons now charged with the duty of protecting the Respondent’s legacy were not as easily gulled as the Respondent. Similarly, the fear of Ms. Hodgson’s trustees that any extra money they give to the Respondent would immediately flow to the Applicant and/or their children is well founded. 26 .

As a result it is only the Respondent who has suffered from a diminished income, and suffered in a way that was clearly the opposite of what the testator intended when she set up a life estate for the benefit of the Respondent. 27 . The issues before me on this motion are, in the end, not complex. The agreements presented by the Applicant for enforcement by the Director of the Family Responsibility Office are clearly improper, and incidentally, unenforceable. 28 . First, the sums stipulated bear no relationship at all to the income of the Respondent, or to the application of the Guidelines , and never have. 29 .

Second, there is no accounting for the

section 7 educational expense, or whether these costs were even legitimately incurred by any of the children. 30 . Third, none of these

section 7 expenses consider the ability of the Applicant (who is and was employed) to contribute to such expenses, or the ability of an adult child to do so. 31 . Fourth, the 1992 document (even assuming that I accept that it was executed then, which I doubt), and the two more recent agreements, are agreements to pay child support that are contingent on the Respondent inheriting funds that he did not inherent.

By analogy this is the same as a support recipient trying to enforce an agreement to pay two million dollars in lump sum child support if the support payor wins a ten million dollar lottery prize when no such prize has been won. There is no valid contract to be enforced because the condition precedent to the payment has never occurred and, in the present case, never can occur.

32 . Fifth, the Respondent never at any time had any independent legal advice. 33 . Sixth, the Respondent was from the start functionally incapable of managing his property or understanding the documents placed before him by the Applicant, and, as of 2009 at the latest, was legally incapable of managing his assets. 34 . Seventh, the Respondent has clearly been operating under the undue influence of the Applicant with respect to these matters for years, to the point where he has been her cat’s-paw, agreeing repeatedly to whatever she wanted to maintain peace with her and the family. 35 .

Finally, eighth, the entire scheme set out in the three agreements essentially was an attempt to redistribute the assets of Ms. Hodgson’s estate in the guise and under the pretext of an agreement for child support. 36 . In other words, the agreements were a sham in that neither party ever expected that the Respondent would or could ever pay any part of the agreement using his own resources. He has been on ODSP since the late 1990’s and has essentially no property of his own. 37 .

In a real sense the issue of the validity of the three agreements is effectively moot since the Respondent does not now have, nor has he ever had, any ability to pay a tiny fraction of the agreed upon support. I consider however that the issue of the validity of the purported agreements must be definitively settled by an order of this court in order to make it clear to the parties that the issue is closed such that the Respondent need never again be the subject of appeals by the Applicant for this sham support. He should be allowed to live his life in peace.

The children will benefit eventually as the residuary beneficiaries of the Respondent’s life estate in the Hornings Mills house. 38 . The Respondent’s case for

summary judgment is prima facia made out on the evidence, and the Applicant has shown absolutely no triable issue herein. 39 . If the parties are unable to agree on the issue of costs the Respondent may make written submissions within the twenty-one days following the release by mail of this decision; the Applicant may file her responding material within fourteen days thereafter; and the Respondent may make brief Reply submissions within ten days thereafter.

Submissions will be not greater than two pages in length and shall include where applicable a statement of the solicitor’s experience and billing rate, and shall attach any relevant offers to settle. 40 . I therefore make the following order:

(1) On the basis of the material filed the purported agreements from January 15 th , 1992, from August 6 th ,2007 and from August 12th, 2008 are all set aside pursuant to

section 56 of the Family Law Act and found to be of no force and effect, now, or in the past.

(2) Child support payable by the Respondent to the Applicant on account of the children of the parties is set at zero effective November 1 st , 2011.

(3) The arrears of child support and

section 7 Child Support Guidelines, Ontario expenses created by the agreements set out in paragraph 1, above, are hereby reduced to zero effective November 1 st , 2011.

(4) The Applicant’s claim in response to the Motion to Change is dismissed.

(5) Support Deduction Order shall issue.

(6) Costs reserved as set out in my decision herein. ____”BEP”______________ Justice Bruce E. Pugsley OCJ at Orangeville