Court of Appeal for Ontario
Between:
George Catsoudas
Applicant (Appellant)
and
Voula Catsoudas
Respondent (Respondent)
Counsel:
Jerry Chaimovitz, for the appellant
Ted Laan, for the respondent
Heard and released orally: October 1, 2009
On appeal from the order of Justice R. Harris of the Superior Court of Justice dated June 3, 2008.
Endorsement
1The contentious issues on this appeal are whether the trial judge erred in: i) awarding spousal support to the wife in the amount of $1,000 per month; ii) in ordering child support for the oldest child of the marriage retroactive to the date the husband stopped paying support for that child, and iii) in ordering payment of s. 7 expenses in the amount of $216 per month.
2The parties separated in December 2004 following a 22 year marriage. They have two children now aged 19 and 21. At the time of trial, the husband was earning about $110,000 per year and the wife about $42,000 per year.
3In early January 2005, the parties entered into a “self-made” separation agreement in which they agreed, among other things, that the husband would sign over to the wife his interest in the matrimonial home, and that, in exchange, the wife would not seek any interest in her husband's pension.
4The separation agreement also provided for payment of child support of $1084 per month plus $216 per month on account of s. 7 expenses “until both children ... are of the age of 21, or still in school.” Further, the separation agreement stated, “[S]hall either child no longer attend school and obtain full time employment, I will cease to pay the support for that child.” The separation agreement was silent on the issue of spousal support.
5The trial judge dismissed the husband's application for an order setting aside the parties' separation agreement and ordered the husband to pay child support in accordance with the separation agreement together with s. 7 expenses for post-secondary education on a proportionate basis. In addition, the trial judge ordered the husband to pay spousal support to the wife in the amount of $1000 per month.
6With respect to spousal support, on appeal, the husband contends that the trial judge erred in finding that the husband received “the lion's share of his equity” under the terms of the separation agreement. He claims that, in fact, the wife received substantially more under the separation agreement than she would have received on an equalization of net family properties and that the trial judge should have taken that into account in awarding spousal support. Further, the husband contends that the spousal support ordered was overly generous taking account of the child support being paid.
7We would not give effect to this argument. Although the spousal support award may be generous when considered in the context of the property division made under the separation agreement, we do not consider that the amount ordered was outside the range of what would be appropriate, particularly taking account of the spousal support guidelines.
8Further, we were advised today that the husband has declared bankruptcy. As a result, to the extent that the costs awarded below relate to property claims, the wife will be deprived of her costs. In addition, she will be required to assume responsibility for making the monthly payments on the parties’ line of credit, a responsibility the husband had assumed under the separation agreement. In these particular circumstances, we are not persuaded that we should interfere with the spousal support order.
9Concerning the child support order, the husband claims that there were no s. 7 expenses as of the trial date, or, for that matter, ever, and that the oldest child was no longer in school on the trial date. However, save with respect to the prospective order to share post secondary expenses, the support ordered was that provided for in the parties’ separation agreement. In the circumstances, we see no basis to interfere.
10The appeal is therefore dismissed. We are advised the trial judge's reasons concerning costs have just been released. The husband is at liberty to apply for leave to appeal that order if so advised to the extent his bankruptcy permits.
“M.J. Moldaver J.A.”
“Janet Simmons J.A.”
“R.G. Juriansz J.A.”