COURT OF APPEAL FOR ONTARIO
Sharpe, Simmons and Benotto JJ.A.
BETWEEN
Paul Verschuren
Applicant/Appellant in Appeal
and
Deborah Verschuren
Respondent/Respondent in Appeal
Paul McInnis, for the appellant
Robert Snell, for the respondent
Heard and released orally: June 26, 2014
On appeal from the order of Justice Peter Z. Magda of the Superior Court of Justice dated September 10, 2013.
ENDORSEMENT
1The appellant appeals the order of Magda J. which dismissed his motion to change his child and spousal support obligations.
2The parties had been married for nearly 15 years when they separated in 2006. It was a so-called “traditional marriage” in which the appellant worked outside the home and the respondent was a full-time homemaker. At the time of the separation, the two children of the marriage then aged nine and thirteen were in the custody of the respondent.
3The parties entered into a separation agreement in December 2008, which was incorporated into the terms of a divorce order on May 29, 2009. Pursuant to the agreement and subsequent order:
(a) the appellant’s imputed income was $200,000 and he was to pay child and spousal support on this basis; and
(b) there was to be no variation unless the appellant’s income changed by more 10%.
4Specifically, paragraph 23 of the order read:
[The appellant] shall pay child and spousal support based on an imputed income of $200,000 and child and spousal support in any given year shall not be subject to variation unless [the appellant’s] income changes by more than 10%.
5In December 2011, the appellant brought a motion to change alleging that his income had changed by more than 10%. He requested an order retroactive to January 1, 2010 reducing the child support, terminating the spousal support and rescinding the arrears. By the time of the hearing, those arrears were more than $100,000.
6The motion judge heard two days of evidence and then had the benefit of written submissions.
7The appellant argued before the motion judge, as he argues here, that the support should be based on his line 150 income, not the $200,000 attributed to him.
8We disagree. The motion judge made a finding that the $200,000 figure agreed to, and incorporated into the Divorce Order, included income that would be received from the appellant’s interest in the company MAD Designs.
9In October 2009, 10 months after the separation agreement and four months after the Divorce Order, the appellant transferred his interest in MAD Designs to his common law spouse. The motion judge found that the transfer of shares from the appellant to his common law spouse was “simply a voluntary non- arms-length transfer of an income producing asset for nominal if any compensation.” The motion judge concluded that the only purpose of the transfer was to remove income that would properly be used to calculate support.
10The motion judge also determined that the lavish lifestyle enjoyed by the appellant and his common law spouse was the result, at least in part, of the lucrative business interest that the appellant had transferred to her.
11The motion judge concluded that the appellant had failed to demonstrate that his income had changed outside the range contemplated by the separation agreement as incorporated into the divorce order.
12We see no error in fact, law or in principle in the motion judge’s dismissal of the appellant’s claim.
13The appeal is dismissed. Costs are payable to the respondent fixed at $7,500 inclusive of disbursements and taxes. These costs may be enforced by the Family Responsibility Office.
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”
“M.L. Benotto J.A.”