Court of Appeal for Ontario

Date: 20210330 Docket: C67374

Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A.

Between

Darko Cvetkovic Applicant (Respondent)

and

Aleksandra Cvetkovic-Gorovic Respondent (Appellant)

Counsel: Mark DeGroot, for the appellant Darko Cvetkovic, acting in person

Heard: March 22, 2021 by video conference

On appeal from the order of Justice Susan E. Healey of the Superior Court of Justice, dated August 1, 2019, with reasons at 2019 ONSC 4246.

Reasons for Decision

[1] At the conclusion of oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are our reasons.

Facts

[2] The appellant appeals from a final order terminating her spousal support as of August 1, 2019. The order under appeal was the result of a motion to change the consent final order of Mullins J., dated March 23, 2009 (the “2009 final order”), which notably required the respondent to pay child support for the two children of the marriage and spousal support for the appellant. The 2009 final order fixed spousal support at $1,400 per month based on an annual imputed income of $105,000 for the respondent, who was and remains self-employed, and $30,000 for the appellant. The 2009 final order provided that spousal support was to be reviewed four years from the date of the order, and that either party could make an application to the court “[i]f the parties cannot agree on the amount and duration of spousal support to be paid to the [appellant] going forward”. It also provided for a change of the amount and duration of spousal support if there was a material change in either party’s circumstances, even if the change was foreseen or foreseeable.

[3] The appellant brought a motion to change the 2009 final order almost five years after the 2009 final order, seeking to change the quantum of spousal support and child support based on her assertion that the respondent had not fully disclosed his income and assets at the time of the 2009 final order. She also asserted that the respondent’s income may have increased since the date of the 2009 final order.

[4] The respondent brought his own motion to change the 2009 final order, seeking to terminate or reduce spousal support and child support. Among other things, the respondent asserted that the appellant was refusing to work at a full-time job despite having a “rich and versatile working experience and 13+ years of post-secondary education”, and he challenged the appellant’s level of income disclosure since 2006.

[5] The order under appeal was made after a trial at which the parties were self-represented. The appellant appeals only the part of the order that terminated her spousal support effective August 1, 2019.

Grounds of Appeal

[6] There are three distinct grounds of appeal. The appellant submits that the trial judge erred: (1) in treating the trial as a variation proceeding instead of a review; (2) in terminating spousal support based on the material changes found; and (3) in admitting and relying on the May 31, 2018 report of an expert who was jointly retained by the parties to provide an opinion as to the respondent’s income for support purposes for the years 2014 to 2017 (the “SLF Report”).

[7] We do not give effect to any of these grounds of appeal.

The Nature of the Proceeding

[8] First, the appellant is correct that there is a difference between a “review” and a “variation”. A review permits an order to be revisited without a threshold determination of a material change in circumstances, while a variation includes a burden to establish changed circumstances, as required by s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at paras. 35-37. That said, once the threshold to vary the existing order is met, both a review and a variation of spousal support consider the same objectives: those that are set out explicitly at ss. 15.2(6) and 17(7) of the Divorce Act.

[9] The trial judge referred to the provisions of the 2009 final order that allow for a review of spousal support after four years and a change to the spousal support order if there is a material change in circumstances. Whether characterized as a review or a variation, we are satisfied that the trial judge considered all of the circumstances that were relevant to what she had to determine at the trial: whether, as the appellant asserted, the respondent had failed to make full disclosure of his financial circumstances at the time of the 2009 final order; whether the respondent’s income was higher than the income imputed in the 2009 final order; and whether, and if so, when, spousal support should terminate.

The Respondent’s Income and the Termination of Spousal Support

[10] Second, the appellant asserted at trial that the respondent’s imputed income in the 2009 final order ought to have been higher because the respondent was earning undisclosed income from a specific numbered company that he owned at the time of the 2009 final order. The trial judge considered the evidence and concluded that, although the numbered company was incorporated prior to the 2009 final order, there was no evidence of undeclared income from this company. Nor did the trial judge find that the respondent underreported his income in the years following the 2009 final order. After considering the evidence of the respondent’s line 150 income and the SLF Report addressing the respondent’s income for support purposes for the years 2014 to 2017, and rejecting the appellant’s unsupported allegations that the respondent had unreported cash or other income, the trial judge concluded that there was no evidence that the respondent had undeclared income before 2009 or that he underreported his income after the 2009 final order.

[11] In deciding to terminate the appellant’s spousal support effective August 1, 2019, the trial judge considered the evidence that the appellant had not worked since 2015 and the appellant’s explanation that she was unable to work for medical reasons. The trial judge concluded, after reviewing the evidence, that the appellant had not shown that she had taken the necessary steps to become economically self-sufficient, and that she had not provided convincing evidence of her inability to secure and maintain employment. In particular, the trial judge referred to the amount of historical evidence for the appellant’s income as “scant”.

[12] We disagree with the appellant’s submission that the trial judge improperly restricted her from leading evidence pre-dating the 2009 final order, including evidence relating to the factors the court would consider under ss. 15.2(4) and (6) of the Divorce Act. The appellant was intent on testifying about conduct of the respondent that occurred many years earlier and on raising various allegations about his behaviour. It was in this context that the trial judge noted, at para. 81 of her reasons, that she had to redirect the appellant “from talking about events that occurred prior to the 2009 [final] order, or issues that were simply not relevant to the issues to be decided by the court.”

[13] This was a 16-year marriage where spousal support of $1,400 per month had been paid in excess of 10 years. According to the trial judge, the Spousal Support Advisory Guidelines’ suggested range for spousal support would have been $1,528 to $2,037 for a duration of 6.5 to 13 years. The trial judge made a finding of fact that the appellant “[had] not shown that she [had] taken the necessary steps to become economically self-sufficient, and [had] not provided convincing evidence of her inability to secure and maintain employment.” The trial judge also found that the appellant had sufficient equity in her home to retire all of her outstanding debt. On these bases, and in the context of the Divorce Act’s ss. 15.2(6) and 17(7) spousal support objectives, notably the promotion of economic self-sufficiency, the trial judge ordered that spousal support would terminate on the date of her order.

[14] We see no error in the trial judge’s approach. She provided detailed and comprehensive reasons. Her conclusion was based on her assessment and weighing of the evidence, including her assessment of the credibility of the parties.

The Expert Report

[15] Third, we consider the appellant’s argument that the trial judge ought not to have admitted the SLF Report when its author was not called to testify as an expert witness. The trial judge admitted the report after concluding that it was both necessary and reliable, meeting the requirements for the admission of hearsay evidence. We see no error in principle that would cause us to interfere with this admissibility ruling. In any event, we note that the appellant did not clearly object to the admissibility of the SLF Report from the expert who was jointly retained and, in fact, relied on aspects of the SLF Report to advance her own case, notably to establish permissible or impermissible business expenses. In these circumstances, the appellant cannot now object to the fact that the trial judge relied on the SLF Report for other purposes.

Disposition

[16] For these reasons, the appeal is dismissed.

[17] The appellant was capably represented by counsel who appeared on a pro bono basis. The respondent was self-represented. In all of the circumstances, we do not order costs on the appeal.

“Fairburn A.C.J.O.”

“K. van Rensburg J.A.”

“Grant Huscroft J.A.”