Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240726 DOCKET: COA-23-CV-1359
Miller, Harvison Young and Gomery JJ.A.
BETWEEN
Diana Georgieva Yovcheva Applicant (Appellant)
and
Bojidar Iliev Hristov Respondent (Respondent)
Counsel: Diana Georgieva Yovcheva, acting in person Thomas Slade and Cory Giordano, for the respondent
Heard: July 18, 2024
On appeal from the order of Justice Tracy Engelking of the Superior Court of Justice, dated September 16, 2022.
Reasons for Decision
[1] The appellant mother appeals from orders made on a motion to change brought by the respondent father. The motion judge concluded that the threshold of material change was met and that the father had established that the child, A, was living with him more than 60% of the time over the relevant periods. The motion judge also credited the father for expenses paid toward the matrimonial home while it was for sale between June 1, 2019 and September 30, 2020.
[2] The appellant argues that the motion judge erred by:
- Finding that there had been a material change so as to permit the court to vary the parenting and child and spousal support orders dated December 10, 2018 and May 14, 2019;
- Finding that the child, A., had spent more than 60% of the time with the respondent over the relevant periods;
- Varying the respondent’s income and thus the support order; and
- Crediting the respondent for expenses paid toward the matrimonial home between June 1, 2019 and September 30, 2020.
Brief Factual Background
[3] The parties were married in 2003 and separated in September 2015. They had two children from the marriage, A and D. The parties’ divorce became effective on June 14, 2019.
[4] As part of the divorce proceedings, the trial judge, Doyle J., made two orders: the first order, dated December 10, 2018, dealt with parenting time and equalization of the matrimonial home; the second order, dated May 14, 2019, addressed spousal and child support.
[5] The 2018 order stated that the parties would share parenting time of the children “on a more or less equal basis” but that the children would reside primarily with the appellant mother. The 2019 order required the respondent to pay spousal and child support based on an imputed income of $102,347 per annum.
[6] On November 26, 2020, the respondent father brought a motion to change, seeking to vary both orders. He claimed that A had come to live primarily with him beginning in September 2019. He also argued that his income had changed for support purposes. Finally, he sought occupation rent for the period from June 1, 2019 to September 30, 2020, while the parties were attempting to sell the matrimonial home.
[7] Having found that the respondent had met the material change threshold, the motion judge varied the parenting time and support orders to reflect that A lived primarily with the respondent, and to reflect changes in the respondent’s income. While she denied the claim for occupation rent, she credited the respondent for expenses he had paid toward the matrimonial home from June 1, 2019 to September 30, 2020.
Material Change in Circumstances
[8] First, we see no error in the motion judge’s finding that there was a material change in relation to the parenting time of A. The motion judge thoroughly reviewed the evidence of both parties on the issue and related them to the three periods at issue: June 1, 2019 – May 31, 2020; June 1, 2020 – May 31, 2021; and June 1, 2021 – March 10, 2022. She considered the evidence and submissions of the appellant. She accounted for the changing circumstances that arose at various times, including a six-week trip to Bulgaria during the summer of 2019, periods of isolation with the appellant due to COVID-19, and documentary evidence that A’s address had changed to the respondent’s address. The conclusion that there had been a material change since the December 10 order was open to the motion judge on the evidence before her and this court should defer to that conclusion: Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10-12; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paras. 10 and 36.
[9] Similarly, the motion judge carefully considered the evidence of the respondent father’s income. Following the trial in 2018 and 2019, the respondent had divested his corporation to his adult son from a previous relationship. This reduced his income. The appellant submits that the respondent, who is now 71 years old and a self-employed roofing contractor, transferred the business to his son simply as a way of artificially lowering his income. She argues that his annual income has not changed from the approximately $102,000 imputed to him by the trial judge in 2019.
[10] While the motion judge did accept that the respondent’s income was significantly reduced and that he no longer received cash income as he did before, she also found that there was more income available to him from the corporation, as the divestiture was a non-arms length transaction for very little consideration. In short, she carefully considered all the evidence before her and properly considered the applicable law set out in ss. 16 and 17 of the Federal Child Support Guidelines, S.O.R./97-175. As a result, she found that the respondent would pay support commencing June 1, 2020, based on a 2019 income of $64,612.43 and commencing June 1, 2021, based on an imputed income of $51,000. This conclusion was open to her on the record before her and we see no error of law or principle, nor do we find any palpable and overriding error of fact. Absent such an error, it is not the role of this court to reweigh evidence: Hemmings v. Peng, 2024 ONCA 318, at para. 81.
The Fresh Evidence Motions
[11] The appellant mother moved to adduce a report from a social worker as fresh evidence. This motion is dismissed. In the report, the social worker expresses a view about the amount of time that A spent with each of the parties in each year since 2019. This report would not assist this court on the appeal. The motion judge made findings on the very issue addressed in the report based on full evidence before her, including estimates provided by each of the parties.
[12] The respondent father moved to adduce fresh evidence on the parenting and support issues raised by the appellant mother in the event that this court found an error in the motion judge’s findings on and undertook its own analysis. Given that we have found no such error, it is not necessary for us to consider this evidence. The fresh evidence motion is therefore dismissed.
Credit for the Matrimonial Home Expenses
[13] Finally, we see no reversible error in the motion judge’s finding that the respondent should be credited for payments he made toward the matrimonial home. It is common ground that the respondent had continued to pay these expenses up until the date the home was sold. The respondent’s claim for credit for these expenses was properly before the motion judge and did not take the appellant by surprise.
Disposition and Costs
[14] The appeal is dismissed, with costs payable by the appellant to the respondent in the amount of $17,000.
“B.W. Miller J.A.”
“A. Harvison Young J.A.”
“S. Gomery J.A.”