Gurdulic v. Gurdulic, 2012 ONSC 944
CITATION: Gurdulic v. Gurdulic, 2012 ONSC 944
DIVISIONAL COURT FILE NO.: 248/11
DATE: 20120207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SWINTON AND HARVISON YOUNG JJ.
BETWEEN:
CATHERINE GURDULIC
Applicant
(Respondent in Appeal)
– and –
GORAN GURDULIC
Respondent
(Appellant in Appeal)
Chelsea Hooper, for the Applicant (Respondent in Appeal)
In Person
HEARD at Toronto: February 7, 2012
HARVISON YOUNG J.
[1] The appellant appeals from a decision of Paisley J. dated April 18, 2011, dismissing his motion to vary a Final Order. The Final Order had been made by Backhouse J. on April 28, 2009. She had ordered that the appellant pay child support in the amount of $1,055.00 per month for the two children of the marriage based on an attributed income of $71,000.00 per annum.
[2] The appellant raises three arguments on appeal. First, he submits that the motion judge erred in failing to review and analyze the evidence that there had been material change in circumstances since the order of Backhouse J. in 2009. Second, he submits that he erred in allowing the respondent wife to amend her response to the motion to seek a non-dissipation order with respect to the childrens’ RESP accounts and third, he submits that he erred in failing to conduct the proceedings fairly, and particularly, in failing to be impartial, in that he did not treat the appellant with respect.
[3] Having reviewed the record before us and heard the submissions from the parties, we conclude that the appeal must fail.
[4] In general, the appellant takes issue with the motion judge’s findings on the basis of the evidence before him. Findings of fact on family law matters are, as a matter of law, to be accorded a high degree of deference and this Court may only intervene in the event of palpable or overriding error: See Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. We are unable to find such error.
[5] On the first issue, we do not agree that the motion judge failed to adequately consider the appellant’s evidence: See paras. 5 to 7 of the motion judge’s Endorsement. The motion judge found that there was no affidavit evidence from independent sources filed on the appellant’s behalf and took this into account. He did not err in doing so given the strong findings by Backhouse J. with respect to the appellant’s credibility. The appellant did not appeal the order of Backhouse J. In short, we find no material error or serious misapprehension of the evidence or any error in law that would justify intervening with respect to the conclusion that there was no material change in circumstances.
[6] On the second issue, the wife had sought an order removing the appellant from the RESP account. The motion judge allowed an amendment of her response to permit her to instead claim a non-dissipation order, which he granted. This amendment cannot, in the circumstances, be seen to indicate that the motion judge was favouring the wife as the appellant suggests. It was evident from the wife’s affidavit that she was seeking an amendment so it is not accurate to say that the appellant was surprised by the amendment. We also note that the appellant is not prejudiced by a non-dissipation order. The fact that the motion judge did not allow the appellant to vary his motion for access does not indicate a lack of impartiality, given the requirement of an affidavit in support of a claim for custody or access, pursuant to Form 35.1 as noted by the motion judge. The absence of the court reporter was consistent with general practice when both parties are represented by counsel and the evidence was in affidavit form.
[7] We see no basis for finding bias on the part of the motion judge and note the high burden which lies on a party making such a claim. The appeal is therefore dismissed.
LEDERMAN J.
[8] I have endorsed the Record, “This appeal is dismissed for oral reasons delivered by Harvison Young J. The respondent will have her costs of the appeal fixed at $3,000.00, all inclusive.”
HARVISON YOUNG J.
LEDERMAN J.
SWINTON J.
Date of Reasons for Judgment: February 7, 2012
Date of Release: February 17, 2012
CITATION: Gurdulic v. Gurdulic, 2012 ONSC 944
DIVISIONAL COURT FILE NO.: 248/11
DATE: 20120207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SWINTON AND HARVISON YOUNG JJ.
BETWEEN:
CATHERINE GURDULIC
Applicant
(Respondent in Appeal)
– and –
GORAN GURDULIC
Respondent
(Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: February 7, 2012
Date of Release: February 17, 2012