Court File and Parties
DIVISIONAL COURT FILE NO.: 635/15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Nicole Peerenboom, Appellant/Moving Party
AND:
Robert Peerenboom, Respondent/Responding Party
BEFORE: Thorburn J.
COUNSEL: Dani Frodis and Daniel Bernstein, for the Appellant/Moving Party
Valois Ambrosino, for the Respondent/Responding Party
HEARD: In writing
ENDORSEMENT
RELIEF SOUGHT
1This is a motion for leave to appeal an Order for interim child support and an Order staying the decision of the motions judge.
JURISDICTION AND TEST TO BE MET ON LEAVE TO APPEAL AND ORDER TO STAY
2Rule 62 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 applies to an appeal of an interlocutory order of a judge of the Superior Court. Rule 62 provides that leave to appeal an interlocutory order of a judge is to be brought by way of a motion in writing before the Divisional Court. In order to grant leave to appeal, the court must be satisfied that there is:
a conflicting decision by another judge or court and it is therefore desirable that leave to appeal be granted, or
there appears to be good reason to doubt the correctness of the order and the proposed appeal involves matters of such importance that leave to appeal should be granted.
3When a motion for leave to appeal has been made, Rule 63 provides that the court may order a stay of the order appealed from where, on a preliminary assessment, it is determined that there is a serious issue to be tried, the Appellant would suffer irreparable harm if the stay is not granted, and the balance of convenience favours the party seeking the stay.
FACTS RELEVANT TO THIS APPEAL
4On February 12, 2015, the parties signed a Consent Order issued by McWatt J. The Respondent agreed to pay an uncharacterized advance of $135,000 and uncharacterized support of $4,000 per month for the four children of the marriage in addition to their section 7 expenses. The Respondent’s income was not determined.
5On May 5, 2015, the Respondent’s employment with the family business, Mandrake Management Consultants, was terminated. In June of 2015, he was no longer a partner of the firm.
6As a result, the Respondent brought a motion to reduce his support.
7On November 26, 2015, McWatt J. issued a variation order from the $4,000 per month for child support to a temporary order for $1,225 per month for child support and $87 per month for spousal support based on the Respondent’s income of $74,000 per year. The arrears of $16,000 from August to November 2015 were rescinded, and the new order was to take effect August 1, 2015 without any credit for money already paid to the Appellant in respect of the arrears.
8McWatt J.’s order was made on the basis that there was a material change in circumstances. She held that the Respondent’s income had decreased from $134,051 in 2013 to an anticipated $74,400 in 2015 (including a salary of $65,000 for the year).
9She concluded that, “I have the jurisdiction to vary the temporary order where the evidence calls for it. And without imputing income to the Respondent, the evidence in this motion would fall to the Respondent’s motion to succeed based on a material change of circumstances. The Respondent’s motion is granted.”
10In accordance with the Order of Chiapetta J, the trial in this matter is scheduled to be heard in June 2016.
THE APPELLANT’S POSITION
11The Appellant claims the motions judge significantly changed the existing support arrangements notwithstanding the Respondent’s sworn evidence that indicated his income had increased since the time the Consent Order was signed agreeing to the much higher monthly support order.
12The Appellant claims all of the factors relied on by the Respondent in support of the drastic reduction (health issues, poor performance at work) were known at the time the Consent Order was made. Moreover, they were not in any of the written material before the Court.
13The Appellant claims the motions judge erred in finding there was a material change in circumstances because the Respondent’s income went from $134,051 in 2013, $22,378 in 2014 to $74,400 in 2015.
14The Respondent’s father made several significant financial contributions to him including hiring the Respondent to work for one of the family businesses, Mandrake, and assisting the Respondent with the payment of expenses such as luxury vacations and club memberships.
15Moreover, the Respondent has the ability to pay as notwithstanding his stated financial difficulties, he continues to employ a full-time nanny and to reside in the matrimonial home where she says expenses exceed $4,000 per month.
16The Appellant cites the case of Almeida v. Almeida 2012 W.D.F.L. 3799 (paras. 18-28) where the judge held that there was good reason to doubt the correctness of orders made in relation to the imputation of income.
THE RESPONDENT’S POSITION
17The Respondent states that the issue of his income was the key issue before McWatt J. who issued both the Consent Order and the Variation Order. The Appellant’s credibility was a central issue and the motions judge accepted that the Respondent’s income had dropped after he lost his job as President and partner of Mandrake. He commenced new employment in September 2015 earning $65,000 annually.
18There was no request to impute income as a result of monies allegedly given to the Respondent by his family.
CONCLUSION
19There is no conflicting decision by another judge or court on the issue of variation of an interim order for child and spousal support nor is there good reason to doubt the correctness of her order. The Almeida decision cited by the Appellant deals with the issue of imputed income, an issue that McWatt J. specifically notes, was not raised before her.
20Moreover, the proposed appeal does not involve matters of such importance that leave to appeal should be granted. This is an interim order only.
21As Zuber J.A. noted in Sypher v. Sypher (1986), 1986 6337 (ON CA), 2 R.F.L. (3d) 413 (O.C.A.), “an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding.”
22The trial is scheduled to be heard before the end of June, 2016.
23The Appellant’s assertion that, “even according to the Respondent’s own sworn evidence, there has been no material, drastic or unforeseen change to his income or spending since the Consent Order was made” is not correct for the following reasons:
a. At the time the Consent Order was entered into in February 2015, there was no determination of the Respondent’s income in February 2015 as the payments were uncharacterized and made on consent.
b. In May 2015, the Respondent lost his employment as President of Mandrake which entitled him to a salary and eligibility for bonus. Although it was known that he suffered health and performance problems prior to signing the Consent Order, the Respondent did not know he would lose his job with Mandrake and the opportunity to make the kind of income he did in 2013.
c. In June 2015, he ceased to be a partner of Mandrake.
d. He has since been hired to do marketing and consulting for Crestwood School with remuneration of $65,000 per annum.
24I note that where there is evidence that money is being provided by others to a party, the opposing party can argue that income should be imputed to the party in receipt of monies by the third party.
25The Appellant has included some evidence that would seem to suggest that the Respondent is receiving funds elsewhere and that income should perhaps be imputed to the Respondent with a corresponding increase in support payments. However, the Appellant did not seek to impute income to the Respondent from other sources. McWatt J. specifically refers to this in her reasons.
26I note that the trial in this matter is to be heard by the end of June, 2016 some three months from this date and a determination will be made with the opportunity to fully canvass the issues of support.
27For these reasons, this Application for Leave to Appeal and the motion to stay McWatt J.’s order is dismissed.
28In accordance with the agreement between the parties as set out in Mr. Bernstein’s letter of March 4, 2016, costs of this motion for Leave to Appeal are set at $5,000 plus HST to be paid by the Appellant to the Respondent at the conclusion of the trial.
Thorburn J.
Date: March 9, 2016