Cloutier v. Peters-Webb, 2018 ONSC 3589

CITATION: Cloutier v. Peters-Webb, 2018 ONSC 3589

DIVISIONAL COURT FILE NO.: DC-17-899 DATE: 2018-06-07

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

CONWAY, VARPIO and MYERS JJ.

BETWEEN:

Dominic Cloutier

Appellant

– and –

Olivia S. Peters-Webb

Respondent

David Russell, for the Appellant

No one appearing for the Respondent

HEARD at Hamilton: June 7, 2018

CONWAY J. (ORALLY):

1Dominic Cloutier appeals the decision of Justice A. Pazaratz dated October 16, 2017. Mr. Cloutier had brought a motion to reduce child support for his five year old son from $392 per month to zero. The motions judge dismissed Mr. Cloutier’s motion.

2The original child support order dated June 1, 2015 was based on Mr. Cloutier’s 2014 income of $43,436.41. At the hearing, Mr. Cloutier’s evidence was that he was no longer employed and was receiving ODSP of $836 per month. He presented a letter from his family doctor stating that he was unable to work due to the diagnosis of anxiety. Mr. Cloutier testified that he had quit both of his jobs so that he could seek treatment for his mental illness.

3The motions judge found that Mr. Cloutier’s anxiety issues had been in effect when the original child support order was made. He found that Mr. Cloutier had voluntarily quit his two jobs in a pre-planned manner without regard to his child support obligations and that income should be imputed to him. The motions judge also found that despite Mr. Cloutier’s claim of financial hardship, he had been able to maintain fairly expensive car insurance payments.

4Mr. Cloutier seeks to introduce fresh evidence on this appeal, a letter dated January 29, 2018 from a psychiatrist (Dr. Slataroff). At the time of the hearing on October 12, 2017, Mr. Cloutier had been referred to a psychiatrist by his family doctor, who had been treating him for his mental illness, and was on a wait list. Dr. Slataroff assessed him on December 14, 2017. His report notes that Mr. Cloutier had been struggling with mental illness since 2007, had received ODSP for years, and should remain on ODSP because he was still unable to be gainfully employed on account of the mental illness.

5We dismiss the motion to adduce fresh evidence as it does not meet the test in R. v. Palmer, [1980] 1 S.C.R. 759. In particular, it does not satisfy the requirement that the new evidence be “such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”.

6In this case, the motions judge made detailed findings of fact at paragraph 31 of his reasons. Based on his factual findings, the motions judge did not accept Mr. Cloutier’s position and found that he was not to be relieved of his child support obligations.

7We are not persuaded that the result would have been any different if Dr. Slataroff’s evidence had been available at the motion. Mr. Cloutier’s evidence was that he planned and staged the implementation of his decisions to stop working over a period of time despite suffering from anxiety throughout. He had been able to work through the years despite being afflicted. It was open to the judge to reject a blanket statement that Mr. Cloutier cannot work at all given his work history, his ongoing responsibilities to his child, the manner by which he voluntarily left his jobs, and his financial priorities.

8Mr. Cloutier submits that the motions judge erred in law by misstating the test for a change in child support, in finding that there had been an “involuntary material change in circumstances” rather than a “material change in circumstances”. He further argues that the motions judge did not apply the correct test in imputing income to Mr. Cloutier at the existing level of $43,436.41 and should have examined whether Mr. Cloutier had been intentionally unemployed.

9As noted above, it is clear from his reasons that the motions judge did not accept Mr. Cloutier’s position that he was unable to work. His conclusion that there had been an involuntary material change in circumstances was in essence a finding that there had been no material change in circumstances at all and that Mr. Cloutier’s income for child support purposes should remain unchanged. These conclusions were based on his assessment of the evidence and Mr. Cloutier’s credibility. We see no basis to interfere with those findings.

10The appeal is dismissed. We award no costs of the appeal.

CONWAY J. ENDORSEMENT (MOTION RECORD FOR FRESH EVIDENCE):

11For oral reasons delivered in court today, the motion is dismissed. No costs.

CONWAY J. ENDORSEMENT (APPEAL BOOK):

12For oral reasons delivered in court today, the appeal is dismissed. No costs.

___________________________ Conway J.

I agree

Varpio J.

I agree

Myers J.