DATE: 20010524

DOCKET: C33161

COURT OF APPEAL FOR ONTARIO

CHARRON, ROSENBERG AND GOUDGE JJ.A.

B E T W E E N:

GIUSEPPE STANGHI

John T. Syrtash for the appellant

Appellant

• and -

ANTONETTA (NINA) STANGHI

J. Mark Gahan for the respondent

Respondent

Heard: April 6, 2001

On appeal from the judgment of Justice M. L. Benotto dated October 26, 1999.

GOUDGE J.A.:

[1] Mr. Stanghi appeals from the decision of Benotto J. dismissing his application to vary his support obligations set by the judgment of O’Connell J. on January 15, 1997. The latter judgment, which was consented to by Mr. Stanghi, fixed his spousal support obligation at $300 per month and his child support obligation at $350 per month. Counsel advised this court that in doing so, O’Connell J. attributed an annual income to Mr. Stanghi of $40,000.

[2] Before Benotto J., Mr. Stanghi sought to reduce both support obligations to zero and to eliminate the arrears accumulated since January 15, 1997. He said that he was entitled to have his spousal support obligation reduced to zero because of a material change in circumstances, namely, that he now has no income and is totally unable to work at anything. As to child support, he said that the passage of the Child Support Guidelines entitled him to a new hearing on that issue, and because of the material change in his circumstances, this obligation should also be reduced to zero.

[3] In support of his position, Mr. Stanghi filed three reports: one from Dr. Mark Baily, a medical doctor; one Mr. R. D. Katz, a vocational rehabilitation social worker and one from Dr. A. Varadi, a chiropractor. These reports were filed on consent without their authors giving evidence or being cross-examined. In addition, Benotto J. heard two days of evidence, largely from Mr. Stanghi and his wife.

[4] On October 26, 1999, she issued her decision dismissing the application to vary. Her principal findings of fact are as follows:

I believe that he is working, most likely intermittently and for cash. I accept the wife’s evidence that he was working at two job sites More importantly, I believe that he is capable of working in a capacity other than as a bricklayer. He has a long and apparently respected history in the construction industry. He ran his own business. His family is in the industry. He is capable of working in a supervisory capacity which would not require the back stress of bricklaying.

[5] Benotto J. went on to conclude that Mr. Stanghi had not established a material change in circumstances. She further concluded that he was in the same physical and financial situation that he was in when he consented to the order by O’Connell J. and found that if she were establishing child support de novo, she would attribute income to Mr. Stanghi of $40,000. As a result, she dismissed Mr. Stanghi’s application.

[6] In this court, Mr. Stanghi’s position was that in the face of the reports filed, particularly those of Dr. Baily and Mr. Katz, the findings of the trial judge that Mr. Stanghi was earning income and was capable of working in a capacity other than as a bricklayer cannot stand.

[7] I disagree. There was an evidentiary basis for her conclusion that he was earning money. It was open to the trial judge to accept Mrs. Stanghi’s evidence that she had seen her husband working at two job sites; one in the summer of 1998; and one in the summer of 1999 just several months before the trial. Moreover, while he subsequently attempted to back away from his answer, Mr. Stanghi acknowledged that he worked occasionally for his nephew to pay for rent and living expenses.

[8] As well, there was ample evidence that Mr. Stanghi was familiar with the construction industry, had years of experience in it and had run his own construction business. Benotto J.’s conclusion that Mr. Stanghi was capable of working in a supervisory capacity was thus not unreasonable on the evidence.

[9] Finally, on Mr. Stanghi’s own evidence he was in the same physical and financial situation as he was when he consented to the order of O’Connell J. Based on this and the evidence that he was earning money, it was open to the trial judge to attribute the same amount of income to him as O’Connell J. had done.

[10] Mr. Stanghi relies heavily on the reports of Dr. Baily and Mr. Katz in submitting that the trial judge’s findings of fact cannot stand. As to the former, the trial judge indeed accepted Dr. Baily’s basic conclusion that Mr. Stanghi could not return to work as a bricklayer. In his report, Dr. Baily also said that given Mr. Stanghi’s age and level of education it is unlikely that any type of suitable employment would be available for him. In my view, the trial judge was correct to express concern about this statement, given that the considerations that went into it are not provided and that it does not appear to be a medically founded opinion.

[11] Turning to the report of Mr. Katz, the trial judge correctly pointed out that the author’s opinion that Mr. Stanghi was at that time unsuited for employment was significantly founded on Mr. Katz’s perception of the appellant’s behaviour and demeanour. The trial judge found these to be inconsistent with the appellant’s behaviour and demeanour that she observed in his giving evidence before her for a full day. Insofar as Mr. Katz based his opinion on Mr. Stanghi’s depression, the trial judge pointed out that Mr. Katz acknowledged that he was not qualified to make that diagnosis. In these circumstances, the trial judge was not obliged to accept Mr. Katz’s opinion about the appellant’s employability.

[12] In summary, the trial judge did not misapprehend the evidence. The reports filed did not necessitate the conclusion that the appellant was not working and was unemployable. Rather, as I have indicated, there was evidence to the contrary which was open to the trial judge to accept. Her conclusions that Mr. Stanghi was earning income and was capable of working in a capacity other than as a bricklayer cannot therefore be said to be unreasonable.

[13] I would therefore dismiss the appeal with costs.

Released: May 24, 2001 “LC”

“S.T. Goudge J.A.”

“I agree Louise Charron J.A.”

“I agree M. Rosenberg J.A.”