COURT OF APPEAL FOR ONTARIO
DATE: 20050930
DOCKET: C42681
RE: PETER JUVATOPOLOS (Applicant/Respondent) – and – JANICE ARLEEN JUVATOPOLOS (Respondent/Appellant)
BEFORE: LASKIN, SHARPE and JURIANSZ JJ.A.
COUNSEL: D. Smith for the appellant David J. Sherman for the respondent
HEARD: September 02, 2005
On appeal from the judgment of Justice Randolph J. Mazza of the Superior Court of Justice dated October 29, 2004.
E N D O R S E M E N T
[1] This is an appeal from the judgment of the Superior Court of Justice, Family Court, reducing the appellant’s entitlement to spousal support from $1200 to $400 per month.
[2] The parties separated in 1993 after twenty-four years of marriage. The appellant was seventeen years old and pregnant at the time of marriage. The parties had three children. Throughout most of the marriage, the appellant was a homemaker, although in later years she did work periodically and had various unskilled minimum-wage jobs. Prior to separation she had trained as a hairdresser and, at the time of separation, she was working part-time in that capacity and earning approximately $12,000 per year. At the time of the application she was fifty-three years old.
[3] The respondent has been steadily employed in a well-paying job and enjoys considerable seniority, access to overtime and other benefits. At the time of separation he was earning $50,000 a year. In 1998 and 1999 – the two years before the appellant filed her application – the respondent earned approximately $90,000 a year. At the time of this application in 2000, he was earning almost $62,000.
[4] There was a trial in 1994 to determine the issue of spousal support. The original trial judge found that the appellant had not pursued education or career prospects because she had been a teenage mother and had assumed responsibilities in the household. He concluded that the appellant had suffered an economic disadvantage arising out of the breakdown of the marriage and that given her limited skills, employment history, and age, $12,000 per annum represented a reasonable contribution to her own self-sufficiency. He ordered the respondent to pay the appellant child support, which, with indexing, now amounts to $1200 month. The trial judge accordingly dismissed the respondent’s submission that the appellant had failed to provide for herself to the extent that she was capable and refused to set a review date. He added, however: “This does not relieve Mrs. Juvatopolos from the obligations to continue to exert her best efforts to attempt to achieve self-sufficiency.”
[5] The present appeal arises from the respondent’s application for an order terminating spousal support on the grounds of a change of circumstance: namely, that the appellant is now in a common-law relationship and receives $1200 per month from her new partner, the very amount the respondent is required to pay under the existing spousal support order.
[6] The appellant asserted that the individual with whom she now resides is only a tenant who pays her rent. The application judge rejected that contention and found that the appellant had formed a long-term common law relationship and that her new partner was providing her with $1,200 per month for living expenses.
[7] The application judge found that this amounted to a material change in circumstances justifying a variation of the original order. He refused to terminate support given that the appellant’s economic disadvantage arising from the long-term marriage warranted compensatory support. However he did find that the appellant’s “lack of motivation in at least making a sincere effort to become self-sufficient” justified a reduction in the quantum of spousal support. The application judge ordered that the quantum of support should be reduced to $400 per month.
[8] The appellant submits that the applications judge erred in four ways:
by requiring the appellant to achieve self-sufficiency rather than make reasonable efforts to achieve self-sufficiency contrary to s. 15.2(b)(d) of the Divorce Act;
by placing the onus on the appellant to demonstrate entitlement to continued support;
by finding that the appellant had not made reasonable efforts in the absence of evidence to support this finding, and
by ordering support that fails to reflect the parties’ standard of living at the time of separation.
[9] In our view, the appellant has failed to establish grounds for appellate intervention.
[10] We do not agree that the application judge decided the issue before him on the basis that the appellant was required to achieve self-sufficiency. The appellant concedes that she was required to make reasonable efforts to contribute to her own support and on the record before him, it was open to the application judge to find, as he did, that her efforts were wanting. The application judge took into account the disadvantage the appellant had suffered as a result of the marriage. Nevertheless, the application judge found that the appellant had failed to make an effort to become self-sufficient primarily because of the on-going support she was receiving from her new common-law partner. We see no reason to disturb that finding of fact.
[11] Nor are we persuaded that the appellant is entitled to succeed on the basis that application judge erred with respect to the onus. The only mention he made of onus was that the appellant had discharged the onus of establishing her entitlement to ongoing support. Accordingly, even if he misplaced the onus (a point we need not decide), it caused no prejudice to the appellant.
[12] We do not agree that there was no evidence to support the findings of the application judge. The appellant herself gave evidence as to her efforts at finding employment. She stated that she had no interest in finding another job, that she did not wish to work longer hours and that she was content to rely upon her new partner’s support. On this record, given her refusal to work more, the respondent was not obliged to lead evidence of other jobs.
[13] As for quantum, there was evidence that the appellant enjoys a relatively comfortable lifestyle with her new common law spouse. The appellant is currently earning $17,000 from working nine months of the year at a university bookstore. She receives employment insurance for the other three months and $14,400 from her new common-law spouse. The application judge found that she failed to invest or fully account for a personal injuries award of $10,000 and an inheritance of $56,000. In the end, we agree with the respondent’s submission that although the award is at the low end of the range, it is not so low as to justify appellate intervention. The decision of the application judge is entitled to deference on appeal and the standard of review is designed to promote finality in family law litigation and to recognize the importance of the appreciation of the facts by the trial judge: see Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 11-12. It is only where the trial judge’s decision exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong that an appellate court is entitled to interfere: see Silver v. Silver (1985), 1985 2075 (ON CA), 54 O.R. (2d) 591 (Ont. C.A.). In our view, the appellant has not met this stringent standard of review.
[14] We would add that, should the appellant’s circumstances change, it would be open to her to seek a variation in light of her changed situation.
[15] Accordingly, the appeal is dismissed. The respondent is entitled to the costs of the appeal on a partial indemnity basis fixed at $7,000 inclusive of GST and disbursements.
“J.I. Laskin J.A.”
“Robert J. Sharpe J.A.”
“R.G. Juriansz J.A.”