Court File and Parties

CITATION: Loit v. Gove, 2007 ONCA 369

DATE: 20070516

DOCKET: C46309

COURT OF APPEAL FOR ONTARIO

WEILER, FELDMAN and LAFORME JJ.A.

BETWEEN:

VALDU LOIT

(Applicant/Appellant)

and

LIIVI GOVE

(Respondent)

Counsel: Charles C. Mark, Q.C., for the appellant Marie B. Nickle, for the respondent

Heard: May 8, 2007

On appeal from the judgment of Justice Keith A. Hoilett of the Superior Court of Justice dated November 3, 2006.

ENDORSEMENT

[1] The appellant appeals from the dismissal of his motion to vary the support payments he owed his former spouse pursuant to the terms of a separation agreement which were incorporated into a consent support order.

[2] The appellant submits that the motions judge was not entitled to dismiss his motion as the substance of the motion was not before the motions judge. He submits that only the procedural issue of whether to order a trial by viva voce evidence or by way of affidavit was before the court.

[3] We disagree. In addition to requesting the trial of an issue by viva voce evidence, the appellant’s amended notice of motion sought the deletion of the entirety of paragraph 1 of the consent support order which provided that the support payments were not to be varied unless either of two events happened. There is no issue that neither of these events has happened. The appellant did not submit that the separation agreement was invalid. The basis on which the variation of support was sought was that the appellant was not receiving the amounts he had anticipated from the business he had transferred to his son.

[4] The appellant’s amended notice of motion further sought repayment of the spousal support payments that had been made going back to February 26, 2000 when the respondent married her present husband. Ultimately, remarriage was not a basis for variation and had been specifically removed from the change of circumstances in the amended separation agreement.

[5] Prior to the appellant’s motion being decided, the appellant brought a motion to compel the respondent to provide financial disclosure. This motion was heard together with a preliminary objection by the respondent wife to the husband’s ability to move to vary the consent order. Goodman J. treated the objection as a motion for summary judgment by the respondent. She held that she ought not to decide the issues in the absence of a full record and ordered full financial disclosure by the respondent within twenty-one days. The appellant submits that Goodman J.’s decision made the question of whether to have the trial of an issue res judicata and the only outstanding issue was the form of the trial − viva voce or affidavit evidence.

[6] The respondent submits that the motions judge heard submissions on the merits and was entitled to make a final order on the basis of the expanded record. The respondent submits she complied with the order for financial disclosure of Goodman J. Further, she was examined on the material she filed on February 28, 2006. She also filed an affidavit in response to the appellant’s affidavit to which she attached a number of documents that were pertinent to the litigation.

[7] We agree with the respondent. The matter was not res judicata. The relief sought in the amended notice of motion before the motions judge was considerably broader than that sought before Goodman J. In proceeding as he did, the motions judge had the benefit of a more complete record than that before Goodman J. In view of the relief requested and the material before the motions judge, he was entitled to exercise his discretion as he did and he did not err in principle. He was not obliged to limit himself to deciding whether to order the trial of an issue on viva voce evidence or not. The respondent was not obliged to bring a cross motion. The motions judge simply dismissed the request for the relief sought.

[8] Accordingly the appeal is dismissed. The respondent is entitled to have her costs of the appeal paid by the appellant and we fix those costs in the amount of $6000 all inclusive.

“Karen M. Weiler J.A.”

“K. Feldman J.A.”

“H. S. LaForme J.A.”