Bhupal v. Bhupal

97 O.R. (3d) 230

Court of Appeal for Ontario,

Sharpe, LaForme and Watt JJ.A.

June 26, 2009

Family law -- Support -- Variation -- Minutes of settlement providing for review of support on basis of material change in circumstances -- Husband moving to vary support based on wife's remarriage -- Motion judge finding that husband knew that wife was in serious relationship heading towards marriage when he entered into minutes of settlement and that remarriage did not constitute material change in circumstances -- Husband's appeal from dismissal of variation motion dismissed.

The parties entered into minutes of settlement which provided for a review of support after five years or on the basis of a material change in circumstances. The appellant brought a motion to vary support on the basis that the respondent had remarried and was being supported by her new husband. The motion judge found that the appellant knew that the respondent was in a serious relationship heading towards marriage with a wealthy man when he entered into the minutes of settlement, so that her remarriage did not constitute a material change in circumstances. The motion was dismissed. The appellant appealed.

Held, the appeal should be dismissed. [page231]

The motion judge's findings were amply supported by the evidence. As the prospect of the respondent's remarriage to a wealthy man was known at the time the minutes of settlement were entered into, the fact that she did remarry could not be relied upon as a basis for a variation.

APPEAL from the order of Baltman J. (2008), 2008 53129 (ON SC), 92 O.R. (3d) 211, [2008] O.J. No. 4051 dismissing a motion to vary support obligations.

Cases referred to Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J. No. 2819, 228 D.L.R. (4th) 376, 174 O.A.C. 76, 38 R.F.L. (5th) 307, 123 A.C.W.S. (3d) 902 (C.A.), distd Other cases referred to G. (L.) v. B. (G.), 1995 65 (SCC), [1995] 3 S.C.R. 370, [1995] S.C.J. No. 72, 127 D.L.R. (4th) 385, 186 N.R. 201, J.E. 95-1774, 15 R.F.L. (4th) 201, 57 A.C.W.S. (3d) 623; Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J. No. 94, 119 D.L.R. (4th) 405, 173 N.R. 321, J.E. 94-1704, [1994] R.D.F. 617, 125 Sask. R. 81, 6 R.F.L. (4th) 161

Gary Joseph and Geoffrey Wells, for appellant. Judith Nicoll, for respondent.

[1] Endorsement BY THE COURT: -- This is an appeal from an order dismissing a motion to vary spousal and child support obligations contained in minutes of settlement, entered following several days of trial. The appellant also seeks leave to appeal the costs award. Spousal Support

[2] The appellant's motion to vary support was based on the fact that the respondent remarried and was being supported by her new husband, which the appellant claims amounted to a material change in circumstances justifying a variation. The minutes of settlement provided for a review of support in five years' time and also provided for review on the basis of a material change in circumstances. The minutes of settlement were silent as to any change in support in the event of the respondent's remarriage or cohabitation.

[3] In our view, the motion judge's findings, which were amply supported by the evidence, constitute an insurmountable hurdle for the appellant on this appeal. The motion judge found that at the time that the minutes of settlement were entered into, the appellant knew that the respondent "was in a serious relationship that was heading toward marriage". She also found that "the wife laid her relationship on the table" and that it was evident "that her relationship with [her now husband] was serious, longstanding, and likely headed toward marriage". The motion judge found that the appellant must have factored in the [page232] possibility of the respondent's remarriage when he signed the minutes of settlement. The motion judge further found that "the husband has failed to demonstrate a material change in circumstances; he not only foresaw the possibility of remarriage but subjectively believed it was likely, if not certain. He thus must be taken to a have accounted for it when negotiating spousal support."

[4] The motion judge concluded that the parties had "clearly directed their minds to the very issue of a variation" and that the appellant had not asked for a term that spousal support would be reviewed or reduced upon remarriage or cohabitation. Instead, he had accepted the term providing for review after five years. As the motion judge observed, while in retrospect this may seem disadvantageous to the appellant, he had actually received the assurance of a review after five years, which might well have shortened the duration of spousal support to which the respondent would otherwise have been entitled.

[5] We do not accept the submission that the appellant lacked sufficient information at the time that the minutes of settlement were negotiated to foreclose him from now asserting a material change as a result of the respondent's remarriage. The respondent's new husband was a close friend of the appellant's. The appellant believed him to be a wealthy man and also believed at the time the minutes of settlement were negotiated that he was already providing financial support to the respondent.

[6] We agree with the motion judge that as the prospect of the respondent's remarriage to a wealthy man was known at the time the minutes of settlement were entered, the fact that she did remarry cannot be relied upon as a basis for a variation: see Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J. No. 94; G. (L.) v. B. (G.), 1995 65 (SCC), [1995] 3 S.C.R. 370, [1995] S.C.J. No. 72.

[7] In our view, this case is distinguishable from Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J. No. 2819 (C.A.). That case involved a stock option. Although the precise value that the stock option would have in the future could not be determined, it would have been possible at the time of the settlement to give it a present value. The rationale for finding that the subsequent substantial gain realized by the husband constituted a material change was that he had failed to disclose the details necessary to permit the wife to assess its present value at the time of the settlement. Here, the prospect of remarriage could not be valued. There were unknown facts, including if and when the respondent might remarry and what financial consequences might flow from marriage but, as the motion judge [page233] found, the respondent had "laid her relationship on the table" and the appellant entered the minutes of settlement with full knowledge that it was likely that she would remarry. Child Support

[8] While we agree with the appellant that the motion judge's order that he pay one half of the total nanny costs failed to take into account the respondents' contribution to the nanny costs, the operative provision of the judgment, at para. 8, accurately quantifies the actual payment required from the appellant by way of child support. Costs

[9] We see no error in the motion judge's assessment of the costs of the motion. She was entitled to take into account the fact that the bulk of the motion concerned support, which was also the issue on which the appellant was unsuccessful. In view of the very reasonable offer to settle made by the respondent, the quantum of costs ordered was entirely reasonable. Conclusion

[10] Accordingly, we dismiss the appeal and deny leave to appeal costs. The respondent is entitled to her costs of this appeal fixed at $10,000, inclusive of disbursements and GST.

Appeal dismissed.