Court of Appeal for Ontario

Citation: Pustai v. Pustai, 2010 ONCA 251

Date: 2010-04-07

Docket: C50968

Before: Juriansz, Rouleau and Watt JJ.A.

Between:

Scott Timothy Pustai Applicant (Appellant)

and

Christine Marie Pustai Respondent (Respondent)

Counsel: William H. Abbott and Michael Stangarone, for the appellant Omar Sherman, for the respondent

Heard and released orally: March 30, 2010

On appeal from the final order of Justice Peter Z. Magda of the Superior Court of Justice dated August 5, 2009.

Endorsement

[1] This is an appeal from the final order of Magda J. dismissing the appellant’s motion to change a final order of Lack J. made on consent. The appellant also seeks leave to appeal Magda J.’s costs award.

[2] The consent order provided that Joshua, the second eldest child, was to be in the custody of and reside with the respondent while the other three children were to be in the custody of and reside with the appellant. It also provided that the appellant would pay the respondent $3,000 a month in spousal support and that “[t]here shall be no termination date for spousal support” and “[e]ither party may ask for review of the quantum of support upon a material change in circumstances.” The consent order was made on February 21, 2008. On July 1, 2008, Joshua went to live with his father. At the time of the move, the parties agreed that the father would no longer pay child support for Joshua. The move and the father’s allegedly deteriorating financial position are said to constitute a material change in circumstances in relation to the spousal support order.

[3] The appellant tendered fresh evidence but failed to persuade us that it was admissible. As the fresh evidence deals with developments that occurred subsequent to the trial judge’s decision, in this case it is not helpful in determining if the trial judge committed a reversible error. The tendered “fresh” evidence here is aptly described as “new” evidence that would more appropriately form the subject of another motion to vary.

[4] The appellant attempted to argue that the trial judge erred in not setting a termination date for spousal support and in not imputing income to the respondent. We do not understand how these issues can be said to form the basis of an alleged change of circumstances. They were issues that are foreclosed by the consent order made only eight months earlier. The trial judge did not err in finding that the consent order provided that only the quantum but not the duration of spousal support could be subject to variation.

[5] The appellant argued that spousal support should be reduced because of Joshua’s move and the appellant’s deteriorating financial position. The trial judge did not accept that there was any deterioration and observed that the appellant’s income had actually increased from what was used as the basis of the consent order. As well, he noted the appellant would no longer have to pay $1,297 a month in child support for Joshua.

[6] The issue boils down to whether the trial judge erred by concluding that Joshua’s move from the mother’s to the father’s residence was reasonably foreseeable and therefore not a material change in the circumstances of this case. The appellant argues that this finding was not open to the trial judge as the mother testified that she did not anticipate Joshua’s move. We disagree. Joshua had changed residences before and the trial judge had an ample basis to conclude that in the circumstances of this case another move was foreseeable.

[7] In the result, the appeal is dismissed. The appellant also seeks leave to appeal the trial judge’s costs order. Costs are discretionary and we were not persuaded this is a case where leave should be granted.

[8] Costs of the appeal are fixed in the amount of $6,000 inclusive of disbursements and GST.

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”