Court of Appeal for Ontario

CITATION: Fowler v. Fowler, 2010 ONCA 328

DATE: 20100504

DOCKET: C51386

Before: Moldaver, MacPherson and Watt JJ.A.

BETWEEN:

Barry Clifford Fowler

Respondent (Husband) (Appellant)

and

Angela Gloria Fowler

Petitioner (Wife) (Respondent)

Counsel:

Shantona Chaudhury, for the appellant

James Peluch, for the respondent

Heard: April 30, 2010

On appeal from the order of Justice Casimir Herold of the Superior Court of Justice dated November 9, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from the Order of Herold J. dated November 9, 2009 dismissing the appellant husband’s motion to vary the support order of Smith J. dated December 1, 1998. The basis of the motion judge’s decision was his finding that there had been no material change in circumstances that would justify elimination or reduction of the spousal support he has been paying to the respondent wife for 11 years.

[2] The parties married in 1974 and separated in 1996. In a final judgment dated December 1, 1998, which flowed from Minutes of Settlement, the husband was ordered to pay spousal support of $3200 per month on a non-time limited basis and child support for the two children of the marriage of $811 per month. The child support payments were terminated on consent in 2003 when the children were no longer dependent.

[3] The appellant contends that the motion judge erred by failing to consider the disparity in accumulated assets as a relevant factor and improperly minimizing recent developments in the corporation co-owned by the appellant.

[4] We disagree. Although the respondent’s financial situation has improved in the years since separation, so has the appellant’s. The reality is that the respondent was a stay at home mother throughout the long marriage, did not complete high school, has not worked since 1994, and in the words of the motion judge “still is today emotionally and psychologically fragile.” In short, on the respondent’s side of the coin, there is still a demonstrated need for financial support.

[5] On the husband’s side of the coin, he is a successful businessman operating a successful business. He has had a steady income throughout his life. His sworn financial statement from September 1, 2009 shows a gross monthly income and benefits of $9282.57 which equates to a gross annual income of $111,390.84. He is not required to pay support for his children. Moreover, the spousal support has not increased since 1998 and the appellant has been able to deduct it on his tax returns.

[6] In these circumstances, we agree with the motion judge’s finding that the respondent “is not in a position at this time to become financially self-sufficient” and with his conclusion that the appellant “has not demonstrated a material change in circumstances which would justify a variation of the consent order.”

[7] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $9000 inclusive of disbursements and GST.