COURT OF APPEAL FOR ONTARIO

CITATION: Freedman v. Freedman, 2013 ONCA 620

DATE: 20131015

DOCKET: C56638

MacPherson, MacFarland and Epstein JJ.A.

BETWEEN

Joel Freedman

Appellant

and

Gloria Freedman

Respondent

Bryan Delaney, for the appellant

Richard Bowles, for the respondent

Heard: September 13, 2013

On appeal from the judgment of Justice Robert L. Maranger of the Superior Court of Justice, dated January 2, 2013.

APPEAL BOOK ENDORSEMENT

The Appeal

[1] The parties separated in 2008 after 21 years of marriage. By consent order dated November 23, 2010, they resolved the financial issues arising from their separation. Unfortunately, their difficulties continued primarily due to the appellant’s on-going failure to comply with his agreed-upon financial obligations to his wife and son. The appellant’s breaches have resulted in his being found in contempt on numerous occasions and being ordered to pay corresponding cost awards.

[2] The order under appeal is the result of the appellant’s motion to change his support obligations based on allegations of material changes in circumstances and the respondent’s cross-motion for an order fixing the amount of child and spousal support arrears and on-going spousal support and for an order for security for support payments as long as the appellant is in default of any support order.

[3] The motion judge dismissed the appellant’s motion to change and allowed the respondent’s cross-motion. In his appeal, the appellant argues that in the light of his becoming sole shareholder of his real estate company and his son’s ceasing to be a child of the marriage, the motion judge was required to conduct a de novo review of the appellant’s financial circumstances for the purpose of calculating his support obligations. The appellant submits that the motion judge erred by calculating support based on the appellant’s income as determined by an accountant, Mr. Pittman, as opposed to conducting a de novo review of the appellant’s financial circumstances.

[4] We disagree. The terms of the consent order require the parties to retain an accountant, initially Mr. Pittman, to calculate the appellant’s income for the purposes of determining support. We agree with the motion judge’s interpretation of the order that the parties agreed to be bound by the accountant’s calculations. This interpretation is clear from the wording of the order and the context in which the agreement was reached – a time when the parties were embroiled in litigation associated with difficulties associated with determining the appellant’s income.

[5] The fact that the appellant is no longer required to pay child support does not assist his efforts to have his spousal support obligations reduced, given the wording in the consent order that “spousal support payments to the respondent are less than they would have been because of the amount of child support being paid”.

[6] Finally, the history of the appellant’s relentless efforts to avoid his financial obligations to his family justifies the order limiting the way in which the appellant can obtain income, while he is default of support obligations.

[7] We agree with the motion judge that the inconvenience of the order providing security is of the appellant’s own making.

[8] The appeal is therefore dismissed.

The Cross-Appeal

[9] The cross-appeal is dismissed. The consent order is clear that any adjustment to the appellant’s support obligations as a result of the accountant’s final calculation of his income would be prospective only. No adjustment was contemplated for 2010.

Costs

[10] Costs are fixed at $7,750 inclusive of disbursements and HST.