COURT OF APPEAL FOR ONTARIO

CITATION: Reisman v. Reisman, 2014 ONCA 607

DATE: 20140822

DOCKET: C55669

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Linda Joy Reisman

Applicant (Appellant)

and

Howard Jonathan Reisman

Respondent (Respondent in Appeal)

Gary S. Joseph and Serena Lein, for the appellant

Nancy Iadeluca, for the respondent

Heard in writing

On appeal from the order of Justice Darla A. Wilson of the Superior Court of Justice, dated May 31, 2012, with reasons reported at 2012 ONSC 3148, 22 R.F.L. (7th) 423.

ENDORSEMENT

[1] The parties cannot agree on the wording of paragraph one of the order of this court dated February 11, 2014.

[2] In our reasons we dismissed Mrs. Reisman’s appeal from the trial judgment of Darla Wilson J. except on the issue of spousal support. The trial judge ordered spousal support until the earlier of ten years or the occurrence of a change in circumstances justifying a reduction or variation in support. The trial judge specified that “the remarriage of the applicant or cohabitation for a period of not less than three years shall constitute a material change in circumstances”. (Our emphasis.)

[3] This court removed the ten-year cap on spousal support and ordered that spousal support be paid for an indefinite period subject to variation or termination on a material change in circumstances. Our reasons did not deem that remarriage or co-habitation for three years constituted a material change in circumstances.

[4] Mr. Reisman now asks that this deeming provision be included in the court’s order as it was in the trial judge’s order. He contends that if it is not included, he would be prejudiced as he was not given any opportunity to address it during argument. Mrs. Resiman opposes inclusion of the deeming provision. She contends that the court’s order should be consistent with its reasons.

[5] We approve the order drafted by Mrs. Reisman. It may well be – indeed one may say it is likely – that remarriage or three years cohabitation would constitute a material change in circumstances warranting a variation or termination of spousal support. However, we do not wish to fetter the discretion of a trial judge on a future application to vary or terminate support. We do not agree that Mr. Reisman is prejudiced because the issue was not expressly dealt with in oral argument. Spousal support was obviously in dispute and either party was free to make any submissions on it.

[6] Accordingly we decline to include the deeming provision in paragraph one of the court’s order.

“Alexandra Hoy A.C.J.O.”

“John Laskin J.A.”

“M. Tulloch J.A.”