Court of Appeal for Ontario

CITATION: Cohen v. Matlofsky, 2016 ONCA 29

DATE: 20160114

DOCKET: C60213

Simmons, LaForme and Huscroft JJ.A.

BETWEEN

Claude Cohen

Respondent

and

Gerald Matlofsky

Appellant

Claude Cohen, in person, by telephone

Gerald Matlofsky, in person

Heard: December 9, 2015

On appeal from the order made by Justice S.R. Goodman of the Superior Court of Justice, dated March 3, 2015.

ENDORSEMENT

[1] The appellant, Mr. Matlofsky, appeals from an order dismissing his motion to change the amount of spousal support he is required to pay the respondent, Ms. Cohen. The parties consented to an order in April 2011, under which the appellant was required to pay $1,800 per month for spousal support, premised on his income at that time of $100,000 per year and the respondent’s annual income of $39,000.

[2] The appellant sought to terminate the spousal support payable on the grounds that his income had declined to an average of about $86,000 per year over the preceding three years and because he had uncovered evidence that the respondent recently purchased a home in Paris, France free and clear of mortgages. He led evidence indicating the house was worth the equivalent of over $700,000 Canadian.

[3] The appellant submits that the motion judge made several errors in dismissing the appellant’s motion to change spousal support. First, she erred in failing to draw an adverse inference against the respondent because of material non-disclosure of information relevant to the issue of spousal support. Second, she erred in failing to find a material change in circumstances based on the appellant’s reduced income and the respondent’s house purchase. Third, the motion judge acted as an advocate for the respondent and succumbed to bias in the respondent’s favour because of the respondent’s inappropriate emotional outbursts.

[4] We do not accept these submissions.

[5] As a preliminary matter, we note the motion judge’s observations that, although represented by counsel before her, the appellant did not ask for leave to question on the material filed, did not request an order requiring a further and better financial statement and did not ask for the trial of an issue.

[6] We observe as well that a motion judge’s decision relating to spousal support attracts considerable deference from this court. Absent an error in principle or a significant misapprehension of the evidence, or unless the order is clearly wrong, an appellate court should not interfere with the lower court’s exercise of discretion on matters of spousal support: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 11.

[7] Here, the motion judge did draw an adverse inference against the respondent by refusing to accept her position that she was now almost entirely dependent on the appellant’s spousal support and had virtually no other income. The motion judge declined the respondent’s request to increase spousal support for that reason. However, the motion judge was not satisfied based on the evidence before her that the respondent was now in a position to earn more than $39,000 per year. We see no error in, and no basis to interfere with, those determinations.

[8] Further, while the appellant had experienced a bad year in 2012, at the time of the motion, his income was trending upward. And apart from the question of income, the motion judge had no evidence of the respondent’s financial position in 2011 on which to base a finding of material change in circumstances. To show a material change in circumstances, a party must lead evidence concerning what the parties’ positions were when the order sought to be changed was made. The appellant led no evidence concerning the respondent’s asset position when the 2011 order was made.

[9] The appellant’s argument that the motion judge acted as an advocate for the respondent rests in part on his claim that the motion judge improperly treated the respondent’s request for an increase in spousal support in response to the appellant’s motion as a cross-motion. Further, the motion judge relied on the existence of a compensatory aspect to the respondent’s support as part of the reason for dismissing the appellant’s motion to change spousal support when, according to the appellant, the respondent asserted no such claim. In addition, the appellant claims the motion judge acted on unsworn evidence in the form of statements made by the respondent at the hearing.

[10] We do not accept these arguments. The Family Law Rules contemplate that a responding party will make their request, if any, for a change in the existing order in their response to the moving party’s motion: see O. Reg. 114/99, r. 15. The fact that the motion judge called the respondent’s request for an increase in support a cross-motion is of no moment. While the respondent did not use the term “compensatory” in her response to the appellant’s motion, in her supporting affidavit, she referred to having a traditional marriage and to having assisted the appellant in advancing his career to the detriment of her own. This aspect of her response amounted to a claim that there was a compensatory aspect to her spousal support.

[11] Finally, as we read the motion judge’s reasons, the only occasions on which she relied on the respondent’s unsworn statements were in circumstances where the respondent’s admissions assisted the appellant. The motion judge was alive to the issue that the respondent was making unsworn statements and said she would not use those statements as evidence for the respondent. We see no error in the motion judge’s approach.

[12] Finally, we see nothing in the record to suggest that the motion judge was biased in favour of the respondent.

[13] The appeal is therefore dismissed.

[14] The respondent did not request costs and no costs are awarded.

“Janet Simmons J.A.”

“H.S. LaForme J.A.”

“Grant Huscroft J.A.”