COURT OF APPEAL FOR ONTARIO

CITATION: Punzo v. Punzo, 2016 ONCA 957

DATE: 20161219

DOCKET: C61677

Feldman, Epstein and Miller JJ.A.

BETWEEN

Viviana Punzo

Applicant (Appellant)

and

Emanuele Punzo

Respondent (Respondent on Appeal)

Ron Shulman, for the appellant

Aurelio Pascuzzi, for the respondent

Heard: September 27, 2016

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated December 15, 2015, with reasons reported at 2016 ONSC 6029.

B.W. Miller J.A.:

Overview

[1] Viviana Punzo appeals from an order retroactively reducing Emanuele Punzo’s child and spousal support obligations. It is complicated by the parties’ disagreement about how to interpret the minutes of settlement that is the basis of the consent order that was varied below. Mr. Punzo takes the position that he never managed to earn the level of income that he said he made at the time of the consent order; it was only an aspiration and his actual income turned out to have been much lower. Ms. Punzo believes Mr. Punzo to be disingenuous. He was and is hiding income, she says, and the consent order was to compensate for this dishonesty by imputing income to him. She argues that it is unjust to retroactively vary the consent order to entirely undo the financial protection she achieved through lengthy and expensive negotiations.

[2] I do not agree with Ms. Punzo that the motion judge made any error in finding a material change in Mr. Punzo’s circumstances, or in changing his support obligations. I would, however, allow the appeal in part on the basis that the motion judge erred by ordering variation retroactive to a date prior to the date of the material change and in not conducting the analysis regarding retroactive support relief established in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 and Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201.

Background

[3] The order under appeal (the “Change Order”) reduced Mr. Punzo