Court of Appeal for Ontario

Date: May 30, 2018 Docket: C64005

Judges: Juriansz, Benotto and Fairburn JJ.A.

Between

Sharon Mae Carr Applicant (Appellant)

and

Timothy Condon Respondent (Respondent in Appeal)

Counsel

For the Appellant: Aaron Franks and Michael Zalev

For the Respondent: Kirsten Hughes, Larissa Bazoian and Stephen Grant

Heard and Released Orally: May 30, 2018

On Appeal From: The order of Justice Paul R. Sweeny of the Superior Court of Justice dated May 29, 2017.

Reasons for Decision

[1] The appellant's motion to change her spousal support was dismissed. She appeals on the basis that the motion judge erred by not awarding compensatory support.

[2] The parties were married for 21 years. They have two children who are now adults. The respondent was a successful senior executive. The appellant did not work outside the home. Upon separation, the parties attended mediation and reached an agreement which was incorporated into a consent order in 2012. The order provided that the respondent pay $12,000 per month in spousal support based on his annual salary of approximately $444,000 plus 27% of his incentive employment income. This percentage added significantly to the appellant's support. For example, by 2017, her support was over $600,000. The estimate for 2018 is over $700,000. The separation agreement imputed an annual income to her of $30,000.

[3] The order contemplated a review in 2017. The parties equalized their property and each left the marriage with approximately $1.9 million.

[4] The motion judge found that the respondent's income had increased and that this constituted a material change warranting a review. The parties agreed to postpone the 2017 review to 2020. Consequently, the motion judge viewed his task as a limited variation application and not a de novo assessment. Nonetheless, the motion judge considered the factors in s. 17(7) of the Divorce Act and the Spousal Support Advisory Guidelines. The motion judge addressed compensatory support and concluded that the economic disadvantages arising from the marriage had been properly addressed. The motion to change spousal support was dismissed.

[5] The appellant submits that in considering compensatory support, the motion judge misunderstood the principles in Moge v. Moge, [1992] 3 S.C.R. 813. He argues that, had the motion judge properly considered these factors, he would have awarded compensatory support.

[6] We do not agree.

[7] The motion judge set out and considered the principles of compensatory support as he was required to do under s. 17. He addressed the Spousal Support Advisory Guidelines and concluded that no additional support was necessary to achieve the objectives in the Act. Read as a whole, his reasons indicate that he was alive to the compensatory factors, properly considered them and conducted the "broad and expansive" analysis contemplated by Thompson v. Thompson, 2013 ONSC 5500 at para. 57.

[8] The standard of review on all matters relating to support is highly deferential. Appellate courts should not interfere with support orders unless the reasons disclose an error in principle, a significant misapprehension or the award is clearly wrong: see Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 11-12.

[9] There was no legal error in the motion judge's approach to the motion to change support, no error in principle and no significant misapprehension of the evidence. Nor is the award clearly wrong.

[10] The appeal is therefore dismissed with costs fixed in the amount of $25,000 all inclusive.

"R.G. Juriansz J.A."

"M.L. Benotto J.A."

"Fairburn J.A."