COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Cosentino, 2020 ONCA 775

DATE: 20201208

DOCKET: C68125

MacPherson, Zarnett and Jamal JJ.A.

BETWEEN

Karina Cosentino

Applicant (Respondent)

and

Benito Cosentino

Respondent (Appellant)

Gordon S. Campbell, for the appellant

Hugh M. Evans, for the respondent

Heard: November 25, 2020 by video conference

On appeal from the order of Justice J. Scott McLeod of the Superior Court of Justice, dated February 3, 2020, with reasons at 2020 ONSC 233.

REASONS FOR DECISION

[1] The appellant Benito Cosentino appeals from the final order of McLeod J. of the Superior Court of Justice dated February 3, 2020. In that order, McLeod J. dismissed the appellant’s motion to vary the final orders of Douglas J. of the Superior Court of Justice dated June 16 and September 26, 2016 relating to spousal and child support.

[2] The appellant was born in Italy and came to Canada when he was 17. He is now 64 years old.

[3] The respondent was born in Ecuador and came to live in Canada after she married the appellant in Ecuador at age 27. She is 46 years old.

[4] There are two children of the marriage, aged 17 and 15.

[5] The marriage lasted about 11 years. The respondent commenced divorce proceedings in 2013.

[6] Unfortunately, the divorce proceedings were very contentious. After a trial in 2015-16, Douglas J. made child and spousal support orders in June and September 2016. In those orders, Douglas J. fixed child support at $1,652 monthly (two children) and spousal support at $1,121 monthly.

[7] The appellant appealed these orders to this court. On October 25, 2016, Lauwers J.A. made an order that, pending the disposition of the appeal, the appellant pay a reduced sum of $1,412 for combined child support and spousal support. He also directed that the appeal be expedited and heard in March 2017.

[8] On July 7, 2017, this court dismissed the appellant’s appeal because of his failure to pay the interim child and spousal support ordered by Lauwers J.A. and for not pursuing and perfecting his appeal on a timely basis: Cosentino v. Cosentino, 2017 ONCA 593. In reaching this decision, the Court noted, at paras. 5 and 8-10:

On October 25, 2016, Lauwers J.A. heard a motion by the wife for partial payment of the equalization payment. At the return of the motion, however, the parties instead requested that “interim” child and spousal support payments be set, together with an expedited appeal. The husband’s counsel proposed $1,412.00 per month and the wife’s counsel agreed. Lauwers J.A. made the order and neither party has sought to review it.

This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders.

Here, it was the husband’s counsel who – in order to avoid an order for partial payment of the equalization payment – proposed the amount of interim support, which the husband has since not paid.

The husband’s actions in failing to pay the interim child and spousal support and in not pursuing or perfecting the appeal on a timely basis disentitle him from continuing with this appeal. [Citations omitted.]

[9] A mere four days later, on July 11, 2017, the appellant brought a motion to change Douglas J.’s 2016 order. He sought, inter alia, a decrease in the amount of child support and termination of spousal support on the basis of a material change in circumstances since Douglas J.’s 2016 order. The change in circumstances consisted of an alleged inability to continue to work in his long-time employment as an insurance broker and a sharp deterioration in his health. In support of these changes, the appellant submitted numerous handwritten physician’s notes, letters from physicians, psychotherapists and psychiatrists, clinical notes and records from hospitals, and a psychological report. The only witness to testify about the appellant’s physical and psychological condition was a co-author of the psychological report.

[10] Although a significant amount of this evidence related to the appellant’s condition prior to the hearing before Douglas J. in 2016, the appellant had not led this evidence at that hearing. This was a crucial omission in the eyes of the motion judge, leading him to say:

I would adopt the same reasoning as was set out in Gray at paragraph 36. This court should have great difficulty in conceiving that “evidence not available on the previous hearing” could include emotional and physical restrictions which were “not available” because of the party’s deliberate failure to disclose this evidence. [Mr. Cosentino] was experiencing emotional and physical limitations prior to the trial before Justice Douglas. The limitations affected his ability to work. [Mr. Cosentino] chose to withhold this relevant evidence from Justice Douglas. [Mr. Cosentino] testified that he chose not to give the court this evidence because he did not want to appear as a “cry baby”. No further explanation was provided to this court as to why [Mr. Cosentino] would not lead such important evidence. In short, he adopted a rather strange trial strategy.

As noted earlier, if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. [Citations omitted.]

[11] Flowing from this analysis, the motion judge determined that although the appellant’s income had decreased significantly since Douglas J.’s order in 2016, the decrease was caused entirely by his own initiative in becoming “intentionally underemployed” and not because of the alleged deterioration in his health. The motion judge’s ultimate conclusion was: “The underemployment of [Mr. Cosentino] is a direct result of the decisions he made which I find were made intentionally to avoid or reduce the payments of child and spousal support.”

[12] The appellant appeals the motion judge’s decision on two bases.

[13] First, the appellant contends that the motion judge misconstrued the law on change of circumstances, especially as it relates to the significant deterioration of his health after Douglas J.’s order in 2016. The appellant says that on the Motion to Change he filed extensive, diverse and uncontested medical evidence that clearly established both that he suffered from serious debilitating health issues and that he was, therefore, incapable of continuing in his previous employment.

[14] We do not accept the submission that the motion judge misconstrued the law.

[15] In Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, Sopinka J. said, at p. 688:

[A] material change of circumstances… means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

[16] In his reasons, the motion judge pointed out that the appellant’s health was not an issue at the hearing before Douglas J., even though there was medical evidence that he was suffering from health problems for several years before that hearing. The motion judge was aware that the medical evidence was obtained after the trial but was not satisfied that it indicated a change in circumstances. Rather, the motion judge found that the same evidence could have been proffered at trial – the appellant’s decision not to lead the evidence at trial was part of his trial strategy.

[17] With respect to the motor vehicle accident that occurred in October 2017, after Douglas J.’s order, the motion judge noted that the evidence was limited and based on self-reporting. It is not the role of this court to reweigh the appellant’s evidence.

[18] The motion judge also observed that the appellant “commenced this motion to change four days after his appeal of the Douglas J. order was dismissed” by this court in July 2017 and “only after his other attempts to reduce spousal support were unsuccessful.”

[19] Bearing in mind that Willick instructs, at p. 687, that orders in family law matters should not be departed from lightly and will only be varied where the conditions for doing so are satisfied, we cannot say that the motion judge’s conclusions that no variation was warranted and that the appellant’s changed financial situation post-Douglas J.’s order was the direct result of his own decision to be underemployed so as to avoid spousal and child support payments should be rejected.

[20] Second, the appellant submits that the motion judge did not take sufficient account of his age and retirement in reaching his decision. When the motion judge made his decision, the appellant was 63 years old. Faced with the loss of his long-time employment as an insurance broker, new similar employment or retraining for possible alternative employment was simply unrealistic.

[21] We disagree. Again, the chronology is important here. There is no record of the appellant having problems in his long-time job until after Douglas J.’s decision. In that decision, Douglas J. dealt at length with the appellant’s income from his insurance brokerage business. There is not a word in the judgment, or in the record the appellant prepared for the hearing, about an imminent retirement even though, at that time, the appellant would have been in his early 60s. Nor was this issue raised by the appellant in his appeal to this court. Accordingly, we see no basis for interfering with the motion judge’s conclusions that the appellant is “intentionally underemployed” and that his underemployment “is a direct result of the decisions he made which I find were made intentionally to avoid or reduce the payments of child and spousal support.”

[22] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed, with the agreement of counsel, at $12,500, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“B. Zarnett J.A.”

“M. Jamal J.A.”