CITATION: Volyansky v.Volyansku, 2016 ONSC 1990
DIVISIONAL COURT FILE NO.: DC-15-16-00 DATE: 20160317
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. WILSON, C. HORKINS JJ. AND A.C.J.S.C. MARROCCO
BETWEEN:
Lubov Volnyansky Applicant/ Appellant
– and –
Yuri Volnyansky Respondent
In Person, for the Appellant/Applicant G. Pribytkova, for the Respondent
HEARD at Brampton: March 17, 2016
J. WILSON J. (ORALLY)
THIS APPEAL
[1] This is an appeal from the decision of Justice Lemon dated August 29th, 2014. Justice Lemon dismissed the plaintiff’s appeal from the Final Order of Justice Nelson dated October 4, 2013. Justice Nelson found that there was no material change in circumstances to justify a continuation of spousal support.
THIS COURT’S JURISDICTION
[2] The Appellant initially filed her appeal in the Ontario Court of Appeal. On January 14, 2015, the Court of Appeal of Ontario found, given the amount claimed, that the appeal falls squarely within the monetary jurisdiction of the Divisional Court under section 19(1.2)(b) and (c) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
STANDARD OF REVIEW
[3] The Supreme Court of Canada addressed the standard of review of an appeal from a judge’s decision in Housen v. Nikolaisen, (2002) SCC 33, 2002 SCC 33, [2002] 2 S.C.R. 235. In summary:
On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness. (at para. 8).
The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error": Stein v. The Ship “Kathy K.” (at para. 10).
Where the trier of fact has considered all of the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review [than for findings of fact]. (at para. 28)
BACKGROUND
[4] The dispute between the parties began in the Ontario Court of Justice when the Appellant initiated an application for spousal and child support after their separation.
[5] On June 24, 2008, Maresca J. made a final order that the Respondent pay child support of $100 per month to each of the three children named in the application for a period of 32 months commencing July 1, 2008. He also required the Respondent to pay the Appellant spousal support in the amount of $700 per month for a period of five years commencing July 1st, 2008, “after which no spousal support will be payable.” The Appellant did not appeal this order
[6] On March 13th, 2013, the Appellant brought a motion to change Maresca J.’s order. In her motion to change, she sought only to change the spousal support order. In particular, she requested that the $700 per month continue for another five years.
[7] The matter initially came before Nelson J. by way of a case conference. At the time, Nelson J. raised the issue of material change in circumstances and gave both parties the opportunity to address this crucial issue by way of further affidavit evidence. She endorsed the record:
On the [Appellant’s] material, it is unclear whether she has established material change in circumstances which were unforeseeable at the time Justice Maresca’s order was made. The issue must be determined in the [Appellant’s] favour before the court order can be changed. Therefore, that threshold issue will be argued before me on October 4, 2013.
[8] Nelson J. dismissed the Appellant’s motion to change the final order of June 24th, 2008. She concluded that the Appellant was unable to show that there was a material change in circumstances. In her reasons, she carefully reviewed the evidence in arriving at her decision. She correctly stated that a final order cannot be varied unless the applicant can prove a material change in circumstances in accordance with the provisions of section 37(2) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).
[9] Lemon J. dismissed the appeal from the decision of Nelson J. and ordered costs in favour of the Respondent.
ISSUES RAISED
[10] The Appellant argues that Lemon, J. erred in failing to set aside the decision of Nelson, J. Additionally, the Appellant asserts that Lemon J. erred in accepting Nelson J.’s findings of fact that there had been no material change in circumstances.
[11] The Appellant made various arguments before this Court challenging the findings of fact that there was no material change in circumstances.
[12] The Appellant argues before us that both justices misapprehended the evidence regarding whether there was an agreement leading to Maresca J.’s order.
[13] We find that it is irrelevant to this appeal and the issues before us whether there was an agreement. The test for changing a final order, as set out in section 37(2) of the FLA, applies whether or not the order was on consent or whether it followed a contested hearing.
[14] The Appellant further argued before us and both before Nelson, J. and Lemon, J. that each judge before them erred by failing to order child support. We note that no request was made in the motion to change for a variation of the child support order. In any event, no evidence was presented to Nelson J. to support a variation of the child support order. Therefore, we find Lemon J. correctly concluded that there was no evidence before the court on this issue and thus the matter should not be considered.
[15] We have carefully considered the arguments and challenges made by the Appellant to Lemon J.’s findings of fact.
[16] We find that Lemon J. made no errors in the assessment of the case. He carefully considered the findings of fact of Justice Nelson and agreed with the conclusion that the Appellant had failed to prove that there was a material change in circumstances. He found that Justice Nelson applied appropriate legal principles to the assessment of the evidence and that the decision should be upheld.
[17] For these reasons, the appeal from the decision of Justice Lemon is dismissed.
COSTS
[18] We understand that there is financial hardship on both sides. We have reviewed the Bill of Costs submitted by the Respondent. It is appropriate that there be some order as to costs and we order cost fixed in the amount of $2,500 inclusive of HST and disbursements.
___________________________ J. WILSON J.
A.C.J.S.C. MARROCCO
C. HORKINS J.
Date of Reasons for Judgment: March 17, 2016
Date of Release: April 8, 2016
CITATION: Volyansky v.Volyansku, 2016 ONSC 1990
DIVISIONAL COURT FILE NO.: DC-15-16-00 DATE: 20160317
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, C. HORKINS JJ. AND
A.C.J.S.C. MARROCCO
BETWEEN:
Lubov Volyansky Applicant/ Appellant
– and –
Yuri Volyansku Respondent
ORAL REASONS FOR JUDGMENT
J. WILSON J.
Date of Reasons for Judgment: March 17, 2016
Date of Release: April 8, 2016