CITATION: DeRose v. DeRose, 2016 ONSC 7546

COURT FILE NO.: FS 88/16

DATE: 2016/12/02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Anthony Peter DeRose

David I. Shapiro, for the Applicant

Applicant

• and -

Rebecca Marjorie DeRose

Judith Holzman, for the Respondent

Respondent

HEARD at Welland, Ontario: November 23, 2016

The Honourable Justice T. Maddalena

DECISION ON MOTION

1Mr. DeRose (“the applicant”) has brought a motion before the court seeking, on a temporary without prejudice basis, to reduce spousal support from $25,800 per month to $5,300 per month.

2These parties entered into a separation agreement dated October 18, 2010. The separation agreement provided that the applicant was to pay to Mrs. DeRose (“the respondent”) $25,000 per month effective November 1, 2009, together with annual indexing. At the time of execution of the separation agreement, the applicant’s income was approximately $1 million per annum.

3According to the evidence on the motion before me, the applicant continued to pay support of $25,800 (which included indexing for one year only) until April 2016, at which time the applicant unilaterally commenced paying to the respondent $5,300 per month.

4According to the applicant, in or around May 2015, the applicant’s corporation lost a major client. The effect of this, according to the applicant, is to cause his income for the year 2016 to be reduced to approximately $211,280 per annum from an income in 2015 of $1,837,126.

5On this particular motion before the court, the only concern is with the year 2016 and whether the applicant’s spousal support obligation ought to be reduced on a without prejudice basis. Accordingly, disclosure of documents for the year 2016 is of paramount importance.

6Mr. Niven, the applicant’s accountant, prepared a calculation projecting his 2016 income as $211,280. The evidence is that he provided calculations and schedules to the respondent’s counsel and to the respondent’s valuator, Ms. Vivian Alterman, of AP Valuations Limited.

7The evidence further confirms that there has been some disclosure of documents directly between Mr. Niven and Ms. Alterman, but I accept the evidence that there is significant disclosure outstanding from the applicant for the year 2016. This lack of disclosure has prevented the respondent’s valuator from completing and/or conducting an analysis of the applicant’s 2016 income.

8The applicant is alleging a very significant material change to his income for 2016. It is trite, therefore, to say that the onus of proof is on the applicant seeking the material change.

9It is, therefore, important that the court who is asked to make that decision also has all the available information necessary to adjudicate on that issue.

10For 2016, the applicant has not disclosed, as of the date of the motion, credit card statements, bank account statements, general ledger statements, and trial balances for his corporation, along with additional other documents.

11Further, the corporation year-end is December 31st so that draft 2016 financial statements should be available soon after that date. Further, discoveries of the parties have already been booked for early 2017.

12Further, the applicant’s financial statement sworn November 1, 2016 shows assets of over $4 million with debts of approximately $400,000.

13On a preliminary basis, the respondent’s valuator has calculated the applicant’s 2013 as $2,030,000; his 2014 income as $1,254,000; and his 2015 income as $1,870,000.

14There is no reason why the applicant should not continue the spousal support as ordered.

15Accordingly, I conclude that the motion brought by the applicant is premature. However, once all disclosure is completed, the applicant is permitted to return the motion before the court upon seven days notice.

Orders Made

16The following orders are made:

1. The motion of the applicant at tab 4, volume 1, of the continuing record is adjourned without a date and may be brought back on seven days notice, provided all outstanding disclosure of the applicant is completed.

2. The applicant shall continue spousal support payments of $25,800 monthly until and unless varied by court order or agreement of the parties.

Costs

17Unless otherwise agreed, costs submissions may be in writing. All submissions are limited to two pages, plus a bill of costs. The respondent’s submissions are due by December 19, 2016 and the applicant’s submissions are due by January 3, 2017.

Maddalena J.