Court File and Parties
Court File No.: FS-19-9107
Date: 2025-06-03
Ontario Superior Court of Justice
Re: Susan (Sam) Makepeace, Applicant
And: Cornel Brenninkmeyer, Respondent
Before: M. Kraft, J.
Counsel:
Jaret Moldaver, Martine Orden, agents for the Applicant
Robert Halpern, Erin Caplan, for the Respondent
Heard: May 28, 2025
Endorsement
Nature of the Motion
This is a motion brought by the respondent, Cornel Brenninkmeyer (“the husband”), to vary the temporary consent order of Pinto, J., dated October 13, 2022 (“2022 Pinto consent order”) and reduce the uncharacterized support he pays to the applicant, Susan (Sam) Makepeace (“the wife”), on a temporary without prejudice basis from $65,000 a month to $20,000 a month starting February 1, 2022.1 The husband also sought a contemporaneous distribution to each party of 25% of the net sale proceeds from the sale of their Port Carling property, which he consented to last week prior to the hearing of this motion. As a result of that agreement, each party received a distribution of about $500,000 last week.
Since the without prejudice support payments are “uncharacterized” the husband is not able to deduct these payments and the wife does not pay income tax on these payments. As a non-resident of Canada, the husband swears that he does not have the ability to deduct his spousal support payments for tax purposes in any event even if the support payments were paid by him as spousal support.
The trial of this matter is scheduled to start on September 15, 2025, for 15 days and it is pre-emptory to both parties. The issues at trial will be the equalization of net family property; the impact of the equalization on the husband’s trust claims relating to properties existing on valuation date and today, title to which all are registered in the wife’s sole name but, which were financed by the husband and spousal support.
The husband brings this motion less than 4 months before the trial is scheduled to start.
Issue to be Decided
The issue to be determined on this motion is whether the husband has met the test necessary to obtain a variation of a temporary order prior to trial by demonstrating that there is a:
a. strong prima facie case that there has been a material change in circumstances justifying a reduction of the monthly uncharacterized support since Faieta, J. declined to make this order on November 23, 2024;
b. clear case of hardship on the husband’s part if the variation is not granted;
c. situation of urgency; and
d. that he comes to court with “clean hands.”
The Parties’ Positions
The wife argues that this motion is res judicata and it should be dismissed with costs to her. Alternatively, the wife argues that the husband has not met his onus to prove that one of the preconditions set out in the 2022 Pinto consent order has occurred justifying a variation, namely, that she has not received her entire share of the Port Carling sale proceeds as a distribution. In the further alternative, the wife argues that the husband has not met the test necessary for the court to vary a temporary order pending trial because he has not proven that a) there has been a material change in circumstances since Faieta, J. dismissed his motion, b) he will experience hardship on his part; or c) that there is urgency.
The husband argues that the material changes in circumstances since Faieta, J.’s Endorsement of November 23, 2024, are that:
a. The wife’s medical condition resulted in the trial of this matter being adjourned for the 3rd time from February 10, 2025, to September 15, 2025, through no fault of the husband;
b. The husband produced an expert report in April 2025 from Verity regarding his 2023 income demonstrating a sufficient reduction in his ability to pay support at the level agreed to in the 2022 Pinto consent order; and
c. Post-separation, the wife refinanced the Castle Frank and Mono farm properties, title to which are registered in her name, and is now failing to make payments associated with these increased debts despite being paid uncharacterized support payments of $65,000 a month, thereby creating a false urgent financial situation for herself, for which the husband ought not to be penalized.The husband further argues that he is experiencing hardship having to continue to pay the wife $65,000 a month given the significant decline in his investments and savings; the situation is urgent given the significant two-year delay of the trial; and he comes to court with clean hands.
Background
The parties lived together for 9 ½ years. They were married on February 13, 2013, and separated 6 ½ years later on February 8, 2019. They have no children together. They each have adult children from previous marriages.
At the time of separation, the parties resided in both Germany and Ontario. Since the separation, the wife has resided in Toronto and the husband has resided in Germany.
The husband is a man of significant means and member of a wealthy European family. He retired at age 40 and sold his shares in his family business for 65 million Euro in 2008, prior to when the parties met. Since 2008, the husband has lived off investment income and depleted capital when necessary to meet his expenses. The wife comes from modest means.
This matter has had an extensive litigation history. There have been a number of disclosure orders made at motions and conferences. There have been multiple conferences and motions. The litigation has now gone on as long as the parties were married.
At the time of separation, title to the following four properties were in the wife’s sole name:
a. 32-34 Castle Frank Road, which is a large 18,000 square foot, 11-bedroom property in Rosedale. This property was purchased during the marriage on March 16, 2018, for $8,500,000 using funds from the husband directly; proceeds from the sale of two previously owned properties that were registered in the wife’s name but substantially paid for by the husband, and a mortgage from DUCA Financial Services Credit Union Ltd., which the husband personally guaranteed. After separation, the wife arranged for a second mortgage from a private lender of about $2.2 million to be placed on the property. A third mortgage in favour of a private lender of $500,000 was also placed on the property after the date of separation by the wife;
b. The Mono Farm Property is a luxury 4,000 square foot, 7-bedroom farm property located in Mono, Ontario. This property was purchased during the marriage on March 13, 2018, for $1,520,000 using funds that can be traced back to capital provided by the husband and third-party financing. Title to the Mono Farm Property is in the wife’s sole name. There are two mortgages on this property. The first mortgage is held by the CIBC of $685,000. The second mortgage is held by a numbered corporation in the amount of $400,000 that was placed on the property by the wife after the date of separation.
c. 1074 Woodington Road, #7, Port Carling, Ontario was a cottage property purchased by the husband prior to marriage on August 11, 2010, for $3,400,000. The funds used to purchase this property came from the husband’s capital and third party financing. Title to the cottage was initially registered in the husband’s sole name but was subsequently transferred into the joint names of the husband and wife on January 7, 2013, shortly before the marriage. The cottage property was sold on May 31, 2013, for a purchase price of $5,950,000 and closed on August 18, 2023. On May 13, 2025, the husband agreed that he and the wife would each receive 25% of the net proceeds of sale. Fifty percent of the net proceeds of sale remain held in trust by the real estate lawyers.
d. The Bahamas property is a luxury 2,000 square foot, 3-bedroom condominium in Brand Isle Exuma, Bahamas. This property was purchased for $823,326 USD on April 25, 2013, shortly after marriage, using funds from the husband alone. Title to the Bahamas property is registered in the wife’s sole name.
Since the separation, the wife has had de facto exclusive possession of all four. She has resisted the sale of each property, except for the Port Carling property which was sold in 2023. It is agreed that the wife also leases an apartment in Yorkville, Toronto which has remained vacant for years. The wife has lived on her own in all properties since separation.
The husband asserts a 100% resulting trust interest in all of the four properties described above.
Litigation History
This case has had an extensive litigation history. Only relevant court orders are referred to below.
On November 21, 2021, the husband was ordered to pay the wife $186,000, which was subsequently characterized as having been paid as interim fees and disbursements.
On January 21, 2022, Pinto, J. ordered the husband to pay $65,263 a month in uncharacterized support to the wife for 5 months. This order was made based on Pinto, J. finding the husband’s income was $4,121,904 and he relied on the Spousal Support Advisory Guidelines (“SSAGs”) to arrive at the monthly support. This required the husband to pay the wife a lump sum amount of $326,315 as uncharacterized support on a temporary and without prejudice basis. At that time, Pinto, J. ordered the wife’s motion for interim support for the period April 1, 2019, to November 2021 be deferred to a long motion in March 2022.
On August 11, 2022, the wife brought another motion for interim fees and disbursements of $775,000. Pinto, J. dismissed the motion but the parties agreed to list the Port Carling property for sale. The net proceeds of sale of $3.3 million were being held in trust by the parties’ real estate solicitor.
On June 28, 2022, Lococo, J. ordered the husband to pay an “uncharacterized monthly amount” of $65,000 a month to the wife for each of June, July, August, and September 2022.
On October 13, 2022, the parties entered into a consent order dealing with the quantum of temporary without prejudice uncharacterized support that the husband was to pay to the wife pending the trial of this matter. At the time the 2022 Pinto consent order was entered into, the trial of the matter was scheduled to commence on May 15, 2023. The order provides that the quantum of temporary support, namely, the $65,000 a month is subject to variation if there was a material change in circumstances, which included but was not limited to, the failure of the matter to proceed to trial by no later than May 2023. In addition, if the Port Carling property was sold and funds distributed to the wife, the husband was to automatically reduce the uncharacterized support to $57,500 a month (from $65,000 a month). Given that the parties consented to the without prejudice temporary support payments being “uncharacterized”, the husband is not able to deduct the support payments and the wife does not report the support as income and does not pay taxes. This is the order the husband seeks to vary downward on this motion.
On March 30, 2023, I ordered the husband to provide disclosure in respect of eight categories of documents.
On April 27, 2023, at the TMC, Shore, J. found that the husband had failed to comply with three categories of documents pertaining to financial documents ordered by me. As a result, Shore, J. adjourned the trial from May 15, 2023, to April 22, 2024. The Endorsement confirms that the adjournment was necessary because the husband was not in compliance with my disclosure order of March 30, 2023, and because the valuations of the four properties were not completed.
Given that the trial was adjourned and the fact that the Port Carling property had been sold and was scheduled to close on August 18, 2023, a long motion was scheduled on October 19, 2023. At this motion before Faieta, J., the husband, among other things, sought an order reducing his monthly uncharacterized support payments from $65,000 a month to $57,500 a month.
On November 9, 2023, Faieta, J. released his decision, and, among other things, he found that the husband’s motion in this regard had no merit because a) none of the proceeds of sale from the Port Carling cottage had been distributed and b) the trial was scheduled to be heard in 6 months. Faieta, J. stated that “the amount saved ($45,000) by the [husband] if the relief sought is granted is not financially material to him and need not be addressed on an interim basis as the amount of spousal support, if any, owed by the [husband] will be determined at trial. Such an approach is the antithesis of ‘dealing with cases justly’ as called for by Rule 2 of the Family Law Rules.”
On November 16, 2023, the wife brought a motion to receive $1,550,000 from the net proceeds of sale from the Port Carling property, with the balance to be held in trust and for the husband to pay her the sum of $1,644,637.26 as interim fees and disbursements less any amount released to her from the Port Carling proceeds of sale. Prior to this motion, the wife had brought two earlier motions for interim fees and disbursements. On March 7, 2024, Faieta, J. released his decision and ordered the husband to pay the wife $725,000 in interim fees and disbursements by making a $250,000 payment from the Port Carling net proceeds of sale and $525,000 being paid within 14 days.
On April 4, 2024, the parties attended a case conference before Diamond, J. at which the trial of this matter was further adjourned for the 2nd time from April 22, 2024 to February 10, 2025, because it appeared that the husband would not be able to comply with the April 5, 2024 deadline to pay the wife the remaining sum of $91,278.68 of the total $275,000 interim disbursement he was ordered to pay pursuant to Faieta, J.’s March 7 and March 28, 2024 Endorsement. In the end, the husband was able to have his bank in Germany pay the wife by the deadline ordered of April 5, 2024, however, by that time that occurred, the trial had already been adjourned from April 22, 2024 to February 10, 2025.
On April 10, 2024, the parties attended at TMC before Diamond, J. where the husband, again, raised the issue of reducing his uncharacterized support payments as a term of the trial adjournment. Diamond, J. denied the husband’s request for leave to bring a motion seeking to reduce the temporary support on the basis that no new or previously undiscoverable facts had arisen since Faieta, J. had denied his request for this relief in November 2023.
On January 7, 2025, three days before the January 10, 2025 Exit Pre-trial, the wife’s then counsel wrote to the husband’s counsel advising that she would be seeking an adjournment of the trial scheduled for February 10, 2025 because of her medical circumstances, which precluded her from participating in the preparation of and attendance at trial.
Diamond, J., then scheduled a motion returnable on January 20, 2025, to determine whether the trial scheduled to start on February 10, 2025, should be adjourned and if so, on what terms. The husband ended up agreeing on January 14, 2025, to the wife’s request to adjourn the trial to September 15, 2025, and therefore, the only issue to be adjudicated at the January 20, 2025, motion was the appropriate terms for the adjournment and costs.
At the January 20, 2025 motion, the husband again requested that the 2022 Pinto consent order be varied to reduce his monthly support obligation of $65,000 a month. Diamond, J. was not prepared to make that determination as a term of the adjournment of the trial, but he did acknowledge in his Endorsement that the husband may indeed have some valid arguments in support of his position, and he granted leave to bring the motion to vary the support once updated sworn financial statements were exchanged within 30 days of his Endorsement.
The husband exchanged updated sworn financial statements in accordance with Diamond, J.’s Endorsement, dated January 20, 2025.
In April 2025, the husband delivered his expert’s income report for his 2023 income. The report sets out three scenarios for the husband’s 2023 income as follows:
a. Scenario 1: all sources of income - $5,286,000;
b. Scenario 2: Exclusion of amounts expected to be equalized - $3,388,000; and
c. Scenario 3: Exclusion of non-recurring amounts and those expected to be equalized - $834,000.
The husband has also updated his financial statement with a sworn financial statement, dated May 5, 2025, for this motion in accordance with the Family Law Rules.
I heard the husband’s motion on May 28, 2025. I reserved my decision and this is my Endorsement.
What is the Test the Husband Has to Meet to Vary the Temporary 2022 Pinto Consent Order?
The Divorce Act does not specifically set out the jurisdiction of the court to make an interim variation of either a temporary or final order. The Divorce Act’s provisions for a final variation of a final order under s. 17 do not apply to interim variations: Brooks v. Brooks.
Ontario courts have traditionally discouraged the variation of interim orders unless the circumstances were urgent: Brooks v. Brooks, at para. 60, Thompson v. Thompson, 1995 CarswellOnt 2004 (Ont. Prov. Div.) and Pakka v. Nygard.
Jarvis J., in Pakka v. Nygard, stated as follows:
The variation of an interim order is a difficult area. Policy considerations dictate that such applications be discouraged. They increase the stress and uncertainty of the parties and vastly increase the cost of litigation. To echo the words of Wolder J. in Thompson v. Thompson, [1995] O.J. No. 2106 (Ct. J. (Prov. Div)), such an order should be varied only where the failure to vary “would cause the payor to suffer under hardship or that a continuation of the existing order would be incongruous and absurd.” (Emphasis added)
- In Nour v. Youssef, 2021 ONSC 2717, at para. 33 and in Berta v. Berta, 2019 ONSC 505, Justice Kurz held that the test for variation of a final order and a temporary order are the same:
a. a strong prima facie case that there has been a material change in circumstances since the order;
b. a clear case of hardship;
c. urgency; and
d. that the moving party comes to court with “clean hands.”
See also Edisbury v. Edisbury, 2022 ONSC 2407, at para 33.
- As set out by Coats, J. in Michael v. Michael, 2024 ONSC 3107 in para 8, the legal principles applicable to the variation of a temporary support order are as set out at paragraphs 22-32 of Gilkinson v. Nicols, 2023 ONSC 1504:
[22] The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 only applies to variation of final support orders made under section 15.1(1) of the Act. The Family Law Rules allow the variation of temporary orders in limited circumstances—rule 25(19) only applies when the order was obtained by fraud, contains a mistake, or there was lack of notice.
[23] That said, this court has the authority to change temporary support orders under the court’s inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is “critical to ensuring fairness and justice” between the parties, given that temporary orders are often “imperfect solutions” based on minimal and usually untested information. See, e.g., Sun v. Lo, 2023 ONSC 128, at para 18, and Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para 19.
[24] The test for a motion to vary a temporary support order has evolved. In Lipson v. Lipson, the Court of Appeal held that there must be a “substantial change in the circumstances.” In Willick v. Willick, [1994] 3 SCR 670 at 688, the Supreme Court of Canada held that variation of an existing order requires the moving party to show that there has been a “material change of circumstances”—a change “that, if known at the time, would likely have resulted in different terms.” See also LMP v. LS, 2011 SCC 64, at para 32. In Iafolla v. Lasota, 2021 ONCA 245, at para 28, the Court of Appeal held that the test for a “material change” is a change that is substantial and continuing and, citing LMP, would have resulted in different terms. When our courts have cited Lipson or used the word “substantial” to describe the threshold question, I take that to mean a “material” change in that it is substantial (see, e.g., Albaum v. Albaum, 2022 ONSC 1300).
[25] In addition, our courts have required the moving party to justify a temporary order. In Pakka v. Nygard, Justice Jarvis required the moving party to show that “the payor [would] suffer undue hardship or that a continuation of the existing order would be incongruous and absurd.” See also Rowland v. Middlebrook, 2013 ONSC 2838, at para 27; Ceho v. Ceho, 2015 ONSC 5285, at paras 93-94; and Grass v. Hropak, 2020 ONSC 7803, at para 87.
[27] In all these cases, our courts have identified several policy reasons for a stringent application of the “material change” test on a temporary motion:
- motions for temporary orders should not be encouraged (Lipson)
- interlocutory motions “increase the stress and uncertainty of the parties and vastly increase the cost of litigation” (Pakka, at para 5)
- temporary orders are an attempt by the court to be “consistent and fair on the basis of evidence that is often incomplete, and never viva voce” (Pakka, at para 5)
- the trial judge is in a better position to analyze the resources and needs of the parents and the children, including the children’s standard of living (Rowland, at para 30)
- parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible (Damaschin-Zamfirescu, at para 20)
[28] That said, the court’s power to vary a temporary support order is “critical to ensuring fairness and justice as between the parties”—it would be unfair to continue a temporary support order as new and better evidence emerges, especially where a trial date is some time in the future. See Damaschin-Zamfirescu, at paras 19-20.
[29] This case presents an added complication—the support order was made, on consent, “without prejudice”. The order is silent about, exactly, what was “without prejudice”. In Ceho, Justice Price, at para 97, described the purpose of “without prejudice” orders:
Such orders are intended to remain in effect only until a full hearing of the motion for a temporary order, when they will be changed by the written agreement or court order that ultimately disposes of the motion. Such a “without prejudice order” is made in contemplation of a further order, based on a more complete evidentiary record.
[30] In Damaschin-Zamfirescu, Justice Chappel held that when a party seeks to vary a temporary without prejudice order, the court should “reconsider the issue of…support as a hearing de novo on the more complete record before the court” without requiring the moving party to prove a “substantial change in circumstances” (at para 23). In that case, the parties were moving to vary a “temporary without prejudice” order less than two years after it had been made, which distinguishes it from this case.
Has the Husband Demonstrated a Strong Prima Facie Case of a Material Change in Circumstances?
The first prong of the test the husband has to meet is to demonstrate a strong prima facie case that a material change has happened since Faieta, J. declined to reduce the uncharacterized support obligation from $65,000 on November 9, 2023, which would have resulted in a different order being made.
The husband argues that the following material changes in circumstances have happened since Faieta, J. declined to reduce his support obligations in his Endorsement dated November 9, 2023:
a. The wife’s medical circumstances required her to seek a third adjournment of the trial on January 10, 2025, at the exit pre-trial. This is a new and undiscoverable fact that arose after Faieta, J. made his Endorsement, and it resulted in Diamond, J. adjourning the trial a further 8 months from February 10, 2025 to September 15, 2025.
b. The husband’s expert completed its income report in April 2025, identifying that his 2023 income for support purposes is $843,000 a year. According to the husband, his income was not known when the 2022 Pinto consent order was entered into. The wife has not filed a critique report.
c. The wife obtained a 2nd mortgage on the Castle Frank property from a private lender in the amount of $2 million on August 7, 2020, after the separation. She did not obtain the husband’s consent. She signed the Charge/Mortgage as being separated from the husband and stated that the Castle Frank property was not ordinarily occupied by the parties at the time of separation as their family residence. The husband disputes this. In September 2022, the wife secured a 3rd mortgage on the Castle Frank property in favour of the same private lender in the amount of $500,000. The 3rd mortgage was permitted by court order. In January 2023, the wife increased the 2nd mortgage by a further $200,000, which was permitted by the Court. In October 2023, she swore an affidavit on October 10, 2023, that she had defaulted on the 1st mortgage in favour of DUCA on March 15, 2023, and DUCA has then proceeded by way of power of sale against both parties since the husband guaranteed the DUCA mortgage. This fact, therefore, is not a new discoverable fact. However, on February 29, 2024, the solicitor for the private lender who is the 2nd and 3rd mortgagee sent a notice of sale under the mortgage noting that there had been a default and demanding payment of both mortgages in full. The wife’s default of the 2nd and 3rd mortgage on the Castle Frank property is a new undiscoverable fact that happened after Faieta, J. dismissed the husband’s first motion to vary the 2022 Pinto consent order on November 9, 2023.
The wife argues that I cannot simply accept the husband’s submissions regarding his expert report on his 2023 income since the report has not yet been tested at trial, the wife does not yet have the underlying scope of review documents, and the husband asks the court to accept only scenario 3 put forward by his expert and ignore scenarios 1 and 2 to arrive at the conclusion that such a reduction in his income represents a material change in circumstances.
I agree with the wife that the husband’s expert’s income report does not in and of itself, represent a material change in circumstances, justifying a reduction in the monthly support being paid by the husband to the wife under the 2022 Pinto consent order. Under 1 of the 3 scenarios put forward by the husband’s expert, his income is $5,286,000 in 2023, which is about $1 million more than Pinto, J. contemplated his income was when the first temporary support order was made in January 2022. The 2nd scenario is that the husband’s 2023 income was $3,388,000, which excludes income based on an equalization payment he owes her, which is a double-dipping argument. Whether the correct income figure for the husband is $843,000 as he argues or some amount closer to scenario 1 or 2, is an exercise for the trial judge once the expert report is tested, the wife delivers a critique report and an entire record along with viva voce evidence can be heard.
I am persuaded that the following events amount to a material change in circumstances since November 9, 2023, when Faieta, J. dismissed the husband’s first motion to vary the 2022 Pinto consent order downward:
a. The wife’s medical condition which caused a further 8-month delay in the trial of this matter from February 2025 to September 15, 2025. A third delay in the trial was not contemplated when the 2022 Pinto consent order was made. It is clear from the wording of paragraph 1 of the order that when the parties consented to the husband paying the wife uncharacterized support payments of $65,000 a month, it was contemplated that there would be a reduction in the monthly uncharacterized payments if the trial was adjourned past May 2023 and/or the wife received a distribution of the Port Carling proceeds of sale. The trial has now been delayed 2 years past the initial trial date May 2023.
b. The wife having received $500,000 as a distribution from the Port Carling net proceeds of sale amounts to a material change in circumstances. The husband argues that the 2022 Pinto consent order does not specify how much of a distribution from the Port Carling net proceeds of sale, it just contemplates an automatic reduction of the monthly support from $65,000 to $57,500 if the wife receives a distribution. He submits that on the wording of the 2022 Pinto consent order, he appears to be entitled to automatically reduce the $65,000 monthly payments to $57,500 monthly, at the very least. The wife does not agree. According to the wife, the 2022 Pinto consent order has been interpreted by Diamond, J. to mean that a precondition to the husband being able to automatically reduce his uncharacterized support payments to $57,500 is that the wife is to receive her entire share of the Port Carling net proceeds. I do not agree. Diamond, J.’s Endorsement refers to condition of the automatic reduction being “specifically the Port Carling property being sold and the applicant’s share of the proceeds being distributed to her.” While Diamond, J. uses the words “applicant’s share” it is impossible to assume that he determined what meant 50% of the net proceeds of sale from the Port Carling property. In fact, one could argue that the wife’s share of the Port Carling proceeds means 100% of the proceeds, since she is the only registered owner. I am not convinced that the 2022 Pinto consent order required that the wife receive a specified quantum of sale proceeds from the Port Carling property. Further, since the wife’s financial statement filed in support of the 2022 Pinto consent order motion contemplated her paying $12,448.74 a month for the mortgage on title to the Port Carling property, it follows that since the property has been sold and since she has now received a distribution from the net sale proceeds, that the uncharacterized payments can be reduced since she no longer has to make those mortgage payments.
c. The wife defaulting on the 2nd and 3rd mortgages on title to the Castle Frank property is a material change. While it is clear from the 2022 Pinto consent order, the wife had already refinanced these properties as can be seen from her financial statement, sworn on November 3, 2021, she had not defaulted on the 2nd or 3rd mortgage at that time. In fact, when the order for uncharacterized support payments of $65,000 a month was made, the wife’s financial statement listed that she would be assuming the carrying costs associated with the 1st mortgage in favour of DUCA of $22,681.46 a month; and the 2nd mortgage payments of $16,666.57 a month. While the default is a material change, I find that the wife has continued to receive the support payments from the husband of $65,000 a month and yet she has failed to continue to pay the carrying costs associated with Castle Frank. She has not provided an explanation in her motion materials why she has not serviced these mortgages and, therefore, this potentially precarious financial position she is in, is not in my view, to be remedied by ignoring the other material changes that call for a reduction in the uncharacterized support, particularly when she has not explained the reason for the default and she has had ample opportunity to do so.
Has the Husband Demonstrated Hardship?
I do not find that the husband has met his onus demonstrating that he will suffer a clear case of hardship if the 2022 Pinto consent order is not reduced starting February 1, 2022, until the trial of this matter is heard.
He swears that his expert’s report demonstrates that the total value of his accounts have declined from $22 million to just over $14 million between 2019 and 2023. Again, the expert’s report has not yet been tested in cross-examination. I cannot, on the limited evidence on the record before me, determine that this decline is hardship in connection to the husband having paid the wife uncharacterized support pursuant to the 2022 Pinto Order.
I do, find, however, that there may be some hardship in the husband’s argument that he may have been overpaying the wife uncharacterized support over the past 24 months which were clearly intended to be finite.
Does the Husband Come to Court with “Clean Hands”?
The wife argues that the first two adjournments of the trial were caused by the husband’s failure to provide the wife with court ordered disclosure and, therefore, he does not come to court with clean hands. It is not disputed that the third adjournment of the trial was caused because of the wife’s medical circumstances.
I find that the husband comes to court on this motion with “clean hands.” His expert reports are completed. He has served the wife with his opening trial statement, without having had the benefit of being served with her opening trial statement. He has paid all of the uncharacterized support payments to the wife, along with interim disbursements totalling over $900,000. The wife has not provided any evidence that the husband is not in compliance with a court order.
The trial of this matter is proceeding on a per-emptory basis to both parties on September 15, 2025. At that point in time, a judge will have an entire record before him or her and have the benefit of viva voce testimony. If the trial judge determines that the husband has been overpaying the wife monthly in uncharacterized support payments, an adjustment can be made retroactive to when the order was made.
Conclusion and Order
Based on all of the above, I am persuaded that there has been a material change in circumstances justifying a reduction in the husband’s uncharacterized payments to the wife from $65,000 a month to $57,500 a month as contemplated by the 2022 Pinto consent order.
The husband is seeking a reduction to $20,000 a month. He does not provide the court with any explanation as to why he seeks a $45,000 a month reduction, as compared to a $25,000 a month reduction, a $35,000 a month or some other amount.
Given that, the 2022 Pinto consent order contemplated an automatic reduction of the $65,000 a month payment to $57,500 a month, once the Port Carling property was sold and the wife received a distribution from the proceeds of sale, it follows that the husband’s uncharacterized payments be reduced accordingly. This order will be without prejudice to the trial judge determining that a further reduction ought to have been granted to the husband before or after February 1, 2022.
If, for whatever reason the trial does not proceed on September 15, 2025, despite it being pre-emptory on both parties, the husband shall be permitted to automatically reduce the uncharacterized support payments to the wife from $57,500 a month by 50% to $28,750 a month, starting October 1, 2025, pending further court order or agreement of the parties.
Order
- This court makes the following order:
a. Subject to (b) below, paragraph 1 of the Order of Pinto, J., dated October 2022, shall be varied such that starting February 1, 2025 and on the first day of each following month, the respondent shall pay the applicant uncharacterized support of $57,500 a month until further agreement of the parties or court order. Any overpayment of uncharacterized support paid from February 1, 2025, to present shall be credited to the respondent in the final adjudication of all property and support issues at trial.
b. If the trial of this matter does not proceed on September 15, 2025, as scheduled, despite it being pre-emptory to both parties, the respondent shall be permitted to automatically reduce the uncharacterized support payments of $57,500 a month to $28,750 a month.
c. On consent, of the total net proceeds of sale of the Port Carling Property held in Trust with Barriston Law LLP, totalling approximately $2,205,683, 25% shall be immediately distributed to each of the parties without prejudice to either party’s position at trial regarding any and all financial issues.
d. The parties shall endeavour to agree on costs of this motion. If they are unable to do so, the respondent shall serve and file costs submissions of no more than 3 pages, not including a Bill of Costs and Offers to Settle within 7 days of the release of this Endorsement. The applicant shall serve and file responding costs submissions of no more than 3 pages, not including a Bill of Costs and Offers to Settle within 6 days of being served with the respondent’s costs submissions. The respondent shall serve and file reply costs submissions, if any, of no more than 1 page within 5 days of the applicant serving her responding costs submissions.
M. Kraft
Date: June 3, 2025