



COURT OF APPEAL FOR ONTARIO

CITATION:
Verschuren v. Verschuren, 2014 ONCA 518

DATE: 20140703

DOCKET: C57746

Sharpe, Simmons and Benotto JJ.A.

BETWEEN

Paul Verschuren

Applicant/Appellant in Appeal

and

Deborah Verschuren

Respondent/Respondent in Appeal

Paul McInnis, for the appellant

Robert Snell, for the respondent

Heard and released orally: June 26, 2014

On appeal from the order of Justice Peter Z. Magda of the
    Superior Court of Justice dated September 10, 2013.

ENDORSEMENT

[1]

The appellant appeals the order of Magda J. which dismissed his motion
    to change his child and spousal support obligations.

[2]

The parties had been married for nearly 15 years when they separated in
    2006. It was a so-called traditional marriage in which the appellant worked
    outside the home and the respondent was a full-time homemaker. At the time of
    the separation, the two children of the marriage then aged nine and thirteen
    were in the custody of the respondent.

[3]

The parties entered into a separation agreement in December 2008, which
    was incorporated into the terms of a divorce order on May 29, 2009. Pursuant to
    the agreement and subsequent order:

(a)      the
    appellants imputed income was $200,000 and he was to pay child and spousal
    support on this basis; and

(b)     there
    was to be no variation unless the appellants income changed by more 10%.

[4]

Specifically, paragraph 23 of the order read:

[The appellant] shall pay child
    and spousal support based on an imputed income of $200,000 and child and
    spousal support in any given year shall not be subject to variation unless [the
    appellants] income changes by more than 10%.

[5]

In December 2011, the appellant brought a motion to change alleging that
    his income had changed by more than 10%. He requested an order retroactive to
    January 1, 2010 reducing the child support, terminating the spousal support and
    rescinding the arrears. By the time of the hearing, those arrears were more
    than $100,000.

[6]

The motion judge heard two days of evidence and then had the benefit of
    written submissions.

[7]

The appellant argued before the motion judge, as he argues here, that
    the support should be based on his line 150 income, not the $200,000 attributed
    to him.

[8]

We disagree. The motion judge made a finding that the $200,000 figure
    agreed to, and incorporated into the Divorce Order, included income that would
    be received from the appellants interest in the company MAD Designs.

[9]

In October 2009, 10 months after the separation agreement and four
    months after the Divorce Order, the appellant transferred his interest in MAD
    Designs to his common law spouse. The motion judge found that the transfer of
    shares from the appellant to his common law spouse was simply a voluntary non-
    arms-length transfer of an income producing asset for nominal if any
    compensation. The motion judge concluded that the only purpose of the transfer
    was to remove income that would properly be used to calculate support.

[10]

The
    motion judge also determined that the lavish lifestyle enjoyed by the appellant
    and his common law spouse was the result, at least in part, of the lucrative
    business interest that the appellant had transferred to her.

[11]

The
    motion judge concluded that the appellant had failed to demonstrate that his
    income had changed outside the range contemplated by the separation agreement
    as incorporated into the divorce order.

[12]

We
    see no error in fact, law or in principle in the motion judges dismissal of
    the appellants claim.

[13]

The
    appeal is dismissed. Costs are payable to the respondent fixed at $7,500
    inclusive of disbursements and taxes. These costs may be enforced by the Family
    Responsibility Office.

Robert J. Sharpe J.A.

Janet Simmons J.A.

M.L. Benotto J.A.


