



COURT OF APPEAL FOR ONTARIO

CITATION: Cvetkovic v. Cvetkovic-Gorovic, 2021 ONCA 193

DATE: 20210330

DOCKET: C67374

Fairburn A.C.J.O., van Rensburg and Huscroft
    JJ.A.

BETWEEN

Darko Cvetkovic

Applicant (Respondent)

and

Aleksandra Cvetkovic-Gorovic

Respondent (Appellant)

Mark DeGroot, for the appellant

Darko Cvetkovic, acting in person

Heard: March 22, 2021 by video conference

On appeal from the order of Justice Susan E. Healey of
    the Superior Court of Justice, dated August 1, 2019, with reasons at 2019 ONSC
    4246.

REASONS FOR DECISION

[1]

At the conclusion of oral submissions, we
    advised the parties that the appeal was dismissed with reasons to follow. These
    are our reasons.

Facts

[2]

The appellant appeals from a final order
    terminating her spousal support as of August 1, 2019. The order under appeal
    was the result of a motion to change the consent final order of Mullins J.,
    dated March 23, 2009 (the 2009 final order), which notably required the
    respondent to pay child support for the two children of the marriage and
    spousal support for the appellant. The 2009 final order fixed spousal support at
    $1,400 per month based on an annual imputed income of $105,000 for the
    respondent, who was and remains self-employed, and $30,000 for the appellant. The
    2009 final order provided that spousal support was to be reviewed four years from
    the date of the order, and that either party could make an application to the
    court 
[
i
]
f the parties cannot agree on the amount
    and duration of spousal support to be paid to the
[appellant]
going forward. It also provided for a change of the amount and
    duration of spousal support if there was a material change in either partys circumstances,
    even if the change was foreseen or foreseeable.

[3]

The appellant brought a motion to change the
    2009 final order almost five years after the 2009 final order, seeking to
    change the quantum of spousal support and child support based on her assertion
    that the respondent had not fully disclosed his income and assets at the time
    of the 2009 final order. She also asserted that the respondents income may
    have increased since the date of the 2009 final order.

[4]

The respondent brought his own motion to change the
    2009 final order, seeking to terminate or reduce spousal support and child
    support. Among other things, the respondent asserted that the appellant was
    refusing to work at a full-time job despite having a rich and versatile
    working experience and 13+ years of post-secondary education, and he
    challenged the appellants level of income disclosure since 2006.

[5]

The order under appeal was made after a trial at
    which the parties were self-represented. The appellant appeals only the part of
    the order that terminated her spousal support effective August 1, 2019.

Grounds of Appeal

[6]

There are three distinct grounds of appeal. The
    appellant submits that the trial judge erred: (1) in treating the trial as a
    variation proceeding instead of a review; (2) in terminating spousal support
    based on the material changes found;  and (3) in admitting and relying on the May
    31, 2018 report of an expert who was jointly retained by the parties to provide
    an opinion as to the respondents income for support purposes for the years
    2014 to 2017 (the SLF Report).

[7]

We do not give effect to any of these grounds of
    appeal.

The Nature of the Proceeding

[8]

First, the appellant is correct that there is a
    difference between a review and a variation. A review permits an order to
    be revisited without a threshold determination of a material change in
    circumstances, while a variation includes a burden to establish changed
    circumstances, as required by s. 17(4.1) of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.):
Leskun v. Leskun
, 2006 SCC 25,
[2006] 1 S.C.R. 920,
at paras. 35-37. That said, once the threshold to vary the existing
    order is met, both a review and a variation of spousal support consider the
    same objectives: those that are set out explicitly at ss. 15.2(6) and 17(7) of
    the
Divorce Act
.

[9]

The trial judge referred to the provisions of
    the 2009 final order that allow for a review of spousal support after four
    years and a change to the spousal support order if there is a material change in
    circumstances. Whether characterized as a review or a variation, we are
    satisfied that the trial judge considered all of the circumstances that were
    relevant to what she had to determine at the trial: whether, as the appellant
    asserted, the respondent had failed to make full disclosure of his financial
    circumstances at the time of the 2009 final order; whether the respondents
    income was higher than the income imputed in the 2009 final order; and whether,
    and if so, when, spousal support should terminate.

The Respondents Income and the Termination
    of Spousal Support

[10]

Second, the appellant asserted at trial that the
    respondents imputed income in the 2009 final order ought to have been higher
    because the respondent was earning undisclosed income from a specific numbered
    company that he owned at the time of the 2009 final order. The trial judge considered
    the evidence and concluded that, although the numbered company was incorporated
    prior to the 2009 final order, there was no evidence of undeclared income from
    this company. Nor did the trial judge find that the respondent underreported
    his income in the years following the 2009 final order. After considering the
    evidence of the respondents line 150 income and the SLF Report addressing the
    respondents income for support purposes for the years 2014 to 2017, and
    rejecting the appellants unsupported allegations that the respondent had
    unreported cash or other income, the trial judge concluded that there was no
    evidence that the respondent had undeclared income before 2009 or that he
    underreported his income after the 2009 final order.

[11]

In deciding to terminate the appellants spousal
    support effective August 1, 2019, the trial judge considered the evidence that
    the appellant had not worked since 2015 and the appellants explanation that
    she was unable to work for medical reasons. The trial judge concluded, after
    reviewing the evidence, that the appellant had not shown that she had taken the
    necessary steps to become economically self-sufficient, and that she had not
    provided convincing evidence of her inability to secure and maintain
    employment. In particular, the trial judge referred to the amount of historical
    evidence for the appellants income as scant.

[12]

We disagree with the appellants submission that
    the trial judge improperly restricted her from leading evidence pre-dating the
    2009 final order, including evidence relating to the factors the court would
    consider under ss. 15.2(4) and (6) of the
Divorce Act
.

The appellant was intent on testifying about conduct of the
    respondent that occurred many years earlier and on raising various allegations
    about his behaviour. It was in this context that the trial judge noted, at
    para. 81 of her reasons, that she had to redirect the appellant from talking
    about events that occurred prior to the 2009
[final]
order, or issues that were simply not relevant to the issues to be
    decided by the court.

[13]

This was a 16-year marriage where spousal
    support of $1,400 per month had been paid in excess of 10 years. According to
    the trial judge, the
Spousal Support Advisory Guidelines

suggested range for
    spousal support would have been $1,528 to $2,037 for a duration of 6.5 to 13
    years. The trial judge made a finding of fact that the appellant [had] not
    shown that she [had] taken the necessary steps to become economically
    self-sufficient, and [had] not provided convincing evidence of her inability to
    secure and maintain employment. The trial judge also found that the appellant
    had sufficient equity in her home to retire all of her outstanding debt. On
    these bases, and in the context of the
Divorce Act
s ss. 15.2(6) and 17(7) spousal support objectives, notably the
    promotion of economic self-sufficiency, the trial judge ordered that spousal
    support would terminate on the date of her order.

[14]

We see no error in the trial judges approach.
    She provided detailed and comprehensive reasons. Her conclusion was based on
    her assessment and weighing of the evidence, including her assessment of the
    credibility of the parties.

The Expert Report

[15]

Third, we consider the appellants argument that
    the trial judge ought not to have admitted the SLF Report when its author was
    not called to testify as an expert witness. The trial judge admitted the report
    after concluding that it was both necessary and reliable, meeting the
    requirements for the admission of hearsay evidence. We see no error in
    principle that would cause us to interfere with this admissibility ruling. In
    any event, we note that the appellant did not clearly object to the
    admissibility of the SLF Report from the expert who was jointly retained and,
    in fact, relied on aspects of the SLF Report to advance her own case, notably to
    establish permissible or impermissible business expenses. In these
    circumstances, the appellant cannot now object to the fact that the trial judge
    relied on the SLF Report for other purposes.

Disposition

[16]

For these reasons, the appeal is dismissed.

[17]

The appellant was capably represented by counsel
    who appeared on a
pro bono
basis. The
    respondent was self-represented. In all of the circumstances, we do not order
    costs on the appeal.

Fairburn A.C.J.O.

K. van Rensburg J.A.

Grant Huscroft J.A.


