



COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Cosentino, 2020 ONCA
    775

DATE: 20201208

DOCKET: C68125

MacPherson, Zarnett and Jamal JJ.A.

BETWEEN

Karina
    Cosentino

Applicant (Respondent)

and

Benito Cosentino

Respondent (Appellant)

Gordon S. Campbell, for the appellant

Hugh M. Evans, for the respondent

Heard: November 25, 2020 by video conference

On
    appeal from the order of Justice J. Scott McLeod of the Superior Court of
    Justice, dated February 3, 2020, with reasons at 2020 ONSC 233.

REASONS FOR DECISION

[1]

The appellant Benito Cosentino appeals from the
    final order of McLeod J. of the Superior Court of Justice dated February 3,
    2020. In that order, McLeod J. dismissed the appellants motion to vary the
    final orders of Douglas J. of the Superior Court of Justice dated June 16 and
    September 26, 2016 relating to spousal and child support.

[2]

The appellant was born in Italy and came to
    Canada when he was 17. He is now 64 years old.

[3]

The respondent was born in Ecuador and came to
    live in Canada after she married the appellant in Ecuador at age 27. She is 46
    years old.

[4]

There are two children of the marriage, aged 17
    and 15.

[5]

The marriage lasted about 11 years. The
    respondent commenced divorce proceedings in 2013.

[6]

Unfortunately, the divorce proceedings were very
    contentious. After a trial in 2015-16, Douglas J. made child and spousal
    support orders in June and September 2016. In those orders, Douglas J. fixed
    child support at $1,652 monthly (two children) and spousal support at $1,121
    monthly.

[7]

The appellant appealed these orders to this
    court. On October 25, 2016, Lauwers J.A. made an order that, pending the
    disposition of the appeal, the appellant pay a reduced sum of $1,412 for
    combined child support and spousal support. He also directed that the appeal be
    expedited and heard in March 2017.

[8]

On July 7, 2017, this court dismissed the
    appellants appeal because of his failure to pay the interim child and spousal
    support ordered by Lauwers J.A. and for not pursuing and perfecting his appeal
    on a timely basis:
Cosentino v. Cosentino
, 2017 ONCA 593. In reaching
    this decision, the Court noted, at paras. 5 and 8-10:

On October 25, 2016, Lauwers J.A. heard a
    motion by the wife for partial payment of the equalization payment. At the
    return of the motion, however, the parties instead requested that interim
    child and spousal support payments be set, together with an expedited appeal.
    The husbands counsel proposed $1,412.00 per month and the wifes counsel
    agreed. Lauwers J.A. made the order and neither party has sought to review it.



This court has consistently refused to hear
    from a party or entertain an appeal where the record shows continuing
    disobedience with court orders.

Here, it was the husbands counsel who  in
    order to avoid an order for partial payment of the equalization payment 
    proposed the amount of interim support, which the husband has since not paid.

The husbands actions in failing to pay the
    interim child and spousal support and in not pursuing or perfecting the appeal
    on a timely basis disentitle him from continuing with this appeal. [Citations
    omitted.]

[9]

A mere four days later, on July 11, 2017, the
    appellant brought a motion to change Douglas J.s 2016 order. He sought,
inter
    alia
, a decrease in the amount of child support and termination of spousal
    support on the basis of a material change in circumstances since Douglas J.s 2016
    order. The change in circumstances consisted of an alleged inability to
    continue to work in his long-time employment as an insurance broker and a sharp
    deterioration in his health. In support of these changes, the appellant
    submitted numerous handwritten physicians notes, letters from physicians,
    psychotherapists and psychiatrists, clinical notes and records from hospitals,
    and a psychological report. The only witness to testify about the appellants
    physical and psychological condition was a co-author of the psychological
    report.

[10]

Although a significant amount of this evidence
    related to the appellants condition prior to the hearing before Douglas J. in
    2016, the appellant had not led this evidence at that hearing. This was a
    crucial omission in the eyes of the motion judge, leading him to say:

I would adopt the same reasoning as was set
    out in
Gray
at paragraph 36. This court should have great difficulty
    in conceiving that evidence not available on the previous hearing could
    include emotional and physical restrictions which were not available because
    of the partys deliberate failure to disclose this evidence. [Mr. Cosentino]
    was experiencing emotional and physical limitations prior to the trial before
    Justice Douglas. The limitations affected his ability to work. [Mr. Cosentino] chose
    to withhold this relevant evidence from Justice Douglas. [Mr. Cosentino] testified
    that he chose not to give the court this evidence because he did not want to
    appear as a cry baby. No further explanation was provided to this court as to
    why [Mr. Cosentino] would not lead such important evidence. In short, he
    adopted a rather strange trial strategy.

As noted earlier, if the matter which is
    relied on as constituting a change was known at the relevant time, it cannot be
    relied on as the basis for variation. [Citations omitted.]

[11]

Flowing from this analysis, the motion judge
    determined that although the appellants income had decreased significantly
    since Douglas J.s order in 2016, the decrease was caused entirely by his own
    initiative in becoming intentionally underemployed and not because of the
    alleged deterioration in his health. The motion judges ultimate conclusion
    was: The underemployment of [Mr. Cosentino] is a direct result of the
    decisions he made which I find were made intentionally to avoid or reduce the
    payments of child and spousal support.

[12]

The appellant appeals the motion judges
    decision on two bases.

[13]

First, the appellant contends that the motion
    judge misconstrued the law on change of circumstances, especially as it relates
    to the significant deterioration of his health after Douglas J.s order in
    2016. The appellant says that on the Motion to Change he filed extensive,
    diverse and uncontested medical evidence that clearly established both that he
    suffered from serious debilitating health issues and that he was, therefore,
    incapable of continuing in his previous employment.

[14]

We do not accept the submission that the motion
    judge misconstrued the law.

[15]

In
Willick v. Willick
, [1994] 3 S.C.R.
    670, Sopinka J. said, at p. 688:

[A] material change of circumstances means a
    change, such that, if known at the time, would likely have resulted in
    different terms. The corollary to this is that if the matter which is relied on
    as constituting a change was known at the relevant time it cannot be relied on
    as the basis for variation.

[16]

In his reasons, the motion judge pointed out
    that the appellants health was not an issue at the hearing before Douglas J.,
    even though there was medical evidence that he was suffering from health
    problems for several years before that hearing. The motion judge was aware that
    the medical evidence was obtained after the trial but was not satisfied that it
    indicated a change in circumstances. Rather, the motion judge found that the
    same evidence could have been proffered at trial  the appellants decision not
    to lead the evidence at trial was part of his trial strategy.

[17]

With respect to the motor vehicle accident that
    occurred in October 2017, after Douglas J.s order, the motion judge noted that
    the evidence was limited and based on self-reporting. It is not the role of
    this court to reweigh the appellants evidence.

[18]

The motion judge also observed that the
    appellant commenced this motion to change four days after his appeal of the
    Douglas J. order was dismissed by this court in July 2017 and only after his
    other attempts to reduce spousal support were unsuccessful.

[19]

Bearing in mind that
Willick
instructs,
    at p. 687, that orders in family law matters should not be departed from
    lightly and will only be varied where the conditions for doing so are
    satisfied, we cannot say that the motion judges conclusions that no variation
    was warranted and that the appellants changed financial situation post-Douglas
    J.s order was the direct result of his own decision to be underemployed so as
    to avoid spousal and child support payments should be rejected.

[20]

Second, the appellant submits that the motion
    judge did not take sufficient account of his age and retirement in reaching his
    decision. When the motion judge made his decision, the appellant was 63 years
    old. Faced with the loss of his long-time employment as an insurance broker,
    new similar employment or retraining for possible alternative employment was
    simply unrealistic.

[21]

We disagree. Again, the chronology is important
    here. There is no record of the appellant having problems in his long-time job
    until
after
Douglas J.s decision. In that decision, Douglas J. dealt
    at length with the appellants income from his insurance brokerage business.
    There is not a word in the judgment, or in the record the appellant prepared
    for the hearing, about an imminent retirement even though, at that time, the
    appellant would have been in his early 60s. Nor was this issue raised by the
    appellant in his appeal to this court. Accordingly, we see no basis for
    interfering with the motion judges conclusions that the appellant is
    intentionally underemployed and that his underemployment is a direct result
    of the decisions he made which I find were made intentionally to avoid or
    reduce the payments of child and spousal support.

[22]

The appeal is dismissed. The respondent is
    entitled to her costs of the appeal fixed, with the agreement of counsel, at
    $12,500, inclusive of disbursements and HST.

J.C. MacPherson J.A.

B. Zarnett J.A.

M. Jamal J.A.


