



COURT OF APPEAL FOR ONTARIO

CITATION: Cohen v. Matlofsky, 2016 ONCA 29

DATE: 20160114

DOCKET: C60213

Simmons, LaForme and Huscroft JJ.A.

BETWEEN

Claude Cohen

Respondent

and

Gerald Matlofsky

Appellant

Claude Cohen, in person, by telephone

Gerald Matlofsky, in person

Heard: December 9, 2015

On appeal from the order made by Justice S.R. Goodman of
    the Superior Court of Justice, dated March 3, 2015.

ENDORSEMENT

[1]

The appellant, Mr. Matlofsky, appeals from an order dismissing his
    motion to change the amount of spousal support he is required to pay the
    respondent, Ms. Cohen. The parties consented to an order in April 2011, under
    which the appellant was required to pay $1,800 per month for spousal support,
    premised on his income at that time of $100,000 per year and the respondents
    annual income of $39,000.

[2]

The appellant sought to terminate the spousal support payable on
    the grounds that his income had declined to an average of about $86,000 per
    year over the preceding three years and because he had uncovered evidence that
    the respondent recently purchased a home in Paris, France free and clear of
    mortgages. He led evidence indicating the house was worth the equivalent of
    over $700,000 Canadian.

[3]

The appellant submits that the motion judge made several errors in
    dismissing the appellants motion to change spousal support. First, she erred
    in failing to draw an adverse inference against the respondent because of
    material non-disclosure of information relevant to the issue of spousal
    support. Second, she erred in failing to find a material change in
    circumstances based on the appellants reduced income and the respondents
    house purchase. Third, the motion judge acted as an advocate for the respondent
    and succumbed to bias in the respondents favour because of the respondents
    inappropriate emotional outbursts.

[4]

We do not accept these submissions.

[5]

As a preliminary matter, we note the motion judges observations that,
    although represented by counsel before her, the appellant did not ask for leave
    to question on the material filed, did not request an order requiring a further
    and better financial statement and did not ask for the trial of an issue.

[6]

We observe as well that a motion judges decision relating to spousal
    support attracts considerable deference from this court. Absent an error in
    principle or a significant misapprehension of the evidence, or unless the order
    is clearly wrong, an appellate court should not interfere with the lower
    courts exercise of discretion on matters of spousal support:
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at para. 11.

[7]

Here, the motion judge did draw an adverse inference against the
    respondent by refusing to accept her position that she was now almost entirely
    dependent on the appellants spousal support and had virtually no other income.
    The motion judge declined the respondents request to increase spousal support
    for that reason. However, the motion judge was not satisfied based on the
    evidence before her that the respondent was now in a position to earn more than
    $39,000 per year. We see no error in, and no basis to interfere with, those determinations.

[8]

Further, while the appellant had experienced a bad year in 2012,
    at the time of the motion, his income was trending upward. And apart from the
    question of income, the motion judge had no evidence of the respondents
    financial position in 2011 on which to base a finding of material change in
    circumstances. To show a material change in circumstances, a party must lead
    evidence concerning what the parties positions were when the order sought to
    be changed was made. The appellant led no evidence concerning the respondents
    asset position when the 2011 order was made.

[9]

The appellants argument that the motion judge acted as an advocate for
    the respondent rests in part on his claim that the motion judge improperly
    treated the respondents request for an increase in spousal support in response
    to the appellants motion as a cross-motion. Further, the motion judge relied
    on the existence of a compensatory aspect to the respondents support as part
    of the reason for dismissing the appellants motion to change spousal support
    when, according to the appellant, the respondent asserted no such claim. In
    addition, the appellant claims the motion judge acted on unsworn evidence in
    the form of statements made by the respondent at the hearing.

[10]

We
    do not accept these arguments. The
Family Law Rules
contemplate that a
    responding party will make their request, if any, for a change in the existing
    order in their response to the moving partys motion: see O. Reg. 114/99, r. 15.
    The fact that the motion judge called the respondents request for an increase
    in support a cross-motion is of no moment. While the respondent did not use the
    term compensatory in her response to the appellants motion, in her
    supporting affidavit, she referred to having a traditional marriage and to
    having assisted the appellant in advancing his career to the detriment of her
    own. This aspect of her response amounted to a claim that there was a
    compensatory aspect to her spousal support.

[11]

Finally,
    as we read the motion judges reasons, the only occasions on which she relied
    on the respondents unsworn statements were in circumstances where the respondents
    admissions assisted the appellant. The motion judge was alive to the issue that
    the respondent was making unsworn statements and said she would not use those
    statements as evidence for the respondent. We see no error in the motion judges
    approach.

[12]

Finally,
    we see nothing in the record to suggest that the motion judge was biased in
    favour of the respondent.

[13]

The
    appeal is therefore dismissed.

[14]

The
    respondent did not request costs and no costs are awarded.

Janet Simmons J.A.

H.S. LaForme J.A.

Grant Huscroft J.A.


