In the case of Cosentino v Cosentino 2020 ONCA 775, the Ontario Court of Appeal was asked to determine if Justice McLeod misconstrued the law regarding a material change in circumstance or erred in not considering the Appellant father’s age and retirement when it was ruled that the Final Order regarding his child and spousal support obligations would not be varied.

BACKGROUND

The Appellant father sought to appeal the Final Order of Justice Douglas which fixed child support at $1,652 monthly (two children) and spousal support at $1,121 monthly. He sought 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. The evidence that the Appellant lead regarding his health situation was quite extensive, including handwritten physician’s notes, letters from physicians, psychotherapists and psychiatrists, clinical notes and records from hospitals, and a psychological report.

Normally, this evidence would have been convincing of a material change of circumstance, however in this particular case it was not for the following reason. After Justice Douglas ordered the above support, the Appellant appealed this Order. Pending the disposition of the appeal, Justice Lauwers ordered that the Appellant pay on a temporary basis a reduced amount of support. Unfortunately, the Appellant refused to pay any support after this temporary Order. As such, when it was time to hear the appeal regarding Justice Douglas’ final Order, Justice Lauwers dismissed the appellant’s appeal because of his failure to pay the interim child and spousal support ordered and for not pursuing and perfecting his appeal on a timely basis.

Four days before the current Motion to vary Justice Douglas’s Order, he appeared in front of Justice Lauwers regarding his interim child and spousal support. When he appeared in front of Justice Lauwers, he made zero mention of any health concerns or any impending retirement. The court decided that he had done this for strategic purposes. The omission of the health condition and impending retirement, in the courts eyes was a crucial omission, leading the court 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 party’s 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.

It was then determined that the Appellant had become intentionally underemployed since the final support order was made and attempting to skirt his financial responsibilities.

Ultimately, the court found that the motion judge did not misconstrue the law nor err in their determination that he had not satisfied the court of a material change in circumstance. This is because there was “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 appellant’s 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 judge’s 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.”

Because of all of the reasons mentioned above, the appeal was dismissed.

This case teaches us to be aware of the consequences of strategic omissions and the impact it could have on the rest of the matter moving forward.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.