The recent Court of Appeal decision of Cosentino v. Cosentino (not to be confused with the 2015 ONSC decision) serves as a cautionary tale to litigants on the importance of being transparent with evidence the first time around and being economical with one’s litigation strategy in Family Law. The background is remarkable. The Husband not only took the matter to trial, he then appealed the resulting order, instituted a variation proceeding when the appeal failed, and then appealed the failed variation proceeding. To top it all off, he did all of this with the assistance of counsel.

Background

In this case, the Appellant Husband was 64 years old and the Respondent Wife was 46 years old. Together they had two children of the marriage. After 11 years of marriage, the Wife commenced divorce proceedings that eventually went to trial.

Following the family law trial, the Hon. Justice Douglas of the Central East Region (Newmarket) in June and September 2016 made two orders regarding support: one for the Husband to pay child support of $1,652.00 per month, and another for the Husband to pay spousal support of $1,121.00 per month.

Shortly after these Orders, the Husband appealed. Pending the appeal, the parties consented to an interim order wherein the Father was required to pay total combined support of $1,412.00. However, before the Appeal could be heard, the Wife brought a motion to dismiss the Husband’s appeal. The Husband failed to pay any support – even the reduced consented to sum – and also failed to perfect his appeal. Notably, a support order must be paid even if one is appealing the order, per rule 63.01(1) of the Rules of Civil Procedure and an earlier Court of Appeal decision, A.A. v. Z.G., 2016 ONCA 660 (CanLII). The Husband had also failed to perfect his appeal on time even though he had counsel. The Court of Appeal agreed with the Wife on the motion and dismissed the appeal.

Variation Proceeding

Within days of having his appeal dismissed – 4 days to be exact – the Husband pivoted and launched a variation proceeding to change the orders of the Hon. Justice Douglas. At the variation proceeding, the Husband sought to decrease child support and terminate spousal support on the basis that a material change in circumstances had occurred. He alleged that he developed an inability to work, as well as suffered a sharp deterioration in his health. He even provided physician’s notes, letters from physicians, psychotherapists, and psychiatrists, hospital notes and records, and a psychological report.

The only problem was that most of the evidence suggested these changes had occurred prior to the trial before Justice Douglas. To the Hon. Justice McLeod, who heard the variation proceeding, this suggested that the Husband knew he could not pay support at trial but chose to withhold this apparently crucial evidence. Justice McLeod stated:

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 disclosure this evidence. [The husband] was experiencing emotional and physical limitations prior to the trial before Justice Douglas…[the husband] chose to withhold this relevant evidence from Justice Douglas. [The husband] 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 [the husband] 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.

Justice McLeod found that although the Husband’s income had decreased significantly since Justice Douglas’ orders in 2016, the Husband was the author of his own misfortune due to his own initiative to become “intentionally underemployed,” rather than due to the deterioration in his health. The motion was dismissed.

Court of Appeal

The Husband then appealed the variation decision. The two issues on this appeal were:

1. Did the Hon. Justice McLeod misconstrue the law on a change of circumstances?
2. Did Justice McLeod err in not taking sufficient account of the Husband’s age and retirement in reaching his decision?

Firstly, the Court of Appeal did not accept that Justice McLeod misconstrued the law. Instead, the Court reiterated the words of Sopinka J. in Willick v. Willick, [1994] 3 S.C.R. 670 that:

[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.

It was obvious in Justice McLeod’s reasons that this law was being applied. Justice McLeod was focused on the fact that the Husband’s health was not raised as an issue at trial, yet evidence should have been available regarding his health. There was nothing in Justice McLeod’s reasoning to suggest that this was erroneous.

Secondly, the Court disagreed with the Husband’s position that Justice McLeod did not take the Husband’s age and retirement into sufficient account. Again, the Court looked at the chronology of events. There was no record of the Husband having problems in his employment until after Justice Douglas’ decision. Yet interestingly, there was also nothing in the record before Justice Douglas, nor in the subsequent appeal, that raised the issue of the Husband’s age or imminent retirement even though he was 60 years old at the time.

The court saw no reason to interfere with Justice McLeod’s conclusion that the Husband was “intentionally underemployed” and that his underemployment was intentional to avoid or reduce child and spousal support payments. The appeal was dismissed.

In some ways, this case is a nightmare scenario for all litigants. Had the Husband agreed to pay $1,652.00 in child support and $1,000.00 in spousal support, they could have both saved the legal expense of 10 years of litigating 4 separate proceedings. The case also raises uncomfortable questions for counsels for the Husband. Having an appeal dismissed because it was not perfected is problematic. Launching a variation when there is little evidence of a material change since the Final Order is surprising. But appealing Justice McLeod’s decision on the variation hearing was respectfully quixotic.

Just because a proceeding is available, it does not mean one should engage in it. More specifically, just because a litigant is willing to pay, it does not mean that we should start running at windmills as counsel.