OCA upholds decision finding husband's non-disclosure unconscionable

A recent Ontario Court of Appeal (OCA) decision setting aside an agreement where the husband misrepresented his income confirms there is no cap on the Spousal Support Advisory Guidelines (SSAGs), says Toronto family lawyer Michael Stangarone.

Tadayon v. Mohtashami, 2015 ONCA 777 deals with a separated couple who entered into a separation agreement in 1999 setting out how the matrimonial home would be handled and ordering the husband to pay $2,000 per month in combined child and spousal support to his former spouse.

The wife was represented by Stangarone, a partner with MacDonald & Partners LLP, and Ryan Kniznik, an associate with the firm.

The couple’s matrimonial home was later sold, so the parties entered into an amended agreement in 2005, says the ruling. In 2010, the wife brought an application seeking, among other things, to set the two agreements aside, obtain retroactive and prospective child and spousal support, and be declared the sole owner of their matrimonial property.

At that time, says the decision, it was revealed that the husband did not disclose his full income years earlier.

“At the time that the parties entered into the 2005 Amending Agreement, the appellant represented that his income for 2005 was $80,000,” says the judgment. “However, the applications judge found that the appellant’s 2005 income was actually $344,000.”

The applications judge found the non-disclosure unconscionable and the agreement was set aside. The judge made several orders, including that the husband pay a lump sum of $172,133 — the total amount of child and spousal support owing to the end of 2013 — to the wife.

The husband appealed on several grounds, as did the wife in a cross-appeal.

Among other things, the husband argued the applications judge erred in the quantum and duration of the prospective spousal support.

The appeal court dismissed the husband’s appeal and allowed the cross-appeal on one matter only related to the wife’s entitlement to pre-judgment interest on the retroactive child and spousal support award.

While the husband argued the applications judge simply used the SSAGs to determine amounts without taking other factors into consideration, the OCA disagreed.

“The applications judge succinctly set out the applicable legal principles when considering the respondent’s claim for ongoing spousal support,” Justice Eileen E. Gillese writes for the court.

“As for the appellant’s complaint about the quantum of support ordered, I note two things. First, the SSAGs do not impose a cap on the amount of spousal support to be awarded when a payor’s annual income exceeds $350,000. Second, the applications judge set the amount based on the methodology that the appellant had proposed for setting retroactive spousal support for 2010 - 2013. As such, the appellant cannot now claim that there is no explanation for how or why the applications judge came to the quantum ordered.”

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