Fendelet v. Dohey

Fendelet v. Dohey

The appeal is dismissed because the appellant failed to discharge the burden of proving a material change in circumstances; the motion judge's factual and credibility findings are supported by the record and are entitled to deference under the palpable and overriding error standard even on a written record.

Citation
2007 ONCA 475
Parties
Applicant/respondent: Donna Fendelet; Respondent/appellant: Dennis Dohey
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 June 2007
Procedural Posture
Family Law / Appeal From Superior Court Motion to Vary Support and Rescind Arrears
Outcome
Appeal dismissed and order below affirmed
Legal Topics
Variation of Support, Arrears Enforcement, Standard of Review, Credibility Findings, Burden of Proof for Material Change
Source Language
English
Family Law Spousal Support Child Support Civil Procedure Appellate Review Variation of Support Arrears Enforcement Standard of Review +2 more

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Parties

Donna Fendelet

Applicant/respondent

Dennis Dohey

Respondent/appellant

Procedural Posture

Family Law / Appeal From Superior Court Motion to Vary Support and Rescind Arrears

Legal Issues

  1. 1 Whether the appellant demonstrated a material change in circumstances warranting variation of spousal and child support and rescission of arrears
  2. 2 Whether the appellate court should apply a reduced standard of review because the record was documentary
  3. 3 Whether the appeal should be refused or dismissed because of the appellant's wilful refusal to pay court-ordered support

Ratio Decidendi

The appeal is dismissed because the appellant failed to discharge the burden of proving a material change in circumstances; the motion judge's factual and credibility findings are supported by the record and are entitled to deference under the palpable and overriding error standard even on a written record.

Court Disposition

Appeal dismissed and order below affirmed

Orders

  • Order of MacKenzie J. dated October 11, 2006 affirmed.
  • Costs to respondent fixed at $8,000, all inclusive, enforceable as support pursuant to the Family Responsibility and Support Enforcement Act.