Punzo v. Punzo

Punzo v. Punzo

The motion judge did not err in finding a material change in the respondent’s circumstances (termination in November 2013 and re-employment at a substantially lower salary) warranting variation of the consent support order, but erred in making the reduction retroactive to January 1, 2013 without applying the D.B.S. retroactivity analysis (whether retroactive relief is appropriate and the proper start date and quantum); paragraphs 1 and 2 of the variation order were set aside and the matter was remitted to the motion judge to determine whether retroactive change is warranted, the retroactivity start date, and the quantum, with up-to-date financial disclosure.

Citation
2016 ONCA 957
Parties
Applicant (appellant): Viviana Punzo; Respondent (respondent on Appeal): Emanuele Punzo
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
19 December 2016
Procedural Posture
Family Law – Variation of Child and Spousal Support (appeal) / Court of Appeal of Ontario, Appeal From Superior Court Motion to Vary Consent Support Order
Outcome
Appeal allowed in part; variation order paragraphs 1 and 2 set aside; matter remitted to the motion judge to reassess retroactivity, start date and quantum of support; appellant awarded costs of appeal.
Legal Topics
Variation, Retroactivity, Imputation of Income, Material Change, Consent Order, Burden of Proof
Source Language
English
Family Law Child Support Spousal Support Civil Procedure Variation Retroactivity Imputation of Income Material Change +2 more

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Parties

Viviana Punzo

Applicant (appellant)

Emanuele Punzo

Respondent (respondent on Appeal)

Procedural Posture

Family Law – Variation of Child and Spousal Support (appeal) / Court of Appeal of Ontario, Appeal From Superior Court Motion to Vary Consent Support Order

Legal Issues

  1. 1 Whether there was a material change in circumstances warranting variation of child and spousal support
  2. 2 Whether the consent Support Order imputed income to the respondent
  3. 3 Whether pleadings from separate litigation could be admitted and relied on as evidence of income

Ratio Decidendi

The motion judge did not err in finding a material change in the respondent’s circumstances (termination in November 2013 and re-employment at a substantially lower salary) warranting variation of the consent support order, but erred in making the reduction retroactive to January 1, 2013 without applying the D.B.S. retroactivity analysis (whether retroactive relief is appropriate and the proper start date and quantum); paragraphs 1 and 2 of the variation order were set aside and the matter was remitted to the motion judge to determine whether retroactive change is warranted, the retroactivity start date, and the quantum, with up-to-date financial disclosure.

Court Disposition

Appeal allowed in part; variation order paragraphs 1 and 2 set aside; matter remitted to the motion judge to reassess retroactivity, start date and quantum of support; appellant awarded costs of appeal.

Orders

  • Paragraphs 1 and 2 of the Variation Order set aside
  • Proceeding remitted to the motion judge to determine (1) whether a retroactive change in support is warranted, (2) the quantum of retroactive child and spousal support payable, and (3) the date of retroactivity, with up-to-date financial disclosure