COURT OF APPEAL FOR ONTARIO

CITATION: Nasr Hospitality Services Inc. v. Intact Insurance,
    2018 ONCA 725 DATE: 20180904

DOCKET: C64139

Feldman, Benotto and Brown JJ.A.

BETWEEN

Nasr Hospitality Services Inc.

Plaintiff (Respondent)

and

Intact Insurance

Defendant (Appellant)

W. Colin Empke, for the appellant

Doug LaFramboise, for the respondent

Heard: February 27, 2018

On appeal from the order of Justice
    Paul M. Perell of the Superior Court of Justice, dated July 5, 2017, with
    reasons reported at 2017 ONSC 4136.

Brown J.A.:

I.

OVERVIEW

[1]

At issue on this appeal is the application of the appropriate means
    element of the discoverability test under s. 5(1)(a)(iv) of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B (the
Act
), to a claim for
    indemnification under a commercial insurance policy.

[2]

The appellant, Intact Insurance (Intact), moved for summary judgment
    to dismiss the action of the respondent, Nasr Hospitality Services Inc.
    (Nasr), for indemnification under a commercial insurance policy for losses caused
    by a January 31, 2013 flood to its business premises. Intact argued that Nasrs
    action was statute-barred, having been commenced on April 22, 2015 after the
    expiration of the basic two-year limitation period under the
Act
.

[3]

The motion judge dismissed Intacts motion and declared that the
    limitation period did not begin to run until July 2013. Although the motion
    judge assumed Nasr knew on February 1, 2013 that a loss had occurred which was
    caused by an act or omission of Intact, he concluded Nasr did not know that a
    proceeding would be an appropriate means to remedy its loss until July 2013,
    when Intact formally denied its claim.

[4]

Intact appeals.

[5]

I would allow the appeal, set aside the order of the motion judge, and
    grant summary judgment dismissing Nasrs action. Nasr conceded that it was
    foreclosed from arguing that Intacts conduct after notification of the claim
    on January 31, 2013 gave rise to a promissory estoppel that precluded Intact
    from relying on the
Act
. Given that concession and the specific facts
    of this case, the motion judge erred in using that same conduct by Intact to
    displace the
Acts
presumption that Nasr knew on February 1, 2013 that
    a proceeding was an appropriate means to remedy its loss and, instead, extending
    the date to July 2013.

II.

FACTS

[6]

In or around May 2012, Nasr acquired commercial premises at 5550 Stanley
    Avenue, Niagara Falls (the Premises), from which it intended to operate a
    restaurant.

[7]

On or about April 25, 2012, Nasr purchased a commercial insurance policy
    from Intact (the Policy).

[8]

According to the statement of claim, the Policy covered losses caused by
    water damage.

[9]

On the morning of January 31, 2013, the principal of Nasr, Mr. Elsayed
    Nasr, discovered water damage to the Premises caused by a ruptured bathroom
    pipe. That day Mr. Nasr called a broker, Surnet Insurance Group Inc. (Surnet),
    who immediately reported the water damage to Intact.

[10]

The
    record contains conflicting evidence about the use of the Premises at the time
    of the water damage. The statement of claim pleads that light snacks and soft
    drinks were being sold from the premises until the time of the flood, and that Mr.
    Mustapha Taamneh had entered an agreement to rent the Premises, with a
    possession date of March 1, 2013. The water damage rendered the Premises
    unsuitable to carry on business, so Mr. Taamneh advised Nasr that he would no
    longer take possession on March 1, 2013.

[11]

On
    the other hand, in correspondence to the insured Intact advised it had obtained
    information that no business was operating at the Premises at the time of the loss.

[12]

In
    any event, upon learning of the flood Intact assigned a company, Winmar, to
    attend and report on any damage. Mr. Nasr signed a work authorization for
    Winmar to begin emergency repairs.

[13]

From
    the brief affidavits filed by both parties on the summary judgment motion, the
    following picture emerges of the dealings between them in the months immediately
    following the flood.

[14]

On
    February 14, 2013, about two weeks after the discovery of the water damage, an
    Intact claims representative emailed Mr. Nasr, who had submitted a lease
    document and cancellation letter. The representative wrote: There is coverage
    (subject to policy parameters) for the business interruption you have sustained
    as a result of this loss. I have issued $20,000.00 to represent the $10,000 per
    month rental amount loss for 2 months (March and April 2013).

[15]

On
    April 17, 2013 another Intact claims representative emailed Mr. Nasr to advise
    that he had requested the issuance of a further cheque for $20,000,
    representing rent for May and June. He continued: As discussed we will cover
    up to the end of June and include May = 2 months at $10,000 per not 3 months as
    we previously discussed.

[16]

Intact
    issued a May 2, 2013 cheque to Nasr for $2,000 in respect of hydro.

[17]

The
    parties engaged in some settlement discussions. A May 13, 2013 email from the
    Intact claims representative to Mr. Nasr reads:

[F]urther to our discussions of May 9, 2013 surrounding a full [and]
    final settlement I have reviewed all material and details pertaining to your
    request of $90,000 and unfortunately we are not going to be able to settle on
    this value.

I would make a one time offer of $65,000 to include all aspects
    of the claim keeping in mind that any and all settlement will include both
    additional loss payees on your policy.

If this is accepted please advise as there is a form I need for
    you to complete before payment can be requested[.]

[18]

Intact
    received a proof of loss from Nasr. By letter dated June 25, 2013 Intact returned
    it to Nasr as it failed to comply with the provisions of the Policy. Intact
    identified the deficiencies in the proof of loss, including the need for Nasr
    to provide documentation that on the date of loss the Premises was being
    operated as a restaurant.

[19]

In
    its letter, Intact emphasized that in rejecting your Proof of loss form we are
    not rejecting or denying your claim. It wrote:

The investigation of this claim remains incomplete and Intact
    Insurance will need additional time to investigate your loss. Intact Insurance
    in rejecting this purported Proof of Loss expressly reserves all of its rights
    and defences under the policy and does not waive compliance with any of the
    terms and conditions of the policy.

[20]

Nasr
    then filed a proof of loss dated June 26, 2013 in which it claimed a total of
    $168,000 under the Policy, consisting of: $80,000 for business interruption;
    $58,000 for property damage; and $30,000 for equipment.

[21]

At
    that point in time, Mr. Alick Voliere began to correspond with Intact on behalf
    of Nasr. The record does not disclose Mr. Volieres occupation. In any event,
    on July 22, 2013 Intact wrote to Mr. Voliere regarding the June 26 proof of loss
    and subsequent communications that had taken place between the parties, which
    included a July 15, 2013 statement provided by Mr. Nasr. Intact advised that
    its investigation revealed possible violations of the insurance policy which
    may lead to Intact Insurance to deny further coverage for any portion of the
    loss. Specifically, on June 20, 2013 it received new information from the
    broker, Surnet, regarding the insured risk and its occupancy.

[22]

In
    its July 22, 2013 letter, Intact went on to inform Nasr that its investigation
    also disclosed that: Nasr never obtained a licence to operate a restaurant at
    the Premises; from September 2012 until the date of loss no business was
    operating at the Premises; nor was there a tenant. Intact rejected the June 26,
    2013 proof of loss and informed Nasr that it was denying any further claims
    for damage as a result of this loss due to policy violations and or exclusions
    contained herein. The letter concluded:

As such, enclosed you will find a blank Proof of Loss form. You
    have two years from the date of loss to finalize your claim.
If it is not finalized within that period and you
    wish to protect your right to make a claim under your policy then you are
    required to begin legal proceedings against Intact Insurance Company before the
    two year period expires
.
Failure to do so may adversely affect your right to claim.
    [Emphasis added.]

[23]

Subsequently,
    Intact received correspondence from and met with Mr. Voliere. In a letter dated
    August 15, 2013 Intact confirmed it was returning and rejecting a July 31, 2013
    proof of loss.

[24]

Nasr
    issued its statement of claim on April 22, 2015 seeking damages in respect of
    the Premises for loss of income, loss of equipment, and cost of repairs to the
    Premises. Nasr also pleads that Intacts failure to pay under the Policy
    resulted in Nasr falling into arrears with its mortgagees and losing the
    Premises under power of sale proceedings. Consequently, Nasr also claims
    damages for loss of equity in the Premises and the costs of defending power of
    sale proceedings.

[25]

In
    its statement of defence, Intact denies Nasrs claim for damages, in part on
    the basis that Nasr failed to comply with a provision of the Policy stating it did
    not insure for loss where, to the knowledge of the insured, the property
    location was vacant, unoccupied or shut down for more than 30 consecutive days.
    Intact also pleads that Nasrs claim is statute-barred. Intact did not
    counter-claim for the return of the $42,000 paid in respect of business
    interruption loss or hydro.

[26]

Intact
    moved for summary judgment dismissing Nasrs action as statute-barred.

III.

DECISION OF THE MOTION JUDGE

[27]

In
    conducting his limitation period analysis, the motion judge proceeded on the
    following basis:

(i)      He
    assumed, without deciding, that Nasrs cause of action for breach of the
    Policy arose on February 1, 2013;

(ii)     He
    assumed, without deciding, that on February 1, 2013 Nasr knew or ought to
    have known the factors enumerated in ss. 5(1)(a)(i)-(iii) of the
Act
:
    namely, that: (i) the injury, loss or damage had occurred; (ii) the injury,
    loss or damage was caused by or contributed to by an act or omission; and (iii)
    the act or omission was that of the person against whom the claim was made; and

(iii)     There
    was no issue of a promissory estoppel precluding Intact from relying on the
Act
,
    given Nasrs concession of this point.

[28]

However,
    the motion judge concluded that Nasr did not know or ought to have known that a
    proceeding would be an appropriate means to seek to remedy the injury, loss or
    damage until between May 2, 2013 and July 22, 2013, when Intact denied its
    claim. The motion judge explained the basis for this conclusion at para. 36 of
    his reasons:

In my opinion, in the particular
    circumstances of the case at bar, it was appropriate for Nasr Hospitality to
    wait before commencing its action against Intact. Although I have assumed,
    without deciding, that the cause of action was ripe as of February 1, 2013,
    having regard to the $42,000 in payments that had been made between February
    and May 2013; i.e. having regard to the nature of the injury, loss or damage
    being suffered, it would not have been appropriate for Nasr Hospitality to
    resort to court proceedings until Intact had clearly repudiated its obligation
    to indemnify under the insurance policy, which did not occur until July 2013.
    It might have been possible for Nasr Hospitality to sue for a declaration or for
    an interpretation of the insurance policy before July 2013, but a claim for
    breach of contract would likely have been premature. The purposes of limitation
    periods are satisfied by commencing the running of the limitation period as of
    July 2013, and in this regard, there is no evidence to suggest that Intact has
    been harmed by loss of evidence or loss of repose from its exposure to honoring
    its insurance policies by an action commenced in April 2015.

[29]

As
    a result, the motion judge dismissed Intacts summary judgment motion and
    declared that the limitation period did not begin to run until July of 2013.

IV.

THE POSITIONS OF THE PARTIES

[30]

Intact
    submits the motion judge correctly assumed that Nasrs cause of action arose on
    February 1, 2013, the day after Nasr notified Intact about the flood. However,
    he then erred in concluding that Nasr did not know or ought to have known a
    proceeding was an appropriate means to remedy its loss until July 2013. Intact
    submits that the on-going settlement negotiations and other attempts to rectify
    the loss did not extend the limitation period.

[31]

Nasr
    submits there is no basis to interfere with the motion judges conclusion that
    in light of Intacts three payments, Nasr did not know a proceeding would be an
    appropriate means to remedy its loss until Intact denied its claim on July 22,
    2013.

V.

ANALYSIS

A.

The
    fact-finding required to determine a limitation period defence on a Rule 20
    summary judgment motion

[32]

Since
    the 2010 amendments to the summary judgment rule and the Supreme Courts strong
    endorsement in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, of
    the use of summary judgment as a procedural device by which to secure the final
    adjudication of a civil case on its merits, defendants frequently resort to a
    summary judgment motion to determine whether the plaintiffs action is barred
    by the operation of a limitation period.

[33]

Hryniak
teaches that [t]here will be no genuine issue requiring a trial when a judge
    is able to reach a fair and just determination on the merits of the motion
    because the summary judgment process (1)
allows
    the judge to make the necessary findings of fact
, (2) allows the judge
    to apply the law to the facts, and (3) is a proportionate, more expeditious and
    less expensive means than other devices for reaching a final adjudication on
    the merits to achieve a just result: at para. 49 (emphasis added).

[34]

In
    order for a motion judge to grant summary judgment dismissing a plaintiffs
    action or, as occurred in the present case, to grant a declaration about when
    the limitation period began to run, the judge is required make certain
    necessary findings of fact. Those necessary findings of fact concern one
    presumption and two dates, as set out in ss. 5(1)(a), 5(1)(b) and 5(2) of the
Act
.
    Those provisions state:

5

(1) A claim
    is

discovered

on
    the earlier of,

(a) the day

on

which
    the person with the claim first knew,

(i) that

the

injury,
    loss or damage had occurred,

(ii) that the injury,
    loss or damage was caused by or contributed to by an act or omission,

(iii) that

the

act
    or omission was that of the person against whom the claim is made, and

(iv) that, having regard
    to the nature of the injury, loss or damage, a proceeding would be an
    appropriate means to seek to remedy it; and

(b) the day on which a
    reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

(2) A person with a claim shall be presumed to have
    known of the matters referred to in clause (1) (a) on the day the act or
    omission on which the claim is based took place, unless the contrary is proved.

[35]

Accordingly,
    a typical summary judgment motion involving the basic limitation period
    requires the judge to determine whether the record enables making a series of findings
    of fact, with the certainty required by
Hryniak
, on the following
    matters: (i) the date the plaintiff is presumed to know the matters listed in ss.
    5(1)(a)(i)-(iv)  namely, the day on which the act or omission on which the
    claim is based occurred; (ii) the date of actual knowledge under s. 5(1)(a), in
    the event the evidence proves the contrary of the presumptive date; (iii) the
    s. 5(1)(b) objective knowledge date, based on the reasonable person with
    similar abilities and circumstances analysis; and (iv) finally, which of the
    actual knowledge and objective knowledge dates is earlier, for that will be day
    on which the plaintiff discovered the claim for purposes of applying the basic
    limitation period of two years.

[36]

In
    the present case, although the motion judge granted an order declaring that the
    basic limitation period did not begin to run until July 2013, he failed to make
    express findings of many of the facts necessary to make such an order. Instead,
    he proceeded on the basis of two assumptions: (i) Nasrs cause of action for
    breach of the Policy arose on February 1, 2013; and (ii) that date also was the
    date on which Nasr knew the matters described in ss. 5(1)(a)(i)-(iii). In the
    case of each assumption, the motion judge stated he was assuming the fact,
    without deciding it.

[37]

Taking
    the motion judges reasons literally, if he did not find, as facts, the days on
    which Nasr knew or ought to have known the matters described in ss.
    5(1)(a)(i)-(iii), then there was no factual support for his ultimate order that
    the basic limitation period did not begin to run until July of 2013.

[38]

However,
    the parties have argued the appeal as if the motion judge made actual findings
    of fact on those matters, and I will treat his reasons in a similar fashion.

[39]

I
    would simply reiterate that granting summary judgment dismissing an action as
    statute-barred, or declaring when a claim was discovered, requires making
    specific findings of fact. Assumptions about the matters in ss. 5(1) and (2) of
    the
Act
are not analytical substitutes for findings of fact. If the
    record does not enable the summary judgment motion judge to make those findings
    with the certainty required by
Hryniak
, then a genuine issue requiring
    a trial may exist.

B.

Sections 5(1)(a)(i)-(iii)
    of the
Act

[40]

The
    parties agree that Nasrs cause of action for breach of the insurance contract
    arose on February 1, 2013.
[1]
Their agreement constitutes an admission of fact that February 1, 2013 was the
    day on which Nasr first knew the matters in ss. 5(1)(a)(i)-(iii) of the
Act
.

[41]

I
    would note that this position taken by the parties is consistent with the principles
    that have emerged in this courts jurisprudence. In
Markel Insurance Company
    of Canada v. ING Insurance Company of Canada
, 2012 ONCA 218, 109 O.R. (3d)
    652 and
Schmitz v. Lombard General Insurance Company of Canad
a, 2014
    ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143, this
    court held that for the purposes of s. 5(1)(a)(ii) and (iii) of the Act, a
    party claiming indemnification under or in respect of a policy of insurance
    knows there was a loss caused by an omission of the insurer the day after the
    request or claim for indemnification is made:
Markel Insurance
, at
    paras. 26 and 27;
Schmitz
, at paras. 20 and 26. Once the request or
    claim for indemnification is made, the insurer is under a legal obligation to
    satisfy it:
Markel Insurance
, at para. 26;
Schmitz
, at para.
    20. In the present case, Nasr made a claim for business interruption losses

soon after the flood, and Intact issued a cheque for
    such losses on February 14, 2013.

[42]

On
    the record before us, it was proper for the motion judge to conduct his
    analysis on the basis that Nasr knew or ought to have known the matters set out
    in ss. 5(1)(a)(i)-(iii) of the Act on February 1, 2013, the day after Nasr had
    reported the loss to its insurer.

C.

Section 5(1)(a)(iv) of the
Act

[43]

Although
    the motion judge held that February 1, 2013 was the day on which Nasr knew the
    matters enumerated in ss. 5(1)(a)(i)-(iii) of the
Act
, he concluded
    that the day on which Nasr knew or ought to have known that having regard to
    the nature of the injury, loss or damage, a proceeding would be an appropriate
    means to seek to remedy it was not until July 2013, when Intact denied Nasrs
    claim.

[44]

I
    conclude that the motion judge erred in so finding. With respect, he ignored
    the effect of Nasrs concession, set out at para. 14 of his reasons, that there
    was no issue of a promissory estoppel precluding Intact from relying on the
Act
.
    That concession operated, in the circumstances of this case, to make the day on
    which Nasr knew or ought to have known an action was an appropriate means to
    remedy the loss the day of the loss  namely, February 1, 2013, the day after
    Nasr had sought indemnification for its loss from its insurer.

[45]

To
    explain my conclusion, I will first review briefly the jurisprudence on the
    appropriate means element in s. 5(1)(a)(iv) of the
Act
, and then explain
    how Nasrs concession that it was foreclosed from arguing promissory estoppel
    precluded the motion judges finding on the appropriate means element.

The principles concerning s. 5(1)(a)(iv) of the
Act
:
    appropriate means

[46]

In
    commencing his analysis under s. 5(1)(a)(iv) of the
Act
, the motion
    judge properly noted the general proposition that the determination of when an
    action is an appropriate means to seek to remedy an injury, loss or damage depends
    upon the specific factual or statutory setting of each individual case:
407
    ETR Concession Company Limited v. Day
, 2016 ONCA 709, 133 O.R. (3d) 762, leave
    to appeal refused, [2016] S.C.C.A. No. 509, at para. 34;
Winmill v.
    Woodstock (Police Services Board)
, 2017 ONCA 962, 138 O.R. (3d) 641, leave
    to appeal to SCC requested, at para. 23.

[47]

However,
    as this court has observed, that general proposition is not an unbounded one.

[48]

First,
    in
Markel Insurance
this court confined the meaning of appropriate
    to legally appropriate. Writing for the court, Sharpe J.A. stated, at para.
    34:

This brings me to the question of when it would be appropriate
    to bring a proceeding within the meaning of s. 5(1)(a)(iv) of the

Limitations Act
. Here as well, I
    fully accept that parties should be discouraged from rushing to litigation or
    arbitration and encouraged to discuss and negotiate claims. In my view, when s.
    5(1)(a)(iv) states that a claim is discovered only when having regard to the
    nature of the injury, loss or damage, a proceeding would be an appropriate
    means to seek to remedy it, the word appropriate must mean
legally
    appropriate
.

To give

appropriate

an
    evaluative gloss, allowing a party to delay the commencement of proceedings for
    some tactical or other reason beyond two years from the date the claim is fully
    ripened and requiring the court to assess to tone and tenor of communications
    in search of a clear denial would, in my opinion, inject an unacceptable
    element of uncertainty into the law of limitation of actions
. [Italics
    in original; underlining added.]

[49]

Second,
    in
407 ETR
, Laskin J.A. noted, at para. 47, that the use of the phrase
    legally appropriate in
Markel Insurance
, signified that a plaintiff
    could not claim it was appropriate to delay the start of the limitation period
    for tactical reasons, or
in circumstances
    that would later require the court to decide when settlement discussions had become
    fruitless
 (emphasis added).

[50]

Finally,
    in
Presidential MSH Corporation v. Marr Foster & Co. LLP
, 2017
    ONCA 325, 135 O.R. (3d) 321, Pardu J.A. observed that the jurisprudence
    discloses two circumstances in which the issue of appropriate means most often
    delays the date on which a claim was discovered. First, resorting to legal
    action might be inappropriate in cases where the plaintiff relied on the
    superior knowledge and expertise of the defendant, especially where the
    defendant undertook efforts to ameliorate the loss: at para. 26. Second, a
    legal action might not be appropriate if an alternative dispute resolution
    process offers an adequate alternative remedy and that process has not fully
    run its course: at para. 29. See also paras. 28-48; and
Har Jo Management
    Services Canada Ltd. v. York (Regional Municipality)
, 2018 ONCA 469, at
    paras. 21 and 34-35. In this regard, in
Winmill
this court held that resort
    to a civil proceeding for a remedy in respect of damage flowing from an incident
    might not be an appropriate means while criminal proceedings in respect of the incident
    remain outstanding: at para. 28.

[51]

Although
Presidential MSH
does not purport to offer an exhaustive list of
    circumstances in which a proceeding might not be an appropriate means, I would
    observe that neither circumstance identified in
Presidential MSH
is
    present in this case. Some other factor would have to displace the s. 5(2)
    presumption that Nasr knew a proceeding was an appropriate means on February 1,
    2013.

Application of the s. 5(1)(a)(iv) principles to the present
    case

[52]

Although
    the motion judge did not expressly address s. 5(2) of the
Act
when
    conducting his appropriate means analysis, he obviously took the view that Nasr
    had displaced the presumption that February 1, 2013 was the day it knew a
    proceeding was an appropriate means to remedy its loss. The evidence the motion
    judge relied upon to prove the contrary of the s. 5(2) presumption consisted of
    the course of dealings between Intact and Nasr between February and May 2013,
    including the three payments made by Intact: at para. 36.

[53]

The
    jurisprudence recognizes that some conduct by an insurer after receiving notification
    of a claim under a policy can affect the operation of a limitation period. In
    his reasons the motion judge referred to the two leading cases on the issue of
    promissory estoppel precluding an insurer from relying on a limitation period
    the companion 1991 decisions of the Supreme Court of Canada in
Maracle v.
    Travellers Indemnity Co. of Canada
, [1991] 2 S.C.R. 50, and
Marchischuk
    v. Dominion Industrial Supplies Ltd.,
[1991] 2 S.C.R. 61.

[54]

In
Maracle
, Sopinka J. stated, at p. 57, that the party relying on the
    principle of promissory estoppel to prevent an insurer from relying on a limitation
    period must establish that: (i) the other party has, by words or conduct, made
    a promise or assurance which was intended to affect their legal relationship
    and to be acted on; and (ii) in reliance on the representation, the
    representee acted on it or in some way changed his position. The promise
    must be unambiguous but can be inferred from the circumstances:
Engineered
    Homes Ltd. v. Mason
, [1983] 1 S.C.R. 641, at pp. 647-52.

[55]

As
    applied to the conduct of an insurer in response to a claim under a policy,
    Sopinka J. stated that promissory estoppel could prevent the insurer from
    relying on a limitation period where there has been a promise not to rely on it.
    An admission of liability by the insurer is a factor from which a court may
    infer such a promise, but the conduct of the insured must be assessed in the
    context of the normal dealings between parties attempting to resolve an
    insurance claim. He described those normal course dealings as follows, at
    p. 58:

An admission of liability is frequently made in the course of
    settlement negotiations. This is often a preliminary step in order to clear the
    way to enter into a discussion as to quantum. Indeed, when an offer to pay
    a stated amount is made by one party to the other, an admission of liability is
    usually implicit. In this type of situation, the admission of liability is
    simply an acknowledgment that, for the purpose of settlement discussions, the
    admitting party is taking no issue that he or she was negligent, liable for
    breach of contract, etc.

[56]

For
    an admission of liability to extend a limitation period something more than the
    admission is required, as Sopinka J. stated at pp. 58-59:

The principles of promissory
    estoppel require that the promissor, by words or conduct, intend to affect
    legal relations. Accordingly, an admission of liability which is to be
    taken as a promise not to rely on the limitation period must be such that the
    trier of fact can infer from it that it was so intended. There must be
    words or conduct from which it can be inferred that the admission was to apply
    whether the case was settled or not, and that the only issue between the
    parties, should litigation ensue, is the issue of quantum
. Whether
    this inference can be drawn is an issue of fact.  [Emphasis added.]

[57]

There
    are similarities between the circumstances in
Maracle
and those in the
    present case. In both, the nature of the injury, loss or damage was the same
     indemnification under a commercial policy of insurance. The claims of both
    insureds were for more than trivial amounts. As well, the conduct of the insurer
    at issue in
Maracle
bears similarities to that of Intact: engaging in
    settlement discussions with the insured and paying part of the claim. In the
    specific circumstances of
Maracle
, the insurers conduct did not give
    rise to a promissory estoppel that the insurer would not rely on the limitation
    period.

[58]

In
    the present case, the motion judge acknowledged, at the start of his analysis,
    that Nasr had conceded a promissory estoppel argument was foreclosed to it by
    reason of the decisions in
Maracle
and
Marchischuk
: at para.
    14. I can only read that portion of the motion judges reasons as recording a
    concession by Nasr that Intacts conduct after receiving Nasrs notification of
    the flood did not estop Intact from relying on the operation of the limitation
    period. In light of that concession, it was not open to the motion judge to
    rely on the same conduct to displace the s. 5(2) presumption that Nasr knew a
    proceeding was an appropriate means to remedy its loss as of February 1, 2013.

[59]

Nasr
    has not pointed to any cases involving ordinary claims for indemnification
    under a commercial policy of insurance that have treated the appropriate means
    element in s. 5(1)(a)(iv) as some form of watered-down promissory estoppel. To
    treat s. 5(1)(a)(iv) in that manner for ordinary commercial insurance
    indemnification claims  as the motion judge effectively did  would risk
    ignoring the caution voiced by Sharpe J.A. in
Markel Insurance
, at
    para. 34  and echoed by Laskin J.A. in
407 ETR
, at para. 47

    that:

To give appropriate an evaluative gloss, allowing a party to
    delay the commencement of proceedings for some tactical or other reason beyond
    two years from the date the claim is fully ripened

and requiring the court to assess to tone and tenor
    of communications in search of a clear denial would, in my opinion, inject an
    unacceptable element of uncertainty into the law of limitation of actions
.
[Emphasis added.]

[60]

The
    motion judge did not find that Intact had promised, expressly or impliedly, not
    to rely on the limitation period. Accordingly, it was not open to the motion
    judge to recast, for purposes of the appropriate means analysis, the conduct by
    Intact that Nasr conceded could not support a finding of promissory estoppel that
    the insurer would not rely on the limitation period.  With respect, the motion
    judge erred in doing so.

[61]

Accordingly,
    I would allow Intacts appeal.

VI.

DISPOSITION

[62]

For
    the reasons set out above, I would allow the appeal and set aside the order of
    the motion judge. Given Nasrs concession that there is no issue of promissory
    estoppel precluding Intact from relying on the
Act
, I would grant
    summary judgment dismissing Nasrs action.

[63]

Based
    on counsels agreement regarding the costs of the appeal, I would award Intact
    costs fixed at $7,500, inclusive of disbursements and applicable taxes.

David
    Brown J.A.
I agree. M.L. Benotto J.A.

Feldman
    J.A. (Dissenting):

[64]

I
    have had the benefit of reading the draft reasons of my colleague and, with
    respect, find myself in disagreement with the result. In my view, the appellant
    insurer has not proved that the action is statute-barred and is therefore not
    entitled to have the insureds action against it dismissed on summary judgment.

[65]

In
    a nutshell, the appellant insurer asked the court to dismiss the insureds
    action on the flood insurance policy on the basis that its claim is statute-barred,
    the claim having been brought more than two years after the flood, referred to
    as the loss. The problem is that this is not an action against the person who
    caused the flood. It is an action against the insurer for breach of the
    insurance policy. Therefore, the triggering event for the discoverability
    analysis and for the two-year limitation to begin running is the date the
    insurer breached its obligation under the policy to indemnify the insured for
    the loss it suffered in the flood.

[66]

As the moving party on the motion for summary judgment, the
    insurer had the onus to prove all of the elements that found the basis for its
    limitation claim, including the date when the cause of action arose, i.e. the
    date when the act or omission by the insurer caused the injury to the insured:
    see the definition of claim in s. 1 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B, and ss. 4 and 5
.

[67]

Because
    the action is based on the enforcement of an insurance policy, one would expect
    that the date when the insurer is obliged to pay the insured its claim would be
    set out in the policy. The only other way that date might be known is if it is
    a matter of statutory or common law. In any of these events, the onus is on the
    moving party to prove all elements.

[68]

On
    this motion, the insurer did not produce the policy of insurance as part of the
    record. The policy would state the obligations of the insured and of the
    insurer, and in particular, when the insurer is obliged to pay the claim, and
    therefore when the insurer is in breach of that obligation.

[69]

The
    motion was fought by the respondent insured on the issue of whether the actions
    of the insurer in making payments under the policy postponed the commencement
    of the limitation period. In his affidavit, the insured states at para. 20:
    The limitation
may have been
at the time of loss
    if no payments on the policy were made. This clearly was not the case here
    (emphasis added).

[70]

The
    motion judge accepted the argument that the insurers conduct postponed the
    commencement of the limitation period. In his reasons for dismissing the motion
    for summary judgment, the motion judge stated that he was assuming without
    deciding that the cause of action for breach of the insurance contract arose
    on February 1, 2013. He did not need to decide the issue because he was not
    granting summary judgment.

[71]

The
    appeal was fought on the same issue as the motion. In his factum, respondents
    counsel states: There is also no issue as to the cause of action for breach of
    insurance contract arose on February 1, 2013, referring to the motion judges
    statement that he would assume, without deciding, that the cause of action
    arose on that date. While counsel could have been clearer in his drafting, on
    my reading, this statement was based on the insureds position that the
    commencement date was postponed, so that the date the cause of action arose was
    not an issue.

[72]

However,
    on appeal, the insurer again asks the court to reject the respondents
    argument, overturn the decision of the motion judge, and grant summary
    judgment. To grant summary judgment this court must then decide when the cause
    of action against the insurer for breach of the insurance contract arose, in
    order to determine when the limitation period commenced to run.

[73]

That
    is a question of mixed fact and law. The legal part requires the court to
    determine when the insurer became legally obligated to pay under the policy.
    The factual part is the determination of when the insurer did not pay in
    accordance with that obligation. Parties cannot bind the court on legal issues
    by agreement or concession. For example, in
OECTA v. Toronto Catholic
    District School Board
(2007), 222 O.A.C. 23 (Div. Ct.), Lane J. stated at
    para. 13:

The fourth difficulty is that the agreement asserted is an
    agreement not as to the facts, but as to the law. Whether the doctrine of
    culminating event applies only where the alleged culminating act is culpable is
    a question of law. Parties cannot agree on the law so as to bind a court or
    tribunal to their view; the law is the law and it is always open to the tribunal
    to determine what it is.

[74]

The
    insurer has presented no basis in the record to determine when its obligation
    to pay arose.

[75]

My
    colleague says that gap is filled because the parties agree that the cause of
    action arose on February 1, 2013 and that that agreement constitutes an
    admission of fact. I do not agree.

[76]

First,
    as stated above, the date the cause of action arose is not a matter of fact
    alone. It is a matter of mixed fact and law: it depends on when the defendants
    legal obligation to the plaintiff arose and when it was breached. What an
    agreement says or what occurred at a point in time may be factual matters, but
    whether they constitute a legal obligation or a breach are matters that include
    legal determinations  the province of the court.

[77]

My
    colleague also states that the admission is consistent with principles that
    have emerged in jurisprudence of this court in two cases,
Markel Insurance
    Company of Canada v. ING Insurance Company of Canada
, 2012 ONCA 218, 109
    O.R. (3d) 652, and
Schmitz v. Lombard General Insurance Company of Canada,
2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No.
    143. However, in both those cases, the legal obligation of the insurer was
    governed by statutory provisions and not by principles of law.

[78]

Markel
    Insurance
involved a transfer claim for indemnification by a first party
    insurer against a second party insurer in the motor vehicle accident context.
    The claim was governed by the
Insurance Act
, R.S.O. 1990, c. I.8, its
    regulations, and procedures set out by the Financial Services Commission of
    Ontario. The court had all the information before it that it required to
    determine when the second insurers obligation to indemnify arose and was
    breached.

[79]

Similarly,
    in
Schmitz
, the claim for indemnity at issue was brought within and
    was governed by the underinsured motorist coverage provided by the OPCF 44R, an
    optional endorsement to Ontarios standard form automobile insurance policy.

[80]

Unlike
    in those cases, there is no basis in the record before this court to determine
    when the insurer became obliged to pay the claim under the policy. If the
    insurer is relying on the policy, it has not put that policy before the court
    or referred to or relied on any provision of the policy. If it is relying on a statute
    or principle of law that arises outside the terms of the policy, it has not so
    stated.

[81]

By
    not producing the insurance policy as part of the motion record, in my view,
    the appellant did not provide the court with a record sufficient to determine
    the relevant components of s. 5 of the
Limitations Act.
As a result,
    the motion for summary judgment should be dismissed and the action sent on for
    trial with the issue of the limitation period left open for trial, if the
    insurer wishes to continue to raise it there.

[82]

I
    would therefore dismiss the appeal with costs to the respondent.

Released: DB Sep 4 2018

K. Feldman J.A.

[1]
Nasr, in para. 19 of its factum states: There is no issue as to the cause of
    action for breach of insurance contract arose on February 1, 2013.  In his
    affidavit at para. 20 Mr. Nasr deposed: The limitations may have been at the
    time of loss if no payments on the policy were made. This clearly was not the
    case here.


COURT OF APPEAL FOR ONTARIO

CITATION: Public Guardian and Trustee v. Gaumont, 2018 ONCA
    731

DATE: 20180907

DOCKET: C64463

Sharpe, van Rensburg and Brown JJ.A.

IN THE MATTER of the
Substitute Decisions Act, 1992
,
    S.O. 1992, Chapter 30, as amended, section 22;

AND IN THE MATTER of the property of personal care of MONICA
    GAUMONT;

BETWEEN

The Public Guardian and
    Trustee

Applicant (Respondent)

and

Monica Gaumont and
Catherine M. Gaumont

Respondents (
Appellant
)

R. Michael Rodé, for the appellant

Jael Marques de Souza, for the respondent

Heard: September 5, 2018

On appeal from the judgment
    of Justice M. Charbonneau of the Superior Court of Justice, dated September 21,
    2017.

REASONS FOR DECISION

[1]

The appellant appeals a judgment appointing the Public Guardian and
    Trustee (the PGT) as guardian of the property and personal care of her
    daughter, Monica, pursuant to the
Substitute Decisions Act, 1992
, S.O.
    1992, c. 30. Monica, who is now 30 years old, has a form of epilepsy that leads
    to seizures. As her seizure disorder progressed, her cognitive development has
    regressed. Since 2014, Monica has lived in a home operated by Ongwanada
    Community Resource Centre, which provides support for persons with
    developmental disabilities.  Before then, Monica lived with her mother.

[2]

The application judge refused a request for an adjournment.  Proceeding
    on the basis of the PGTs evidence, he concluded that Monica lacked capacity
    and the circumstances were such that she needed a guardian. He accepted the
    PGTs evidence about the difficulties that arose when Monica was visiting her
    mother.  He concluded that the appellants claim that, with more time and by
    providing updated information she could show she was a proper guardian, had
    very little chance of success.  He noted that Monica was vulnerable, and that
    her mother had been unable in the past to make appropriate decisions for her.
    As such, the application judge refused to make a temporary order and he granted
    the judgment appointing the PGT Monicas guardian of property and personal
    care.  The judgment provided that the appellant could apply to be appointed
    guardian  on the grounds of an important change in her circumstances and/or
    the circumstances of Monica.  It also provided that the PGT was to encourage
    maximum access between Monica and her mother to the extent that such access was
    in Monicas best interest.

[3]

There are several grounds of appeal.

[4]

First, the appellant argues that she was denied procedural fairness when
    the application judge refused to adjourn the hearing or to make a temporary
    order only, so that she could bring forward evidence.

[5]

We disagree.  The matter was outstanding for several months and had been
    adjourned on a peremptory basis.  This application judge considered whether
    there would be any benefit in adjourning the matter or making only a temporary
    order.  He observed at the outset that there was no competing application for
    the appointment of the appellant as Monicas guardian.  As argument progressed,
    and it appeared that the appellant might put herself forward as a suitable
    guardian, the application judge concluded that there was very little chance of
    success of such an application.  There is no reason to interfere with this decision,
    which reflects the application judges fair assessment of the circumstances that
    existed at the time the parties were before him.

[6]

Second, the appellant contends that a finding of incapacity ought not to
    have been granted without a formal assessment.  There was evidence to support
    the finding that Monica lacked capacity, and no evidence to the contrary.
    Moreover, although appellants counsel suggested that a more detailed
    assessment would be desirable, Monicas lack of capacity was not challenged at
    the time of the hearing, and there is no basis for the appellant to raise this
    issue for the first time on appeal.  Accordingly, this ground of appeal has no
    merit.

[7]

Third, the appellant asserts that the application judge erred by failing
    to consider whether a power of attorney signed by Monica in 2010 in favour of her
    mother was valid.  The existence of this document, which was raised at the very
    end of the hearing before the application judge, has no effect on the outcome.
    Whether or not the power of attorney was valid, the evidence before the
    application judge was that Monica required someone other than her mother to
    make decisions for her.

[8]

Finally, the appellant says that the application judge erred by refusing
    to consider whether there was any other suitable person who was available and
    willing to be appointed as Monicas guardian.  The matter had been outstanding
    for several months, and no one had come forward as an alternative guardian for
    Monica. There was no evidence that any other suitable person was willing to act
    in this capacity. In any event, should circumstances change and an alternative
    guardian wish to make an application in the future, this is not precluded by
    the judgment under appeal, and is expressly contemplated in respect of the appellant.

[9]

The appeal is therefore dismissed.  No order as to costs.

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pustai v. Pustai, 2018 ONCA 785

DATE: 20180927

DOCKET: C64351

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Scott Timothy Pustai

Applicant (Respondent)

and

Christine Marie
    Pustai

Respondent (Appellant)

Michael H. Tweyman, for the appellant

Stephen P. Kirby and Gary S. Joseph, for the respondent

Heard: July 16, 2018

On appeal from the final order of Justice H.K. OConnell
    of the Superior Court of Justice, dated August 30, 2017.

van Rensburg J.A.:

Overview

[1]

This is a family law appeal. In dispute are the
    variation and termination of spousal support.

[2]

The appellant Christine Pustai appeals a
    judgment after trial of a motion to change brought by the respondent Scott
    Pustai. The judgment, dated August 30, 2017, varied a 2008 consent order following
    a settlement the parties had concluded after several years of litigation. The
    judgment reduced monthly spousal support from $3,000 to $1,000 effective June
    1, 2013, and terminated spousal support one year later. The judgment also
    required Ms. Pustai to pay Mr. Pustai one half of the net proceeds from the
    sale of the matrimonial home in 2010 as consideration for her contribution to
    s. 7 expenses for child support up to the date of the consent, and dismissed
    Mr. Pustais claim for child support and s. 7 expenses. The judgment also
    provided for the payment of funds by Mr. Pustai to Ms. Pustai for the purchase
    of a vehicle, which is not subject to appeal.

[3]

For the reasons that follow I would allow the
    appeal. Briefly, while I agree that it was open to the trial judge to conclude
    that there was a material change in the Ms. Pustais financial circumstances,
    in my view, the trial judge erred when, after finding that Mr. Pustais income
    had remained consistent since 2008, he determined that Mr. Pustais financial circumstances
    had materially changed. Further, the trial judge did not conduct the required
    analysis before substantially reducing and then terminating spousal support. Specifically,
    he did not assess the material change in circumstances in the context of the parties
    January 2008 settlement, the consent order and a companion trust agreement.
    Applying the proper analysis, spousal support should be reduced, but not
    terminated. As for the matrimonial home and s. 7 expenses, the trial judge
    misapprehended the evidence. The parties agreed that Ms. Pustai was to become
    the owner of the matrimonial home and entitled to all of the proceeds, and they
    conducted themselves accordingly. Mr. Pustais apparent interest in the home
    was a fiction, designed to avoid payment of Ms. Pustais legal and accounting
    fees. As such, Mr. Pustai is not entitled to any proceeds from the sale of the
    matrimonial home.

Facts

[4]

The parties married in 1989 and separated in
    2001 after 11.5 years of marriage. They divorced in April 2003. At the time of
    their separation there were four children of the marriage. At all relevant
    times, Mr. Pustai has been the 90% owner of a trucking business, Total
    Transport Solutions (his companies are referred to as TTMI). Ms. Pustai did
    not work outside the home.

(1)

The Parties 2008 Settlement

[5]

After six years of litigation, in 2008, custody
    and access were resolved on consent: Ms. Pustai was to have custody of one
    child, and Mr. Pustai custody of the other three children. The parties entered
    into minutes of settlement dated January 16, 2008. Some of the terms of the
    minutes of settlement were incorporated into the final consent order of Lack J.
    dated February 21, 2008. The relevant parts of the final order are as follows:

1.

Based on an imputed income of $155,800.00, the
    [respondent] shall pay to the [appellant] base child support of $1,297.00 per
    month for the support of [the one child] commencing March 1, 2008, and on the
    first day of each month thereafter.

2.

The [respondent] shall pay to the [appellant]
    spousal support in the sum of $3,000.00 per month commencing March 1, 2008 and
    on the first day of each month thereafter. There shall be no termination date
    for spousal support. Either party may ask for a review of the quantum of
    support upon a material change in circumstances

3.

The [appellant] shall transfer her one-half
    interest in the former matrimonial home to the [respondent] as lump sum child
    support for the support of [the three children in the respondents custody]
    inclusive of section 7 expenses including University/College expenses.

4.

The [appellant] shall have the right to occupy
    the former matrimonial home indefinitely. The [appellant] shall pay all costs
    associated with the home, including, but not limited to mortgage payments,
    taxes, utilities, cable, telephone, insurance, repairs and upkeep. At no time
    shall the [respondent] be entitled to force the sale, transfer or further
    encumbrance of the home

5.

There shall be no further payment to either
    party on account of equalization, costs, disbursements, interest owing for any
    monies prior to January 14, 2008, retroactive child support or retroactive
    spousal support.

[6]

The January 2008 minutes of settlement also provided
    for a payment by Mr. Pustai to Ms. Pustai of $100,000 in full satisfaction of
    any monies owing for equalization, retroactive spousal support and costs, and a
    further payment of $25,000 on or before March 15, 2008. These amounts were to
    be neither taxable to Ms. Pustai nor tax deductible to Mr. Pustai. The parties
    agree that these amounts were paid and form at least a part of their overall
    settlement.

[7]

Contemporaneous with the minutes of settlement,
    the parties signed a secret trust agreement which provided:

I, Scott T. Pustai, hereby acknowledge that
    the property located at [address of the former matrimonial home], as well as
    the Chevy Suburban, is being held by me Scott T. Pustai in trust for Christine
    Pustai and that I have no beneficial interest in the property.

At Christine Pustais sole discretion, I hereby
    agree to transfer, sell, encumber or deal however Christines [sic] wishes with
    the property at her request and sole discretion.

[8]

By the time the parties settled their
    matrimonial litigation, only Mr. Pustai was represented by legal counsel. TTMI
    had been valued after arbitration at approximately $1.1 million, and it was a
    term of the settlement that Mr. Pustai would abandon his appeal of the arbitration
    award.

[9]

In an action by Ms. Pustais counsel for payment
    of legal and accounting fees, Pollak J. determined that, on Mr. Pustais
    initiative, both parties had colluded to evade the payment of Ms. Pustais
    legal fees. To this end, on the eve of the appeal of the TTMI arbitration, Ms.
    Pustai had terminated her counsels retainer. At the same time, she had
    transferred the matrimonial home to the respondent subject to the trust
    agreement. All of this was done as part of the parties plan to avoid paying
    Ms. Pustais legal fees:
Pellman v. Pustai
,
    [2009] O.J. No. 4412 (S.C.), at paras. 4 and 5.

(2)

The 2008 Motion to Change

[10]

Mr. Pustai brought his first motion to change
    only eight months after Lack J.s consent order. He was seeking to terminate
    spousal support and to require Ms. Pustai to pay child support.

[11]

Mr. Pustai argued that there were two material
    changes in the parties circumstances. First, the child who had been in Ms.
    Pustais custody went to live with him in July 2008. Second, he asserted that
    his financial position had deteriorated  that his business was showing
    substantial losses and that he had to borrow money or use gifts of money to
    make ends meet.

[12]

On August 5, 2009, after a trial, Magda J.
    dismissed the motion to change. Given that Mr. Pustais actual 2008 income was
    virtually identical to the income imputed to him in the 2008 consent order, the
    trial judge did not accept his testimony that his business was showing
    substantial losses and that he was using borrowed or gifted monies to make ends
    meet. Magda J. also concluded that the change in residence of the one child,
    that terminated Mr. Pustais child support obligation, was reasonably foreseeable
    at the time of the consent order and so did not constitute a material change.
    In the course of his reasons, Magda J. stated at para. 16 that in his view:

from the wording
    of paragraph 2 of the [Lack J.] order, [Ms. Pustai] has the reasonable
    expectation that her spousal support entitlement shall continue with no
    termination date. I think she understands that if there is a substantial or
    significant diminution of the applicant fathers income through no fault of his
    own, that there may be grounds to establish a material change in circumstances
    which may reduce, but not terminate, her spousal support.

[13]

Magda J. also observed that, by the time of the
    trial, Mr. Pustai had abandoned his claim for child support and s. 7 expenses, as
    had Ms. Pustai her claim for increased spousal support.

[14]

Mr. Pustai appealed the order of Magda J. (the
    2010 Appeal). In reasons reported at 2010 ONCA 251, this court held that Mr.
    Pustai could not argue that a mere eight months after the consent order, the
    trial judge had erred in not setting a termination date for spousal support and
    in not imputing income to Ms. Pustai. Not enough time had passed for such
    circumstances to yet be assessed as a possible material change in
    circumstances. The court further stated that, [t]he trial judge did not err in
    finding that the consent order provided that only the quantum but not the duration
    of spousal support could be subject to variation (at para. 4). The court
    dismissed the appeal.

(3)

The 2010 Motion to Change

[15]

Mr. Pustai again sought an order terminating
    spousal support, this time as of September 1, 2010, and for a contribution toward
    s. 7 expenses for three children. The grounds were that the matrimonial home
    had been sold with Ms. Pustai receiving all the proceeds, an alleged downturn
    in the business of TTMI, and that Ms. Pustai had made no attempt to obtain
    employment, or alternatively that she had undisclosed income.

[16]

There were two trials of the motion to change.
    The first resulted in a final order dated December 7, 2012, that was set aside
    on appeal.

a)

First Trial and Appeal of the 2010 Motion to Change

[17]

The first trial proceeded before Rowsell J.
    Briefly, the trial judge accepted that by this point  now 4.5 years after the
    consent order  the change to Mr. Pustais annual income from the imputed $155,000
    to $126,530 was a material change of circumstance. He also drew an adverse
    inference from Ms. Pustais failure to disclose bank accounts and refusal to
    provide credit card statements to explain her financial situation. He imputed
    income of $31,000 per year to Ms. Pustai based on imputed minimum wage income
    plus rental income that he found she was receiving. He terminated her spousal
    support effective June 1, 2013, and ordered that she pay child support and 20%
    of s. 7 expenses commencing July 1, 2013 based on her imputed income.

[18]

This final order was set aside on appeal (the
    2014 Appeal). In its decision reported at 2014 ONCA 422, this court concluded
    that the trial judge had failed to apply the proper analysis required in a
    motion to change under
L.M.P. v. L.S
., 2011
    SCC 64, [2011] 3 S.C.R. 775 and
Miglin v. Miglin
, 2003 SCC 24.

[19]

Rouleau J.A. concluded that the trial judge
    erred when, after finding a material change in circumstances, he all but
    ignored the fact that the parties had entered into a comprehensive settlement
    leading to the original consent order in February 2008. The trial judge ought
    to have tied his analysis to the actual circumstances of the parties at the
    time of the consent order and to have taken as a starting point the parties
    agreement in February 2008. This agreement included support payments of $3,000
    per month with no end date. Rouleau J.A observed that an analysis of the
    circumstances at the time of the February 2008 consent order was required in
    order to determine whether the changes [the trial judge] had identified were
    sufficient to bring the support payments to an end less than five years after
    reaching that agreement (at para. 28).

[20]

This court also concluded that the trial judge
    erred in making an order for child support without assessing the impact of the
    trust agreement, the settlement, and the consent order, on the parties
    interests in the matrimonial home (at para. 33).

[21]

A new trial was directed. While finding that the
    trial judges determination that there was a material change in circumstances
    was reasonably supported by the evidence, the court directed that the new trial
    would address anew both the issues of whether there was a material change and
    the determination of the appropriate terms of variation, if any (at para. 29).

b)

Decision under Appeal: Second Trial of the 2010 Motion to Change

[22]

The second trial of Mr. Pustais 2010 motion to
    change was heard by H.K. OConnell J. for 2.5 days in May 2015. In this trial,
    Mr. Pustai sought orders terminating spousal support effective June 1, 2013,
    imputing income to Ms. Pustai, and requiring Ms. Pustai to pay child support or
    in the alternative that the equity in the former matrimonial home be
    transferred to him.

[23]

The trial judge rejected Ms. Pustais argument
    that the Lack J. order foreclosed any change in spousal support by the court.
    The contrary had been decided in the 2010 Appeal. He summarized the reasons of
    Rouleau J.A. and set out the test he was to apply in determining whether there
    was a material change in circumstances and whether the support order should be
    varied or terminated. He observed that he was not foreclosed by the 2008
    bargain from varying or terminating spousal support provided that the evidence
    allows for it on a material change analysis (at para. 68).

[24]

The trial judge accepted Mr. Pustais evidence
    completely as to his financial circumstances. Unlike Rowsell J., he did not
    base his conclusion that there was a material change in circumstances on Mr.
    Pustais annual income. Indeed, he accepted Mr. Pustais evidence at the second
    trial that his income on a year-to-year basis has remained more or less the
    same.
[1]
He accepted that Mr. Pustais debt load had increased (to $230,634.63 in 2015).
    He also accepted Mr. Pustais evidence that he had to take out loans and to
    deplete his RSP to ensure his company could sustain itself, and that TTMI
    required extensive capital injection to procure new tractors. The trial judge also
    observed that the companys fortunes, which define Mr. Pustais income, [were]
    not what they were in 2008 (at paras. 56 to 67).

[25]

The trial judge, like Rowsell J. before him, did
    not find Ms. Pustai credible. He concluded that there had been a material
    change in Ms. Pustais financial circumstances. He rejected as poppycock her
    evidence that her only source of income was spousal support. He pointed to the
    significant vacations she had taken, a completely inaccurate financial
    statement as to the value of her home at the time of trial, and unexplained
    savings of $135,000 in 25 months. He concluded that Ms. Pustai had not made
    proper financial disclosure, that her position in relation to her financial
    statements was ludicrous, contrived and not worthy of serious consideration,
    and he concluded that she must be earning income. He imputed annual income of
    $40,000 to Ms. Pustai (at paras. 73 to 83).

[26]

The trial judge ordered that spousal support would
    decrease to $1,000 a month effective June 1, 2013 and terminate on June 1,
    2014. He stated that this is fair and reflects the economic reality of both of
    these former spouses as it now exists (at paras. 84 and 85).

[27]

The trial judge turned to the issue of child
    support and s. 7 expenses. He referred to this courts direction that he was to
    consider the impact of the trust agreement, the minutes of settlement and the
    order of Lack J. in assessing the issue of child support (at para. 87). He
    rejected the claim for child support and s. 7 expenses after the order of Magda
    J. on the basis that child support going forward had been waived by Mr. Pustai
    (at para. 88). The trial judge then considered Mr. Pustais claim for half of
    $133,737, the net proceeds of sale of the matrimonial home, which was sold in
    June 2010. After concluding that the trust agreement was morally questionable
    as an attempt to defeat a known claimant for legal and expert fees, he
    characterized the trust agreement as a completely collateral document
    superseded by the minutes of settlement and the order of Lack J., which
    provided that Ms. Pustais interest in the home was to be transferred to Mr. Pustai.
    The trial judge concluded that Ms. Pustai was liable to Mr. Pustai for one half
    of the net proceeds of the matrimonial home (at paras. 91 to 104).

Issues on Appeal

[28]

Ms. Pustai argues that the trial judge erred in:

1.

stepping down and then terminating spousal
    support by:

(a)

failing to conclude that spousal support could
    not be changed or terminated;

(b)

finding a material change in her own financial
    circumstances;

(c)

finding a material change in Mr. Pustais
    financial circumstances when his income remained consistent over the years;

(d)

imputing income to her of $40,000 per year; and

(e)

failing to consider the circumstances that
    prevailed at the time of the consent order;

2.

ordering her to pay 50% of the net proceeds of
    sale of the matrimonial home to Mr. Pustai; and

3.

reserving his decision for almost two years and
    then giving inadequate reasons.

[29]

Mr. Pustai asserts that all of the trial judges
    findings were open to him on the evidence and that there was no error in law or
    in his application of the law. Mr. Pustai contends that the trial judge gave
    proper reasons that reflected that he had considered the evidence before him,
    and that there was no prejudice to Ms. Pustai resulting from the delay in
    giving reasons.

Analysis

(1)

Spousal Support

[30]

The standard of review for family support
    decisions is significant deference. This is informed by both the discretion
    involved in making support orders and the importance of finality in family law
    litigation. An appeal court should only intervene where there is a material
    error, a serious misapprehension of the evidence, or an error in law. It is not
    entitled to overturn a support order simply because it would have made a
    different decision or balanced the factors differently:
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at para. 12.

a)

Spousal support could be varied or terminated

[31]

In this appeal Ms. Pustai repeats an argument
    that she has been making throughout the proceedings  that the consent order
    precludes any variation or termination of spousal support.

[32]

This argument overlooks the fact that, as the
    trial judge noted, in the 2014 Appeal this court expressly disagreed that the
    terms of Lack J.s order precluded Mr. Pustai from seeking to terminate support.
    That is, Rouleau J.A. noted, at para. 18, that, while this court had determined
    the proper
interpretation
of the terms of the consent
    order in the 2010 Appeal  that the parties agreed that spousal support would
    not terminate  the parties agreement did not prevent a return to court to
    argue a change in circumstances that would warrant a variation including the
    possibility of ending support altogether (referring to
L.M.P.
,

at para. 41).

[33]

I would therefore not give effect to this ground
    of appeal.

b)

There was a material change in Ms. Pustais financial circumstances

[34]

In my view it was open to the trial judge to conclude
    on the evidence before him that there was a material change in Ms. Pustais
    financial circumstances.

[35]

The trial judge concluded that Ms. Pustai had
    not made proper disclosure of her financial circumstances. Unfortunately, Ms.
    Pustais belief that no variation could take place, and that her own financial
    circumstances could not be considered, appears to have continued to inform her
    conduct in the proceedings  including her failure to make proper disclosure of
    her own financial circumstances. Ms. Pustais inadequate financial disclosure
    as well as her admissions that she had previously provided misleading
    information  by omitting the rental income she was receiving  were relevant
    to determining whether she might have additional undisclosed income and
    resources to contribute toward her own support. The trial judge concluded as
    follows at paras. 73 and 74 of his decision:

Ms. Pustai stuck to her guns that the bargain
    was the bargain, that she depends on the $3,000 per month as per the consent
    order, and that that quantum is the only source of income for her.

That is, on this record, poppycock.  She has
    taken significant vacations at least until November 2012, and since that time
    has travelled to Mexico.  Her financial statement is completely inaccurate in
    relation to the value of her home at the time of trial  I adopt what the Court
    of Appeal said at paragraph 12, wherein the evidentiary record before me still
    completely supports the proposition that Ms. Pustais economic fortunes led to
    an increase of some $135,000 in 25 months and that she has failed to disclose
    how this was so.

[36]

Ms. Pustai takes issue with some of the trial
    judges factual findings, saying that he overlooked her contrary evidence on
    these points. In particular, the trial judge concluded that she had not
    explained how she accumulated $135,000 in 25 months, while her evidence at the
    second trial was that she had received about $60,000 in inheritance from her
    mother, by way of her stepfather. She provided bank statements to show that she
    used that amount to pay the down-payment on a rental property, which she
    acknowledged not disclosing in the lead-up to the earlier trial. At the second
    trial, Ms. Pustai also explained that the value of her home at $325,000 in her
    financial statement of January 6, 2015 was a typographical error that should
    have read $525,000. On appeal she points out that the most recent financial
    statement that was filed before the second trial included the correct value of
    the home. Ms. Pustai also asserts that the trial judge improperly focused on
    the value of her capital assets (such as her home and rental property) instead
    of on her income, and that there was no evidence that she was receiving any employment
    income.

[37]

While there are aspects of the trial judges
    findings that are problematic, the core of his conclusion that Ms. Pustais
    financial circumstances had materially changed was that, because of her
    lifestyle, including significant vacations she took and the still-unexplained
    increase in fortunes of some $135,000 in less than three years, she must have
    had undisclosed income. In addition, she had purchased a rental property in
    2011, from which she was receiving income of $10,559.28 per year, she had given
    inconsistent evidence at the two trials about the source of money used to
    purchase the rental property, and she had not fully complied with a court order
    to answer undertakings and to explain why certain questions were refused.

[38]

It was open to the trial judge to impute
    income to Ms. Pustai after he rejected her evidence that her only source of
    income was spousal support. While the ability to impute income in the face of a
    failure to fully disclose is not an invitation to the court to arbitrarily
    select an amount as imputed income (
Drygala v. Pauli
(2002), 61 O.R. (3d) 711, at para. 44), parties must also accept
    adverse inferences that result from their failure to disclose:
Riel
    v. Holland

[2002] O.J. No. 5609, affd. (2003), 67 O.R.
    (3d) 417 (C.A.), at para. 45.

[39]

I would not interfere with the trial judges
    finding of a material change in Ms. Pustais financial circumstances, which was
    open to him on the evidence.

c)

There was no material change in Mr. Pustais financial circumstances

[40]

As for Mr. Pustais financial circumstances, the
    trial judge accepted that his employment income had remained relatively
    consistent throughout the seven years since the consent order was made.
[2]
In finding a material change
    in Mr. Pustais financial circumstances, the trial judge relied instead on Mr.
    Pustais evidence about his debts: $230,634.63 in 2015 which included some
    support arrears, a loan Mr. Pustai took out to acquire RSPs to get a tax break
    to fund equalization, and another loan for $25,000. He also referred to the
    fact that Mr. Pustai had to deplete his RSP to ensure his company could sustain
    itself, and that the company required extensive capital injection by way of the
    procurement of new tractors. The trial judge also accepted that TTMI was not
    doing nearly as well as it had been doing at the time of the consent order.

[41]

In my view the trial judge misapprehended the
    evidence and took irrelevant factors into consideration when he concluded that
    there had been a material change in Mr. Pustais financial circumstances. The
    trial judge treated the issue as one of Mr. Pustais credibility, accepting his
    evidence respecting the downturn in his business, without assessing whether the
    documentary evidence he provided actually supported the assertion.

[42]

First, the evidence did not support the trial
    judges conclusions about TTMIs financial performance. Although the business
    had one very bad year in 2010, its revenues, as reported in the consolidated
    financial statements, have remained relatively consistent over the years. In
    any case, there is nothing in the state of the company that in my view itself
    supports a material change in circumstances.

[43]

Second, the fact that Mr. Pustai had accumulated
    debt did not in the circumstances demonstrate a material change in his
    financial circumstances for the purpose of spousal support. Indeed, the
    evidence demonstrated that many of Mr. Pustais personal expenses (including
    legal fees) are paid by TTMI, which he attributes to repayments by TTMI of
    monies he has advanced to the business (although this is not reflected in any
    change to his recorded shareholding or shareholder loans). The trial judge
    described Mr. Pustais debt as including spousal support arrears and monies
    borrowed to invest in RSPs to get a tax break to fund equalization (and not as
    monies Mr. Pustai has borrowed personally to fund the business). As for the
    trial judges reference to Mr. Pustais depletion of his RSP to ensure the
    company could sustain itself, considering Mr. Pustais non-arms length
    relationship to the company, as well as the fact that Mr. Pustai acquired a
    corresponding debt owed to him from TTMI, I would say that this too does not rise
    to a material change in Mr. Pustais ability to pay support.

[44]

Perhaps most importantly, even if there was a
    downturn in TTMIs business, there was no evidence that the value of TTMI was
    less at the date of trial than it was when the parties concluded their
    settlement in 2008. Were it to his benefit to enter into evidence an updated
    valuation of TTMI showing a substantial decrease in value, Mr. Pustai could
    have done so. Mr. Pustais income has remained relatively constant. And while
    it is not evident on the record what led to the imputation of additional income
    at the time of the consent order, the onus was on Mr. Pustai to lead evidence
    as to why the factors leading to the imputation of income in the original order
    had changed:
Trang v. Trang
, 2013 ONSC 1980,
    29 R.F.L. (7th) 304, at para. 52;
Gray v. Rizzi
, 2016 ONCA 152, 129 O.R. (3d) 201, at para. 34. Mr. Pustai led no
    such evidence. Given that TTMI has continued to generate a good living income
    for Mr. Pustai, and having regard to the bargain between the parties, the
    evidence does not support a material change in Mr. Pustais financial
    circumstances.

d)

Imputing income to Ms. Pustai

[45]

After concluding that Ms. Pustai had undisclosed
    income, the trial judge did not explain why he imputed an annual income of
    $40,000 to her. Presumably he imputed such income effective in June 2013, as
    that is when he stepped down support.

[46]

As this court stated at para. 44 of
Drygala
    v. Pauli
, at para. 44:

Section
    19
of the
Guidelines
is not an invitation to the court to arbitrarily
    select an amount as imputed income. There must be a rational basis underlying
    the selection of any such figure. The amount selected as an exercise of the
    court's discretion must be grounded in the evidence.

[47]

In this case, the evidence supported imputing
    some amount of income to Ms. Pustai based on the clear evidence of additional
    undisclosed income. In my view, there was however, no rational basis on the
    evidence to impute an income of $40,000.

[48]

Of course, it is difficult
for a party
    seeking to impute income to get to the first step, laying the evidentiary
    foundation, where the party against whom income is sought to be imputed
    makes little or no financial disclosure to the court:
Di Bratto v.
    Sebastiao
, 2015 ONSC 1996, at para. 179.

[49]

I do not agree, however, that that is this
    case.  While Ms. Pustai was at fault for not providing complete financial
    disclosure from the start of these proceedings, this is not a case of egregious
    non-disclosure.

[50]

In my view, taking into account her level of
    education and limited employment-related training, a rational approach would be
    to attribute to Ms. Pustai employment income roughly equivalent to what she
    would earn in a full-time minimum wage position. Between 2013 and 2018, minimum
    wage ranged from $10.25 to $11.40 per hour, before increasing to $14 per hour
    on January 1, 2018. Recognizing that the imputation of income is not an exact
    science and is impeded by Ms. Pustais incomplete financial disclosure, I would
    impute to her annual income from June 1, 2013 of $33,000 from 2013 to 2018 and
    $38,000 commencing January 1, 2018. These amounts include the income Ms. Pustai
    has been able to earn from the rental property she acquired in 2011. I would
    emphasize that this is a rational approach to imputing income having regard to the
    particular circumstances of this case.

e)

The appropriate variation in spousal support

[51]

After determining that there was a material
    change in circumstances, the trial judge was required to consider whether and
    to what extent a variation in the support obligation was required. As the
    Supreme Court cautioned in
L.M.P.
, once a
    material change in circumstances has been established, [a] court should limit
    itself to making the variation which is appropriate in light of the change. The
    task should not be approached as if it were an initial application for support
    under s. 15.2 of the
Divorce Act
 (at para. 50).
    The court was required to consider the changes in the light of the
    circumstances that prevailed at the time of the 2008 consent order.

[52]

Unfortunately the trial judge adopted the same
    approach as the trial judge on the first trial of the 2010 motion to change. He
    did not engage in any analysis of the circumstances at the time of the parties
    2008 settlement. Instead, the trial judge dealt with the matter as though he
    was determining spousal support for the first time. After concluding that there
    was a material change in circumstances for both parties, he imputed $40,000 per
    year to Ms. Pustai, and he ordered that spousal support be stepped down to
    $1,000 per month effective June 1, 2013 and terminated as of June 1, 2014. He
    offered no reason for the amount of reduced support and its termination other
    than that it was fair and reflects the economic reality of bothspouses.

[53]

Having concluded that there were errors in the
    trial judges order varying and terminating spousal support, this court may make
    the order that is appropriate, to the extent permitted by the record:
Cassidy
    v. McNeil
, 2010 ONCA, 218, 99 O.R. (3d) 81, at para. 39. Indeed,
    the parties asked that, if the appeal were successful, this court make an order
    based on the record, rather than sending the matter back to the trial court.
Before turning to this determination, I will address Ms. Pustais arguments
    concerning the trial judges order respecting the proceeds of sale of the matrimonial
    home. As I will explain, the parties dealings with the matrimonial home were
    consistent with their bargain, as reflected in their minutes of settlement, the
    secret trust agreement and consent order.

(2)

Matrimonial Home Proceeds

[54]

Ms. Pustai contends that the trial judge erred
    in ordering her to pay to Mr. Pustai one half of the net proceeds from the sale
    of the matrimonial home in 2010. I agree.

[55]

First, the trial judge, in considering the
    consent order, minutes of settlement and trust agreement, misapprehended the evidence
    as to how the parties sought to avoid the payment of Ms. Pustais legal and
    expert fees. It is the consent order and not the trust agreement that was
    intended to defeat the claim for legal fees. The consent order stated that Ms.
    Pustai was to transfer her one-half interest in the former matrimonial home as
    lump sum child support, while she had the right to remain in the home
    indefinitely and she assumed all costs associated with the home. However the
    trust agreement provided that Ms. Pustai would remain the full owner of the
    home and Mr. Pustai disclaimed all interest in the home. The 2008 consent order
    and the transfer of the home to Mr. Pustai were a matter of public record,
    while the trust agreement was kept secret.

[56]

The trial judges determination that the trust
    agreement was of no effect contradicts the finding of Pollak J. in
Pellman
    v. Pustai

at para. 13, that it was the assumption of all
    parties that Ms. Pustai would be awarded a significant equalization payment in
    the proceedings and that she would be able to pay her legal fees out of this
    amount. The evidence in that case included a telephone conversation Ms. Pustai
    had secretly recorded in which Mr. Pustai suggested a settlement without the
    involvement of their lawyers so that Ms. Pustai would not have to pay legal and
    accounting fees, and that she transfer the family home to him which he would
    hold in trust for her under a separate agreement which would remain secret in
    order to avoid paying the fees.

[57]

The notion that the proceeds of the home were
    consideration for s. 7 expenses is also contradicted by the fact that, at the
    time in question, Ms. Pustai had no income, and therefore effectively had no
    obligation to make any such contribution. Furthermore, in 2010 when the house
    was sold, on a signed direction from both parties, Ms. Pustai received all of
    the proceeds.

[58]

At the time of the settlement, TTMI had been
    valued on arbitration for the purpose of equalization at $1.1 million. Although
    Mr. Pustai contested this amount, the parties entered into their minutes of
    settlement and the consent order on the eve of the appeal of the arbitration,
    and the consent order specifically provided for the appeal to be dismissed. The
    sum of $125,000 (an amount that was stated to include equalization) was
    eventually paid. Ms. Pustais evidence was that she had compromised her claim
    for a larger lump sum equalization payment in relation to TTMI by agreeing to the
    full proceeds of the sale of the house  which ultimately amounted to $133,737
    in proceeds to her  as well as a higher level of indefinite spousal support. Payment
    of tax-deductible spousal support was more beneficial to Mr. Pustai than payment
    of an equalization payment with after-tax dollars.

[59]

While Mr. Pustai continued to contest this
    explanation of the parties true bargain at trial, I accept Ms. Pustais evidence
    as the only reasonable explanation in all the circumstances. Given the value
    that had been placed on TTMI prior to trial, and the clear wording of the trust
    agreement, it is not reasonable to accept Mr. Pustais assertion that he still
    expected to receive a portion of the proceeds of the sale of the house and/or
    payments for s. 7 expenses.

[60]

That is, all the evidence unequivocally points
    to the same conclusion: that the true bargain between the parties with respect
    to the matrimonial home was reflected in the secret trust agreement and not
    in the consent order of Lack J. There was no basis therefore for an order that
    effectively enforced a term of the consent order of Lack J. that the parties
    had no intention of complying with, because it did not reflect their actual
    bargain.

[61]

Accordingly, I would set aside the order
    requiring payment of one half of the net proceeds of the matrimonial home by Ms.
    Pustai to Mr. Pustai.

Determining the Order that Ought to Have Been
    Made

[62]

Based on the effect of the change in Ms.
    Pustais earning circumstances on the true bargain reached by the parties  one
    that combines both the terms of the consent order and the secret trust
    agreement  I would reduce, but not terminate, spousal support.

[63]

According to the evidence, at the time of the
    original bargain, Ms. Pustai was earning no income and had no expectation of
    earning future income. She would have been owed a sizeable equalization payment
    that included half of the value of Mr. Pustais interest in TTMI. Given all the
    circumstances, I accept Ms. Pustais explanation that, at the time of entering
    into the trust agreement and the consent order, the parties agreed that their
    net family property would be equalized by Ms. Pustai receiving the proceeds of
    the matrimonial home and Mr. Pustai retaining sole ownership of the most
    valuable asset: TTMI. In addition, Ms. Pustai would receive a $125,000 payment
    and would receive $3,000 per month in spousal support indefinitely based on the
    parties assumption that Mr. Pustai would continue to earn income of
    approximately $150,000 annually through TTMI.  All of this taken together,
    constituted the parties original bargain.  And it is this original bargain
    that the court must then vary appropriately based on its finding of material
    change in circumstances.

[64]

While the court has the authority to both vary
    and to terminate spousal support, in deciding what to do it is important to
    keep in mind the parties original intention. The parties agreed that there
    shall be no termination date for spousal support and that either party may
    ask for a review of the quantum of support upon a material change in
    circumstances. As this court confirmed in the 2014 Appeal, the parties agreed
    that only the quantum but not the duration of spousal support could be subject
    to variation, and Mr. Pustai is precluded from advancing any different
    interpretation (at paras. 17 and 18). The parties anticipated that a material change
    in circumstances might result in a variation in the amount of support. In my
    view, the change in Ms. Pustais financial circumstances justifies some
    adjustment in the amount of support to be paid, but not in the parties
    original agreement for ongoing support.

[65]

I have accepted the trial judges conclusion
    that Ms. Pustai now has income of her own and that this constitutes a material
    change in circumstances for the purpose of variation. As indicated above, the
    amounts of annual income that should be imputed to Ms. Pustai are $33,000 from
    2013 to 2018 and $38,000 commencing January 1, 2018.

[66]

The next step is to assess how to appropriately
    vary the parties agreement in light of this change. The Guidelines remain
    instructive in determining an appropriate variation of support:
Gray
    v. Gray,
2014 ONCA 659, at paras. 43 and 44, and
Schulstad
    v. Schulstad
, 2017 ONCA 95, at para. 52.

[67]

At the time of their settlement, Mr. Pustai had
    an imputed income of $155,800 annually and Ms. Pustai had no income. Based on
    these assumptions, at the time of the parties original bargain, for an 11.5-year
    marriage, the Spousal Support Guidelines would have indicated monthly support
    of $2,240 per month at the low end, $2,613 at the midpoint, and $2,986 at the
    high end for a period of 5.5 to 11 years. In essence, Ms. Pustais original
    bargain was for high-end support that did not terminate. She exchanged what
    might otherwise have been a higher equalization payment in return for high
    (rather than midpoint) support and support that would continue rather than
    likely terminate after 11 years. Understanding the parties bargain in this
    way, in light of imputing additional income to Ms. Pustai but concluding that
    all of the parties other circumstances, including Mr. Pustais income, remain
    materially unchanged,
[3]
I would adjust the parties original bargain only to the extent of imputing the
    additional income to Ms. Pustai and continuing to use the Guidelines as the
    point of reference.

[68]

In this way, imputing $33,000 to Ms. Pustai from
    June 1, 2013 to December 1, 2017 the Guidelines indicate a reduction in
    high-end support to $2,354 per month.  From January 1, 2018 forward, imputing
    her annual income as $38,000, Ms. Pustai will receive $2,258 per month.

[69]

In my view, this is the appropriate adjustment
    to spousal support starting from the parties original agreement and adjusting
    for the material change in circumstances that has been found. I would also
    order that on a go-forward basis, the parties are to make financial disclosure
    by exchanging their annual income tax returns and assessments.

The Trial Judges Delay

[70]

The trial judge released his reasons for
    decision some 27 months after the close of evidence in this case. In the months
    that followed there were some written submissions as well as inquiries by the
    judge about the location of various exhibits, and assurances that the reasons
    would be forthcoming. Ms. Pustai asserts that the only reasonable inference
    from the reasons, which are in some respects conclusory, and overlook certain
    evidence, is that the delay caused her substantive injustice.

[71]

It is unnecessary to address Ms. Pustais arguments
    on this point in any detail, as I would allow the appeal for the other reasons
    detailed above. In my view, no inference of any particular error can be drawn
    from the delay itself.

[72]

I will say, however, that the delay of 27 months
    was extraordinary, and inconsistent with what the parties were entitled to
    expect after a retrial of their family law dispute. And, contrary to Mr.
    Pustais assertion, the delay resulted in prejudice to Ms. Pustai who, after
    continuing to receive spousal support of $3,000 per month while the case was
    under reserve, was required to pay back support overpayments exceeding $80,000.
    As I have noted however, I would not rely on the trial judges delay in
    rendering his decision as a reason for allowing the appeal in this case.

Disposition

[73]

For these reasons I would allow the appeal and
    set aside the order of OConnell J. (except with respect to the term requiring
    Mr. Pustai to pay $33,500 to Ms. Pustai for the purchase of a vehicle). I would
    order that Mr. Pustai is to pay Ms. Pustai monthly spousal support of $2,350
    instead of $3,000, effective June 1, 2013 and $2,250 effective January 1, 2018.
    Ms. Pustai will keep the proceeds of sale of the matrimonial home.  At trial,
    Mr. Pustai did not advance a claim for child support and adduced no evidence
    about s. 7 expenses. There was no evidence about the circumstances of the grown
    children to show that they continued to be children of the marriage within the
    meaning of the
Divorce Act
.  There is no basis
    to make an order for child support, and no child support or s. 7 expenses are
    owed to either party.

[74]

I would order costs of the appeal to be paid by Mr.
    Pustai to Ms. Pustai in the amount agreed between the parties, the sum of $15,000
    less the $4,000 previously ordered by Hourigan J.A., for a total of $11,000, inclusive
    of disbursements and HST. With respect to costs in the court below, if the
    parties are unable to agree, they may provide written submissions limited to
    five pages each, not including any costs outlines, as follows: Ms. Pustai
    within 20 days of these reasons, Mr. Pustai within 15 days of receipt of Ms.
    Pustais submissions, with reply submissions, if any, within ten days
    thereafter.

Released: September 27, 2018

K.
    van Rensburg J.A.

I
    agree.  Alexandra Hoy A.C.J.O.

I
    agree.  G. Pardu J.A.

[1]

Mr. Pustai also testified, and the trial judge accepted, that while
    his base employment income in 2007, the year before he settled the matrimonial
    dispute, was $120,000 + $6,541 (the latter number attributed for Mr. Pustais
    personal use of a company vehicle), that income number was grossed-up to
    $155,800 for the purpose of the consent order.

[2]
According to his income tax filings, i
n 2007 before the
    consent order was made, Mr. Pustais employment income was $126,541. In the
    years leading up to the variation trial (2010 to 2015) his employment income
    was essentially the same, although in 2013 and 2015 he had RRSP income.

[3]

As noted previously, Mr. Pustais base employment income
    remained steady throughout, although the number used in the consent order was
    $155,800. Given that everyone accepted that this was an imputed figure, and the
    onus on the party seeking a variation in a consent order to lead evidence as to
    why the income originally imputed should be changed, I see no reason to depart
    from the originally agreed upon amount of imputed income.