DATE: 20050613
DOCKET: C41475
COURT OF APPEAL FOR ONTARIO
RE:
LORRI KUSHNIR (Petitioner/Respondent) -and- DAVID LOWRY (Respondent/Appellant)
BEFORE:
SIMMONS, LANG and MacFARLAND JJ.A.
COUNSEL:
Sheila R. Block, Avra Rosen and Frank Cesario
for the respondent
John W. McDonald
for the appellant
HEARD:
May 25, 2005
On appeal from the divorce judgment of Justice Lorna-Lee Snowie of the Superior Court of Justice dated February 5, 2004.
E N D O R S E M E N T
1The appellant appeals from the divorce judgment that ordered the appellant, Mr. Lowry, to make an equalization payment of $7,032,459 and to pay retroactive and ongoing spousal support to Ms. Kushnir of $35,000 monthly from the date of separation to the date of satisfaction of the equalization payment. In addition, the appellant brings a motion for the receipt of fresh evidence on this appeal.
2The parties began a relationship in 1977, began cohabiting in 1988, married in 1992, and separated in 2000. In the fall of 2003, the parties conducted a twelve-day trial before Snowie J. The trial judge accepted the evidence of Ms. Kushnir and her valuator, Lynda Brent, on every material issue. She found that Ms. Kushnir was in need of spousal support and that Mr. Lowry was able to pay it. She found that Mr. Lowry was not credible; that he was secretive and vague; that his evidence was evasive and non-responsive; that he never made full and complete financial disclosure; that he filed no financial information after 2001; that he had 400 outstanding undertakings at the time of trial, mostly related to his financial position; that he failed to adduce any evidence as to the values of his assets; and that he was a brilliant corporate financial planner and sophisticated businessman in the area of offshore tax planning.
3The appellant challenges the divorce judgment on the following issues:
The ownership of 34 Hillholm Road;
Spousal support;
Unconscionability under s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3; and
The disbursement of $197,231 held in court.
1. 34 Hillholm Road
4In 1988, the parties purchased their family home at 34 Hillholm Road in Toronto as joint tenants. In 1990, Mr. Lowry transferred all of his interest in that property to Ms. Kushnir. In 1999, Mr. Lowry signed a deed of gift by which he released and transferred any interest in 34 Hillholm Road, among various other assets, to the Amlor Family Trust. On the same date, Ms. Kushnir (with Mr. Lowry’s consent as spouse) transferred the property into the Amlor Family Trust. Ms. Kushnir and her daughter from a prior marriage were the sole beneficiaries of the Amlor Family Trust.
5The appellant argues that the trial judge overlooked a number of relevant facts in reaching the conclusion that the transfer was valid and maintained that he retained a 50% beneficial interest in the property. In particular, he relies on Ms. Kushnir’s evidence that, following the 1990 transfer, she believed that she held a 50% interest in the property in trust for Mr. Lowry and on the trial judge’s finding that other assets were transferred to Ms. Kushnir as part of a creditor protection scheme.
6The evidence supporting the trial judge’s factual finding that Ms. Kushnir was the sole owner of the property was overwhelming. Ms. Kushnir explained her understanding of a pre-marriage cohabitation agreement, which she thought provided that the parties each had a 50% beneficial interest in the property regardless of how title was held. However, the cohabitation agreement terminated on their marriage in 1992. Subsequent to the parties’ marriage and prior to separation, Mr. Lowry did not take issue with the ownership of 34 Hillholm. Rather, he executed a number of documents over the years, including three mortgages that he signed as consenting spouse confirming Ms. Kushnir’s sole ownership. In the end, the trial judge disbelieved Mr. Lowry’s evidence concerning ownership of the property and preferred that of Ms. Kushnir.
7We see no reason to interfere with the trial judge’s findings of fact on this issue and see no error of law.
2. Spousal Support
8The trial judge found there was “a plethora of undisputed evidence” that the parties enjoyed a lavish lifestyle during their marriage. That lifestyle was paid for entirely by Mr. Lowry at a cost of $107,000 monthly net of taxes, despite his declared income of only $30,000 annually. The evidence established that the Lowry-Kushnir lifestyle was supported by significant distributions and benefits from corporate entities in Mr. Lowry’s control.
9On this evidence, the trial judge awarded Ms. Kushnir $35,000 monthly for her support inclusive of taxes. This amount, which was to continue until satisfaction of the equalization payment, was based on Ms. Kushnir’s financial statement, which the trial judge accepted as accurate.
10Given the trial judge’s findings of fact concerning the lifestyle and respective assets of the parties, and that those findings were amply supported by the evidence, we reject the appellant’s submission that the trial judge erred in her award of periodic support.
11The appellant did not pursue the issue of retroactive spousal support.
3. Unconscionability
12The appellant argued that he should have received an “unequal equalization” on the basis of unconscionability as provided in s. 5(6) of the Family Law Act. The trial judge found no evidence to support this claim and we see no basis to interfere with that finding. The test for unconscionability is a high one and Mr. Lowry did not adduce any evidence to support his claim in this regard.
4. The $197,231
13A sum of $197,231 was paid into court pursuant to a non-dissipation order in this proceeding. Mr. Lowry takes the position that those funds properly should be paid to the Business Development Bank of Canada. This court dealt with the issue of Mr. Davis’s charging order against those funds in an endorsement on July 19, 2004 and held it to be within the trial judge’s discretion to characterize these funds as chargeable for spousal support. Subject to any finding on priorities to the contrary in separate proceedings brought against Mr. Lowry by the Business Development Bank of Canada, we see no reason to interfere with the trial judge’s disposition of this matter.
5. The motion to admit fresh evidence
14The motion for fresh evidence relates to forty-two boxes of documents that Mr. Lowry left behind in the matrimonial home when the parties separated, letters between counsel, and indices to the boxes. The issue figured prominently on this appeal in two respects. First, as fresh evidence on which Mr. Lowry wishes to rely; and second, as evidence of lack of procedural fairness meriting a new trial.
15In our view, these documents do not pass the test for admissibility as fresh evidence. Not only would the documents have been available through the exercise of due diligence before trial, but the appellant has failed to point to any documents or information from the boxes, letters, or indices that would likely be conclusive of any issue on this appeal.
16On the point of procedural fairness, we agree with the trial judge that Mr. Lowry had more than enough opportunity to review the documents or to seek their possession. His failure to take any action on this issue until the tenth day of a twelve-day trial precludes him from raising it on appeal.
Disposition
17For these reasons, we see no merit in this appeal. The appeal is dismissed with costs to the respondent on a partial indemnity basis fixed at $20,000, inclusive of G.S.T. and disbursements.
Signed: “Janet Simmons J.A.”
“Susan E. Lang J.A.”
“J. MacFarland J.A.”