Fendelet v. Dohey, 2007 ONCA 475

ENDORSEMENT

1The appellant is appealing the order of MacKenzie J. dated October 11, 2006, in which the motion judge dismissed the appellant’s motion to vary his support obligation and to rescind outstanding arrears of spousal and child support. The motion judge found that the appellant had failed to discharge his burden of demonstrating a material change in circumstances that would warrant such a variation.

2At the outset of the oral hearing of this appeal, the respondent asked that the court refuse to hear the appeal because of the appellant’s continuing and wilful refusal to pay in accordance with court orders. The court acknowledged the principles articulated in the Supreme Court of Canada in Dickie v. Dickie, 2006 CarswellOnt 118 (Ont. C.A.) but did not accede to the request because it found it to be in the best interests of the parties that the appeal be decided on its merits and because the appeal revolves around the appellant’s alleged inability to pay.

3This appeal is based largely on a challenge to the findings of fact made by the motion judge. The appellant urges the court to apply a “reduced” standard of review when considering those findings because the record below consisted of documentary, rather than oral, evidence. We reject this submission.

4The palpable and overriding error standard reiterated by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 applies when reviewing factual findings even when those findings are based on a written record. This court has repeatedly stipulated that deference is owed to factual findings made at first instance, even where the appeal is from an entirely written record: see, for example, Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.) and FL Receivables Trust 2002-A v. Cobrand Foods Ltd. 2007 ONCA 425. Although the explanation offered by the court at para. 46 of Fl Receivable refers to trial decisions, it is equally applicable to motions and usefully recalled:

The principle of appellate deference to a trial judge’s fact-finding and inference-drawing applies even when the entire trial record is in writing. That is so because the principle of deference is grounded in more than a trial judge’s ability to see and hear the witnesses. Deference recognizes that even on a written record, the trial judge “lives through” the trial while a court of appeal reviews the record only through the lens of appellate review. Deference also preserves the integrity of the trial process, maintains the confidence of litigants in the process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.

5There is no challenge to the legal principles as enunciated by the motion judge. Nor is there a challenge to his application of those principles. Rather, as has been stated, the challenge is directed to his findings of fact, particularly those involving the credibility of the appellant and his common-law spouse and her sister. The reasons of the motion judge show clearly that he fully apprehended the evidence in the record and the record amply supports the factual findings he made, including those relating to credibility.

6In the circumstances, there is no basis on which to interfere with the order below. Accordingly, the appeal is dismissed with costs to the respondent fixed at $8,000, all inclusive, such costs to be enforceable as support pursuant to the Family Responsibility and Support Enforcement Act.