COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and MacFarland JJ.A.
BETWEEN
Richard John Vanos
Applicant (Appellant in Appeal)
and
Yasmin Ali Vanos
Respondent (Respondent in Appeal)
Amy A. Priestley, for the applicant (appellant in appeal)
Pamela L. Hebner and Robert K. Bickle, for the respondent (respondent in appeal)
Heard: November 24, 2010
On appeal from the orders of Justice Peter B. Hambly of the Superior Court of Justice, dated September 8, 2009, with reasons reported at (2009), 2009 ONSC 55328, 77 R.F.L. (6th) 123.
Introduction
1Following a multi-day trial, the trial judge granted the parties a divorce and made a variety of orders addressing issues of support and equalization of assets. The appellant raises 14 issues on appeal. In our view, to raise some of these issues is to attempt to have this court revisit the factual and credibility findings of the trial judge. Of the various issues raised by the appellant, it is necessary to address only the following matters for the disposition of this appeal.
Discussion
(1) Award of Lump Sum Spousal Support
2The appellant argues that this is not one of those unusual cases in which an award of lump sum spousal support is justified. He maintains that the trial judge’s award of lump sum spousal support was not made to address the economic disadvantages arising from the marriage but, rather, as an impermissible means of redistributing the parties’ family assets under the guise of support. He also contends that there is no evidence in this case suggesting possible difficulties in enforcing periodic spousal support payments, if ordered. Finally, the appellant submits that the trial judge erred by initiating, on his own motion, consideration of the merits of a lump sum spousal support award when the respondent did not originally seek this relief.
3We would not give effect to these arguments. We see no basis on which to interfere with the trial judge’s discretionary decision to award lump sum spousal support.
4On the record before this court, the possibility of a lump sum award arose when it emerged, towards the end of the trial, that the appellant had lost his job and was unemployed. The record also reveals that the appellant: (1) failed to fully honour two previous court orders for support; (2) obliged the respondent to obtain her court-ordered spousal support through the enforcement procedures of the Family Responsibility Office, notwithstanding that he had sufficient resources to make the payments at the relevant times; and (3) in respect of at least some of the spousal support payments that he did make, the appellant unilaterally reduced the quantum of his payments to levels he regarded as appropriate.
5We also note that the trial judge found that the appellant could be “relied upon to put his own financial interest” ahead of that of the respondent and the children of the marriage, that he had failed to make full and timely disclosure of his income and assets, and that: “He has in the past and would in the future resent paying [the respondent] spousal support” because of his estrangement from his children.
6On the trial judge’s findings, and in light of the evidence above-described, there was a foundation for the challenged spousal support award. Moreover, the trial judge gave detailed reasons for his decision to award lump sum spousal support and took account of the legal principles governing such awards. We are unable to conclude that his reasons disclose any error in principle or a significant misapprehension of the evidence with respect to this issue. Nor, in our opinion, is the challenged award clearly wrong. Accordingly, there is no basis for appellate intervention on this issue: see for example, Hickey v. Hickey, 1999 SCC 691, [1999] 2 S.C.R. 518, at paras. 10-11; Marinangeli v. Marinangeli (2003), 2003 ONCA 27673, 66 O.R. (3d) 40 (C.A.), at para. 19.
7Finally, it was not inappropriate for the trial judge to invite submissions from the parties on the matter of a lump sum spousal support award once it was disclosed, towards the end of the proceeding, that the appellant was unemployed. Although the trial judge was satisfied that the appellant remained capable of earning a substantial income, the appellant’s job loss created added uncertainty about his future compliance with any periodic spousal support award. We note that the parties were given the opportunity to make full and complete submissions on this issue and availed themselves of that opportunity.
(2) Award of “Retroactive” Spousal Support
8The appellant submits that the trial judge erred by awarding spousal support commencing August 1, 2007, since the respondent allegedly delayed in bringing a motion for support until July 2008. The first court order for support was made in September 2008. Therefore, the appellant contends, September 1, 2008 was the earliest date from which spousal support should have been ordered.
9We disagree. A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued: see MacKinnon v. MacKinnon (2005), 2005 ONCA 13191, 75 O.R. (3d) 175 (C.A.), at para. 22. In this case, the respondent filed an answer in December 2006 in which she claimed spousal support. From that point forward, the issue between the parties was prospective support from and including 2007. On the trial judge’s findings, the appellant had the financial means to pay spousal support and spousal support was needed. Further, given the respondent’s pleading, the appellant knew that spousal support was in issue and would be determined at trial. Thus, there is no principled reason to relieve the appellant from his responsibility to pay appropriate spousal support: MacKinnon, at paras. 24-25. Although the appellant paid spousal support during the period in issue, he determined the amount. In the circumstances, we see no error in the trial judge’s decision to determine the amount of spousal support that should have been paid, commencing August 1, 2007.
(3) 2008 Child Support
10The trial judge used the appellant’s 2007 income to calculate the child support that the appellant should have paid in 2008. The trial judge concluded that the appellant’s 2007 income was $206,223. This figure was comprised of the appellant’s 2007 employment income of $111,302 plus $94,921, being one-half of the pre-tax amount of the phantom stock payment the appellant received in 2007. Based on a 2007 income of $206,223, the trial judge determined that the 2008 child support payable by the appellant was $2,644 per month.
11The appellant argues that the trial judge erred by treating part of the phantom stock payment the appellant received in 2007 as part of the appellant’s 2007 income. The net amount of the phantom stock payment was included as an asset in the appellant’s net family property. The appellant argues that treating part of the phantom stock payment as income for the purpose of calculating child support amounted to impermissible “double dipping”.
12We agree that the trial judge erred in calculating the child support the appellant should have paid in 2008, but we reach that conclusion for different reasons.
13In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the prior period is known.
14When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.
15Our conclusion in this regard is rooted in common sense – but also in s.2(3) of the Child Support Guidelines, SOR/97-175, which states, “[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.”
16Further, we agree with the following comments of Baltman J. in Desjardins v. Bart, 2006 ONSC 33701 at para. 17:
Although the normal practice, based on convenience, is to address child support going forward based on the previous year’s income, once the court is intervening and looking backwards at a particular period, it makes sense to adjust child support retroactively for the relevant period, which in this case is 2004.
17The appellant’s income for 2008 was known at the time of trial – it was $105, 212. Having regard to the principles we have enunciated, the child support payable by the appellant for 2008 should be adjusted to reflect the amount payable under the Child Support Guidelines based on an income of $105,212, less the amount actually paid by the appellant for that period.
(4) Treatment of Time Share in St. Maarten
18The appellant submits that the trial judge erred by ordering the respondent to convey her interest in the parties’ St. Maarten time share to the appellant. He argues that the parties should continue to jointly own the time share and that it should be sold with the proceeds equally divided between the parties. On the facts of this case, we reject this submission.
19At trial, the appellant testified under cross-examination that he wished to keep the time share until he was forced to sell it or it became financially advisable to sell it. The parties agreed that the net value of the time share was $7,475.29. It also appears to have been undisputed that, following separation, the appellant assumed de facto control and exclusive use of the time share.
20In that context, the transfer of interest ordered by the trial judge is both understandable and consistent with the appellant’s own expressed objectives regarding the time share. By acceding to the appellant’s position, the trial judge, in effect, directed that the appellant should enjoy sole ownership of the time share. The facts established and the positions of the parties outlined at trial suggest an effective agreement between them on the treatment of the time share.
21We also note that, by virtue of the ordered transfer, the appellant will have the exclusive right to determine when, and if, the time share should be sold and to retain for his sole use all sale proceeds realized on its disposition.
(5) Treatment of Joint Line of Credit
22The trial judge ordered the respondent to pay the balance owed on the parties’ outstanding joint line of credit. To facilitate this, he directed that part of the funds in the appellant’s registered retirement saving plans (“RRSPs”) be vested in the respondent, from which the respondent is to pay the line of credit. The appellant argues that in so ordering, the trial judge erred.
23We agree. The trial judge had no jurisdiction to make a vesting order for the purpose of satisfying an outstanding debt/account. The respondent has been unable to point to any authority that, in our view, suggests to the contrary.
(6) 2008 Tax Refund
24In September 2007, the appellant invested $75,000 of the phantom stock payment in his RRSPs. This investment, together with other RRSP investments by the appellant, resulted in payment of an income tax refund to the appellant in 2008 in the amount of $36,851.75.
25The trial judge ordered that the appellant include one-half of the pro-rated value of his income tax refund in his net family property.
26The appellant submits that this was an error. We agree. The appellant received the phantom stock payment in June 2007 and included the net amount in his net family property statement, calculated as of the valuation date of August 7, 2007.
27The $75,000 investment was made after the valuation date. It was an error to include any part of the refund attributable to the $75,000 investment in the appellant’s net family property. If the appellant’s remaining RRSP investments were made prior to the valuation date, the parties may recalculate the inclusion, using the same formula as the trial judge used.
(7) Alleged Reasonable Apprehension of Bias
28The appellant also contends that a reasonable apprehension of bias arose from interventions at trial by the trial judge, resulting in hearing unfairness and a denial of procedural justice. We disagree.
29This was a hotly contested trial. It appears that almost every conceivable property and support issue arising from the separation of the parties was disputed. In this context, we are not satisfied that the impugned comments of the trial judge, or the number of his interventions at trial, rise to the high threshold necessary to establish a reasonable apprehension of bias. This ground of appeal is also dismissed.
Disposition
30On this appeal, the appellant seeks to retry numerous aspects of this case. That is not the role of this court. While we might have resolved certain of the contested issues at trial in a manner that differs from that of the trial judge, apart from our above-noted comments, we see no reversible error in his decision.
31Accordingly, the appeal is allowed, in part, in accordance with these reasons. The appellant has been successful on only three of the numerous issues raised on appeal, and those issues are relatively minor in nature. As a result, the respondent is entitled to some of her costs of the appeal, which we fix in the total amount of $15,000, inclusive of disbursements and applicable taxes. Of that amount, the sum of $10,000 shall be designated as attributable to spousal support owed by the appellant to the respondent.
32Finally, the appellant seeks leave to appeal the trial judge’s award of costs to the respondent. In light of the disposition of this appeal, we see no merit to the appellant’s challenge of that discretionary costs ruling. In our view, the award is not tainted by any error in principle, nor is it plainly wrong. We therefore decline to grant leave to appeal the costs award at trial.
RELEASED:
“DEC 21 2010”
“JS” “Janet Simmons J.A.”
“E.A. Cronk J.A.”
“J. MacFarland J.A.”
