COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and Epstein JJ.A.
BETWEEN
Jennifer Leslie Rogers
Applicant (Respondent)
and
Kevin Lindsay Rogers
Respondent (Appellant)
Ted R. Laan, for the respondent (appellant)
Laura E. Oliver, for the applicant (respondent)
Heard and released orally: August 11, 2014
On appeal from the orders of Justice Snowie of the Superior Court of Justice, dated March 28, 2013 and April 23, 2013.
ENDORSEMENT
Issue #1 – The “Excluded” Property Issue
1This argument on this issue arises primarily, if not exclusively, from the trial judge’s findings of fact. Those findings were very much influenced by the strong credibility findings made by the trial judge against the appellant, his witnesses and the documents those witnesses relied on in advancing their claim. The trial judge gave reasons for her findings. She also, at para. 19, identified the three significant factual questions to be addressed on this issue.
2Deference sounds the keynote in this court’s review of the trial judge’s findings of fact. In our view, her credibility assessment and the findings of fact that flowed primarily from that assessment are supported by the record and her reasons reveal no misapprehension of the evidence. We cannot say that her assessment is unreasonable. Consequently, we cannot interfere with that finding.
3In a related submission, counsel argued that the trial judge misapplied the test for tracing by requiring that the asset in issue be kept separate from other assets as a precondition to tracing. We do not agree that the trial judge imposed that requirement. The trial judge simply found on the totality of the evidence that the appellant could not trace the excluded assets into an asset he owned as of the date of separation.
Issue #2 – The Value of the Shares
4This was also a fact-driven issue. The trial judge was entitled to reject the evidence of the appellant’s expert. She gave reasons for doing so and, in our view, those reasons are not unreasonable or unsupported by the evidence. The trial judge, importantly, also relied on certain correspondence from the appellant to his wife (Exhibit 15). That correspondence was inconsistent with the evidence advanced at trial by the appellant and inconsistent with the premise of the appellant’s expert testimony.
5We would not interfere with the trial judge’s assessment of the expert evidence. Consequently, there is no basis to interfere with her finding as to the value of the shares at the time of marriage.
6The appeal is dismissed.
7Counsel have very helpfully agreed that if the appeal were to be dismissed, as we have concluded it must be, that an order in terms of the draft order submitted by counsel for the respondent should issue. We so order.
8The respondent is entitled to costs in the amount of $11,000, inclusive of disbursements and relevant taxes.
“Doherty J.A.”
“John Laskin J.A.”
“Gloria Epstein J.A.”
