Court of Appeal for Ontario
Juriansz, Brown and Roberts JJ.A.
BETWEEN
Lynn Anne Johanson
Applicant/Appellant
and
Virginia Anne Hinde
Respondent/Respondent
Counsel:
Mark Simpson, for the appellant
Virginia Anne Hinde, acting in person
Heard: May 27, 2016
On appeal from the order of Justice Russell M. Raikes of the Superior Court of Justice, dated September 23, 2015.
ENDORSEMENT
1The deferential standard of review of decisions of trial judges on questions of fact, and questions of mixed fact and law, is designed to promote finality and to recognize the importance of trial judges' appreciation of the facts. If anything, this is more accentuated in family litigation. It is only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong, that an appellate court is entitled to interfere.
2In this case, the interpretation of the parties’ email exchanges considered in the surrounding context is a question of mixed fact and law to be reviewed on the deferential standard. It seems to us that on appeal the appellant sought to re-argue the case presented at trial. Our function in hearing the appeal is more limited. We decide only whether the trial judge made an overriding and palpable error in reaching his findings.
3Here there was ample support in the record including the appellant’s own testimony at trial for the trial judge’s findings that the parties entered into a settlement agreement, that it was the appellant who breached the settlement agreement and it was the appellant who frustrated the settlement’s implementation. These findings were based, in part, on his assessment of the appellant’s credibility.
4We are not persuaded that consideration of the parties’ post-agreement communications and conduct establishes the trial judge made overriding and palpable errors. The offers and proposals in emails made subsequent to the agreement to which counsel directed our attention, either did not establish the parties’ amended or repudiated their agreement or could be considered attempts to mitigate on the part of the respondent after the appellant’s breach. They do not undermine the findings of the trial judge.
5Further, the trial judge was entitled to infer that the fact that the City of Sarnia had provisionally approved the severance application indicated the City would have approved the severance had a new or amended application been brought jointly by both parties.
6Finally, we consider the remedy the trial judge chose entirely appropriate in the circumstances. He sought to put the parties in roughly the same position they would have been in had the settlement agreement been performed while recognizing that the properties had been sold. The repudiation analysis that counsel urged before us was not advanced at trial.
7In conclusion, we are not persuaded there is any basis for interfering with any aspect of the trial judge’s decision. The appeal is dismissed.
8We fix costs in favour of the respondent in the amount of $2,000 all inclusive.
“R.G. Juriansz J.A.”
“David Brown J.A.”
“L.B. Roberts J.A.”
