Court of Appeal for Ontario
Judges: Epstein, Hourigan and Paciocco JJ.A.
Between
Tammy Emmerson Applicant (Appellant)
and
Troy Emmerson Respondent (Respondent)
Counsel:
- Tammy Emmerson, acting in person
- Ashley McInnis, for the respondent
Heard: June 23, 2017
On appeal from the judgment of Justice Richard T. Bennett of the Superior Court of Justice, dated March 31, 2016.
Overview
1This appeal addresses financial issues arising from marital breakdown.
2On January 12, 2010, the appellant Tammy Emmerson entered into a separation agreement with her then-husband, the respondent Troy Emmerson. Five years later, the appellant commenced an action to set aside the separation agreement, on the basis of the respondent's material non-disclosure. She also sought orders awarding her spousal support, increased child support, and equalization of the respondent's undisclosed assets.
3The trial judge set aside the separation agreement through an order dated March 31, 2016. Upon setting aside the agreement, the trial judge made a number of orders pertaining to division of assets and child and spousal support. The respondent's book of business (the "Book") was valued at $120,000 and determined to be his only asset for equalization purposes. The trial judge also increased the amount of the respondent's monthly child support obligations, finding his income to be greater than the amount he had claimed in his evidence at trial. The appellant's claim for spousal support was denied.
4In this appeal, the appellant challenges three aspects of the trial judge's decision: 1) the valuation of the Book; 2) the finding that she is not entitled to spousal support; and 3) the quantification of the respondent's income for the purposes of child support (and spousal support, should her argument on that front succeed).
5In support of her second and third grounds of appeal, the appellant has brought a motion asking this court to admit fresh evidence. The proposed evidence falls into two categories – an update of the respondent's commission earnings for 2014 and 2015, and photographs that the appellant says demonstrate the disparity in the parties' lifestyles, post-separation. For reasons provided below, I would admit only the fresh evidence of the respondent's updated income.
6On the main grounds of appeal, I have concluded that the trial judge erred in his assessment of the respondent's income for child support purposes, and in dismissing the appellant's claim for spousal support. I would increase the amount of child support arrears, adjust ongoing child support and award ongoing spousal support for a period of ten years from the date of separation. In all other respects, I would dismiss the appeal.
Background
7A brief summary of the facts is set out here. I provide additional facts where necessary when discussing the decision below and the parties' submissions.
8The parties began cohabiting on February 1, 1992, and were married on October 1, 1999. They have one child, Nathan, born March 5, 2001. The parties separated on September 1, 2009, but, for a time, continued to reside together in the former matrimonial home. The parties entered into a separation agreement on January 12, 2010.
9When negotiations over the agreement began in September 2009, the respondent was employed by Money Concepts as a financial planner. By early November 2009, he decided to leave Money Concepts and move to Investment Planning Council ("IPC"). About a year later, the respondent moved from IPC to World Source Financial Management ("WSFM"). He worked in financial planning at these various companies, and was paid commissions through numbered companies.
10By January 12, 2010, when the separation agreement was signed, the respondent had moved out of the matrimonial home. The appellant remained in the home pending the completion of its sale in March, 2010. She then stayed in rental accommodations until the respondent purchased, in his own name, a residence at 172 Churchland Drive for her and Nathan to live in. The respondent advanced the $30,000 down payment for the property and made most of the mortgage payments. When he sold this home, the respondent received net proceeds of sale in excess of $83,000.
11Nathan primarily resided with his mother following separation, except for a 13 month period between March, 2013 and April, 2014 when the parties shared joint custody. In May 2012, the respondent was ordered to start making monthly child support payments of $546 based on presumed annual income of $60,000. The respondent was also ordered to pay retroactive child support for the months of March and April, 2012.
12On July 26, 2011, the appellant initiated these proceedings in which she applied to have the separation agreement set aside pursuant to s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA"). The appellant claimed that the respondent had failed to disclose the existence of a significant asset – the Book – and sought an equalization payment based on her valuation of this asset. The appellant also alleged that the respondent had materially misrepresented his income. She sought retroactive and ongoing child and spousal support, based on adjusted income figures.
13The respondent sought an order upholding the validity of the separation agreement. He argued that he did not own the Book at the time he signed the separation agreement and that he had not misrepresented his income. He opposed the appellant's request for spousal support and increased child support.
Decision Below
14The following is a summary only of the relevant portions of the trial judge's reasons for setting aside the separation agreement. I discuss the balance of the trial judge's reasons within my analysis of each ground of appeal raised before this court.
15On the question of whether the separation agreement should be set aside, the trial judge applied the two-part test from Levan v. Levan, 2008 ONCA 388, 90 O.R. (3d) 1. In the circumstances of this case, the trial judge had to determine whether there was non-disclosure of a significant asset, and if so, whether it was appropriate to set aside the domestic contract.
16The trial judge first considered whether there had been non-disclosure of a significant asset. It was not disputed that the separation agreement was negotiated on the assumption that the respondent did not own the Book. At trial, the appellant submitted the respondent did, in fact, own the Book at the relevant time and had failed to disclose that fact.
17The trial judge agreed. He based this conclusion on the respondent's having received a $120,000 transition allowance when he moved from Money Concepts to IPC. The trial judge reasoned that IPC would not have been willing to pay a transition allowance if the respondent was not planning to bring clients with him. The respondent had not disclosed this transition allowance while negotiating the separation agreement. In fact, he took steps to hide it by directing mail to his parents' address and having IPC deposit the initial installment of the allowance into his parents' bank account.
18Based on a review of the parties' financial information and the respondent's conduct during negotiations, the trial judge concluded that the nondisclosure of the Book constituted nondisclosure of a significant asset, sufficiently serious to justify setting aside the separation agreement.
19The trial judge made further orders relating to equalization payments and child and spousal support obligations. As each of those orders is the subject of a discrete ground of appeal, I will discuss the balance of the trial judge's reasons within my analysis of the submissions advanced by the parties before this court.
Analysis
Issues and Standard of Review
20The appellant submits that the trial judge erred in:
(a) determining the equalization payments owing to her based on a flawed assessment of the Book's value;
(b) quantifying the respondent's income for child support purposes; and
(c) dismissing her claim for spousal support.
21On points of law, the trial judge's decision is reviewable on a standard of correctness. Any factual determinations must be reviewed on a reasonableness standard.
22Spousal support decisions attract significant deference. This is informed by both the discretion involved in making support orders and the importance of finality in family law litigation. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.
A. Did the trial judge err in valuing the Book?
(1) The trial judge's reasons
23The trial judge determined the equalization payments owed to the appellant based solely on his appraisal of the Book's value. He found that the respondent had no other assets affecting his net family property.
24The appellant called an expert who had been retained to value the Book. The expert testified that he had not obtained sufficient disclosure from the respondent to value the Book. The appellant therefore sought to tender material from the internet to provide the court with a method for assessing the Book's value.
25The appellant's independent internet research indicated three methods for valuing a financial practice. She advocated for the "recurring revenue" approach. Under this approach, the Book's value would be equal to the gross commissions paid to the respondent from the businesses in the Book, multiplied by a factor of 2-3.5. This approach was also employed in a share purchase agreement that assessed the value of a buyout of the respondent's shares in a numbered company. The share purchase agreement referred to that methodology as "standard industry practice".
26The trial judge did not accept appellant's proposed method. Instead, he held that the $120,000 transition allowance from IPC was the best evidence of the value of the Book at the date of separation. While acknowledging that it would have been open to him to accept an alternate approach to valuing the Book, the trial judge was persuaded that IPC's willingness to pay $120,000 for the respondent to transfer his assets under management to them provided probative, contemporaneous evidence of the Book's value. Given that the respondent did not declare the transition allowance as income on his tax returns, the trial judge valued the Book at $120,000 at the time of separation, without any deduction for income taxes.
27As the Book was the only asset that affected the respondent's net family property, the trial judge ordered the respondent to make an equalization payment of $60,000 with pre-judgment interest from September 1, 2009.
(2) The parties' submissions
28The appellant submits that the trial judge erred in determining that the $120,000 transition allowance was the best evidence of the value of the Book. She argues that the transition allowance has no relation to the Book's value as the respondent received the transition allowance while continuing to own the Book. Moreover, given that the respondent's lack of disclosure prevented her expert from valuing the Book, the appellant submits the trial judge's approach effectively rewards the respondent for his subversive behaviour.
29The appellant contends that the internet research she proffered at trial provides an alternate approach to determining the Book's value. She asks for an order that the Book be valued at between $408,666.66 and $715,166.66 (being 2 to 3.5 times the average gross dealer commission listed in the contemporaneous IPC agreement).
30The respondent argues that the trial judge was correct to reject the internet material the appellant proffered. The transition allowance provided the best and only available evidence the of Book's value, particularly as the payment was made contemporaneously with the negotiation of the separation agreement.
(3) Analysis
31I would not give effect to this ground of appeal.
32The trial judge gave fair consideration to the appellant's proposed alternative valuation approach. At paras. 255-256 of his reasons, he acknowledged that a share purchase agreement to which the appellant was a party employed the "commission earnings" approach outlined in the appellant's internet research. Based on that evidence, the trial judge acknowledged that "it certainly would have been open to this court to find that the value of the [Book] at the date of separation was far higher than the $120,000 transition allowance that [the respondent] received."
33The trial judge, however, chose to rely on the transition allowance as the fairest available assessment of value. In my view, this was a reasonable choice. The trial judge received no independent evidence as to the reliability of the appellant's internet research or the assumptions on which it was based. While the share purchase agreement provided some corroboration for the appellant's suggested valuation, the trial judge determined it did not provide sufficient support to establish the commission multiplier approach as the best marker of value. This conclusion is entitled to deference.
B. Did the trial judge err in determining the respondent's income for child support purposes?
(1) The trial judge's reasons
34To assess the appellant's claims for increased retroactive and prospective child support, the trial judge had to first determine the respondent's income from 2009-2014.
The Respondent's Income (2009-2014)
35When negotiating the separation agreement in the fall of 2009, the respondent informed the appellant that his income was $48,000. However, the respondent's income tax returns and notices of assessment/reassessment showed that he had represented the following incomes to the Canada Revenue Agency ("CRA") from 2006 to 2009: 2006 - $161,548.53, 2007 - $154,683, 2008 - $90,153, 2009 - $86,141.
36The trial judge found that the appellant's representation of income to the CRA was the best evidence of his 2009 income. In his view, it defied logic that the respondent would have overstated his income to the CRA. Accordingly, the respondent's statements to the appellant as to his 2009 income amounted to material misrepresentations. When the respondent filed his 2009 income tax return, he would have known that his income was far higher than what he represented to the appellant in January 2010.
37The trial judge found that the respondent's representations to the appellant and to the court about his income level from 2010 to 2014 were similarly unhelpful.
38At trial, the respondent disclosed post-separation income from his notices of assessment/reassessment, as follows: 2010 - $42,310, 2011 - $46,048, 2012 - $36,568, 2013 - $62,968, and 2014 - $59,695. The trial judge found, however, that the respondent's income tax returns and notices of assessment/reassessment for these years did not "in any way" disclose his real income.
39Instead, the trial judge concluded that the commissions paid to the respondent by IPC – and later, WSFM – provided the best indication of his post-separation income. Those commissions were deposited in the bank accounts of two numbered companies incorporated by the respondent and his partners Michael Kidman and Greg Merkley: 1793803 Ontario Ltd. ("179") and 1862065 Ontario Inc. ("186").
40The respondent incorporated 179 when he joined IPC with Kidman and Merkley. Commissions owing to three parties would be paid by IPC into 179's bank accounts. The respondent had his own account into which his commissions were deposited (the "179 Individual Account"). There was also an operating account out of which joint overhead expenses were paid (the "179 Joint Account").
41About a year after starting work at IPC, the respondent transitioned to WSFM. He received a further transition allowance. WSFM deposited commissions into the 179 bank accounts in the same manner as IPC.
42In 2012, Kidman and Merkley incorporated 186. The respondent directed WSFM to pay his commissions into his 186 accounts. After incorporating 186, Kidman and Merkley entered into an agreement to purchase the respondent's shares of 179. The alleged purchase price was $187,000, to be paid in equal instalments of $37,400 commencing on May 8, 2012. At trial, the respondent took the position that he was merely an employee of 186, receiving a salary of $40,000 a year, plus 25% of the commissions realized on any "new" business.
43The trial judge found that 186 had been incorporated for no reason other than the litigation and that the respondent was not merely an employee of the company. He concluded that the commissions paid by WSFM to the respondent that were deposited into his 179 Individual Account (or later, his 186 account), were the best evidence of his real income. Other "joint" commissions the respondent earned were deposited by WSFM into the 179 Joint Account (and in all likelihood, the trial judge found, into a similar type of account with 186). The trial judge concluded that these "joint" deposits were the respondent's contributions to the joint operating expenses or overhead of 179 and 186. The trial judge therefore excluded these deposits from the respondent's imputed income.
44Disclosure obtained by the appellant prior to trial revealed that the respondent received the following commissions in his 179 Individual Account (and later, his account with 186): 2010 - $170,600, 2011 - $165,239, 2012 - $163,166, 2013 - $173,274, 2014 (January to August) - $156,315.
45The trial judge, however made two further adjustments to these commission earnings figures to determine the respondent's income for child support purposes.
46First, the trial judge deducted 15% from the respondent's commission earnings from 2010-2014, on the basis that the respondent was essentially a commission salesman and entitled to deduct some business expenses from his earned commissions. In round numbers, the respondent was found to have the following income in the years 2010 to 2014: 2010 - $145,000, 2011 -$140,500, 2012 - $138,700, 2013 - $147,000, 2014 - $132,800.
47Second, the trial judge calculated the respondent's child support obligations for any given year using an average of 85% of his last three years of imputed income. In the trial judge's view, to simply base child support obligations on the respondent's previous year's income would invite the respondent to continue to thwart the appellant's attempts to obtain disclosure and reasonable child support based on that disclosure.
48Relying on this approach, the trial judge turned to determining the respondent's child support obligations from 2010 to 2015.
The Respondent's Child Support Obligations (2010-2015)
49The trial judge determined no child support was owing for 2010 and 2011, as a result of financial assistance the respondent provided to the appellant during those years. Following separation, the respondent provided money to the appellant on an ad hoc basis. As previously indicated, he purchased a home for the appellant and Nathan and made mortgage payments on that property. On the basis of these payments, the trial judge concluded that any retroactive claim for support should date back only to May 1, 2012. That date roughly coincided with the commencement of the temporary monthly child support order of $546, pursuant to the 2009 separation agreement.
50As the court did not have evidence of the respondent's total commission income for 2009, his 2012 income for child support purposes was the average of his 2009 income of $86,141 (as stated in his tax return) and 85% of commission earned in 2010 and 2011. This gave rise to an obligation to pay monthly child support of $1,060 for the eight months in which child support was due in 2012 (May to December).
51For 2013, the respondent's income for child support purposes was 85% of the average of his 2010, 2011 and 2012 commissions, resulting in $1200 a month in child support. However, for 10 months during this period, Nathan was sharing time between his parents, equally. Accordingly, the trial judge set-off child support payable by the appellant, based on her 2012 income of $56,120.
52For 2014, the respondent's income for child support purposes was 85% of the average of his 2011, 2012 and 2013 commissions, resulting in $1,203 per month in child support. However, four months of joint custody had to be set-off, based on the appellant's 2013 income of $58,575.
53For 2015, the respondent's income for child support purposes was 85% of the average of his 2012, 2013 and 2014 commissions, resulting in $1,188 per month in child support. The trial judge's assessment of the respondent's 2014 commission earnings was based on figures from January to August.
54As the court did not yet have evidence of 2015 commissions, child support obligations for 2016 were ordered to continue based on the 2015 figure, at $1,188 per month, until further disclosure was provided in accordance with the trial judge's decision.
55The following is the total of child support arrears found to be owing from 2012 - 2015: 2012 - $4,112, 2013 - $2,748, 2014 - $5,760, 2015 - $7,704, 2016 (to March) - $1,926. These calculations yielded arrears totalling $22,250.
56Ongoing support was ordered to be paid in accordance with the above-noted three-year income averaging formula.
(2) The parties' submissions
57The parties do not contest the trial judge's decision to award retroactive child support, or his decision to use the respondent's commission earnings from IPC and WSFM as the best evidence of his income for child support purposes from 2010 to 2014.
58The appellant, however, raises several other issues about how the trial judge calculated the respondent's income for support purposes from 2010-2015. Two of those objections apply to all six of those years. I will address those at the outset.
59First, the appellant submits the trial judge erred in applying a 15% "business expenses" reduction to the respondent's commission earnings. The trial judge had already excluded from the respondent's income commissions deposited into the 179 and 186 Joint Accounts, on the basis that such funds were used primarily for business expenses and overhead costs. Yet the trial judge further reduced the respondent's income for support purposes by a further 15%, on the basis that he was a commission salesperson who "may" have incurred other, undisclosed business expenses.
60The respondent urges deference to the trial judge's finding that some expenses should be legitimately deducted from the commissions earned.
(3) Analysis
61I agree with the appellant's position. In my view, the trial judge erred in deducting business expenses given the lack of evidence from the respondent on this point, coupled with the trial judge's finding that the "lion's share of the [respondent's]'s business expenses were paid through [179]". The burden of proof for the deductions rested with the respondent. The trial judge accounted for the respondent's business expenses by declining to impute income based on the commission earnings deposited into the Joint Accounts. Any further deductions, in my view, needed to be supported by evidence. They were not.
62The appellant's second, broad objection to the trial judge's income calculations relates to his decision to average the respondent's income for the three previous years in relation to the year in which support was owing. The trial judge's stated purpose for doing so was to protect the appellant from non-disclosure. However, given the steady increase in the respondent's income, the appellant submits this averaging in fact reduced the respondent's support obligations and rewarded him for non-disclosure.
63I agree with the appellant on this issue as well. The trial judge provides no explanation of the averaging approach and instead simply states at para. 276 that "it is reasonable to base the respondent's child support obligations on the average of 85% of his last three years commission income."
64Section 17(1) of the Child Support Guidelines, O. Reg. 391/97 permits the court to look at the spouse's income over the last three years in the following circumstances:
17(1) If the court is of the opinion that the determination of a parent's or spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent's or spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
65At the same time, as this court stated in Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 138"the Guidelines rely on the more recent past to predict the near future and do not adopt average as a default methodology."
66In my view, it was an error for the trial judge to use a three-year average of income without providing a satisfactory explanation of how the use of each year's income would be unfair to either party. The trial judge, moreover, was not predicting future income for the purpose of ordering support, but determining support arrears. In this context, the trial judge's averaging approach was not logically connected to his stated objective: to protect the appellant from the effects of the respondent's non-disclosure.
67I would therefore base the child support amounts owing for the years 2010-2014 on the income findings for each year as set out above, but without applying a 15% deduction for business expenses.
68With that general approach in mind, I now turn to the appellant's more specific objections to the trial judge's child support calculations from 2010-2014.
2010
69The appellant submits the trial judge erred in determining that no child support was owing for 2010. She points to two errors in his reasons.
70First, the appellant argues the trial judge failed to consider the evidence that, in exchange for the respondent's "financial assistance" in 2010, the appellant transferred to him her locked-in RRSP, worth approximately $45,000. The appellant claims this transfer occurred because of the respondent's misrepresentations, as he provided assistance under the guise of "loans" rather than paying the equalization and support to which the appellant was entitled. The reality, the appellant claims, is that the respondent paid no child support for 2010, and also fraudulently obtained a significant income-producing asset.
71Second, the appellant submits the trial judge erred by failing to calculate what the respondent's child support obligations should have been for 2010. Accordingly, he was unable to determine if the respondent's support obligations would have exceeded the financial assistance he provided that year. Relatedly, the trial judge failed to consider whether the 2009 transition payment from IPC of $120,000 should be added to the respondent's 2009 income. Had that transition allowance been added, the respondent's child support obligations may well have exceeded any financial assistance he provided.
72The respondent submits the trial judge's determination of income is entitled to deference. The respondent also contends that the 2009 IPC transition payments should not be added to the respondent's income. The respondent points out that the IPC transition allowance was found to be an asset as of the date of separation, and ordered equalized between the parties. Accordingly, adding this sum into his income would be double recovery.
73Except on the issue of the IPC transition allowance, I am in substantial agreement with the appellant's position.
74The trial judge made no reference to or findings regarding the appellant's argument that the respondent's "financial assistance" was provided as consideration for the appellant's transferring her locked-in RRSP. This was, in my view, an error, given the evidence at trial supporting the appellant's position. The appellant points to an email from the respondent that refers to the RRSP transfer as a "swap", a CRA form confirming the RRSP transfer, evidence of the transfer from the appellant's 2010 financial statements, evidence of the RRSP in the respondent's accounts, as of December 31, 2012, valued at $48,999.01, and evidence of the RRSP's value from the appellant's financial statements, valued at $45,000 as of June 1, 2010.
75This evidence supports the appellant's claim that the respondent's "financial assistance" was in fact in direct consideration for the RRSP transfer and should not be treated as in lieu of child support. The trial judge erred by failing to address this issue in his reasons.
76I would accordingly award the appellant retroactive child support for 2010. In my view, the amount of those obligations should be calculated based on the respondent's imputed income for 2009 as found by the trial judge; namely, $86,141.
77I would not add the respondent's 2009 transition allowance from IPC to that figure. I agree with the respondent that since that transition allowance was accounted for in valuing the Book as part of the net family property calculation and equalization payment, to count it as income as well would amount to double-dipping: Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, at paras. 63-64.
78The appellant also submits that the respondent's reported 2009 income of $86,141 included deductions that should be added back, including capital cost allowance on a personal vehicle, as well as other personal expenses. I disagree, and see no basis to interfere with the trial judge's determination of the appropriate measure of the respondent's income for 2009.
2011
79The appellant takes issue with two, related aspects of the trial judge's decision not to award any child support for 2011.
80First, the appellant submits that the trial judge failed to explicitly determine if the respondent's child support obligations for 2011 exceeded any financial assistance he provided to the appellant that year. Second, he failed to consider whether a transition payment from WSFM, totalling $147,576, should be added to the respondent's 2010 imputed income.
81The respondent submits that, as the 2009 IPC transition allowance was already deemed to be property, it would be unjust to characterize the WSFM transition allowance as income.
82In my view, the trial judge erred by failing to calculate the respondent's child support obligations for 2011. He was therefore unable to assess if those obligations exceeded the amount of financial assistance provided by the respondent that year. This omission is made more significant given my further conclusion that the trial judge should also have added to the respondent's 2010 imputed income the first installment of the transition payment the respondent received from WSFM. That payment of $72,000 did not factor into the trial judge's calculation of the Book's value, or his determination of equalization payments. It does not raise the same "double dipping" concerns as the IPC transition allowance.
83As a result of these errors, this court is not in a position to assess if the amount of child support owed to the appellant in 2011 exceeds the financial assistance provided by the respondent (through mortgage payments) in that year. The record before this court, unfortunately, does not indicate the precise amount that the respondent contributed to the mortgage payments on the house.
84I therefore reluctantly order that the issue of 2011 child support arrears be remitted to the Superior Court for determination on the following basis. The appellant is entitled to child support on the basis of imputed income of $242,600 (the respondent's 2010 commission earnings of $170,600, along with the first installment of a transition allowance from WSFM, totaling $72,000) less the total amount of mortgage payments made by the respondent in 2011 for the property where the appellant and Nathan resided.
85That said, I strongly urge the parties to reach an out-of-court agreement on this issue.
2012-2014
86The respondent received the second installment of his transition payment from WSFM, totaling $75,576.25, in April 2011. For the reasons provided above, I would add that figure to the respondent's imputed income for 2011. His 2012 child support obligations should be adjusted accordingly.
87Subject to my above comments regarding averaging and deductions for business expenses, I see no other error in the trial judge's calculation of child support arrears owing during this period. The trial judge calculated total arrears based on the difference between the amount that the respondent was obliged to pay based on his imputed income, less the amount the respondent had actually paid during this time pursuant to the temporary child support order. The trial judge also properly took into account the periods of time during which Nathan was spending equal time with both parents.
2015
88The appellant submits the trial judge calculated the respondent's child support obligations for 2015 on the basis of an incomplete record. The evidence at trial about the respondent's 2014 commission earnings only included information from January to August of that year.
89To supplement the trial record, the appellant has brought a motion for fresh evidence that discloses, among other things, the respondent's commission earnings for all of 2014. I would admit the evidence of the respondent's 2014 commission earnings. It provides the proper measure of the respondent's 2015 child support obligations. The respondent does not oppose its admission. I would therefore vary the trial judge's child support calculations for 2015 based on the appellant's fresh evidence of the respondent's 2014 commission earnings.
2016
90For prospective child support beginning in 2016, the trial judge noted at para. 299 that "[s]ince the court does not have any evidence as to [the respondent's] 2015 commission income, his child support obligations for 2016 will continue at $1,188 per month until further disclosure is made according to this decision".
91The appellant seeks to introduce new evidence of the respondent's commission earnings for 2015. The respondent initially objected to the admission of this evidence as it did not exist in its entirety at the time of the trial, which concluded on November 30, 2015. In additional submissions provided on appeal, however, the respondent accepted that this court should determine his child support obligations for 2016.
92Accordingly, for efficiency, I agree with both parties that this court should determine the respondent's 2016 child support obligations based on the appellant's fresh evidence of the respondent's commission earnings in 2015. I would therefore award the appellant child support for 2016 - based on imputed income of $218,499.45 – less the amounts the respondent should already have paid in child support for that year pursuant to the order under appeal. This ruling is made without prejudice to the appellant's ability to bring a motion to change if the respondent has not, in fact, fulfilled those obligations for 2016.
C. Did the trial judge err in his disposition of spousal support?
(1) The trial judge's reasons
93In the five years preceding the separation, the appellant's income from her employment as a court reporter was in the range of $40,000 to $60,000 a year. The respondent's income during that time ranged from $86,000 to $154,000.
94Five years following their separation, the appellant's financial statements indicated total annual income of $66,383, less than her total yearly expenses of $72,981. The respondent's commission earnings from WSFM for 2015 totaled $218,499, compared to reported yearly expenses at the beginning of this litigation of $69,060.
95At trial, the appellant submitted she was entitled to spousal support. The trial judge disagreed, for the following reasons:
(a) during the marriage the parties were both gainfully employed outside the house;
(b) during the marriage, both parties shared responsibility for caring for Nathan. The trial judge found that the appellant's childcare or other marital responsibilities did not adversely affect her employment opportunities;
(c) even if the appellant had been prevented from earning more income by the respondent's failure to fund her education, this did not create entitlement to spousal support; and
(d) the fact that during cohabitation the respondent's income may have been significantly higher than the appellant's did not create entitlement either.
(2) The parties' submissions
96The appellant argues that the trial judge, in dismissing her claim for spousal support, failed to consider any of the objectives found in s. 15.2(6) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). Further, the trial judge failed to make any findings of fact in relation to the evidence of the "conditions, means, needs and other circumstances" of the parties, as required by s. 15.2(4). Accordingly, there are no findings upon which deference is due.
97The appellant further submits that the failure to pay proper equalization and support upon separation is a relevant circumstance for consideration in relation to spousal support. The consequences of that misconduct are also relevant. The appellant submits that, in reliance on the respondent's serial misrepresentations, she put her career aspirations on hold with the result that her standard of living post-separation has been significantly depressed. The appellant also claims that the respondent's failure to disclose his actual income after separation prevented her from staying in the matrimonial home, resulting in significant financial hardship for several years post-separation.
98The respondent submits that the standard of review on all matters relating to support is highly deferential. In determining that the appellant had failed to surpass the threshold of entitlement to spousal support, the trial judge specifically cited s. 15 of the Divorce Act, as well as this court's seminal decision in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241. The record fully supported all his findings.
99In terms of compensatory support, the respondent submits that Ontario jurisprudence clearly demonstrates that all long-term marriages do not give rise to such an entitlement. The purpose of compensatory support is to share the economic advantages and disadvantages that accrued on account of the marriage and its subsequent breakdown. The evidence at trial, and recent case law, fully supports the trial judge's finding that the appellant had no entitlement to compensatory support (i.e. both parties were employed, and the appellant's marital responsibilities did not adversely affect her employment).
100Regarding non-compensatory spousal support, the Supreme Court has been clear that marriage per se does not entitle a spouse to support. Based on the evidence, the trial judge concluded that this was the kind of marriage alluded to in Moge v. Moge, [1992] 3 S.C.R. 813, in which no support would be called for following the breakdown of the marriage. He also correctly noted that disparity of income does not by itself create an entitlement to spousal support.
101The respondent also notes that the appellant continues to enjoy a standard of living commensurate to that which she was accustomed to during the marriage. The fact that child support was awarded retroactively addresses any need the appellant alleges to have experienced following the separation.
(3) Analysis
102Under the Divorce Act, the factors to consider in making a spousal support order include (a) the length of time spouses cohabited; and (b) the functions performed by each spouse. The objectives of spousal support set out in s.15.2(6) are to:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
103Entitlement is a threshold question: Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 49. It can be compensatory, non-compensatory or some combination thereof.
104I would not interfere with the trial judge's decision to dismiss the appellant's claim for compensatory spousal support. Where he erred, in my view, is in his failure to consider any basis for non-compensatory support.
105According to the Spousal Support Advisory Guidelines, The Revised User's Guide (Ottawa: Department of Justice, 2016) ["SSAGs"], at ch. 4"[c]ommon markers of non-compensatory claims include the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant".
106In my view, the trial judge erred in failing to consider in his analysis of spousal support the respondent's misrepresentations concerning his income and the impact they had on the appellant during the marriage and after it came to an end.
107The respondent's deceit of the appellant in relation to his income was a significant feature that adversely affected the appellant's economic prospects post-separation. The economic disadvantage arising out of this deception shows itself in the evidence at trial that demonstrated the economic hardship experienced by the appellant and the disparity in the parties' standard of living after this lengthy relationship had come to an end.
108The trial judge made no findings of fact concerning the respondent's misrepresentations in relation to the parties' economic interdependence, the marital and post-marital standards of living and, most significantly, the financial impact on the appellant of the respondent's chronic misrepresentations as to his income. In the result, contrary to the edict in Moge, at pp. 866-867, the economic impact of the marriage and its termination were not equitably shared between the parties.
109During their lengthy relationship, the appellant took a full-time salaried position as a court reporter, allowing the respondent to focus on building his network of contacts. As his income increased, and as the trial judge's reasons indicate, he deceived and withheld information from the appellant. The respondent had to forgo any educational upgrading, as she believed her continued employment income was essential to the family.
110The trial judge found that the possibility of lost employment opportunities did not, by itself, create an entitlement to spousal support. However, the trial judge was bound to consider this evidence in combination with the other impacts of the respondent's misrepresentations to the appellant. The evidence supports the finding that had the respondent not misrepresented his income and assets, and instead, as of separation, provided the support and equalization ultimately found owing, the appellant would have had the funds to purchase and remain in the matrimonial home, or to provide a down payment on another suitable home. As a consequence of the respondent's behaviour, her financial circumstances have been significantly impacted.
111The economic disadvantage to the appellant was further exacerbated by the respondent's conduct when, rather than providing full disclosure post-separation, he provided financial assistance in the guise of "loans", and later sought repayment through a transfer of the entire amount of the appellant's locked-in RRSP. At the time of the "loans" and subsequent RRSP transfer, the appellant had no knowledge that equalization and more generous support was owing her. The transaction would not have been necessary if full disclosure had been made. As a result, the appellant's financial security upon retirement has been comprised. The respondent, by contrast, was in a position to contribute $22,000 to his own RRSP less than five months after separation, as well as purchase two homes with significant down payments. During litigation, he sold both of these properties for a significant profit.
112In my view, an award of spousal support would be appropriate in the circumstances.
113I note, however, that in my analysis of spousal support I have not relied on the photographs of the parties' homes tendered by the appellant as proposed fresh evidence of disparity in their standards of living. In my view, the photographs should not be admitted. No evidence has been offered to give the photographs any context to support an assessment of their credibility and relevance. They do not meet the requirements for admission of fresh evidence set out in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775; Virc. v. Blair, 2017 ONCA 394, at para. 52.
114Nonetheless, I would give effect to this ground of appeal. I would award the appellant retroactive and ongoing time-limited spousal support on a non-compensatory basis at the low-end of the SSAGs for 10 years from the date of separation. From 2010-2016 the appellant is entitled to $192,514 in spousal support. From 2017 to 2020, the respondent is to pay the appellant spousal support in the amount of $2,672 per month.
Disposition
115I would allow the appeal in part. I would vary child support and order the respondent to pay spousal support, as indicated above.
116If the parties are unable to resolve the respondent's 2011 child support arrears, notwithstanding my strong urging that they do so, I would remit the determination of that issue to the Superior Court to be calculated in accordance with paragraph 84 of these reasons. The appeal is otherwise dismissed.
117Paragraphs 7-9 of the trial judge's order are to be replaced with:
[7] The respondent shall pay to the applicant child support arrears in the amount of $88,302 up to and including December 31, 2016, subject to the final determination of the respondent's 2011 child support arrears.
[8] Based on the finding that the respondent's 2015 income for child support purposes is $218,499, the respondent shall pay ongoing child support for the child of the marriage, Nathan Cole Roy Emmerson, born March 5, 2001, in the amount of $1,770 per month, commencing January 1, 2017.
[9] The respondent shall pay to the applicant spousal support arrears in the amount of $192,514 up to and including December 31, 2016. From 2017 to 2020, the respondent is to pay the applicant spousal support in the amount of $2,672 per month, commencing January 1, 2017.
118In my view, the results of this appeal have been equally divided between the parties. I would make no order as to costs.
Released: November 28, 2017
"Gloria Epstein J.A."
"I agree. C.W. Hourigan J.A."
"I agree. David M. Paciocco J.A."
Appendix A
Child Support Arrears (CSG)
| Year | Appellant's Income | Respondent's Income | Child Support Paid By The Respondent For The Year | Total Arrears |
|---|---|---|---|---|
| 2010 | $86,142 | $60,984 | 0 | $9,252 |
| 2011 | $242,600 | $56,754 | 0 | $23,592* |
| 2012 | $240,815 | $51,586 | $4,368 | $19,068 |
| 2013** | $163,167 | $56,120 | $6,552 | $4,678 |
| 2014*** | $173,275 | $58,575 | $6,552 | $8,540 |
| 2015 | $235,352 | $59,592 | $6,552 | $16,188 |
| 2016 | $218,499 | $59,592 | $14,256 | $6,984 |
*less the total amount of mortgage payments made by the respondent in 2011 for the property where the appellant and Nathan resided.
**taking into account 10 months of shared custody.
***taking into account 4 months of shared custody.
Total Child Support Arrears: $88,302
Spousal Support Arrears (SSAG)
| Year | Total Arrears For the Year* |
|---|---|
| 2010 | 0 |
| 2011 | $41,076 |
| 2012 | $42,888 |
| 2013 | $19,098 |
| 2014 | $19,900 |
| 2015 | $37,488 |
| 2016 | $32,064 |
*calculated using the income figures for child support purposes.
Total Spousal Support Arrears: $192,514
