COURT OF APPEAL FOR ONTARIO
Watt, Trotter and Zarnett JJ.A.
BETWEEN
Alla Levin
(Applicant)
Respondent
and
Nikolay Levin
(Respondent)
Appellant
Peter I. Waldmann, for the appellant
Ryan M. Kniznik, for the respondent
Heard: in writing
On appeal from the order entered on November 14, 2018 by Justice Mary E. Vallee of the Superior Court of Justice, with reasons reported at 2018 ONSC 6805, and from the costs order entered on February 08, 2019, with reasons reported at 2019 ONSC 932.
REASONS FOR DECISION
Introduction
1Mr. and Mrs. Levin were married and have two children. Their marriage broke down after almost 26 years. In the meantime, they have been unable to resolve financial and property issues, culminating in an eight-day trial that ended unfavourably for Mr. Levin. The trial judge made various substantive orders in Ms. Levin’s interest and awarded her costs in the amount of $65,030.53.
2This appeal concerns spousal support, child support, net family property, and costs. The appellant, Mr. Levin, appeals the trial judge’s decision on these issues, focusing largely on alleged errors in imputing income. Ms. Levin, the respondent, acknowledges some minor inaccuracies in two of the trial judge’s calculations (one involving her 2017 income and the other involving the amount of the equalization payment owed to Mr. Levin), and invites this court to make the necessary adjustments. She resists any further changes to the trial judge’s decision and the costs order.
3Subject to rectifying the minor errors conceded by Ms. Levin, we dismiss the appeal.
Background
4The parties were married in Ukraine in 1990. They immigrated to Israel in 1991 and remained there until they immigrated to Canada in 2013. They have two daughters. The older daughter is an adult, born in 1993. The younger daughter was born in 2008 and has a learning disability. Ms. Levin is her primary caregiver.
5The Levins are both well-educated. Ms. Levin has a master’s degree in nursing and has been working as a Registered Practical Nurse (“RPN”) and Personal Support Worker (“PSW”). Mr. Levin has a software engineering degree and works as an electrician. Mr. Levin worked full-time throughout the marriage. Ms. Levin worked mostly part-time. Ms. Levin expects to complete her Ontario registered nursing program and become self-sufficient by May 2021. Accordingly, the trial judge’s order allows Mr. Levin to request a review of spousal support at that time.
6Mr. Levin was ordered to pay $2,511 per month in spousal and child support until a review of support in May 2021, based on his 2018 income of $118,033. The trial judge accepted that it was reasonable for Ms. Levin to try to return to school and have only part-time income imputed to her for the duration of the 3-year degree, in the amount of $33,994. The trial judge ordered payment of arrears calculated in accordance with these imputed incomes.
Analysis
7As already noted, the trial lasted eight days. The trial judge delivered detailed and lengthy (43-pages) reasons, addressing the many issues raised by the parties. As the paragraphs that follow will show, the trial judge’s reasoning was sound, subject to a few minor calculation errors. Therefore, it is entitled to deference on appeal.
A. Credibility Findings
8Credibility was at the heart of this family law trial. The trial judge made extensive credibility findings that informed her determination of the parties’ incomes.
9The trial judge identified a few minor shortcomings in the evidence of Ms. Levin, but found that “[o]therwise, Ms. Levin’s testimony was generally consistent and credible”: Levin v. Levin, 2018 ONSC 6805, [2018] O.J. No. 5931, at para. 9.
10Mr. Levin did not fare as well. The trial judge itemized numerous internal and external inconsistencies in his testimony, largely in relation to financial disclosure. As discussed below, a key issue in imputing income to Mr. Levin was determining whether he worked for cash. He denied that he did. However, in a recorded telephone conversation with Ms. Levin in 2016, Mr. Levin said: “I am trying to make some cash off the books in order to pay you, fucking whore, to pay the lawyer. Once again, I don’t give a shit if it’s a maximum or minimum to pay you and also to support myself, you see? That’s why I [am] working for cash”: Levin v. Levin, at para. 38.
11This evidence assumed prominence in the trial judge’s reasons. It led to the following finding of the trial judge, at para. 39 of her reasons:
When I consider Mr. Levin’s answers in cross-examination, his demeanour, and the contradictions in his evidence in contrast to the documentary evidence, I conclude that he was not a credible or reliable witness. Where his evidence conflicts with Ms. Levin’s evidence, hers will be preferred.
12A trial judge’s findings of fact, including credibility assessments, are entitled to substantial deference on appeal “especially in family law cases”: Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374, at para. 23. Moreover, the imputation of income for support purposes is a discretionary and fact-specific exercise: Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 73, aff’d in Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at paras. 49 and 51.
B. Attribution of the Appellant’s Income
13The appellant argues that the trial judge misapprehended the evidence in over-imputing income to him and under-attributing income to Ms. Levin. Subject to one minor error in relation to Ms. Levin’s income, discussed below, we disagree.
14In imputing income to Mr. Levin, the trial judge relied on the fact that, during the relevant time frames, his expenditures exceeded his stated income. Mr. Levin submits that this approach is flawed because the trial judge treated mortgage payments as an expenditure when his income included the net rental income from the same property. The net rental income already deducted the mortgage payments; thus, the trial judge’s approach counted them twice. He also submits that discrepancies between his expenditures and his income are explained by post-separation payments made to Ms. Levin.
15We do not accept these submissions. Once satisfied that there is undeclared income, trial judges have considerable leeway in imputing additional income to calculate support. The trial judge found Mr. Levin to be an untrustworthy witness, and this guided her approach. Mr. Levin’s own position on his income, especially in 2017, shifted multiple times. Moreover, Mr. Levin’s double counting argument is belied by the trial judge’s finding that he under-declared his rental income from 2016. More importantly, as noted above, the trial judge found that Mr. Levin received money under-the-table, even though his bank accounts did not show cash deposits. In other words, her concerns about his credibility were well founded. The amount of income imputed to Mr. Levin was reasonable. We would not interfere with the manner in which the trial judge calculated Mr. Levin’s income for any of the years in question.
C. Attribution of the Respondent’s Income
16Ms. Levin accepts that the trial judge miscalculated her income for 2017 when determining arrears obligations for that year. The trial judge found that her income was $33,994.00 when it should have been $60,928.99. When this error is corrected, the combined arrears for child and spousal support for 2017 is $24,190.79 (instead of $35,026.79).
17Mr. Levin submits that the trial judge underestimated Ms. Levin’s income for 2018 and on a go-forward basis. We disagree. The trial judge imputed income of $33,994.00 for the three years it is expected to take Ms. Levin to complete her studies. This represents 51% of her Line 150 income for 2017. The trial judge did so because the respondent will be unable to work full-time during this period. The trial judge made no error in reaching this conclusion.
D. Net Family Property
18Mr. Levin submits that the trial judge erred in her calculation of net family property and the amount of the equalization payment that he should receive. Ms. Levin agrees. This has the effect of increasing the equalization payment by $2,500. The appellant is entitled to an equalization payment of $39,091.51.
E. The Review of Support Issues
19The trial judge ordered that her decision on support issues could be reviewed in 2021. The appellant wishes to change the order so that he may request a review of support at any time. The trial judge chose May 2021 because this is when it is anticipated that Ms. Levin will have completed the steps required to achieve self-sufficiency. The appellant gives no reason for requesting a variation of this order. The timing of the review date in May 2021 seems eminently sensible. Thus, we see no error in the trial judge’s decision on this issue and we decline to interfere.
F. The Costs Award at Trial
20Mr. Levin challenges the trial judge’s costs award. The trial judge delivered careful reasons for her decision. She considered two offers made by the respondent prior to trial; offers that were more favourable to Mr. Levin than what he achieved at trial. Rule 18(14) of the Family Law Rules, O. Reg. 114/99 entitles Ms. Levin, “…unless the court orders otherwise…” to “costs to the date the offer was served and full recovery of costs from that date”. The trial judge determined that there was no basis to depart from this rule. Moreover, Ms. Levin did not request costs up to the point of the first offer; she only requested full recovery from the date of that offer onwards.
21The trial judge further found that, even without the offers to settle, she would have ordered costs in the same amount because of Mr. Levin’s “bad behaviour” during the course of litigation, which she itemized at para. 18 of her Costs Endorsement: Levin v. Levin, 2019 ONSC 932, [2019] O.J. No. 655.
22As this court held in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 69: “In family law, there is arguably even greater reason to afford deference to the quantum of costs awarded.” The trial judge’s costs decision reveals no error in principle.
Disposition
23The appeal is allowed in part. We correct the minor errors conceded by Ms. Levin, as noted above. For the sake of clarity, the appeal is dismissed other than the following corrections to the trial judge’s order:
i. Paragraph 3 shall be revised to reflect that Mr. Levin’s support arrears for 2017 shall be $24,190.79 [instead of $35,026.79];
ii. Paragraph 12 shall be revised to reflect that Ms. Levin’s equalization payment to Mr. Levin shall be $39,091.51 [instead of $36,519.51]; and
iii. Paragraph 21 shall be revised so that the adjusted arrears total [net off-set payment] owing from Mr. Levin to Ms. Levin shall be $25,422.70 [instead of $38,758.70, which reflects the $10,836.00 adjustment to 2017 support arrears, plus the $2,500.00 equalization payment increase, for a total reduction of $13,336.00 in the net payment owing].
24The appeal from the costs decision is dismissed.
25Ms. Levin is entitled to her costs on appeal. If the parties are unable to agree on quantum, they may make written submissions. Ms. Levin shall submit a bill of costs and written submissions that are no longer than four pages within 14 days of the release of this decision. Mr. Levin will be permitted to file a bill of costs and submissions that are no longer than four pages within 10 days of receiving Ms. Levin’s materials. No reply submissions shall be filed.
“David Watt J.A.”
“Gary Trotter J.A.”
“B. Zarnett J.A.”
