Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210909 DOCKET: C67361

Juriansz, Lauwers and Sossin JJ.A.

BETWEEN

Mary F. Alajajian Applicant (Appellant)

and

Arthur Alajajian Respondent (Respondent)

Counsel: Elliot Birnboim, for the appellant Dani Z. Frodis, for the respondent

Heard: August 30, 2021 by video conference

On appeal from the judgment of Justice J. Scott McLeod of the Superior Court of Justice, dated August 8, 2019.

Reasons for Decision

[1] The parties in this family law appeal married in 1988 and separated in 2015. The appellant seeks to set aside the trial judge’s determinations of property and spousal support issues made after a 21-day trial, and to replace them with determinations in her favour.

[2] The appellant asserts the trial judge’s decision is subject to review on a correctness standard. That is not the case. The trial judge’s dispositions were based on his findings of fact and his assessment of the credibility of the parties and their witnesses. He noted that counsel for both parties acknowledged in their opening statements “that there were wildly different versions of the facts as between the parties” and the “case was centrally contingent upon findings of credibility”. This is indeed the case.

[3] The trial judge found the appellant’s evidence to be unreliable in many respects and, for the most part, preferred the evidence of the respondent. He found the appellant’s “expert” report to be of “little value”. He said the “opinion evidence proffered by this witness left the court with the impression that, in fact, the witness was not independent or unbiased, but rather had been hired to support the applicant’s theory.” On the other hand, he found the respondent’s expert’s evidence “was frank, direct, and in the courts view, unbiased”. He found the evidence of a private investigator led by the appellant did not support the appellant’s theory of the case.

[4] The trial judge’s factual findings and credibility assessments are entitled to substantial deference. This is especially so in family law cases. This court can interfere "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": Johanson v. Hinde, 2016 ONCA 430, at para. 1. This standard of review is firmly established: see Rados v Rados, 2019 ONCA 627, at para. 23, Jonas v. Pacitto, 2020 ONCA 727, at para. 42 and Levin v. Levin, 2020 ONCA 604, at para. 12.

[5] The appellant is seeking to retry the case on appeal. That she cannot do. The trial judge considered the appellant’s theory that the respondent diverted funds, artificially inflated his debts, and intentionally reduced his income. He rejected the theory after a careful review of the evidence. We need not review each of the many factual determinations the appellant seeks to set aside. These are plainly set out in the reasons of the trial judge and no purpose would be served by reiterating them.

[6] We do not accept the appellant’s submission the trial judge failed to adjudicate certain issues. While the trial judge may not have explicitly referred to these claims, he carefully reviewed and rejected the evidence the appellant led to support them. Reading his decision as a whole, it is clear these claims were dismissed.

[7] The parties agree that due to an error over clerical nature, the equalization payment the respondent should be ordered to make to the appellant is $716,444.68. It is so ordered. In all other respects the appeal is dismissed. Costs payable to the successful respondent are fixed in the amount of $25,000 all-inclusive as agreed by counsel.

“R.G. Juriansz J.A.”

“P. Lauwers J.A.”

“L. Sossin J.A.”