Court of Appeal for Ontario

Date: 2023-05-12 Docket: C70866

Before: Trotter, Sossin and Copeland JJ.A.

Between:

Gabriela Meyer-Schelbert Applicant (Respondent)

And:

Werner Meyer Respondent (Appellant)

Counsel: Gary S. Joseph, for the appellant Mervyn F. White and Andrew White, for the respondent

Heard: May 9, 2023

On appeal from the order of Justice Gisele M. Miller of the Superior Court of Justice, dated June 3, 2022, with reasons reported at 2022 ONSC 3333.

Reasons for Decision

[1] The appellant appeals from the order of the trial judge finding that, for purposes of determining the valuation date for the respondent’s equalization claim under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), the date of separation was February 2015.

[2] After hearing submissions from the appellant, we did not call on the respondent and dismissed the appeal with reasons to follow. These are our reasons.

[3] The appellant argues that the trial judge erred in making her credibility findings by failing to address evidence that, the appellant argues, is inconsistent with the respondent’s evidence that the date of separation was in February 2015. The inconsistencies asserted by the appellant include: (i) an admission by the respondent that the parties attended marriage counselling in 2005, while in her trial evidence she said it was in 2008; (ii) alleged inconsistencies about when the respondent moved out of the master bedroom; (iii) evidence that the respondent rented a farmhouse in the fall of 2014; and (iv) omissions in the respondent’s financial statements. According to the appellant, the trial judge failed to consider these issues in assessing the evidence and this alleged failure amounts to palpable and overriding factual error.

[4] We do not agree that the trial judge failed to consider the issues that the appellant argues were inconsistent with the respondent’s evidence about the date of separation.

[5] The trial judge’s reasons show that she was alive to the various issues that the appellant argues were not addressed – because she addressed them in her reasons. One example from the reasons of the trial judge makes this clear. After summarizing the evidence about the respondent renting a farmhouse in the fall of 2014 earlier in her reasons, the trial judge engaged in the following assessment of the evidence on that issue in her analysis:

Although the [respondent] rented a farmhouse in the fall of 2014, I accept her evidence that it was simply a place for her to be by herself and that she did not begin moving in there until January and February of 2015. I find the affidavit evidence of the children that they spent alternate weekends at the rented house before February 2015 is unreliable. The children were quite young at the time and this is inconsistent with the evidence of both the [respondent] and the [appellant]. It would not have been possible for the children to stay overnight at the rented house until the [respondent] had that premises set up for overnight guests. This was not until February 2015 at the earliest.

[6] The trial judge considered each of the aspects of the respondent’s evidence that the appellant refers to in his arguments on appeal, and provided reasons why, in the context of the evidence as a whole, she found that the respondent’s evidence as to the date of separation was more credible than the appellant’s. She was not required to do more.

[7] The appellant next argues that the trial judge erred by making “findings of fact on critical issues in dispute based on conflicting affidavits that had not been tested by thorough cross-examination”. This ground of appeal relates to the evidence of witnesses other than the parties, including several neighbours and individuals who worked on the parties’ farm, the respondent’s current partner, and the parties’ teenage children.

[8] We reject the argument that there was any unfairness caused by the manner in which the trial judge proceeded. Further, the appellant’s position on appeal is contrary to the position he took before the trial judge.

[9] The parties attended before the trial judge prior to trial, to address the issue of which witnesses who had provided affidavits would be cross-examined at trial (as well as other trial management issues). The respondent took the position that she wanted to cross-examine all of the appellant’s witnesses. The appellant took the position that there was no need for cross-examination of witnesses, except for the parties. The trial judge ruled that only the appellant and respondent would be cross-examined in the trial. Thus, the trial judge ordered exactly what the appellant requested. In coming to this conclusion, the trial judge expressed the view that the credibility of the other witnesses did not appear to be significantly in issue. She also expressed concern that cross-examination of the children of the parties, whose affidavits had been tendered by the appellant, was not in their best interest.

[10] We see no unfairness in the manner in which the trial judge proceeded. The appellant and respondent were the pivotal witnesses on the issue of the date of separation. Their respective credibility was very much in issue, and they were cross-examined. While the other witnesses were capable of corroborating some aspects of the evidence of the appellant or respondent, they were more peripheral. Further, as the trial judge reasonably found, the credibility of the other witnesses was not significantly in issue.

[11] The appellant further argues that the trial judge improperly relied on hearsay evidence contained in the affidavits of the witnesses other than the appellant and the respondent.

[12] We do not agree. The trial judge expressly cautioned herself against relying on hearsay evidence contained in some of the affidavits of the non-party witnesses. The appellant was unable to direct the court to any place in the trial judge’s reasons where reliance was placed on hearsay evidence. Nor do we see any indication in the trial judge’s reasons that she relied on hearsay evidence.

[13] The appellant raised other grounds of appeal in his factum which were not pursued in oral submissions. We are not persuaded that any of those grounds provide a basis for appellate intervention.

[14] The assessment of the date of separation is a case-specific exercise that requires a trial judge to consider the totality of the circumstances. As such, the findings of a trial judge with respect to the date of separation are entitled to deference. In this case, the trial judge properly considered the evidence as a whole. She provided detailed reasons for her findings of fact and credibility. The findings of fact made by the trial judge were open to her on the record before her. We see no palpable and overriding error.

[15] In light of our conclusion that there is no error in the trial judge’s finding regarding the date of separation, there is no basis to interfere with the trial judge’s conclusion that respondent’s equalization claim was brought within the applicable limitation period under s. 7(3) of the FLA. As a result, it is not necessary to consider the appellant’s alternate submission regarding the trial judge’s obiter conclusion that, if the date of separation was earlier than February 2015, she would have exercised her discretion under s. 2(8) of the FLA to extend the limitation period.

[16] The appeal is dismissed.

[17] The respondent sought full indemnity costs of the appeal in the amount of $40,000. The request for full indemnity costs was based on an offer to settle the appeal on the basis of a without costs dismissal. However, the offer to settle was made only in late January 2023, after significant cost related to the appeal had already been incurred by the appellant, and was only open on a without costs (or minimal costs) basis for two weeks. Considering all of the circumstances, we do not see a basis to order costs on a basis beyond partial indemnity. The appellant shall pay costs of the appeal to the respondent in the amount of $20,000, inclusive of disbursements and applicable taxes.

“Gary Trotter J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”