COURT OF APPEAL FOR ONTARIO

DATE: 20240315 DOCKET: COA-22-CV-0444

Fairburn A.C.J.O., Simmons J.A. and Daley J. (ad hoc)

BETWEEN

Michael Scheibler Respondent (Applicant)

and

Betty Scheibler Appellant (Respondent)

Counsel: Alnaz I. Jiwa, for the appellant Peter Howie, for the respondent

Heard: March 6, 2024

On appeal from the judgment of Justice John S. Fregeau of the Superior Court of Justice, dated November 17, 2022.

Reasons for Decision

[1] The parties were married in August 2000 and separated on December 31, 2013. It was a third marriage for both. Following the separation, the respondent husband remained in the matrimonial home and operated a wildlife sanctuary, which he had opened in 2003, on the surrounding property. The respondent eventually applied for a divorce in February 2017, which led to the order which is the subject of this appeal.

[2] Throughout the marriage, both before and after the separation, the appellant wife worked as a grocery store clerk. On appeal, she challenges the trial judge's order requiring her to pay retroactive non-compensatory spousal support to the respondent totaling $39,000 for the years 2014 to 2016 and the trial judge’s determinations concerning ownership of, expenses for, and occupancy rent in relation to the matrimonial home.

[3] For the reasons that follow, we dismiss the appeal.

Retroactive Spousal Support

[4] The trial judge dismissed the respondent’s claim for ongoing compensatory spousal support. However, he ordered that the appellant pay to the respondent transitional retroactive non-compensatory spousal support for the three-year period following the separation.

[5] The trial judge found that the respondent had engaged in a number of “questionable and ultimately unsuccessful business ventures” during the marriage, and that, as of the time of trial, he was devoting his full time and attention to the wildlife sanctuary, “a passion of his that incur[red] expenses [and] yet generat[ed] little to no revenue.”

[6] The trial judge went on to find that the respondent was financially dependent on the appellant throughout the marriage and that the appellant had acquiesced in the respondent’s “lifestyle and employment choices and in his dependence on her.” Based on these findings, the trial judge held that the respondent was entitled to some financial assistance from the appellant for a reasonable period, which the trial judge fixed at three years post separation, to enable the appellant to transition from a situation of financial dependence to one of financial independence.

[7] The appellant raises three main issues in relation to the trial judge’s order for transitional retroactive non-compensatory spousal support.

[8] First, she submits that the trial judge erred in finding that the respondent was financially dependent on her during the marriage. She contends that this finding is incompatible with evidence at trial showing that, during the marriage, the respondent made cash purchases for various vehicles and equipment. Moreover, she submits that this finding ignores the respondent’s failure to disclose various documents pertaining to his financial affairs that would have assisted in determining his true income. Finally, she says it was undisputed that the respondent was able to obtain remunerative employment both before and after the separation. He simply chose not to. She submits that it was unreasonable in the circumstances for the trial judge to order her to pay any spousal support to the respondent.

[9] Respectfully, we do not accept these submissions. They are largely an attempt to reargue matters to which we owe deference.

[10] A high level of deference is owed to a trial judge’s determination of appropriate spousal support because of its fact-based and discretionary nature. This level of deference is appropriate because it “recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly.” Moreover, “it avoids giving parties an incentive to appeal judgments and incur added expenses”. Further, “this approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge”: Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10 and 12.

[11] As a starting point, we observe that the appellant’s submission that the trial judge’s finding of financial dependence was incompatible with the evidence is based upon portions of the trial judge’s reasons in which he reviewed the evidence at trial. In effect, the appellant invites us to reweigh the evidence and retry this case. That is not the function of an appellate court.

[12] Further, based on our review of the record, it was open to the trial judge to come to this determination. There was ample evidence to support the trial judge’s finding that the respondent was financially dependent on the appellant throughout the marriage and that she acquiesced in that dependence. It was undisputed at trial that the appellant assumed responsibility for paying the expenses in relation to the matrimonial home both before and after separation, and that, during cohabitation, she purchased all the groceries for the household. Although the appellant earned some income, and may have used some or all of it for purchases for his unsuccessful business ventures, including the wildlife sanctuary, the trial judge concluded that throughout the marriage the appellant’s declared income was generally approximately three times that of the respondent’s and that he was financially dependent on her for living expenses. It was open to the trial judge to come to this conclusion.

[13] Finally, although the trial judge accepted that the appellant actively encouraged the respondent to "get a job" that paid an income during the marriage, he also found that she acquiesced in the appellant's lifestyle and financial dependence on her. This finding was also open to the trial judge on the record. He therefore concluded that a three-year transitional non-compensatory spousal support order was appropriate. We see no error that would permit us to interfere with this finding.

[14] The appellant’s second submission on this issue is that the trial judge erred by ordering her to pay retroactive spousal support to the respondent for a period prior to the date on which the respondent's divorce application was issued and well before the respondent gave any notice of his claim for spousal support.

[15] We do not accept these submissions. As we have said, the parties separated on December 31, 2013. The trial judge ordered “retroactive spousal support” for the years 2014, 2015, and 2016 in the total amount of $39,000. The spousal support ordered, however, was only notionally “retroactive” since the appellant had in fact supported the respondent by paying significant expenses during the relevant time. During this period, and thereafter, the appellant continued to pay expenses relating to the matrimonial home, which the husband was occupying, and even some of the respondent’s car insurance expenses, in the total amount of $86,486. The trial judge ordered the respondent to repay half of that sum already paid, $43,243, to the appellant. Accordingly, the appellant was not required to actually pay the retroactive support. Rather, the trial judge set off the $43,243 he ordered the respondent to repay the appellant against the amount owing for retroactive support and a portion of the equalization payment the appellant owed the respondent.

[16] We acknowledge that it would have been preferable had the trial judge explicitly considered issues such as whether the respondent had given “effective notice” of his claim for support prior to issuing his divorce application and whether the respondent had adequately explained his delay in formally applying for support: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. Nonetheless, since the support ordered was only notionally retroactive, it is implicit in the trial judge’s reasoning that he was satisfied that the appellant had effective notice of the respondent's claim for spousal support by virtue of the payments she already made on his behalf for living expenses. Moreover, the fact of those payments adequately explained the respondent's delay in making a formal application for support.

[17] The appellant’s third submission, in the alternative, is that, at a minimum, the trial judge erred by failing to take account of the income tax consequences to the appellant of having to pay a lump sum order for spousal support, which is not tax deductible, as compared to ongoing support, which is tax deductible. The appellant submits that we should therefore reduce the support award by 17.5%, a tax rate which we should be able to discern by examining the appellant’s income tax returns.

[18] We do not accede to this submission. The trial judge determined the amount of support he concluded the respondent should receive for transitional retroactive non-compensatory spousal support. The trial judge was not asked to reduce that amount to reflect tax consequences. The failure to do so does not reflect an error in principle. In any event, we are not satisfied that the record before us would permit us to properly assess the potential income tax consequences.

Occupancy Rent/Reimbursement for Expenses in relation to the Matrimonial Home

[19] The appellant argues that the trial judge erred in failing to order that the respondent pay occupation rent for his exclusive occupation of the matrimonial home post separation and/or in failing to order that he reimburse the appellant for expenses relating to the matrimonial that she paid post separation. She submits, in particular, that this was a case warranting such an order because the respondent was operating a business, the wildlife sanctuary, from the matrimonial home property.

[20] We do not accept these submissions. The trial judge reviewed the principles applicable to the equitable remedy of requiring payment of occupation rent in circumstances where one joint owner of property occupies the property to the exclusion of another. He exercised his discretion not to award occupation rent for three reasons. First, he had ordered that the respondent reimburse the appellant for one half of the post-separation expenses the appellant paid in relation to the matrimonial home. Second, although he had accepted that the respondent was financially dependent on the appellant and entitled to retroactive non-compensatory transitional spousal support, he declined to award such support at the high end of the Spousal Support Advisory Guidelines’ range as had been requested. Third, he accepted that the respondent had been responsible for repairs and maintenance to the matrimonial home following separation, which would accrue to the benefit of both spouses.

[21] We see no error in the trial judge's exercise of discretion. No doubt, the trial judge was faced with an unusual set of circumstances. The parties had no children of their marriage and no children of any prior marriages residing with them during cohabitation. The appellant was the primary income earner during the marriage and acquiesced in the respondent’s failure to seek remunerative employment, both before and after separation. The appellant left the respondent in possession of the matrimonial home upon separation and continued to pay the expenses relating to the matrimonial home. Both parties were dilatory in seeking any remedy through legal action. The appellant did not even advance a claim for occupation rent or reimbursement of expenses she paid in relation to the matrimonial home until she amended her answer in 2021. The trial judge was entitled to exercise his discretion in balancing the parties’ competing claims for spousal support, occupancy rent and reimbursement of expenses. The fact that the respondent was continuing his limited revenue producing operation of the wildlife sanctuary post separation was not determinative. The appellant took no steps to dislocate him prior to trial. Absent any demonstrated error on the part of the trial judge, it is not open to us to interfere with his exercise of discretion.

The Appellant’s Claim for Sole Ownership of the Matrimonial Home

[22] The trial judge dismissed the appellant’s claim for sole ownership of the matrimonial home, which was registered in the names of both parties, as joint tenants. The trial judge found that there was no evidence concerning the intentions of the parties at the time that title to the property was registered in their joint names apart from conflicting evidence concerning their contributions to the initial downpayment. In the result, the trial judge concluded that the appellant failed to rebut the presumption of joint tenancy that arises under s. 14(a) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) when spouses hold real property as joint tenants.

[23] The appellant submits that the trial judge misapprehended the evidence concerning the parties’ intentions, as she gave evidence that the property was registered in their joint names based on the respondent’s agreement to pay his share of the down payment and mortgage payments, which he did not do. She contends that the trial judge further erred by failing to resolve the conflict in the evidence concerning the parties’ respective contributions to the down payment and by failing to find a resulting trust in her favour, as she had made all the payments for the purchase of the matrimonial home.

[24] We do not accept these submissions. Based on our review of the record, the appellant’s evidence did not rise to the level of asserting that the parties had agreed that the matrimonial home would be registered in their names as joint tenants conditional on the respondent contributing to the payments [1]. In the absence of direct evidence of the mutual intentions of the parties, it was open to the trial judge to rely, as he at least implicitly did, on the inferences to be drawn from the actions of the parties. In particular, he noted that while the appellant had purchased another property in 2012 and placed it in her own name, the property comprising the matrimonial home was acquired through purchases two-and-a-half years apart in 2000 and 2003. On both occasions the properties were registered in both parties’ names, as joint tenants.

[25] In the circumstances, we see no error in the trial judge’s finding that the appellant failed to rebut the presumption of joint tenancy that arises under s. 14(a) of the FLA. It was therefore unnecessary that he resolve the conflict in the evidence concerning the parties’ respective contributions to the purchase price of the matrimonial home.

Disposition

[26] Based on the foregoing reasons, the appeal is dismissed. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $5,000 inclusive of disbursements and HST.

“Fairburn A.C.J.O.”

“Janet Simmons J.A.”

“Daley J. (ad hoc)”

[1] These reasons should not be taken as holding that failure to comply with such an agreement could rebut the presumption of joint tenancy in s. 14(a) of the FLA.