Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241105 DOCKET: COA-23-CV-0543

Lauwers, Brown and Coroza JJ.A.

BETWEEN

Victoria Fielding Applicant (Appellant)

and

John Craig Fielding Respondent (Respondent in Appeal)

Counsel: Gary Joseph and Elissa Gamus, for the appellant Michael Zalev, for the respondent

Heard: October 29, 2024

On appeal from the order of Justice Andrew Pinto of the Superior Court of Justice, dated March 31, 2023, and February 9, 2024, with reasons reported at 2023 ONSC 1819.

Reasons for Decision

[1] This has been a high conflict family proceeding between the appellant, Victoria Fielding, and the respondent, Craig Fielding. The factual and procedural background was well captured by the motion judge in the first few paragraphs of his lengthy decision:

[1] Victoria and Craig Fielding were married in June 1993, separated in December 2010, and divorced in April 2014. They have three adult children: Katie…and twins Sean and Natalie.

[2] The parties were both practicing physicians when they married. Prior to his retirement in December 2021, Craig worked as a plastic surgeon at St. Joseph's Hospital in Toronto. He also had a private office on Bloor Street that closed when he retired. Victoria worked as a urologist until 2007 when she withdrew from practice due to vision problems caused by a degenerative eye condition. She received long term disability benefits until she turned 65 in February 2022. Since the parties' separation in 2010, they have been in family court proceedings almost continuously.

[3] The previous litigation has included: (a) A 15-day trial in 2013 before Justice McKinnon over parenting issues: Fielding v. Fielding, 2013 ONSC 5102. (b) A 10-day trial in 2014 before Justice Mesbur over financial issues: Fielding v. Fielding, 2014 ONSC 2272. (c) Victoria's unsuccessful appeals of the two trial decisions to the Court of Appeal in 2015: Fielding v. Fielding, 2015 ONCA 901. (d) An 11-day trial in respect of Craig's first Motion to Change before Justice Monahan in 2018: Fielding v. Fielding, 2018 ONSC 5659.

[2] The respondent brought a Motion to Change to terminate his child support and spousal support obligations because he had retired. In response, the appellant sought to double her spousal support payments because her disability benefits had ended, and she claimed that she should continue to receive child support until Natalie completed her graduate degree in August 2023.

[3] It is unnecessary to reproduce all of the motion judge’s detailed findings. The motion judge’s main conclusions are set out in para. 5 of his reasons:

For the reasons that follow, I find that: (a) Craig’s decision to retire effective December 31, 2021, was reasonable. (b) Craig’s retirement and the corresponding reduction in his income was a material change in circumstances. (c) The termination of Victoria’s long term disability coverage in or around February 2022 was a material change in circumstances. (d) Craig is entitled to stop paying spousal support as of December 31, 2021, and should be credited with any overpayments in spousal support he has made to date. (e) Victoria is entitled to receive child support in respect of Natalie until August 31, 2023, but not after that date. The child support payments, if any, shall continue to be governed by the Order of Justice Monahan.

[4] The appellant’s notice of appeal sets out 24 grounds of appeal, which were distilled into three in oral argument. This court would need to retry the case to address even those three. But it is not this court’s function to "reweigh the evidence and retry this case". Scheibler v. Scheibler, 2024 ONCA 191, 100 R.F.L. (8th) 51, at paras. 9–11. None of the grounds has any merit, and we dismiss the appeal.

[5] The motion judge’s most significant finding is that the respondent’s retirement at 63 years of age was reasonable. The motion judge instructed himself accurately on the law, and assessed the reasonableness of that retirement taking into account the relevant factors, in paras. 88–100, where he noted:

(a) Craig kept Victoria apprised of the impact that COVID-19 was having on his practice, and formally notified her of his plan to retire more than 8 months before doing so. (b) While Craig never relied on the argument that health factors prevented him from working, I accept that, given the nature of Craig's job - being required to stand and operate for long periods of time - his concern over his declining health was a legitimate factor in favour of taking an earlier retirement. (c) This was a 17-year marriage, the parties separated in 2010 and Craig has been paying support for 12 years. Victoria received a significant equalization payment following the financial trial in 2014 and a further 9 years since then has passed. (d) With respect to the children, they are now adults and two of them, Katie and Sean, are independent.

[6] These conclusions are amply explained in the reasons. The reasonableness assessment is one that the motion judge was best situated to make and to which appellate deference is due. The appellant has not shown that the motion judge made any palpable and overriding error in fact or error in principle.

[7] The motion judge’s decision that the respondent’s spousal support should end was also reasonable. He addressed this issue in paras. 102–135, concluding that:

Victoria's net worth is roughly $4.9 million and Craig's net worth is $4.4 million. Therefore, while I disagree with Craig that Victoria's net worth is significantly greater than his, I agree that her net worth is somewhat greater than his.

[8] The motion judge then addressed whether the appellant had mismanaged her finances and refused to take reasonable steps to become self sufficient, in paras. 136–164. He instructed himself on the relevant legal principles, and concluded, at paras. 164–166:

[164] I find that Victoria’s needs can be met if she acts in a more responsible manner with her properties, particularly her High Park home and Binsbrook. Accordingly, this is not a situation where, following Craig’s retirement and the loss of spousal support from Craig, Victoria’s reasonable needs will go unmet. As noted in the SSAG: Revised Users Guide at page 98, entitlement to non-compensatory support does not involve a permanent guarantee of the marital standard of living in medium-length marriage cases.

[165] While I accept that there has been a material change of circumstances on Victoria’s side occasioned by the termination of her disability benefits, the material change on Craig’s side resulting from his retirement means that the circumstances of both parties had changed. As per Choquette, I find that any economic hardship arising from the breakdown of the marriage has long been addressed through the provision of support by Craig for 12 years, and any current hardship is not the result of the marriage or its breakdown, but as a result of Victoria’s improvident decisions.

[166] For all the above reasons, I find that the appropriate response to the parties’ changed circumstances, is to terminate spousal support for Victoria, rather than reduce it or step it down until termination. The circumstances of the parties, keeping in mind their significant wealth, calls for finality and disengagement, not tinkering of their support arrangement. Victoria’s support should be terminated effective the end of December 2021 when Craig retired.

[9] The appellant has not identified any palpable and overriding error of fact or an error in principle in the reasons on spousal support. We defer to the motion judge’s decision on this issue. The appellant invoked Schulstad v. Schulstad, 2017 ONCA 95, which the motion judge took into account at paras. 157-158 and following. The argument that the respondent had corporate income that was not accounted for was not correct, since the flows of income into his professional corporation were treated as personal income for support purposes. With respect to money the respondent withdraws from the corporation, he has already paid support on that money. The motion judge relied reasonably on the expert evidence of Mr. Ranot. On the issue of the respondent’s income for two months in 2023, the motion judge split the difference between the positions of the parties. He did not err in doing so on this relatively paltry issue.

[10] The appellant also pursues an appeal on s. 7 expenses, which the motion judge addressed at paras. 32–79. At para. 65 the motion judge stated:

I find that Natalie will no longer be a child of the marriage after August 2023 regardless of whether she has completed her M.Ed. degree. I find that, by the end of August 2023, she will have completed 7 years of post-secondary studies. She will be 25 years old. She will have been living away from her parents for many years. The evidence suggests that she has at least $50,000 in savings. By that point, she will no longer be dependent on her parents. She may choose to live with her mother, but that does not qualify her as a child of the marriage.

[11] The motion judge, at paras. 66–79, grappled with the appellant’s claim that she paid $259,165 in s. 7 expenses between 2018 to 2022 that the respondent should contribute to on a proportionate basis. The motion judge came to a different calculation, concluding at paras. 78–79:

[78] First, I would recognize that the only two children that were eligible for s. 7 expenses from 2018 onwards were Sean and Natalie. Second, I would recognize that Sean had two years and Natalie had four years of expenses for a total of six. Third, I would apply a cap of $30,000 per child per year for s. 7 expenses which amounts to $180,000 (6 x $30,000). Fourth, I would deduct $50,356 which represents the RESP contributions which must first be applied to any eligible expenses to arrive at $129,644. Finally, I would apply the 66%/34% split for s. 7 expenses arising out of Justice Monahan's Order, rather than re-calculate the apportionment of s. 7 expenses based on the parties' incomes between 2018 and 2022.

[79] Doing the above calculations results in Craig being responsible for $85,565 in s. 7 expenses, and Victoria being responsible for $44,079.

[12] The motion judge properly interpreted the order of Monahan J. and gave effect to it. The appellant has not identified any palpable and overriding error or error in principle in the motion judge’s analysis leading to this conclusion, to which we defer.

[13] The appellant seeks leave to appeal the motion judge’s costs award (2024 ONSC 3139). The motion judge held, at para. 13:

[13] While there were a few legal issues that Victoria was successful on, such as the continuation of child support for Natalie to 2023, she was unsuccessful on the major issues that animated the latest Motion to Change. Overall, I find that an approach that recognizes Craig’s greater success, albeit not on the basis of full indemnification, is the right one. I find that awarding Craig 80% of his full indemnification costs is the correct approach. I would extend this finding to both the Motion to Change and any of Craig’s costs with respect to responding to Victoria’s requests for clarification, settling the order and preparing his Bill of Costs.

[14] The motion judge rejected the appellant’s argument that the respondent’s counsel’s hourly rates or disbursements were excessive, finding his costs were comparable to her own. After reviewing the applicable legal principles, he concluded:

[17] I find that Victoria paying Craig 80% of his overall costs or $294,960 rounded up to $295,000 is a result that is proportionate and reasonable to the stakes involved. Victoria contested virtually every issue and should now be expected to bear the cost consequences of that decision. Moreover, as indicated in my Reasons for Decision in respect of the Motion to Change, Victoria has the financial means to bear such a costs award.

[15] The appellant has not identified any factual or legal error in the motion judge’s costs analysis. We refuse leave to appeal the motion judge’s costs award.

[16] Accordingly, we dismiss the appeal and refuse leave to appeal costs. The respondent is entitled to his costs of the appeal fixed at $30,000, all-inclusive, as agreed.

“P. Lauwers J.A.”

“David Brown J.A.”

“S. Coroza J.A.”