COURT FILE NO.: F847/06 (London)
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
VALIN, WILSON AND RAY JJ.
B E T W E E N:
KATIA COLJA REFCIO
Applicant (Respondent)
- and -
ROD RAYMOND REFCIO
Respondent (Appellant)
David Winninger, for the Applicant (Respondent)
Pamela L. Hebner, for the Respondent (Appellant)
HEARD: April 15, 2009 at London, Ont.
THE COURT:
[1] This is an appeal by Rod Raymond Refcio (the appellant) from the decision of Justice Granger made June 1, 2006. Justice Granger ordered the appellant to pay spousal support to the respondent wife, Katia Colja Refcio, in the amount of $1,500 per month for a period of five years from the date of separation, and thereafter until the wife obtains employment.
[2] The appellant argues that the quantum and duration of support is excessive given the three-and-a-half year relationship between the parties and submits that the trial judge made overriding and palpable errors by failing to consider the facts of the case, the applicable principles of law and the Spousal Support Guidelines.
Jurisdiction
[3] The Divisional Court has jurisdiction to hear this matter pursuant to Rule 19(1)(a)(1.2)(b) of the Courts of Justice Act as the order appealed from stipulates periodic support of less than $50,000 annually.
Standard of Review
[4] The standard of review for appeals from a trial judge’s decision is outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 is that of correctness for matters of law, and requires a palpable and overriding error for findings of fact.
[5] There are two Supreme Court of Canada decisions that confirm the principle of deference with respect to appeals from support orders. The decision in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, which was cited with approval in Vande de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 states at para. 11:
Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balance the factors differently.
Background Facts
[6] The parties began cohabiting in August 2002, married in February 2004 and separated in December 2005. There are no children of the marriage.
[7] During the relationship, the husband encouraged the wife to continue her studies and to terminate her employment. The husband is a young lawyer and at the date of trial was earning $60,000 annually. The respondent last worked in 2001 and earned approximately $12,000 annually.
[8] During the short marriage, the parties accumulated no assets but did accumulate debts. At the time of separation, the husband had debts in the approximate amount of $63,000 for which he assumed responsibility.
[9] At the trial, the wife submitted three medical reports with respect to emotional difficulties that she experienced as a result of her separation. The symptoms included anxiety, insomnia and depression. Post-separation she was briefly hospitalized and continued under the care of her family doctor. Her doctor stated in his report dated January 2008, that her problems “continue to exist because there has been no resolution of the marital situation with her estranged husband”.
[10] In 2006 after the separation, the wife began a relationship and cohabited briefly with that person. In April 2007, she gave birth to twins. The wife is no longer in a relationship with the father of the twins. She is pursuing him for support.
[11] After separation, the wife obtained an award for interim spousal support in the amount of $875 per month.
[12] At the time of trial the respondent was not working, and was residing with her family.
[13] The decision of Justice Granger granted retroactive support from the date of separation in the amount of $1,500 per month for a period of five years, with a credit for any support paid, with the support to continue until the wife obtains employment. He also provides a variation clause imposing an obligation upon the respondent to make reasonable efforts to seek employment.
Position of the Parties
[14] The appellant argues that the appropriate quantum of spousal support was in accordance with the interim order, that is $875 per month for a period of three years. As that support has been paid, any support obligations of the husband should terminate.
[15] The respondent argues that the decision of Granger J. is fair and reasonable and should be upheld in its entirety.
Analysis
[16] The learned trial judge did not refer to the Spousal Support Guidelines in his reasons, although submissions with respect to the guidelines were made by counsel. In accordance with the decision of Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.), Lang J.A. confirms at para. 103 that when counsel address the support guidelines in argument that it is appropriate for the trial judge to comment on the support guidelines if he or she intends to order support outside the suggested range. She states:
In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reason explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.
[17] The range of appropriate spousal support orders, according to the guidelines, depending upon a finding of fact with respect to length of cohabitation, range between approximately $180 to $300 per month periodic support for a duration of 22 months. Commentary on the guidelines referred to by counsel confirms that the suggested Guideline amount for spousal support in short marriages is quite modest and may not be particularly helpful in establishing appropriate support. This concern is born out in the facts of this case.
[18] Counsel for the appellant concedes that an appropriate quantum of spousal support in the circumstances is in the amount of $875 per month for a period of three years, which is well outside the guidelines. Although it would have been helpful if the learned trial judge had mentioned the Spousal Support Guidelines, in our view his failure to do so is not an error requiring redress from this court.
[19] The trial judge accepted the evidence of the respondent wife that she had relied upon the representations from the husband that she should return to school and that she would be looked after. She has been out of the work force since 2001. The trial judge also accepted the respondent wife’s evidence that she suffered emotional sequela as a result of the separation that had affected her ability to work.
[20] Counsel for the appellant husband argues that the quantum and duration of support is excessively long and constitutes an error in principle. We disagree.
[21] Justice Granger conducted a careful review of the evidence in reaching his conclusions with respect to support. With respect to the quantum and duration of support, we conclude that the amount and duration of support may be on the high end of the range, but find that there is no palpable overriding error or error in principle in the award made.
[22] We do have concerns, however, that the learned trial court judge erred in failing to make support time limited in the facts and circumstances of this case.
[23] Justice Granger made the order for support for a period of five years “and thereafter until Ms. Refcio finds employment”. He further stipulated that “if Ms. Refcio fails to actively seek employment after December 31, 2010, Mr. Refcio may seek a variation of his support obligation on the grounds that Ms. Refcio is not making reasonable efforts to be self-supporting.”
[24] We are of the view that this potentially indeterminate spousal support is problematic and constitutes an error in principle. This is a relationship of three-and-a-half years. The parties were married for two years and have no children. The parties are young. There needs to be finality and a clean break at a reasonable point in time. Although the respondent wife experienced some emotional sequela as a result of the separation, she has been compensated for this in the quantum and duration of support awarded.
[25] The respondent wife is now living with her family and is a single mother of twins. The appellant is not the father. She may find it very difficult to return to work now or in December 2010 as a result of her childcare responsibilities, which have nothing to do with the appellant. We conclude that the spousal support should terminate on December 1, 2010.
[26] For these reasons, the appeal is allowed in part. Paragraph 1 of the final Order of Justice Granger shall be amended to clarify that the support terminates on December 1, 2010, and that the variation clause in paragraph 2 of his Order shall be deleted.
Costs
[27] The appellant has been partially successful in the appeal and, in our view, it would be appropriate that there be no order as to costs with respect to the appeal. However, the parties proceeded with a motion to stay and as we have upheld both the quantum and duration of support, in our view, the respondent wife should be entitled to her costs of that motion which we fix in the amount of $2,500.
Valin, J.
J. Wilson, J.
Ray, J.
Released: April 16, 2009