COURT FILE NO.: DC-12-0012-00
DATE: 2013-Dec-06
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
Taliano, Whalen, Sproat, JJ.
B E T W E E N:
CINDY ANN REA
Thomas J. Carten, Counsel for the Apellant
Appellant
- and -
CLAUDIO REA
Sarah Trach, Counsel for the Respondent
Respondent
HEARD: December 03, 2013
ENDORSEMENT
I Introduction
[1] The parties were married in 1986 and separated in 2002. The relevant judicial history is as follows:
a. on December 6, 2004 Stach J. made a final order on consent which required Mr. Rea to pay spousal support of $1750 per month;
b. on December 17 2007, after a one-day trial, Smith J. varied the earlier order and made a final order, which continued the spousal support in the amount of $1,750 per month, subject to a series of conditions, which obliged Ms. Rea to consult regularly with an occupational consultant or therapist, her family doctor and an employment agency, and provide reports to Mr. Rea. She was also required to make diligent and reasonable efforts to find employment and to provide written documentation to Mr. Rea, who was given the right to a review after 24 months.
c. on December 7, 2012, after a five-day trial, Fitzpatrick J. found that Ms. Rea had not been diligent in seeking work, that she was able to work, he imputed income of $19,500 to her, ordered that spousal support be reduced to $1081 per month and that the obligation to pay spousal support terminate as of December 31, 2014.
[2] This is an appeal from the trial judgment of Fitzpatrick J. In our opinion the trial judge’s reasons were thorough, cogent and reveal no error. For the reasons that follow the appeal is dismissed.
[3] The nine issues argued by Ms. Rea on this appeal, and our reasons, are as follows.
II Issue One
[4] The first submission was that in 2007 Smith J. found that Ms. Rea was medically unfit to work, but Fitzpatrick J. had made no reference to these earlier findings, notwithstanding that the same medical conditions were ongoing. It was further submitted that Ms. Rea had given clear evidence of her symptoms and difficulties, and there was no reliable, objective or expert evidence to the contrary.
[5] To put this in context, it was correct that Smith J. found that the appellant “is medically unable to work at this time”. However, this must be read in conjunction with his later comment that it was unusual that Ms. Rea did not file a report of a specialist or an occupational therapist verifying her ailments and inability to work. Smith J. continued, “while the wife has certain apparent chronic ailments, I find that insufficient evidence was adduced as to the effect that these ailments have on her ability to work now and in the future. While I do not make any finding of malingering, there are some disquieting signs pointing in that direction”.
[6] It is apparent from the reasons of the trial judge that he was aware of Smith J.’s findings. The trial before Fitzpatrick J. was framed as a review, based on the right of review granted by Smith J. As such, the focus was the impact of the wife’s ailments on her ability to work, her health prognosis and her efforts in finding employment. The wife was being called upon to report.
[7] Ms. Rea was the only person in a position to put her medical condition in evidence. Smith J. had warned her in 2007 that such proof should include the report of a specialist or occupational therapist verifying her ailments and inability to work. That was why he imposed the conditions that: the wife consult an occupational consultant or therapist annually with a written report to the husband; she be medically assessed annually with a report to the husband; she consult an employment agency twice-yearly with written related documentation being delivered to the husband; she make diligent and reasonable efforts to find employment and produce documentation of those efforts to the husband; that any breach of these conditions would result in termination of the support order with possibility of reinstatement; and that the husband be entitled to a review notwithstanding the wife’s fulfillment of the conditions 24 months after release of his reasons. These conditions and right of review underlined Smith J.’s concerns about the impact of the wife’s ailments on her ability to work and her efforts to find work.
[8] At trial, Ms. Rea presented evidence from a family doctor who indicated that she treated patients with fibromyalgia, but that she had no qualifications to make an occupational assessment. The family doctor also agreed that any comments in her reports as to how Ms. Rea’s condition was affecting her ability to find work were not based on objective evidence, but rather on Ms. Rea’s recitation of her complaints.
[9] Additional evidence was provided by an athletic therapist who the trial judge had reasonably concluded was not an occupational consultant or therapist. In fact Ms. Rea’s treatments were in respect of soft tissue injuries sustained in four motor vehicle accidents that had occurred after 2007, rather than fibromyalgia.
[10] Some of the other evidence that the trial judge relied upon in coming to his conclusion included the following:
a. Ms. Rea had turned down one job because it did not offer a significant opportunity for career advancement. (We note that whether she had turned down an offer of employment, or an offer to apply for employment as submitted by Ms. Rea, was immaterial. Either way it indicates that she was not much interested in work).
b. When she finally went to a community college and took a course in an accounting program she soon found a part-time job.
c. She did not follow the recommendation to obtain a functional capacity evaluation because she could not afford it although she had been able to afford two holiday trips to Mexico.
d. She limited her job search to a small geographic and rural area although she was able to travel to Winnipeg on a regular basis for social functions.
[11] In our opinion the findings of the trial judge were supported by the evidence.
[12] The Appellant also submitted that the trial judge had not treated the parties equally because he had not sought medical or other expert evidence to support Mr. Rea’s level of employment. Ms. Rea took the position that the Respondent was underemployed. It was argued that finding that the Respondent was not underemployed without medical or objective evidence constituted differential treatment.
[13] However, in 2007 Smith J. accepted that Mr. Rea was not underemployed because he used his actual income for the purpose of analyzing the support issues. This was not surprising because Mr. Rea had provided a medical report, consultation letters from two orthopaedic surgeons and a functional assessment report prepared by a registered occupational therapist. This medical evidence supported the conclusion that he was no longer able to work as an underground miner and was only able to do a less strenuous job.
[14] In an affidavit in the proceeding before us, while Ms. Rea had questioned the Respondent’s disability, suggesting he was underemployed, but she did not press the matter at trial. Had it been an issue, it would have been prudent to request updated medical reports in Mr. Rea’s possession, copies of medical charts or even independent assessments. This was not done. When the case came to trial, Ms. Rea’s counsel asked the Respondent whether he was able to work underground. Mr. Rae replied that he could not because of age and a heart condition. He also said that he had documentation but he was not asked to bring it to court and he was not challenged, so his evidence stood uncontroverted.
[15] This is not a situation of the trial judge applying a different standard. Ms. Rea’s ability to work was the central question, and in his 2007 ruling, Smith J. had indicated the type of evidence typically required. Mr. Rea’s income and level of employment were of secondary importance because his status had previously been supported with cogent medical evidence and personal testimony that the court had accepted. Also, the case before Fitzpatrick J. was framed as a review pursuant to the specific right accorded the Respondent by Smith J. The central focus of that review was the impact of Ms. Rea’s ailments on her ability to work and her efforts to find employment.
III Issue Two
[16] The Appellant submitted that the trial judge had ignored the evidence of Ms. Rea’s condition and ability to work as reported by Dr. Baillie in 2003 and Dr. Daniels in 2010.
[17] Dr. Baillie had reported on October 4, 2012, that he had not seen Ms. Rea since 2003; that in 2003 he had not been assessing her for disability issues, and he was unable to provide any comment on whether she was disabled from working. Of course, Dr. Baillie’s report pre-dated the hearing before Smith J. and was therefore not current.
[18] Dr. Daniels reported that he had seen Ms. Rea as an outpatient on June 2, 2010, as the result of a motor vehicle accident. There was reference to Ms. Rea having symptoms of fibromyalgia and the doctor recommended exercise and medication. However, the report made no comment on her ability to work.
[19] The trial judge did not refer to the evidence of these two doctors because they had not addressed the central issue of Ms. Rea’s ability to work. In our view, the trial judge did not take issue with the fact that Ms. Rea suffered from fibromyalgia. However, given the history of the matter and the absence of corroborating, independent evidence, he was not prepared to accept her evidence as to the extent the condition impaired her ability to find employment. We conclude that there was evidence to support this finding and that the trial judge was entitled to reach the conclusion he did.
IV Issue Three
[20] Ms. Rea submitted that the trial judge had erred in finding that she had not treated her responsibilities in respect of the conditions in Smith J.’s order with sufficient care and diligence.
[21] As already observed, Smith J. had warned Ms. Rea of the importance of documenting her continuing efforts to find employment. This was not a high hurdle for a person not working or only partly employed to meet.
[22] There was abundant evidence to support the trial judge’s conclusion that Ms. Rea’s efforts were not reasonable, diligent or sufficient. Some of this evidence was referred to above under Issue One, and other evidence was covered elsewhere in the trial judge’s reasons.
[23] A trial judge is not required to mention each and every piece of evidence. It is not surprising or of concern that the trial judge focused on the evidence of deficiencies related to Ms. Rea’s efforts to find work.
V Issue Four
[24] This issue relates to the finding that the witness Thomas Plumpton was credible.
[25] Fitzpatrick J. was well aware of the fact that Ms. Rea and this witness had had a “tumultuous” breakup. However, he factored this into his consideration of the witness’ testimony, as he was entitled to do, and found him credible and reliable in respect of certain evidence.
[26] The submission that Mr. Plumpton had promised, or had been ordered by a Manitoba court to not talk “about” Ms. Rea; that he had breached that promise or order by speaking to an investigator retained by Mr. Rea in relation to this proceeding: and that this somehow affected his credibility, was not tenable. We have reviewed the transcript of the Manitoba peace bond proceeding. There is one isolated reference to Mr. Plumpton not talking “about” Ms. Rea. The rest of the discussion was directed to Mr. Rea not contacting her directly or indirectly, following her, or attending at any place he knew her to be. When the judge came to the point of actually indicating the constraints, nothing was said that could reasonably indicate to the witness that he should not talk about Ms. Rea to an investigator or legal counsel preparing for trial.
[27] Trial judges are entitled to deference in respect of credibility determinations. We see no reason to interfere.
VI Issue Five
[28] It was submitted that the trial judge erred in finding that Ms. Rea had not treated her responsibilities under the order of Smith J. with sufficient care and diligence, based upon certain handwritten comments she had added to a report that she was required to provide to Mr. Rea concerning her job search.
[29] In a related submission, the Appellant complained that Fitzpatrick J. had cross-examined Ms. Rea in the course of her re-examination and had also prevented her from giving evidence to explain the handwritten comments. A review of the transcript does not bear this out.
[30] There was an exchange during the re-examination between the trial judge and counsel for Ms. Rea, following which the trial judge noted that Ms. Rea was nodding her head in agreement. This can hardly be characterized as a cross-examination. In any event, the nodding agreement of Ms. Rea, to a brief observation by the trial judge, was innocuous.
[31] It is unclear from the transcript exactly what counsel for Ms. Rea wanted to pursue. It appears that he wanted to ask for further particulars about heated comments she testified in chief to having heard Mr. Rea utter when she had telephoned the house. The fact that there had been heated or profane comments had already been covered in chief. We can understand why the trial judge did not feel it necessary to hear further details in re-examination.
[32] As he was entitled to do, the learned judge took account of the fact that Ms. Rea had decided to add insulting and derogatory comments to reports she was obliged to send Mr. Rea for the purpose of documenting her job search. There was no indication in the transcript that counsel wanted to ask Ms. Rea to explain these comments. In any event, Ms. Rea was not prejudiced by anything the trial judge elicited from her during the re-examination. She was prejudiced by the inappropriate comments she chose to make in the document to Mr. Rea.
VII Issue Six
[33] The Appellant submitted that the trial judge erred in determining that she had failed to comply with Smith J.’s order because she did not consult further with occupational therapist Cindy Penner, who had done a preliminary occupational therapy assessment regarding ability to work. Ms. Rea had not consulted any other occupational consultants or therapists.
[34] Smith J. had ordered that “the wife shall consult with an occupational consultant or therapist yearly, and a written report shall be provided to the husband commencing in June 2008”. The Appellant submitted that Smith J. had not defined the terms “occupational consultant” or “therapist”.
[35] Ms. Rea further submitted that the trial judge had erred in finding that she was not in substantial compliance with other provisions in Smith J.’s order that required her to consult with an employment agency (with twice yearly reports of the results going to the Respondent), and to make and reasonable and diligent efforts to find employment (also to be reported in writing to the Respondent).
[36] We find that there was an abundance of evidence upon which the trial judge could have reached his conclusion on these points.
VIII Issue Seven
[37] The Appellant submitted that in determining the amount of spousal support payable to her, the trial judge had failed to consider the circumstances mandated in S. 33(9) of the Family Law Act, and in particular the needs and means of the parties. She also submitted that the trial judge ought to have quantified the Respondent’s income by averaging his annual income for the previous three years.
[38] Fitzpatrick J. found that the Respondent’s income for the five years 2007 through 2011 respectively was: $70,375, $70,842, $81,748, $67,698 and $67,556. These amounts included a performance bonus added each year to basic pay. The judge also found that the Respondent’s income for 2012 was “in the order of $58,000 before any bonus”. He determined his spousal support order in the usual manner; that is on the Respondent’s annual income according to his Notice of Assessment for the preceding income tax year, namely $67,566. The averaging principle was not argued strenuously before us. Nevertheless, it is an approach permitted where the fairest determination of a payor’s annual income cannot be achieved in the usual manner. We conclude that there was no good reason for averaging in this case. The Respondent’s annual incomes for the years 2010, 2011 and 2012 were very similar making allowance for a performance bonus in 2012. The trial judge’s conclusion was reasonable and within his discretion.
[39] Ms. Rea also submitted that the trial judge erred in imputing annual income to her of $19,500, and she suggested that there was no basis in fact or law for doing so. The trial judge accepted that the Appellant would not likely earn much more than an entry level income and he explained his calculation which was based upon Ms. Rea being able to work 30 hours per week at $13 per hour for 50 weeks in a year. We note that an entry level job of 37.5 hours per week at minimum wage would render approximately the same result. As discussed above, and as reflected in the reasons of the trial judge, there was abundant evidence to support this conclusion.
IX Issue Eight
[40] In his 2007 reasons Smith J. had referred to the various enumerated circumstances relevant to spousal support under the Divorce Act. The application for change did not state the statutory basis of the claim. It was agreed that the divorce proceeding was commenced in 2012. Fitzpatrick J. stated in paragraph 2 of his reasons that he had granted an order for divorce at the opening of the trial. It was also conceded, quite fairly, on behalf of Ms. Rea, that for our purposes there is no material difference between the circumstances to be considered under the Divorce Act as opposed to the Family Law Act. Smith J. reached his conclusions in respect to spousal support under the Divorce Act without apparent disagreement by counsel, and the trial judge also relied on the Divorce Act.
[41] We do not agree with the submission that the trial judge failed to take the relevant circumstances into account. All of the evidence regarding these factors was reviewed by the trial judge based upon the evidence he had heard or by reference to Smith J.’s reasons. This was a review of the Appellant’s ability to work and the impact on that issue of spousal support principles already determined by Smith J. It was not an appeal from his judgment or a de novo application for spousal support.
[42] The trial judge noted that the cumulative effect of the earlier court orders was to move the goal of self-sufficiency to the “forefront”. In our view this was a reasonable characterization of the nature of the proceeding. Smith J. also put self-sufficiency at the forefront. All of the conditions focused on and obliged Ms. Rea to take steps to become self-sufficient. Smith J. also commenced his conclusions resulting in the review order and conditions with the following statement:
- It is important to provide both a focus and incentive to the wife to become self-sustaining or to provide proof that she is not capable of doing so for medical or other acceptable reasons.
[43] On a fair reading of the trial judge’s reasons we are satisfied that he considered and reasonably balanced all factors relevant to spousal support.
[44] The trial judge reasonably concluded that Mr. Rea was generally successful at trial. The quantum of costs awarded for a five day trial was modest. We see no error in the award of costs.
[45] With respect to the costs of this appeal, Mr. Rea has been successful on the main issues and is entitled to costs. We award him costs of $4500 inclusive of HST and disbursements. In fixing this amount, we have considered Mr. Rea’s partial indemnity costs but also factored into our consideration what is reasonable from the perspective of Ms. Rea having regard to her means.
Justice Taliano
Justice Whalen
Justice Sproat
Released: December 06, 2013
/ket
CITATION: Cindy Ann Rea v. Claudio Rea, 2013 ONSC 7548
COURT FILE NO.: DC-12-0012-00
DATE: 2013-Dec-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CINDY ANN REA
Appellant
- and –
CLAUDIO REA
Respondent
ENDORSEMENT
Taliano, Whalen, Sproat, JJ.