DIVISIONAL COURT FILE NO.: 160/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, R. J. SMITH AND HARVISON YOUNG JJ.
BETWEEN:
HERSH SCHIFMAN
Applicant
(Respondent in Appeal)
– and –
MIRIAM NEUMARK SCHIFMAN
Respondent
(Appellant in Appeal)
Teresa C. Ciccone, for the Applicant (Respondent in Appeal)
Sandra J. Meyrick, for the Respondent (Appellant in Appeal)
HEARD at Toronto: June 3, 2014
HARVISON YOUNG J. (orally)
1The appellant appeals from the trial decision of Horkins J. on the basis that she made an number of errors. First, she submits that the trial judge erred in her conclusion that pursuant to Boston v. Boston, 2001 SCC 43, 2001 S.C.C. 43, [2001] S.C.J. No. 45, [2001] 2 S.C.R. 413, double recovery should not be permitted in this case. Second, she submits that the trial judge erred in imputing income to the appellant. Third, she submits that the trial judge erred in failing to give appropriate weight to the medical reports submitted.
2These issues are issues of mixed fact and law and thus the standard of review is that of palpable and overriding error: Housen v. Nikolaisen, [2002] S.C.C. 33 at 36-37.
3For the following reasons, we would dismiss the appeal.
4First, and with respect to the Boston v. Boston test, Ms. Meyrick, on behalf of the appellant submitted that the trial judge erred in making the separation agreement the paramount consideration.
5We disagree. The trial judge quite properly considered the separation agreement that did very specifically, provide that the Boston v. Boston principle would be respected. She did not however, give it paramount or inappropriate weight, but rather carefully considered it within the context to the other considerations set out both in the agreement and in s. 17(7) of the Divorce Act. These considerations included the following. First, the trial judge noted, Mr. Schifman lived modestly over the last twelve years. Second, Ms. Schifman has recklessly depleted her assets including those inherited post-separation and plus the significant amount of spousal support that had been paid to her totalling approximately $367,500. Third, Ms. Schifman’s need was not created by the marriage or its breakdown, but by the financial irresponsibility decisions she made over the course of the last twelve years. Fourth, Mr. Schifman does not have an ability to pay the amounts Ms. Schifman is seeking.
6In addition, and within the context of these considerations, the trial judge noted that the separation agreement specifically addressed the consequences of the decision in Boston v. Boston and by contract, the parties had agreed that his exposure was to be required to pay spousal support on the unequalized portion of the pension.
7Accordingly, the trial judge’s finding that the principle against double-recovery should apply was well justified in the circumstances of this case.
8The second ground of appeal is that the trial judge erred in imputing income to the appellant. We disagree. The trial judge made repeated factual findings which were amply grounded in the record that the appellant had made poor financial decisions, as mentioned above. The money she spent on various ventures without any evidence that she had seriously considered their viability, was dissipated and meant that those capital amounts were not available for investment.
9On this record, the trial judge’s conclusion that imputing income of $5,000 per annum was fair, was open to her. Actuarial evidence for such a simple and common sense calculation was not necessary and would construct further accessibility barriers to justice for family law litigants.
10The third ground of appeal raised was that the trial judge had failed to give appropriate weight to the medical evidence. Again, we disagree. In fact, the trial judge carefully reviewed this evidence, both with respect to the applicant and the respondent. Ms. Meyrick further argued that the trial judge should have considered this more closely with respect to the appellant’s ability to work and earn income. The problem with this argument was that the appellant was working, in the sense that she has run various businesses. The central issue before the trial judge was not the appellant’s ability to work per se but rather, the decisions that she made with respect to the management of her finances.
11During submissions, counsel submitted for the first time that the trial judge erred in failing to impute income to the respondent, arguing that this was unfair. The amount she pointed to was a retirement bonus and vacation pay in the total pre-tax amount of $106,000 which had not been subject to equalization.
12This argument fails. It was clearly a live issue at trial and the last paragraph of the trial judge’s decision makes it clear that she took this into account.
13In hearing submissions as to costs, counsel for the appellant advised that she was representing Ms. Schifman through Pro Bono Law Ontario. The Court is grateful for the assistance provided in this challenging appeal. Order to go as follows: The appeal is dismissed for oral reasons given. Appellant shall pay costs of $7,500 including fees, disbursements and HST.
HARVISON YOUNG J.
KITELEY J.
R. J. SMITH J.
Date of Reasons for Judgment: June 3, 2014
Date of Release: June 5, 2014
CITATION: Schifman v. Schifman, 2014 ONSC 3374
DIVISIONAL COURT FILE NO.: 160/13
DATE: 20140603
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, R. J. SMITH AND
HARVISON YOUNG JJ.
BETWEEN:
HERSH SCHIFMAN
Applicant
(Respondent in Appeal)
– and –
MIRIAM NEUMARK SCHIFMAN
Respondent
(Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: June 3, 2014
Date of Release: June 5, 2014