CITATION: Mary Favero v. Daniel Favero, 2015 ONSC 1264
DIVISIONAL COURT FILE NO.: DC-14-541
DATE: 2015-03-25
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: Mary Favero, Applicant (Respondent on Appeal)
A N D:
Daniel Favero, Respondent (Appellant on Appeal)
BEFORE: Justices Marrocco, Kent and Edwards
COUNSEL: Wayne H. Redekop, for the Applicant (Respondent on Appeal)
Daniel Favero, Self-Represented
HEARD: February 25, 2015
E N D O R S E M E N T
[1] The Appellant, Daniel Favero, appeals from the decision of Chappel, J. made 19 June 2013 dismissing his Motion to Change. The changes that he sought were to have child support that he had previously been ordered to pay reduced and his previously ordered spousal support terminated. Both support payments had been ordered by Milanetti, J. on 8 June 2009.
[2] Since the trial before Chappel, J., Mr. Favero has brought a fresh Motion to Change on the basis that his older daughter Sarah, now almost 20, moved to his home in October 2013. He understands that this change in circumstances cannot be addressed in the context of this appeal.
[3] Another event that has occurred since trial is that criminal charges that were outstanding against Mr. Favero at the time of the trial were stayed in August of 2014.
[4] As is sometimes the case, when individuals choose to represent themselves on an appeal, they unfortunately wrongly anticipate that the appeal is an opportunity to re-argue the issues raised at trial. Mr. Favero may have been under that misperception. However, from his Notice of Appeal, his Supplementary Notice of Appeal, his Factum and his oral submissions on this appeal, it appears that he wishes this court to consider the following issues:
Whether Justice Chappel erred in law or misapprehended the evidence in concluding that the children were not with their father in a shared custody arrangement within the meaning of s. 9 of the Child Support Guidelines;
Whether Justice Chappel erred in concluding that Mary Favero was entitled to compensation for income given up when she gave up her interest in the Niagara Falls Car Wash;
Whether Justice Chappel erred by including in Mr. Favero’s income capital gains triggered for the purpose of making the equalization payment provided in the Milanetti order;
Whether Justice Chappel erred by concluding that Justice Milanetti made a finding of fact with respect to Mr. Favero’s income;
Whether Justice Chappel considered the cumulative effect of Mr. Favero’s increased time with children, the declined economic circumstances in Fort Erie and the road construction near his business in determining whether there had been a material change in circumstances of the parties.
[5] Justice Chappel dismissed Mr. Favero’s request to vary the child support and spousal support after a very thorough analysis of the evidence at trial and the law. She specifically addressed the applicability of Section 17 of the Divorce Act, the position taken by each party on the issue, the legal principles applicable to a Motion to Change support, the general principles relating to shared custody arrangements, principles relating to determination of income and the imputation of income.
[6] Justice Chappel also conducted a careful and thorough analysis of whether there had been a material change in Mr. Favero’s income and net worth since 2009 based on his own evidence, the imputation/attribution of income and various real estate transactions between Mr. Favero and his parents. She concluded that there had been no material change in Mr. Favero’s financial circumstances either as to income or net worth.
[7] It is a well-established principle that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it can be established that the trial judge made some palpable and overriding error which affected her assessment of the facts.
[8] It is clear from Justice Chappel’s Reasons for Judgment that she considered all of the evidence regarding the time shared by the children with each parent and concluded that the children wished to maintain flexibility in the schedule agreed upon by the parties, that the children often did not spend the time with their father provided for in the schedule and, therefore, did not spend 40% of the time with Mr. Favero. These conclusions are findings of fact. The trial judge is in a superior position to assess the evidence and the credibility of the parties.
[9] Justice Chappel also considered Mrs. Favero’s financial circumstances since 2009, the applicability of the Spousal Support Advisory Guidelines, the fact that the Milanetti Order did not include a time limit for spousal support, and the financial burden experienced by Mrs. Favero as a result of protracted litigation for the past several years and determined that the facts of the case did not warrant a termination of spousal support on the basis of the passage of time, as argued by Mr. Favero.
[10] Nowhere in the Reasons for Judgment did Justice Chappel state that Justice Milanetti had made a finding of fact as to Mr. Favero’s income in June 2009. Rather, the Judgment states that Mr. Favero agreed that an income of $100,000 should be attributed to him for child and spousal support purposes.
[11] That acknowledgement by Mr. Favero at the time of trial is tantamount to his agreeing to the imputation of an annual income to him of $100,000. This is the basis for the child support and spousal support provisions in the Milanetti Order. This amount becomes the starting point for determining whether there has been a material change in the circumstances of the parties warranting a variation in the Order in issue.
[12] Justice Chappel concluded, as findings of fact, that:
a) Mr. Favero was not a credible witness, was often evasive, that there were a number of serious inconsistencies in his evidence and that he lacked respect for Court Orders and the Court process generally;
b) The children did not spend at least 40% of the time with Mr. Favero, despite the time-sharing arrangement between the parties;
c) Even if the time-sharing arrangement resulted in Mr. Favero having the children in his care at least 40% of the time, he did not adduce any evidence to support a finding that the change in circumstances would result in increased costs to him;
d) Mr. Favero adduced no evidence to support his contention that he suffered a decrease in income as a result of a downturn in the economy;
e) Mr. Favero failed to explain why construction work in Garrison Rd impeded access to the car wash, resulting in a loss of revenue, but did not affect vacuum sales at the car wash, which actually increased over the same period of time;
f) Mr. Favero avoided claiming income from the disposition of properties to his parents, which left the impression that there was a trust arrangement between Mr. Favero and his parents.
[13] It is not difficult to understand that a party facing criminal charges at the time of a trial that did not go well for him might feel that the trial judge may have placed too much emphasis on the existence of those charges. This is particularly so when those charges are subsequently stayed. Mr. Favero feels that the existence of the charges may have caused the trial judge to be biased against him.
[14] A careful reading of the reasons of the trial judge reveals no evidence of bias whatsoever. Chappel, J. made it clear that Mr. Favero had not been convicted of any of the charges. She dealt fairly with the existence and the context of the charges at paragraph 50 of her reasons.
[15] For all of the above reasons, we are of the view that this appeal must be dismissed.
[16] The parties agreed that the sum of $9,763.54 would constitute an appropriate costs award to the successful party. Accordingly, costs are fixed in the amount of $9,763.54 inclusive of disbursements and GST and an order is made requiring the unsuccessful appellant to pay those costs to the successful respondent.
Marrocco A.C.J.S.C.
Kent J.
Edwards J.
DATE: March 25 , 2015
CITATION: Mary Favero v. Daniel Favero, 2015 ONSC 1264
DIVISIONAL COURT FILE NO.: DC-14-541
DATE: 2015-03-25
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Mary Favero, Applicant (Respondent on Appeal)
A N D:
David Favero, Respondent (Appellant on Appeal)
BEFORE: Justices Marrocco, Kent and Edwards
COUNSEL: Wayne H. Redekop, for the Applicant (Respondent on Appeal)
Daniel Favero, Respondent (Appellant on Appeal) in person
ENDORSEMENT
MARROCCO, KENT, EDWARDS J.J.