Graham v. Graham, 2015 ONSCDC 2962
CITATION: Graham v. Graham, 2015 ONSC 2962
Divisional Court File No. 14/686
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N
TIMOTHY CECIL GRAHAM
Appellant
- and –
BRIGITTE WONG GRAHAM
Respondent
PRESIDING JUSTICES
THE HONOURABLE JUSTICE CORBETT
THE HONOURABLE JUSTICE HARVISON YOUNG
THE HONOURABLE JUSTICE O'MARRA
AT THE DURHAM REGION COURTHOUSE,
150 BOND ST. E., OSHAWA, ONTARIO,
ON MARCH 5, 2015
REASONS FOR JUDGMENT
APPEARANCES:
M. Prost Counsel for the Appellant
H. McCullough Counsel for the Respondent
MARCH 5, 2015
Neutral Case Citation Number
REASONS FOR JUDGMENT
CORBETT, J. (Orally)
Despite Mr. Prost’s very able and forceful arguments, we do not find it necessary to call on responding counsel.
For the reasons that follow, this appeal is dismissed.
Under s.19 of the Courts of Justice Act, an appeal lies to this court from a final order of a judge of the Superior Court of Justice for a single payment not more than $50,000 exclusive of costs or for periodic payments that amount to not more than $50,000 exclusive of costs in the 12 months commencing on the date the first payment is due under the order.
In this case, the Appellant is appealing periodic payments of child support in the amount of $1,722 per month and spousal support in the amount of $2,137 per month. In the 12 months commencing on the first day of payment on May 1, 2014, June 1st for the child support, this amount would amount to $44,586 and therefore, would be within the Divisional Court’s jurisdiction.
The Appellant is also appealing a single payment of retroactive support in the amount of $31,322 and again, this amount is within the $50,000 limit as stipulated in s.19.1.2(a).
Together, the periodic payments and the 12 months and the lump sum rise over the $50,000 threshold. However, “when lump sum payments are less than $50,000 and periodic payments for 12 months are also less than $50,000 Divisional Court has jurisdiction even if total of those payments exceeds $50,000.”
Accordingly, we have jurisdiction over this appeal.
In respect of the standard of review, deference must be given to the findings of fact by the trial Judge absent a palpable and over riding error. See Housen vs. Nikolaisen, 2002 SCC 33, 2002 2 S.C.R. 235.
In the context of a decision for support in a family law case, the Supreme Court of Canada in Hickey vs. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paragraphs 10 and 12, supports a high level of deference to the discretion of trial Judges in family matters.
According to the Supreme Court, an appellate court should only interfere on a “material error, serious misapprehension of the evidence or an error in law.” See paragraph 12 of the Hickey decision.
An appellate court is therefore not entitled to overturn a support orders simply because it would have made a different decision or balance the factors differently. In Greenglass vs. Greenglass, 2010, ONCA 675, a decision over whether or not to allow an amendment to pleadings at trial should not be interfered with provided that the trial Judge identified the relevant factors and exercised his discretion based on proper principles.
In considering an amendment under Rule 11.3 of the Family Law Rules, the trial Judge must allow an amendment unless the amendment would disadvantage another party in a way for which costs or an adjournment would not compensate.
In the case of Drygala vs. Pauli, 2002 41868 (ON CA), 61 O.R. (3rd) 711 at paragraph 44, when the Court imputes income under s.19 child support guidelines, there must be a rational basis underlying selection of the imputed income and the amount selected is an exercise of the Court’s discretion that must be grounded in the evidence.
The factors to be considered include age, education, experience, skills, health, availability of job opportunities and the amount that could be earned.
As for Hickey, which I have already cited, provided there is no “material error, serious misapprehension of the evidence or an error in law,” the trial Judge must be afforded deference and the appellate court should not interfere just because it would have made a different decision or balanced the factors differently.
The issues raised by the Appellant before us were as follows;
the Appellant argued that the trial Judge erred by permitting the Respondent to amend her claim at the commencement of trial to claim spousal support;
the trial Judge erred by imputing income to the Respondent at a substantially lower amount than was reasonable; and
the combined effect of the order for child and spousal support creates an undue hardship for the Appellant affecting his ability to care for the children and provide a reasonable lifestyle for them while in his care.
I will deal with those arguments in the order that I have just raised them.
In respect to the adjournment, the trial Judge reviewed the appropriate factors. He ameliorated prejudice by limiting arrears to 2013 and 2014. He offered to permit the Appellant to adduce reply evidence on these issues after the Appellant’s evidence, an offer the Appellant did not pursue.
We see no error in his decision to permit the amendment.
In respect to the quantum of imputed income, Justice Douglas considered the Appellant’s mental health and also her lack of recent work experience, noting that she hadn’t worked since 1997. While Justice Douglas did not have any “cogent medical evidence” to demonstrate that the Appellant could not work at all, he did consider her mental health episode in 2008 as well as the testimony of the Appellant and her mother which indicated that she continued to struggle with mental health issues.
Justice Douglas found on balance that “there is some ongoing challenge to the wife’s employability presented by her mental health though the extent to which it governs her employability going forward, remains difficult to define.”
Justice Douglas went on to find that even someone with “ill defined mental health issues” could secure remunerative employment within two years of the incident and the trial Judge then proceeded to impute income to the Appellant at minimum wage from 2011 with a 10% raise in each of the succeeding three years.
We conclude that, as required by the Drygala case, Justice Douglas did have an evidentiary basis for imputing income at the figure that he did, a lower figure than that suggested by the Appellant, given the Respondent’s lack of work history and her mental health issues. While there was no expert medical evidence to substantiate this claim, deference must be given to the trial Judge’s findings of fact absent palpable and over riding error.
There is no such error here and the review order made by the trial Judge properly takes into account the fragility of the trial evidence.
In respect to the undue hardship for the Appellant, Mr. Prost argues forcefully that the trial Judge’s order dividing NDI on a 50/50 basis creates undue hardship for the Appellant because he bears the expense of maintaining two residences and the Respondent has no accommodation expense because she lives with her mother.
This argument has considerable force in the circumstances of this case. However, it was not raised before the trial Judge and can be fully addressed at the review next year. Further, the Appellant was effectively relieved from paying spousal support for almost five years because of these arrangements and has achieved a savings as a result.
The decision on quantum is discretionary and in all these circumstances, with the review one year away, we are not prepared to intervene.
As noted, the trial Judge imputed income to the Respondent at minimum wage in annual amounts between about $21,000 to about $25,000. He ordered a review of support issues in two years. One year has elapsed since the trial judgment and so the review of the trial judge’s order may be brought about one year from now. As noted in Fisher vs. Fisher, 2008 O.R. (3d) 241, a review order in effect turns an initial final order into a long term interim order made after trial. See paragraph 70 of Fisher.
Such orders should be the exception rather than the norm. We are satisfied that there is no reversible error in the trial Judge’s decision to proceed as he did and that all of the Appellant’s concerns can, and should be, addressed in the review that may begin in about one year’s time.
The Respondent should not take from this decision a conclusion that she will be entitled to her current level of spousal support indefinitely. She has an obligation to try to become self-sufficient. The trial Judge’s review order, in only two years, is a clear signal to her that she needs to take positive steps on the path to self sufficiency.
The Appeal is dismissed.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Deborah Tinmouth, certify that this document is a true and accurate transcript of the recordings of Graham vs. Graham in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2812-201-20150305, which has been certified in Form 1.
April 7, 2015 __”electronic signature of DET”
Deborah Tinmouth, C.C.R.