SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Jennifer Bloom, Applicant/Appellant
AND
Barry Bloom, Respondent (Respondent)
BEFORE: Aston, Ellies and Myers J.J.
COUNSEL: Linda A. Hanson, for the Applicant/Appellant
Stephane MonPremier, for the Respondent/Respondent
HEARD: September 12, 2018
ENDORSEMENT
ASTON J. (Orally)
Motion to Introduce Fresh Evidence
Motion to Introduce Fresh Evidence
1As a preliminary matter to this appeal, the appellant seeks to introduce into evidence her income tax returns for the years 1990 to 2002. The purpose of that request is to buttress her submission that her spousal support entitlement included a strong compensatory component.
2The extent to which the original support order was compensatory in nature is a main focus for her appeal. However, the fresh evidence tendered does not meet the test for admissibility set out in R. v. Palmer, [1980] 1 S.C.R. 759 or Sengmueller v. Sengmueller, (1994), 17 O.R. (3rd) 208.
3The husband’s motion to change sought termination of his spousal support obligation. The appellant knew from his pleading in October of 2016 that ongoing spousal support might depend, at least in part, on her ability to demonstrate that the compensatory nature of her entitlement was unsatisfied and ongoing. The tax returns could have been obtained and introduced on the hearing of the motion to change.
4Moreover, the tax returns for 1990 to 2002 would not likely have affected the outcome. There was no factual dispute that Ms. Bloom had little income in those years or that she spent considerable time on child rearing rather than working outside the home. The motions judge essentially accepted her evidence in that regard, finding a compensatory element in her entitlement to support. The motions judge may have downplayed the significance of the role Ms. Bloom fulfilled when the children were young but she did so primarily because Ms. Bloom had established significant income earning capacity prior to the separation and because she did not diligently pursue remunerative work post-separation when her parental responsibilities had diminished. The tax returns would have only confirmed what the motions judge already knew and took into account.
5The motion to introduce new evidence is therefore dismissed.
The Standard of Review
The Standard of Review
6The appeal begins with an understanding of the standard of review. The appellant's factum does not address the standard of review. This is not a hearing de novo. Our function on an appeal is not to weigh the evidence and substitute our own views for that of the motions judge. On a pure question of law, the standard of review is correctness; an appellate court will substitute its opinion for that of the motions judge if an error of law has been demonstrated. Findings of fact are not to be reversed unless it has been established that the judge below made a “palpable and overriding error” or made findings of fact that are “clearly wrong” and germane to the outcome.
7The standard of review on all matters relating to support is highly deferential. Appellate courts only interfere with support orders if the reasons disclose a legal error, an error in principle, a significant misapprehension of the evidence or an award that is clearly wrong. See Carr v. Condon, 2018 ONCA 509 at paras. 8-9 and as well as Hickey v. Hickey at paras. 11-12.
The Appeal
The Appeal
8The first issue raised on the appeal is one of procedural fairness. Did the motions judge err by failing to direct a trial and instead deciding the case on the material filed and the submissions that were made?
9Family Law Rule 15 governs motions to change a final order. Subrule 15(26) provides that if the motions judge concludes the motion “cannot be properly dealt with because of the material filed, because of the matter in dispute or for other reason” then the judge may direct a trial. It is a discretionary decision.
10The mere fact of conflicting evidence does not necessitate a trial.
11In this case, no one asked the motions judge to direct a trial and she did not do so of her own initiative. She decided that certain conflicting evidence (for example whether the separation occurred in 2008 or 2010) was not significantly important in her determination of the issues.
12She made one critical finding of fact on conflicting evidence (on the question of the nature of Ms. Bloom’s relationship with Mr. Duffus between 2010 and 2016) based on an assessment of credibility. She explained in her reasons why she rejected the evidence of Ms. Bloom. It was open to the motions judge to draw the inference that Ms. Bloom was cohabiting with Mr. Duffus before she married him in 2016. That finding of fact does not rise to the level of “palpable and overriding error”.
13It was open to the motions judge to refrain from directing a trial, which would entail significant delay and additional expense, when neither side was asking her to do so.
14The appellant has failed to demonstrate any procedural unfairness. No objection was made to the motions judge on the procedure she followed. There was ample notice of the procedural steps being followed, including an adjournment of the July 2017 hearing to a date in October 2017, an adjournment which enabled any further disclosure or discovery steps either party wished to pursue.
15As to the merits of the decision itself, the appellant has failed to establish any palpable and overriding error in the material facts found by the motions judge.
16In our view the appellant has also failed to demonstrate any legal error. The motions judge correctly determined that there had been a material change in circumstances and then looked at the provisions of s. 17(7) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). She considered the Spousal Support Advisory Guidelines and explained why those Guidelines are not helpful on the facts of this particular case. It is plain from her reasons that the motions judge was well aware that remarriage does not necessarily terminate entitlement to spousal support, especially when there is prima facie an element of compensatory support in the original support order. The motions judge recognized that Ms. Bloom’s spousal support included a compensatory element. Implicit in the decision to reduce the support only as of April 1, 2017, rather than an earlier date that would reflect Ms. Bloom’s years of cohabitation with Mr. Duffus prior to their marriage in 2016, is a recognition that much of the support paid by Mr. Bloom before April 1, 2017 was mainly, if not entirely, compensatory in nature. Mr. Bloom paid $1,300 per month for years after Ms. Bloom’s entitlement to non-compensatory support had ended.
17The last issue is with respect to costs. Mr. Bloom was clearly the more successful party and presumptively entitled to costs. The quantification of those costs falls short of full indemnity. The amount ordered constitutes a reasonable exercise of discretion by the motions judge in that regard. There is no basis upon which to interfere with that discretion.
Aston J.
I agree Ellies J.
I agree Myers J.
Date: September 12, 2018 (Orally)