DIVISIONAL COURT FILE NO.: D5/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Henderson, J. Fregeau, and W. Matheson JJ.
B E T W E E N:
MICHAEL THOMAS SCOTT
Appellant
H. Hassan, for the Appellant
- and -
MELANIE MARIE MCGRAIL
Respondent
H. Bernard, for the Respondent
HEARD at London: November 28, 2018
INTRODUCTION
1This is an appeal by Michael Thomas Scott (“the appellant”) from the final order of Justice McSorley, dated February 6, 2017, whereby the appellant was ordered to pay spousal support to Melanie Marie McGrail (“the respondent”) in the amount of $1,000 per month commencing March 1, 2016, payable on the first day of each month thereafter to and including February 28, 2022.
2For reasons set out in her written decision the trial judge found that the respondent was entitled to both compensatory spousal support and non-compensatory spousal support. Then, having found that the respondent was entitled to spousal support on both grounds, the trial judge determined the quantum and duration of the spousal support order.
3The appellant submits that the trial judge misapprehended the evidence by making several errors that unduly influenced or affected her decision as to whether the respondent was entitled to spousal support. Therefore, the appellant requests that the spousal support order be set aside. The respondent submits that the trial judge did not make any significant error and requests that the appeal be dismissed.
4In summary, the appellant alleges that the trial judge made the following errors:
The trial judge erred in characterizing the relationship between the appellant and the respondent as a traditional relationship;
The trial judge erred by finding that the parties had merged their finances;
The trial judge erred in her calculation of the incomes of the parties by omitting certain income of the respondent;
The trial Judge erred in failing to balance the relative advantages and disadvantages arising out of the relationship for each of the parties;
The trial judge erred by failing to impute income to the respondent for support purposes; and
The trial judge erred by stating that the respondent’s two children did not reside with the parties during the relationship when the evidence was to the contrary.
BACKGROUND
5The background, as found by the trial judge, is that the appellant and respondent commenced their relationship in 2003. At that time the respondent was living in Strathroy with her two children of a prior marriage. There are no children of the relationship between the appellant and the respondent.
6In 2004 the appellant purchased a home in Woodstock. In July or August 2004 the appellant and the respondent began to live together in a common-law relationship at the appellant’s Woodstock home. They continued to cohabit in a common-law relationship until they married in June 2011. They remained living together until their separation on October 18, 2015.
7In 2003 the respondent had been working as a social work case aide for a hospital, but her position was eliminated prior to the start of her cohabitation with the appellant. Thereafter, she worked sporadically in the retail sector until she obtained employment at TD Bank in 2005 on a casual basis. Eventually, that job became permanent and the respondent has continued to work for TD Bank to the date of the trial. At all relevant times the appellant was working full time as a long distance truck driver.
8In the court proceedings below all matters except spousal support were settled. The trial of the spousal support issue was heard by Justice McSorley over two days in July 2016.
9In her written reasons the trial judge reviewed the legislative schemes set out in the Divorce Act and the Family Law Act (“FLA”). The trial Judge found that the respondent met the definition of a spouse under both Acts, and that the parties had lived together as spouses for 11 ½ years ending with the separation in October 2015.
10In this appeal the appellant does not challenge any of those findings of fact.
STANDARD OF REVIEW
11The leading case with respect to the standard of review on an appeal from an order of a judge is Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. At paras. 8 and 10 of Housen the court wrote that the standard of review for questions of law is correctness and the standard of review for findings of fact is palpable and overriding error.
12Further, at para. 36 of Housen the court found that the standard of review applicable to matters of mixed fact and law lies along a spectrum. The court wrote that “where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.”
13Additionally, in any appeal from a judge’s order as to spousal support the appellate court must also consider the decision in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518. At paras. 11 and 12 of Hickey, the court wrote:
Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong...
There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. ….
14The Ontario Court of Appeal considered the interplay between Housen and Hickey in Berger v. Berger, 2016 ONCA 884. Weiler J.A. wrote, at paras. 43-45:
- With respect to the review of support orders, in Mason v. Mason, 2016 ONCA 725, at para. 110, this court held that a deferential approach to support awards was appropriate due to their fact-based and discretionary nature:
Because of the fact-based and discretionary nature of support awards, a trial judge's order for spousal support is entitled to significant deference on appeal. This deferential approach to support awards promotes finality in family law litigation and also recognizes the importance of the trial judge's role in seeing and hearing the parties and other witnesses testify. An appeal court is not entitled to overturn a spousal support order simply because it would have balanced the relevant factors differently or arrived at a different decision: Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-12.
Nonetheless, this court recognized in Mason, at para. 111, that an appeal court must intervene in a support award where: “the trial judge’s reasons disclose an error in principle, a significant misapprehension of the evidence or if the award is clearly wrong: Hickey, at para. 11.”
This reflects the approach to the standard of review for findings of fact as set out in Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235. In that case, the Supreme Court held at para. 10 that findings of fact should be reversed where it can be established that the finding is a “palpable and overriding” error.”
15In the present case the appellant alleges that the trial judge misapprehended the evidence. Accordingly, the appellant can only succeed in the present appeal if the appellant establishes that the trial judge misapprehended the evidence to the extent that the misapprehension constitutes a palpable and overriding error.
ANALYSIS
16In her decision the trial judge correctly referenced the Supreme Court of Canada decision in Bracklow v. Bracklow, [1991] 1 S.C.R. 420 regarding the law as it relates to compensatory and non-compensatory spousal support. At issue in this appeal is the question of whether the judge significantly misapprehended the evidence such that it affected her application of the law to the facts.
17Regarding the appellant’s submission that the trial judge erred by characterizing the relationship between the parties as a traditional relationship, we find that the trial judge explained what she meant when she used that phrase. In particular, at paras. 29-30 of her decision, the trial judge stated that the appellant was the primary financial contributor to the relationship; that the respondent was responsible for the cooking, cleaning, shopping, laundry, and other household tasks; that the parties merged their economic and non-economic lives; and that both parties paid for the household expenses, but that the appellant paid for more of the expenses because of his greater income.
18Given this explanation by the trial judge, we find that the judge used the phrase “traditional relationship” simply as a label or a shorthand way of referencing the general roles of each party in the relationship. Because the trial judge defined her use of that phrase, and because her definition is supported by the evidence, we find that there has been no misapprehension of the evidence by the judge in this respect.
19Regarding the appellant’s submission that the trial judge erred by finding that the parties had merged their finances, we find that there was abundant evidence to support the trial judge’s finding. Specifically, there was evidence that the parties jointly owned the matrimonial home, that they jointly mortgaged the matrimonial home, that they jointly purchased a fifth wheel trailer, that they were jointly liable for the debt related to the appellant’s vehicle, that they held a joint bank account, that they held a joint vacation account, and that they had a joint Consolidated Revenue Account. In addition, the evidence that the appellant paid for the majority of the household expenses suggests that the respondent enjoyed an indirect financial benefit arising out of the relationship. We find that there has been no misapprehension of the evidence by the judge in this respect.
20Regarding the submission that the trial judge miscalculated the incomes of the parties, in her written decision the trial judge found that the appellant’s income during the relationship was substantially higher than the respondent’s income. The evidence supports that finding.
21Further, the trial judge did some calculations that established that the appellant’s average income during the relationship was approximately $87,509 per year and that the respondent’s average income during the same period was approximately $26,422 per year. The appellant submits that the judge erred in this calculation by failing to take into account the fact that the respondent was receiving child support and spousal support from her first husband.
22In that respect we find that the figures used by the trial judge in fact included the spousal support that the respondent received during the relationship as those figures were disclosed in the income tax returns, and the trial judge used the income figures from the tax returns in performing her calculations.
23Although the trial judge may not have included the child support in the income figures, we find that this is not an error. Any child support received by the respondent would have been for the purpose of supporting the respondent’s children and would be irrelevant to the respondent’s ability to earn an income during the relationship. Thus, we find that this submission does not establish a misapprehension of the evidence.
24Regarding the appellant’s submission that the trial judge failed to balance the advantages and disadvantages arising out of the relationship, we find that the trial judge did in fact balance these factors. The trial judge did so by considering the roles that each party played in the relationship, and by considering the effect of the relationship and the breakdown on the financial circumstances of the parties. As was discussed in Berger, an appeal court is not entitled to overturn a spousal support order simply because it would have balanced the relevant factors differently. Therefore, we find that this submission has no merit.
25Regarding the trial judge’s decision to not impute income to the respondent, we find that, based on the evidence at trial, such a decision was within the purview of the trial judge. The trial judge considered the evidence, weighed the evidence, and found that no income should be imputed to the respondent. Specifically, the trial judge found that this was not a case in which the respondent refused to work. She found that the respondent had worked throughout the relationship and that she was continuing to do the work she did during the relationship. Further, the trial judge found that there was no evidence that the respondent had turned down any opportunities for advancement. In our view, there was ample evidence to support those findings.
26Finally, we accept that the judge made a factual error by stating that the respondent’s two children chose not to move with her to Woodstock to live with the appellant in 2004. The evidence is that the respondent’s two children moved with the respondent in 2004, and remained living with the appellant and respondent until approximately 2012. We accept the appellant’s submission that this was a factual error that was made by the trial judge.
27The issue then is whether the error made by the trial judge about the children’s residence was a significant one that constitutes a palpable and overriding error.
28In our view, this factual error is not relevant to the trial judge’s analysis of the non-compensatory support issue. Non-compensatory support focuses on the means and needs of the parties and whether the recipient party has the ability to maintain the standard of living that she had enjoyed during the relationship.
29In the present case the trial judge made definite findings, supported by the evidence, that form the foundation for a non-compensatory support order. In particular, the trial judge found that the respondent was operating at a monthly deficit, that she could not pay her expenses, that she could not enjoy the same standard of living that she had enjoyed during the relationship, and that she had to rely on the charity of friends and loans from her parents to pay her bills. The fact that the judge did not correctly determine whether the children had lived with the respondent and the appellant during the relationship is irrelevant to these findings.
30Therefore, we find that this factual error by the trial judge does not constitute a significant misapprehension of the evidence or a palpable and overriding error with respect to the judge’s findings regarding non-compensatory support. Thus, the judge’s decision that the respondent is entitled to receive non-compensatory support from the appellant should not be set aside.
31Given that the respondent is entitled to receive non-compensatory support, there is no need for us to consider the question of whether the judge’s error significantly affected her decision on the issue of compensatory support.
CONCLUSION
32For these reasons, the appeal is dismissed, with costs payable by the appellant to the respondent fixed at $9,000 all inclusive.
J. Henderson J.
I agree _____________________________
J. Fregeau J.
I agree _____________________________
W. Matheson J.
Date of Release: December 17, 2018
CITATION: Scott v. McGrail, 2018 ONSC 7434
DIVISIONAL COURT FILE NO.: D5/17
DATE: 20181217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Henderson, J. Fregeau, W. Matheson JJ.
BETWEEN:
MICHAEL THOMAS SCOTT
-and-
MELANIE MARIE MCGRAIL
REASONS FOR DECISION
J. Henderson J.
DATE: December 17, 2018