CITATION: Fracassi v. Fracassi, 2022 ONSC 4003
DIVISIONAL COURT FILE NO.: DC-21-710 DATE: 20220704
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Lederer and Nishikawa JJ.
BETWEEN:
JOSEPH FRACASSI
Desi Nikolova, for the Appellant
Appellant
– and –
ROSALBA FRACASSI
Rosalba Fracassi, self-represented
Defendant/Respondent
HEARD at Toronto (by videoconference0: July 4, 2022
D.L. Corbett J. (Orally)
[1] This is an appeal from the final order of Leiper J. dated July 28, 2021 (unreported), reducing monthly spousal support from $2,650 per month to $1815 per month, and dismissing the appellant’s request to rescind his arrears of spousal support.
[2] This court has jurisdiction over this appeal because the impugned order is a final order for periodic payments that amount to not more than $50,000 in the 12 months commencing on the date the first payment is due under the order: Courts of Justice Act, s.19(1.2)(b).
[3] The standard of review is the “appellate standard:” Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. That is, the standard of review is correctness as to questions of law and palpable and overriding error as to questions of fact. This court affords deference to mixed questions of fact and law, except to the extent that there is an extricable question of law, which is reviewed on a correctness standard.
[4] This court owes considerable deference to a decision on support. As stated by the Supreme Court of Canada in Hickey v. Hickey, [1999] 2 SCR 518, para. 12:
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. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
[5] The motion judge found that the parties agreed in their separation agreement that pension income would be included in the appellant’s support income for the purposes of calculating post-retirement support. The application judge made no error in so concluding: the separation agreement expressly states that pension income would be included in support calculations. This principle was also stated unambiguously by Paisley J. in his endorsement granting orders implementing the parties’ settlement in 2007.
[6] The appellant argued that the resulting support order would result in “double dipping”, because the value of the pension was equalized in the separation agreement. The application judge did not accept this argument. First, the separation agreement does not state that the value of the pension was equalized, and no inference can be drawn that it was in light of the parties’ agreement that pension income would be included to calculate post-retirement support obligations. Second, the respondent disputes that the pension was equalized in the separation agreement. A properly drawn separation agreement should not lead to a situation where a court deciding a subsequent change motion is required to conduct a forensic examination of the prior litigation in order to interpret the agreement.
[7] This court has been encouraging parties to deal expressly with what will happen upon retirement in cases such as the one at bar – where there is a long-term support obligation that will last at least until retirement. Both sides need to understand what their position will be when retirement comes. Here, the parties did precisely what this court has been encouraging: they put their minds to what would happen at retirement and they agreed that pension income would be included to calculate support. We conclude that the application judge made no error in her interpretation and application of the separation agreement.
[8] The application judge declined to impute income to the 70-year-old respondent, finding that both parties were equally entitled to retire from work, given their ages and histories. I see no error in principle in this conclusion, given the circumstances of the case. The appellant argues that income should be imputed to investment income the respondent could and should be earning. I see no merit to this argument. Potential investment income of the respondent is dwarfed by the potential investment income of the appellant, given the disparity in their capital positions.
[9] The motion judge found that the Spousal Support Advisory Guidelines provide for a top end of the range of support of $1,531 per month. On the findings of fact made by the application judge, this conclusion is correct. The motion judge found that she had the discretion to award an amount of support outside the range provided by the SSAG, but only if circumstances exist that justify such an award on the basis of factors provided in the Divorce Act, RSC 1985, c. 3 (2nd Supp.), s. 17(7). This finding is correct in law.
[10] The application judge exercised her discretion to award an amount higher than the top end of the SSAG range in light of the unequal financial position of the parties, the intertwining of property and support issues in the separation agreement, and some shortfalls in disclosure on the part of the appellant, notably the value of his impending OAS entitlement. This exercise of discretion is reasonable, in all the circumstances, and there is no basis for this court to intervene.
[11] The motions judge found that there was “no basis” on which to rescind arrears. I see no error in this conclusion. The parties, with the benefit of counsel, negotiated a separation agreement in 2007, and both parties were entitled to rely upon the terms of that agreement moving forward. In that agreement, support was indexed. Although a statement of current arrears was apparently not before the motions judge, it is not disputed that arrears were calculated in accordance with the separation agreement.
[12] For all of these reasons, I would dismiss the appeal. There shall be no order as to costs.
___________________________ D.L. Corbett J.
I agree
Lederer J.
I agree
Nishikawa J.
Date of Oral Reasons for Judgment: July 4, 2022
Written Endorsement Released: July 8, 2022
CITATION: Fracassi v. Fracassi, 2022 ONSC 4003
DIVISIONAL COURT FILE NO.: DC-21-710 DATE: 20220704
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Lederer and Nishikawa JJ.
BETWEEN:
JOSEPH FRACASSI
Appellant
– and –
ROSALBA FRACASSI
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
D.L. Corbett J.
Date of Oral Reasons for Judgment: July 4, 2022
Written Endorsement Released: July 8, 2022