Court of Appeal for Ontario

Date: 2017-10-23 Docket: C62590

Judges: MacPherson, Juriansz and Roberts JJ.A.

Between

Suzanne Derbyshire Applicant (Respondent)

and

James Derbyshire Respondent (Appellant)

Counsel

For the Appellant: Gary S. Joseph and Ryan M. Kniznik

For the Respondent: Michael Nash

Heard: October 19, 2017

On appeal from: The orders of Justice Silja S. Seppi of the Superior Court of Justice, dated July 22, 2016 and October 13, 2016.

Reasons for Decision

Overview

[1] The appellant, James Derbyshire, appeals from the orders of Seppi J. of the Superior Court of Justice dated July 22, 2016 (substantive order) and October 13, 2016 (costs order).

[2] The two orders were the result of a nine day family law trial focused on the principal issue of spousal support in the context of a 26 year marriage. The trial judge concluded that the respondent, Suzanne Derbyshire, was entitled to ongoing spousal support of $25,000 per month effective January 1, 2009. The trial judge ordered the appellant to pay costs of the trial in the amount of $250,000, inclusive of disbursements and HST.

[3] The appellant appeals these orders on four grounds.

First Ground of Appeal: Retirement and Material Change in Circumstances

[4] First, the appellant contends that since the trial judge specifically included the appellant's potential imminent retirement from his very successful business (his income for many years post-separation and post-divorce exceeded $1,000,000 per annum) in her analysis of the spousal support issue, she erred in one or two respects – either by not providing for a review of spousal support upon the appellant's retirement or by not stating explicitly that the appellant's retirement would constitute a material change in circumstance justifying a review of spousal support.

[5] We do not accept this argument. There is nothing in the trial judge's language to even suggest that she was foreclosing a subsequent review of spousal support if and when the appellant retires. The trial judge said, at para. 93, that "[t]he periodic support ordered is subject to variation in the event of a material change in circumstances." It is obvious that retirement from a job that generates an annual income of more than $1,000,000 would constitute such an event. The respondent did not at trial, and does not on this appeal, suggest otherwise. As expressed in the respondent's factum:

20. In any event, Suzanne was on record as acknowledging that James' actual retirement would be a material change of circumstance … In fact the assurance is given again: the retirement of James is a material change of circumstance.

In conclusion, there is not even an issue, let alone an error, with respect to the trial judge's treatment of the appellant's future retirement.

Second Ground of Appeal: Beneficial Interest in Business Shares

[6] Second, the appellant asserts that the trial judge erred by concluding that the respondent has no beneficial interest in the shares in a business transferred by Lawrence Deakins to his daughter, the respondent, and her husband, the appellant, during their marriage.

[7] We disagree. The trial judge's conclusion on this issue is essentially a factual conclusion:

In the case at bar no evidence was produced by the respondent to support a finding that the transfers from Mr. Deakins were a gift, either to the Respondent and Applicant when they were together, or subsequently to the Applicant. The ancillary facts the Respondent raises to challenge the trust, such as the tax advantages utilized, or the fact that there was an earlier trustee of these shares, do not change the ultimate conclusion of the intention at the time of the transfer on the part of Lawrence Deakins. The transfers were never intended by him to be a gift. The Respondent's and Applicant's conduct throughout the marriage in respect of these assets, and Mr. Deakins' exclusive use and control of these assets, support no other conclusion. [Emphasis added.]

[8] We can see no basis for interfering with this conclusion. Effectively, the appellant is asking this court to re-weigh the evidence that the trial judge carefully and thoroughly considered. Much of the appellant's argument was spent reviewing matters he submitted the trial judge should have considered as evidence supporting the transfers were a gift. However, it was for the trial judge, applying the correct legal principles, to weigh the various factors. Contrary to the appellant's submission, we are not persuaded that she placed too much weight on the factor of "control of the assets" in arriving at her conclusion that there was no gift.

Third Ground of Appeal: Contingent Spousal Support Argument

[9] The appellant's third ground of appeal is a contingent one: he submits that if this court accepts his position on the second ground of appeal and concludes that the respondent is not holding certain assets in trust for her father, then her disposable income is substantially higher and a spousal support order of $25,000 per month is too high. Accordingly, spousal support should continue in the original amount of $15,000 per month.

[10] In light of our conclusion on the trust issue, the issue posed by the third ground of appeal does not arise.

Fourth Ground of Appeal: Costs Award

[11] Fourth, the appellant challenges the trial judge's costs award in one respect. He asserts that the trial judge took only a mathematical approach to the quantum of costs and simply added up the billable hours claimed by the respondent's counsel.

[12] We are not persuaded by this submission. In our view, a review of the trial judge's costs endorsement shows that she considered all relevant factors, including the positions of the parties, and arrived at a figure that seemed reasonable to her. We see no basis for interfering with her costs award.

Disposition

[13] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $18,000, inclusive of disbursements and HST.

J.C. MacPherson J.A. R.G. Juriansz J.A. L.B. Roberts J.A.