Court of Appeal for Ontario

Date: 2018-02-28 Docket: C62623 Judges: Juriansz, Miller and Nordheimer JJ.A.

Between

Carolina Froehlich-Fivey Applicant (Appellant)

and

Jeffrey Richard Fivey Respondent

Counsel

D. Andrew Thomson, for the appellant

David Williams, for the respondent

Heard and released orally: February 28, 2018

On appeal from: the judgment of Justice Edward J. Koke of the Superior Court of Justice, dated July 22, 2016.

Reasons for Decision

[1] The appellant appeals from the trial judgment where equalization amounts were calculated along with spousal and child support.

[2] The appellant first sought to adduce fresh evidence consisting of a psychiatric report for one of the children on the issue of whether she continues to be a dependant.

[3] Even if we were to accept the fresh evidence, we would not rule on it. The appropriate remedy is to seek to vary the judgment under s. 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3 which expressly allows a court to vary an earlier order if the court is satisfied that "evidence not available on the previous hearing has become available".

[4] With respect to the merits of the appeal, the standard of review is a stringent one. As this court said in Slaughter v. Slaughter, 2013 ONCA 432, at para. 6:

The decision of the judge below is entitled to deference on appeal and the standard of review is designed to promote finality in family law litigation and to recognize the importance of the motion judge's appreciation of the facts.

It is only where the judge's decision exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong then an appellate court is entitled interfere.

[5] In our view, the appellant has failed to meet this test. While the appellant attempts to clothe her challenges as errors in law, that attempt does not succeed.

[6] She complains about the imputation of income to her but the trial judge gave proper reasons for doing so. She also complains about the valuation of the respondent's business but that issue was resolved by the trial judge on the basis that he preferred the evidence of the respondent's expert over that of the appellant. Again, the trial judge was entitled to make that choice.

[7] Boiled down to its essence, the appellant is challenging the factual findings that the trial judge made. It is not the role of this court to re-find facts. Absent a clear error in principle, this court should not interfere.

[8] The appeal is dismissed. Costs are awarded to the respondent fixed in the amount of $18,953.55 all-inclusive.

"R.G. Juriansz J.A."

"B.W. Miller J.A."

"I.V.B. Nordheimer J.A."