Makeeva v. Makeev, 2021 ONCA 232

COURT OF APPEAL FOR ONTARIO

DATE: 20210414 DOCKET: C67320 & C68478

Rouleau, Brown and Miller JJ.A.

BETWEEN

Natalia Makeeva Applicant (Appellant/Respondent by way of cross-appeal)

and

Andrey Makeev Respondent (Respondent/Appellant by way of cross-appeal)

Counsel: Ruslana Korytko, for the appellant/respondent by way of cross-appeal John W. Bruggeman, for the respondent/appellant by way of cross-appeal

Heard: March 29 by video conference

On appeal from the judgments of Justice E. Ria Tzimas of the Superior Court of Justice, dated July 18, 2019 and June 19, 2020 with reasons reported at 2019 ONSC 4334 and 2020 ONSC 3750.

REASONS FOR DECISION

1After a trial of the family law issues, the appellant was ordered to pay $905 per month in spousal support indefinitely on the grounds that, after the dissolution of their 15-year marriage, the respondent was suffering financially. The trial judge also ordered that the appellant pay $17,419.60 as an equalization payment.

2After the judge issued her decision, the appellant attempted to reopen the trial and file fresh evidence about the respondent’s potential income and his counsel’s alleged misconduct in registering a mortgage on the parties’ matrimonial home. The trial judge dismissed this motion largely on the basis that this evidence would not change her original judgment.

3The appellant raises five grounds of appeal. She argues that the trial judge erred in:

1. allowing the interpreter to continue interpreting despite the appellant’s stated concerns about her competency;
2. failing to order a lump sum child support payment;
3. imputing the respondent’s income at $28,000 per year;
4. awarding spousal support; and
5. failing to admit the fresh evidence.

4The respondent cross-appeals and argues that the trial judge erred by failing to deduct the value of a date of marriage asset from the respondent’s net family property.

5For the reasons that follow, we dismiss the appeal and allow the cross-appeal.

The competency of the interpreter

6The appellant argues that due to the alleged incompetency of the Russian language interpreter there were inaccuracies and omissions in the translation over the course of the trial, and that this affected the appellant’s ability to properly cross-examine the respondent. The appellant maintains that the errors were substantial and resulted in an unfair trial.

7We disagree.

8It was only on the seventh day of trial that the appellant’s lawyer, who is fluent in Russian, raised a concern respecting the quality of the translation. When the issue was raised, the trial judge provided three options to the appellant on how to proceed. The appellant chose to continue the trial using the same interpreter.

9Having chosen to proceed with the interpreter, she cannot now raise this as a ground of appeal. Further, it is significant in our view that we have been provided with no expert evidence as to any inaccuracies that could potentially have changed the outcome on an issue of importance.

Was a lump sum child support payment appropriate?

10The appellant argues that the trial judge ought to have made a lump sum child support payment order. In her submission, it was evident that, since separation, the respondent had regularly failed to pay periodic child support and contribute towards the children’s s. 7 expenses. In her view, therefore, a lump sum child support payment was clearly in the best interests of the children. Despite the appellant’s request for such an order, the trial judge did not, in her reasons, explain why the request was denied.

11We see no error in the trial judge’s refusal to award a lump sum child support payment. This is an issue of mixed fact and law. Lump sum support is considered appropriate where there is real risk that periodic payments will not be made. The appellant was unable to direct the court to evidence showing that the respondent’s behaviour was indicative of future non-payment of child support. No basis has been provided for interfering with the trial judge’s decision not to award a lump sum child support payment.

The imputation of income to the respondent

12The appellant submits that the trial judge’s decision to impute the respondent’s income at $28,000 is unreasonable. She maintains that the appellant is intentionally underemployed and that the figure the trial judge chose as imputed income is not based on the evidence.

13Given factors such as the age, education, experience, skills and health of the respondent, as well as the job opportunities he could pursue, the appellant argues that the court should have imputed income to the respondent of $60,000 per year as a licensed journeyman electrician. Alternatively, given that several years earlier the respondent had been a truck driver, the trial judge could have imputed a salary of $50,000, representing the salary he had been earning in that role.

14We disagree. Imputation of income is an issue of mixed fact at law. The trial judge’s determination is anchored in factual findings which are to be afforded deference and are not to be disturbed without showing that the judge committed palpable and overriding errors. On appeal, the appellant can point to no error, let alone a palpable and overriding error.

15The trial judge found that the respondent’s English language skills were limited and that he had been working as a handyman for the Russian-speaking community in the Greater Toronto Area. There was no admissible evidence presented at trial to support the suggestion that, although he was qualified as a journeyman electrician, he could have earned anything approaching $60,000 per year.

16Further, there was no basis to impute to the respondent the income of a truck driver. The respondent gave evidence that he had quit his truck driving job in 2008 due to back problems. The trial judge accepted that evidence. There was no basis in the evidence to find that he could return to that employment.

17The respondent lives a modest lifestyle. Nothing that he earned suggested an income greater than what he reported in his sworn financial statements. The imputation of income in the amount of $28,000 was reasonable in all of the circumstances.

The award of spousal support to the respondent

18The appellant submits that in determining that she should pay spousal support to the respondent, the court failed to give sufficient consideration, or any consideration, to s. 15.3(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and s. 38.1(1) of the Family Law Act, R.S.O. 1990, c. F.3, which direct the court to give priority to the support of children over an order for spousal support. She argues that the court failed to evaluate the respondent’s claim for spousal support in conjunction with the appellant’s ability to meet both her own and the respondent’s reasonable needs.

19The appellant also submits that the trial judge ignored relevant case law and made a spousal support order shifting the entire burden of the economic disadvantage of the marriage and its breakdown onto the appellant. As the evidence discloses, she was the primary caregiver for the parties’ children. Had the trial judge properly considered the parties’ financial circumstances as a result of the separation and division of assets, as well as their respective earning capacities, the trial judge ought to have concluded that no spousal support should be paid by the appellant.

20We dismiss this ground of appeal. The trial judge correctly found that the respondent was entitled to compensatory support resulting from his having forgone paid work and career opportunities in order to care for the children while the appellant was pursuing her nursing degrees. The record also shows a substantial disparity in the income of both parties. The respondent is 62 years old and earning close to minimum wage. The appellant is 38 years old with a prosperous career ahead of her.

21Based on the respondent’s imputed income of $28,000 and the appellant’s income of $92,000, there is a substantial inequality in the parties’ income. This was a 15-year marriage with two children. In our view, the trial judge’s decision to award spousal support based on the mid-range of the spousal support advisory guidelines for an indefinite duration was reasonable and entitled to deference.

The dismissal of the fresh evidence motion

22After the trial judge gave her decision but before the final order was issued and entered, the appellant brought a motion to present evidence related to two issues: (a) an apparent impropriety by respondent’s trial counsel, who allegedly registered a private mortgage against the matrimonial home and failed to disclose it to the court; and (b) the trial judge’s mistaken belief that the appellant had attempted to establish that the respondent is a master electrician and had misled a judge who had earlier involvement in the matter.

23The appellant maintains that the court erred in refusing to admit the fresh evidence or in failing to declare a mistrial to avoid a potential miscarriage of justice. The appellant also contests the trial judge’s award of the costs of the motion to the respondent.

24We see no error in the trial judge’s dismissal of the motion. The trial judge found that even if she had known at trial of the alleged improper mortgage transaction entered into by the respondent’s trial lawyer, it would have had no impact on her assessment of the respondent’s evidence or his lawyer’s representations to the court. The trial judge had already found the respondent’s evidence to be “highly suspect, incongruent, and unreliable”. It is apparent, therefore, that there was no basis to reopen the trial to admit the evidence.

25As for the documents said to be relevant to the allegation of having misled an earlier judge, the trial judge found that the documents had been available prior to trial and that some had even been put forward, and excluded, as potential evidence. In any event, the judge found that they were of no assistance as they were confirmatory of the income she had imputed to the respondent. The trial judge’s refusal to reopen the trial ought not to be interfered with. There is also no basis upon which to interfere with the trial judge’s decision to award the costs of the motion to the respondent.

The respondent’s cross-appeal

26The respondent submits that the trial judge erred in failing to deduct the agreed value of a solely owned date of marriage asset from the respondent’s net family property. This resulted in an error in the amount of equalization payment owed by the appellant to the respondent. In her reasons, the trial judge found that a condominium owned by the respondent at the date of marriage valued at $64,785 was not a matrimonial home and, as a result, should not be excluded from equalization. Because the condominium was a date of marriage asset of the respondent, she ought, however, to have deducted the value of the condominium from the respondent’s assets in the equalization calculations.

27The appellant argues that the respondent has taken the trial judge’s finding that the condominium was not a matrimonial home out of context. In her submission, when the judge’s reasons are read as a whole, it is clear that the intention of the court was that the condominium should not be included in the respondent’s pre-married assets because the condominium had been sold and the funds reinvested. It should be excluded from the net family property calculations.

28In our view, the cross-appeal ought to be allowed. Having found that the condominium was not a matrimonial home, the trial judge ought to have deducted the value of the date of marriage asset in the equalization calculations. Although the trial judge discusses the reinvestment in her reasons, she does not explain why the deduction was not done.

29Adjusting for the $64,785 condominium that was owned by the respondent at the time of their marriage, and accounting for a $2,000 arithmetic error, the equalization payment ought to have been in the amount of $50,812.10.

Conclusion

30We dismiss the appeal and allow the cross-appeal. The equalization payment ordered by the trial judge is amended to the amount of $50,812.10. Costs payable by the appellant are fixed in the amount of $25,000 inclusive of taxes and disbursements.