Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210525 DOCKET: C68200

Strathy C.J.O., Feldman and Sossin JJ.A.

BETWEEN

Bonnie Ho Yee Cheng Applicant (Respondent)

and

David Chan Sau Sze Respondent (Appellant)

Counsel: Roger A. Gosbee, for the appellant Ken H. Nathens and Denniel Duong, for the respondent

Heard: May 17, 2021 by video conference

On appeal from the order of Justice Robert Charney of the Superior Court of Justice, dated February 11, 2020.

Reasons for Decision

[1] This is an appeal from a final order in matrimonial proceedings dealing with issues of equalization of net family property, child support, and other financial matters. The appellant challenges the trial judge’s findings concerning the date of separation, his assets on the date of marriage, the imputation of income for the purpose of child support, and the parties’ share of expenses after separation. The respondent cross-appeals the trial judge’s disposition of s. 7 expenses.

[2] The parties were married on October 1, 2000. Their marital problems began in 2013. There were attempts at reconciliation, but evidence at trial showed that there was no reasonable prospect of reconciliation by July 3, 2014. The trial judge assigned this as the date of separation for the purpose of the valuation date. Pursuant to s. 19 of the Child Support Guidelines, O. Reg. 391/97, the trial judge imputed a yearly income of $75,000 to the appellant and ordered him to pay monthly child support payments of $1,139. Further, the trial judge declined to assign value to the appellant’s investment account on the date of marriage because the appellant had not provided corroborating records and his testimony was unreliable. Finally, the trial judge found that the appellant owed the respondent a $79,796.86 equalization payment as well as adjustments for post-separation household expenses.

[3] We note at the outset that the standard of review for support decisions is one of significant deference. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error of law. It is not entitled to overturn a support order “simply because it would have made a different decision or balanced the factors differently”: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.

[4] The deferential standard of review applies with particular force in family law cases where the trial judge’s findings of fact are rooted in credibility assessments: Jonas v. Pacitto, 2020 ONCA 727, 49 R.F.L. (8th) 56, at para. 42. In this case, there were significant factual disputes at trial and conflicting evidence in relation to most issues. The trial judge made credibility findings adverse to the appellant, finding that he was “generally confused about his financial affairs. His story kept changing. He could not explain many of his financial documents”. The trial judge found that the appellant’s description of his working hours (which he estimated at four to five hours per week) “strain credulity”.

[5] The appellant alleges four general errors on appeal. The first is with respect to the date of separation. The appellant submits that the trial judge erred in selecting a date that was not proposed by either party. Instead, the trial judge selected a date identified in a note of a marriage counsellor, who observed on July 3, 2014 that the appellant told her that “the couple has decided not to continue their marital relationship”.

[6] We see no error. The trial judge considered and applied the multi-factor test referred to in Al-Sajee v. Tawfik, 2019 ONSC 3857, 27 R.F.L. (8th) 269, at para. 37 for the determination of the date of separation. The trial judge was not bound to choose between dates identified by one party or the other. He identified a date that was reasonable and supported by his assessment of all the evidence, including a contemporaneous note made by an independent witness. The appellant has not identified a palpable and overriding error in the trial judge’s assessment of this evidence.

[7] Second, the appellant submits that the trial judge erred in failing to find that he had an asset as of the date of marriage – namely $200,000 in an investment account – when he also found that the appellant had a debt to his mother in the same amount, which was allegedly used to buy the investments.

[8] We do not accept this submission. The trial judge accepted the existence of a debt, which was incurred over several years and for which there was an evidentiary basis. However, he was not satisfied that the appellant had discharged his onus under s. 4(3) of the Family Law Act, R.S.O. 1990, c. F.3 to establish that an asset existed at the date of marriage. Simply put, the trial judge did not accept the appellant’s evidence on this issue. He pointed to the absence of any documentary evidence to corroborate the existence or value of the alleged asset and the absence of evidence from the financial institution to prove that no records were available. He found that the evidence the appellant gave at trial was inconsistent with his sworn financial statements. In sum, the onus was on the appellant on this issue and the trial judge found that his evidence was neither reliable nor corroborated. There is no basis to interfere.

[9] The appellant’s third submission is that the trial judge erred in imputing an income of $75,000 for the purpose of child support. The appellant submits that there was no evidence that he ever earned this amount of money.

[10] The amount of income to be imputed is a matter within the trial judge’s discretion, provided there is a rational and evidentiary basis for the amount: Drygala v. Pauli (2002), 219 D.L.R. (4th) 319 (Ont. C.A.), at para. 44. There was evidence that the appellant was capable of earning $70 per hour, but that he had only worked four to five hours a week in 2017 and 2018. The trial judge accepted the $70 per hour figure, but found the appellant’s evidence of his hours incredible. There was also evidence that he had earned an income of between $60-70,000 in years prior to 2009, when he started his own business. The appellant’s submission that he had never earned $75,000 misses the point – the trial judge found he was capable of earning that amount. This conclusion had a basis in the evidence and is entitled to deference.

[11] Finally, the appellant submits the trial judge erred in his calculation of the parties’ share of post-separation expenses, although largely based on his assertion that the trial judge erred in determining the date of separation. In any event, the trial judge’s disposition of this issue was based on his acceptance of the respondent’s evidence and his rejection of the appellant’s. The appellant demonstrates no reviewable error.

[12] In summary, the appellant identified no error of law and no palpable and overriding error of fact. He essentially asks us to re-assess and reweigh the evidence and to make the findings of fact he now says the trial judge ought to have made. This is not our role. The appeal is dismissed.

[13] With respect to the cross-appeal, the trial judge found that s. 7 expenses were to be shared equally between the appellant and the respondent, but did not provide a breakdown of the expenses. He was not required to do so. Paragraph 9 of the order provided that if either party had questions about its implementation, a 14B motion could be made to the trial judge. Any disagreement on the s. 7 expenses, or the arrears (which the parties agree are $4,700), should be dealt with by the trial judge.

[14] The respondent is entitled to her costs of the appeal. We encourage the parties to reach an agreement as to costs, but if they cannot agree, they may make submissions in writing. The respondent shall deliver her submissions within 15 days of the release of these reasons and the appellant shall have 10 days within which to reply. The submissions of each party shall be limited to three pages, excluding costs outlines.

“G.R. Strathy C.J.O.” “K. Feldman J.A.” “L. Sossin J.A.”