Court of Appeal for Ontario

Date: 2023-01-12 Docket: COA-22-CV-0290

Before: Doherty, Zarnett and Sossin JJ.A.

Between: Alison Sutton, Applicant (Respondent) And: Jason Sutton, Respondent (Appellant)

Counsel: Jason Sutton, acting in person Mercedes Ibghi and Tracy Garton, for the respondent

Heard: December 22, 2022

On appeal from the judgment of Justice Mary E. Vallee of the Superior Court of Justice, dated January 26, 2022, with reasons reported at 2022 ONSC 630, and from the costs order, dated April 11, 2022.

REASONS FOR DECISION

OVERVIEW

[1] The appellant, Jason Sutton, appeals from the judgment and associated costs order that were made in favour of his wife, the respondent Alison Sutton, after a trial of family law claims.

[2] The trial judge awarded the respondent an equalization payment of $362,703.28, which was to be partially satisfied by a transfer from the appellant’s pension. She also awarded the respondent a lump sum of $199,144 for retroactive and ongoing spousal support. She ordered that the balance of the equalization payment and the lump sum support were to be paid out of the proceeds of the sale of the matrimonial home, which she ordered be listed for sale. She gave the respondent the right to register a charge against the matrimonial home to secure payment of these amounts.

[3] The trial judge also awarded the respondent costs of $105,930, and gave her the right to register a charge against the matrimonial home to secure their payment.

[4] Each of the dispositions made by the trial judge resulted from her factual findings. The appellant does not call into question the legal principles that the trial judge applied to the facts she found. The appellant questions the trial judge’s factual findings, pointing to other evidence and explanations that, he submits, should lead us to substitute different factual conclusions for those reached by the trial judge. He also seeks to introduce fresh evidence on the appeal.

[5] It is not, however, the role of this court to retry the case. In our view, the appellant has not identified any reversible error committed by the trial judge that would justify appellate interference with any of her orders. Nor has the appellant established the grounds for admitting fresh evidence.

THE GROUNDS OF APPEAL

[6] In oral argument, the appellant focused his submissions on three main points, which we address in turn.

[7] First, the appellant challenged the trial judge’s conclusion that the respondent’s income potential was $46,000 per year, an amount she used in determining the quantum of spousal support that she ordered.

[8] The appellant submits that the $46,000 per year sum represented what the respondent earned as an in-home personal care support planner and does not take into account that the respondent previously held a licence as a real estate agent, an occupation she gave up after the marriage breakdown in 2018. He argues that the trial judge should have imputed higher amounts of income to the respondent based on what a real estate agent could earn. He points to what he considers to be a discrepancy in approach, as the trial judge imputed income to him based on what he had earned in his employment with the Department of National Defence, from which he retired at age 44 while these proceedings were ongoing, to pursue further education and explore another career from which he was not yet earning income.

[9] We do not accept this argument. In the circumstances, the appellant has not shown a palpable and overriding error in the trial judge’s conclusion to impute income to the respondent of $46,000 per year.

[10] The trial judge carefully reviewed the income earning history of both parties. She noted that $46,000 was the most the respondent had ever earned in any year prior to 2021, which would include the years in which she worked as a real estate agent. She found that 2021, during which the respondent was expected to earn $50,000, was an anomaly due to shift work that would not continue, and that her income was expected to return to $46,000 in 2022. The trial judge accepted that the respondent had given up her real estate licence for economic reasons after she moved following separation, and that her career was as a salaried care planner.

[11] Moreover, although the appellant gave us estimates of higher potential earnings for a real estate agent in the Barrie and Niagara regions, he was unable to point us to anywhere in the record where that information was in evidence before the trial judge.

[12] Second, the appellant argues that the trial judge erred when she referred to a list that the appellant gave the respondent during the marriage that set out his expectations of how she was to dress, maintain the home, be satisfied with the lifestyle he provided, take his advice, admire him, and guard his reputation. The appellant says that he introduced the list at trial to show he was working to repair and maintain the marriage and did not realize that the trial judge would use it against him – if he had, he would have introduced an email he says shows that the list originated from a website the respondent shared with him. He asks that the email (which he described orally in argument) be admitted as fresh evidence on the appeal.

[13] Fresh evidence is only admitted on an appeal if, among other matters, the fresh evidence is “such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[14] The trial judge referred to the list as one among a large number of factors that led her to conclude that the respondent was entitled to compensatory and non-compensatory spousal support.

[15] As the trial judge stated: The parties cohabited for over 20 years. The wife’s evidence regarding the functions performed by the spouses during the marriage was not contested. The wife was the caregiver for the children and sometimes worked part-time in the evenings to supplement the family’s income. The husband expected her to be submissive and accommodate his ideal home life, schedule and career. Throughout the marriage, the husband had a career in which he was promoted several times and a had reliable income which far exceeded the wife’s income. The wife’s employment was secondary due to her childcare responsibilities and the husband’s postings. She made a significant contribution to the realization of the husband’s career.

[16] She concluded: Considering all of the above factors, especially the 20 years of cohabitation, the economic disadvantages to the wife resulting from the marriage, the fact that her net taxable income in 2020 was approximately 50% of the husband’s as well as her on-going need for support, I find that the wife is entitled to compensatory and non-compensatory spousal support.

[17] In our view, the trial judge’s use of the list as an indicator of the functions performed and expected to be performed by the spouses during the marriage would not have been affected by the proposed fresh evidence in any material way. It is the spousal roles, not their genesis, that give rise to the entitlement to support. We do not admit the fresh evidence, and reject this ground of appeal.

[18] The third matter the appellant addressed in oral argument was the costs award of the trial judge.

[19] At the conclusion of her reasons for judgment after the trial, the trial judge invited submissions on costs. The respondent made submissions; we were advised that the appellant did not make any submissions in response to those of the respondent. The appellant stated in oral argument that he failed to do so because he was appealing the trial judgment. Nevertheless, he now asks us to interfere with the trial judge’s discretionary costs award.

[20] We decline to do so. The appellant has not identified an error in principle in the costs award that would displace the deference owed to the trial judge in these circumstances.

[21] In addition to the arguments above, we have carefully considered the balance of the submissions in the appellant’s factum. Some of them challenge the trial judge’s acceptance of the credibility of the respondent’s evidence. Others go to the trial judge’s management of the trial. Still others are based on what, to the appellant, is the unfairness of the trial judge not accepting, or attaching any consequence to, the respondent’s conduct as the cause of the marriage breakdown.

[22] As we have noted above, it is not this court’s role to retry the case. We are not satisfied that the trial judge made any reversible error in her credibility findings. A trial judge enjoys a wide discretion over such findings. Although the appellant refers to items of evidence that were not referred to by the trial judge that he submits should have counted against the respondent’s credibility, the trial judge was not obliged to refer to each item of evidence in coming to a conclusion about credibility.

[23] We are also not satisfied that the trial judge made any error in her management of a trial that involved a self-represented litigant that would warrant appellate interference. The record discloses that the trial judge provided significant assistance to the appellant about both substantive law and procedure.

[24] As to conduct, the Family Law Act, R.S.O. 1990, c. F.3, s. 33(10) provides that: The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. The trial judge did not make any findings that there was an unconscionable course of conduct that was an obvious and gross repudiation of the relationship.

CONCLUSION

[25] For these reasons, we dismiss the motion to introduce fresh evidence, deny leave to appeal the costs order, and dismiss the appeal.

[26] If the parties are unable to agree on the costs of the appeal, they may make written submissions limited to three pages each. The respondent’s submissions shall be due 10 days following the release of these reasons. The appellant’s submissions shall be due 10 days after receipt of the respondent’s submissions.

"Doherty J.A."

"B. Zarnett J.A."

"L. Sossin J.A."