Court of Appeal for Ontario

Date: 2023-10-06 Docket: C70586

Before: Huscroft, Miller and Paciocco JJ.A.

Between: Kulwinder Barn, Applicant (Respondent) and Jatinder Singh Dhillon, Respondent (Appellant)

Counsel: Antal Bakaity, for the appellant Paul Buttigieg, for the respondent

Heard: June 28, 2023

On appeal from the order of Justice M. Suranganie Kumaranayake of the Superior Court of Justice, dated March 5, 2020.

Reasons for Decision

[1] Jatinder Singh Dhillon, the appellant, raises four grounds of appeal from a final order made in family litigation with the respondent, Kulwinder Barn. The appellant argues that the trial judge erred by: (1) granting the respondent’s resulting trust claim relating to the matrimonial home; (2) quantifying net family property without crediting the appellant with the value of a property he owned in India that he claimed to have already owned at the time of marriage; (3) ordering the appellant to pay, as an expense under s.7 of the Federal Child Support Guidelines, SOR/97-175, $16,198 as his share of private school costs, in the absence of proof that this expenditure was reasonable after separation; and (4) imposing a lump sum award for retroactive spousal support without “netting down” the lump sum amount to reflect the benefit of the income tax deduction that the appellant would have enjoyed had he made the payments as periodic support payments under a court order.

[2] None of these grounds of appeal have merit. The appellant failed to identify any legal error or palpable and overriding factual error, and therefore has not provided a basis for appellate review. Instead, he attempted to reargue before us issues (1), (2) and (3) as factual questions on which we should disagree with the findings of the trial judge. This is not the role of an appeal court. Absent demonstrated error, we are obliged to defer to a trial judge’s decisions of fact or mixed fact and law. In any event, the decisions the trial judge made in this case were amply supported on the record.

[3] We also see no basis for interfering with the trial judge’s decision not to “net down” the lump sum retroactive support payment, or for finding fault with the fact that she did not address this issue in her decision. As this court held in Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 54, judges are not required to make tax adjustments for retroactive spousal support awards. Judges cannot be expected to familiarize themselves with and consider of their own motion the tax implications of the support orders they make. A party that wishes to have the tax implications of a retroactive spousal support order considered should specifically request this before the trial judge and provide the guidance the trial judge needs to accomplish this. The appeal record before us does not demonstrate that this was done, which may well explain why this issue was not addressed by the trial judge.

[4] In any event, a trial judge’s decision whether to adjust a retroactive support order to reflect anticipated tax implications is a discretionary determination based on whether doing so is required to achieve a fair support award. We have been provided with no reason for interfering with the award that the trial judge made. There was ample reason on the record as to why a trial judge might choose not to reduce the retroactive lump sum support payment to account for tax benefits the appellant may have foregone. The appellant’s “income” was attributed to him because of non-disclosure after he claimed to have little or no meaningful taxable income during the relevant period. To provide a deduction from spousal support payments based on attributed income could well result in a windfall to the appellant. That is, on the appellant’s own evidence, he had no income in the relevant years and therefore paid no taxes.

[5] The appeal is therefore dismissed. As agreed between the parties, the appellant must pay costs to the respondent in the amount of $15,000 inclusive of HST and disbursements.

“Grant Huscroft J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”