DATE: 20020305 DOCKET: C35038, C37099
COURT OF APPEAL FOR ONTARIO
RE:
PATRICIA MARGARET BROWN (Respondent) -and- BRUCE ALAN BROWN (Appellant)
BEFORE:
ROSENBERG and FELDMAN JJ. A. and GILLESE J. (ad hoc)
COUNSEL:
Bruce Alan Brown, the appellant in person
W. Gerald Punnett, for the respondent
Douglas J. Manning and Susan McDougall,
for the Office of the Children's Lawyer
HEARD:
February 26, 2002 and February 27, 2002
On appeal from the judgments of Justice Sherrill M. Rogers dated August 2 and December 5, 2000 and from the orders of Justice Casimir N. Herold dated September 6 and 18, 2001.
E N D O R S E M E N T
[1] The appellant appeals from judgments of Rogers J. and the orders of Herold J. The judgments of Rogers J. concern custody and access (August 2, 2000) and various financial issues, including spousal and child support, (December 5, 2000). The orders of Herold J. (September 6 and 18, 2001) concern the status of the boat pending execution of Rogers J.'s judgment of December 5, 2000 and pending appeal to this court.
Custody and access
[2] The appellant does not now seek custody of the children and concedes that there is no basis for interfering with the order for no access in relation to Virginia and extremely limited access to Alexandra. However, he renews his application that the court order counselling for Alexandra in the hope that at some point she will be willing to initiate greater access. The appellant submits that he should be given greater access to Charlotte. Finally, the appellant has raised a concern about paragraph 15 of the reasons for judgment. He submits that in this paragraph the trial judge appeared to accept what he says are unfounded allegations of abuse. He does not refer to any specific errors in law or in fact made by the trial judge in respect of custody and access.
[3] We are not persuaded that there is any basis for interfering with the trial judge’s judgment respecting custody and access. This court is required to give substantial deference to decisions of trial judge’s in matters of custody and access. See Van De Perre v. Edwards, 2001 SCC 60. There is no error in the reasons of the trial judge. She considered the various factors and could properly conclude that the limited access was in the best interests of the children. As the court said in Van De Perre, the Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence in the name of the interests of the children. That is the role of the trial judge. As to paragraph 15 of the reasons, as the appellant acknowledged, the appeal is against the judgment, not the reasons. That said, it is obvious to us that the trial judge had no concern about abuse since she permitted unsupervised access to the youngest of the children.
[4] The appellant also submits that he was disadvantaged in arguing that part of the appeal related to access because the transcript of evidence of the expert witness could not be produced. We are satisfied that the appellant has suffered no such disadvantage. In accordance with the directions made at the case conference, the examination in chief of the witnesses was done by way of affidavits. Thus, we have the report of the expert. That report tended to favour the appellant’s position. The trial judge acknowledged the assistance of the expert but found that it was of diminished aid because the report was outdated. The expert had not seen the children for some three years after the report had been prepared. The trial judge noted that the expert herself advised that her evidence was outdated and therefore not very helpful. There was much more current and reliable information, especially from the social worker with the office of the Children’s Lawyer, upon which the trial judge could and did rely.
[5] Accordingly, the appeal from the judgment of Rogers J. of August 2, 2000 is dismissed with costs to the respondent. The Children’s Lawyer did not seek costs.
The appeal from the order of Herold J.
[6] Following the decision of Rogers J. on the financial issues, the respondent moved ex parte before Herold J. for an order requiring the appellant and anyone else having control over the boat to deliver it up to the respondent. This motion was granted. The appellant having been served with this order moved before Herold J. to set it aside on the basis that the respondent had failed to make complete disclosure of the financial circumstances concerning the boat. Herold J. conducted a hearing and decided that the order should not be set aside. Orders made by judges of this court have ensured that the respondent take no steps to sell or dispose of the boat pending the appeal.
[7] We did not call upon counsel for the respondent to respond to this part of the appeal. Assuming without deciding that one or both of Herold J.’s orders were final orders that are subject to appeal to this court, we see no basis for setting them aside. The orders did nothing more than preserve the status quo pending the appeal.
[8] The appeal from the orders of Herold J. is dismissed with costs.
The Financial issues
[9] The appellant raises a large number of issues under the heading of financial issues. Some of those matters were never raised before the trial judge and we decline to deal with them. Our disposition of the matters arising from the December 5, 2000 judgment of Rogers J. follows.
Child support
[10] The appellant submits that the trial judge erred in basing child support on an amount of income of $75,000. When the parties separated, they signed a separation agreement in which the appellant agreed to pay child support on the basis of income of $100,000. The appellant had legal and financial advice at the time of entering into the separation agreement. He says, however, that the income figure was based on a number of assumptions that never came about. In particular, he notes that pursuant to the agreement the respondent was to transfer title to the boat and to Wastestreams to him and refrain from further costly litigation. He points out that the respondent failed to transfer title to the boat or Wastestreams. As a consequence, he says he was unable to maintain the same level of business activity as before. He was also hampered by the departure of the respondent, her sister and her father from the business. Finally, the respondent’s actions have immersed him in time-consuming and costly litigation.
[11] We are not persuaded that there is any reason to interfere with the trial judge’s decision. She was well aware that the respondent had not complied with certain parts of the separation agreement. She dealt expressly with the fact that the respondent did not transfer Wastestreams to the appellant. Having had the benefit of the mass of evidence adduced by the parties on this issue, the trial judge concluded that the income level of $100,000 was high. She held that an appropriate amount was $75,000 bearing in mind the loss of the respondent’s skills in managing the business. We see no basis to order a retrial of this issue, the trial judge having made no error in law or fact in arriving at her decision.
Child support arrears
[12] The trial judge found that she was not able to calculate the arrears as there was no up-to-date Director’s statement. She therefore held the arrears would be as calculated by the Director of the Family Responsibility Office. The appellant submits that there are no arrears owing once various set-offs are taken into account and that the respondent misled the trial judge into believing that the interim orders had been registered with the FRO. We are satisfied that the respondent did not mislead the trial judge. We note in particular that it is apparent that the trial judge was aware that the respondent had withdrawn from the FRO since she made express reference to this fact in paragraph 6 of her reasons for decision of August 2, 2000.
[13] We are also satisfied that the arrears are as set out in the schedule in the respondent’s affidavit that we admit as fresh evidence. The Director has confirmed that schedule. The order of Payne J. of March 13, 1997 establishes the amount of the child support arrears as of that date. That order was never appealed. The schedule to the respondent’s affidavit shows the calculation of arrears based upon the order of Rogers J. and the payments that the appellant has made on account of those arrears.
[14] The appellant submits that he should not be responsible for the arrears during the time that he says the respondent was hiding the children from him. The trial judge dealt with this issue in paragraph 5 of the custody and access reasons and rejected the appellant’s claim that he could not locate the respondent and the children.
[15] We would not interfere with the trial judge’s order respecting arrears.
Set-offs
[16] In his schedule I, the appellant claims entitlement to set off a large number of payments that he has made against any amount that may be found owing by him to the respondent. Several of those items were never raised before the trial judge and some refer to matters that occurred after the trial. They are therefore not properly before us. Of the other matters, most are not proper deductions having already been taken into account in the calculation of the arrears, having been disposed of adversely to the appellant in other proceedings before Payne J. and Speigel J. or having been properly dealt with by the trial judge. There are, however, three matters that should be deducted from the child support arrears:
(i) As conceded by the respondent, the garnishment proceeds of $958.00 should be deducted from the child support arrears as set out in Schedule “A” to the respondent’s fresh evidence affidavit.
(ii) As conceded by the respondent, the appellant is liable for one-half of the Curtis account. As the judgment now stands the appellant was required to discharge the entire mortgage that was used to pay the entire Curtis account. Accordingly, one-half of the amounts paid to Curtis should be deducted from the child support arrears as set out in the same Schedule “A”. To avoid further costly litigation we think it appropriate for this court to fix the one-half amount at $11,500.
(iii) As conceded by the respondent, the appellant is liable to pay back to the respondent the proceeds from the mortgage not used by her to pay off the Curtis account. Again, to avoid further costly litigation we think it appropriate for this court to fix this amount to be paid back at $4,000. That amount should therefore also be deducted from the child support arrears as set out in Schedule “A”.
The Curtis account
[17] The appellant submits that the respondent should be liable for the entire Curtis account because it was known at the time of the separation agreement and is, in fact, referred to in her Financial Statement. There was conflicting evidence whether the equalization payment took into account the liability to Curtis. As shown in the financial statement the account was disputed at the time. The trial judge has accepted the respondent’s evidence on this point. We are not persuaded that we should interfere with her finding of fact on that issue.
Wastestreams and the Cadillac
[18] There is a dispute about the payment for the Cadillac. The trial judge held that there was no “reasonable challenge” to the validity of the separation agreement. We think it is implicit in that finding and her order that the respondent transfer Wastestreams to the appellant and the appellant transfer the Cadillac to the respondent that the trial judge resolved the issue against the appellant. We would therefore not make any variation of the trial judge’s order with respect to Wastestreams or the Cadillac. They are to be transferred in accordance with the trial judgment.
The Boat
[19] The trial judge ordered that the appellant immediately sell the boat and use the proceeds to
(i) repay the bank to discharge the boat mortgage,
(ii) retire the child support arrears,
(iii) repay any principal and interest paid on the boat mortgage that represents the appellant’s one half share of Ms. Curtis’ bill,
(iv) retire any outstanding costs orders from this litigation with interest including the cost orders of Spiegel J. and Payne J.
(v) repay any fees and disbursements incurred in the arranging of the mortgage on the boat.
[20] We did not understand the respondent to dispute that the appellant has now dealt with items (i) and (v). We also understand that the respondent has taken the necessary steps to discharge the mortgage. The respondent also concedes that the appellant should only be responsible for one-half of the payments made by the respondent on account of principal and interest of the boat mortgage (item (iii)).
[21] Given the history of this litigation, we cannot say that the trial judge erred in requiring the appellant to sell the boat to retire the child support arrears, the outstanding costs orders and his share of the payments made on account of principal and interest. Accordingly, we would not interfere with the trial judge’s order in that respect. However, like the trial judge we believe that the appellant should be given the opportunity to keep the boat if he pays those amounts. Accordingly, the appellant will have until June 1st, 2002 to pay the amounts noted above. If he does so, the respondent will complete the transfer of the boat to the appellant. If he does not, the appellant is at liberty to sell the boat in accordance with the judgment of the trial judge and apply the proceeds to the amounts owing to her in accordance with the judgment of this court following these reasons.
Costs
[22] As indicated, the appeals from the August 1, 2000 judgment of Rogers J. and from the judgments of Herold J. are dismissed with costs to the respondent. The appellant has achieved only modest success in respect of the appeal from the judgment of December 5, 2000. Accordingly, the appeal from that judgment is as well dismissed with costs to the respondent.
Signed: “M. Rosenberg J.A.”
“K. Feldman J.A.”
“E. Gillese J. (ad hoc)”