DATE: 20040204

DOCKET: C39180, M30480

COURT OF APPEAL FOR ONTARIO

RE:

TERESA CADE (Applicant/Respondent) – and –DOUGLAS ROTSTEIN (Respondent/Appellant)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Tracey Foster for the appellant

Jeffery Wilson for the respondent

HEARD:

January 28, 2004

On appeal from the judgment of Justice Thomas M. Wood of the Superior Court of Justice dated October 24, 2002.

E N D O R S E M E N T

[1] The appellant alleges that the trial judge made numerous errors with respect to orders of child and spousal support, custody and mobility, and equalization. In addition, the appellant alleges that there were serious procedural irregularities that deprived the appellant of a fair trial.

Child and Spousal Support

[2] The central issue in relation to child and spousal support is the trial judge’s findings in relation to the husband’s income. The appellant has failed to persuade us that there are reversible errors on this issue. At trial the appellant eventually conceded that his income for 2001 was $158,00.00. Based upon that concession, the uncontradicted expert evidence of Paula White, and upon other evidence relating to the appellant’s earnings, the trial judge found that the appropriate figure was $177,00.00. There was evidence to support that finding and we see no palpable and overriding error that would allow us to interfere.

[3] With respect to the appellant’s income for 2002, the trial judge noted that the difficulty in making this determination lay in the appellant’s failure to produce financial statements for that year. The trial judge had to do the best he could on the basis of the limited disclosure made by the appellant. On appeal, we were invited to disagree with the trial judge’s findings and to make our own calculations based on various invoices and statements for a portion of 2002. It is plainly not open to us to retry the case, although we were invited to do so by the appellant. In the absence of any palpable and overriding error, we are not entitled to interfere with the findings of fact made by the trial judge.

[4] We see no merit in the other arguments raised by the appellant with respect to child and spousal support. We add that if indeed there have been material changes in the income or means of the parties, that is a matter to be addressed by way of a variation application, not by way of appeal.

Custody and Mobility

[5] The central issue here was whether the respondent should be entitled to move to New York with the children. The trial judge carefully considered the factors enumerated in Gordon v. Goertz, [1996] 2 S.C.R. 27 and found that it would be in the best interest of the children to allow the respondent to move to New York and to take the children with her. The appellant argues that the trial judge erred by failing to accord sufficient weight to the expert report of Dr. Weir. We do not agree. The trial judge was not bound by the recommendations of Dr. Weir, particularly as the trial judge found that evidence simply did not support significant factual assumptions made by Dr. Weir with respect to the capacity of the parties to undertake childcare duties. It is well-established that trial judges are to be accorded a high degree of deference in this area and we see no material error in law or in his appreciation of the facts in this case that would justify us to interfere.

[6] Again, we note that if there has been any material change in the circumstances since the date of the trial, that is a matter to be dealt with by way of a variation application, not by appeal to this court.

Equalization

[7] In calculating the equalization payment, the trial judge found that the value of five advances made by the husband’s parents to the parties totalling $192,00.00, claimed by the appellant as debts, should be discounted to five percent of their face value. In our view, there was evidence to support that finding. The debts were old and no demand had been made save on one, and that had been motivated by the separation of the parties. The moneys had been advanced to help the parties out with the purchase of homes with limited expectation of repayment, and the appellant’s father testified that he would not have looked for the money nor would he take any action against his son to collect the debts.

[8] In our view, the trial judge properly followed the approach in Poole v. Poole (2001), O.J. No. 2154 (S.C.) and Salamon v. Salamon (1997), O.J. No 852 (Gen Div.) in discounting the value of this alleged debt. We do not accept the submission that the trial judge was not entitled to value the alleged debts in this manner. Courts are frequently called upon to assess the actual worth of a claim, asset or liability and we agree with the statement in Poole, supra at para 35:

Even though debt may have a specified face value, if the evidence indicates that it is unlikely that the promissor will ever be called upon to pay the debt, the value of the debt should be discounted to reflect that reality.

Procedural Irregularities

[9] We do not accept the submission that the appellant was denied a fair trial by the trial judge’s management and conduct of the proceedings. This case had originally been assigned five days for trial. The respondent was not able to be present on the first day and the appellant’s counsel was unavailable the second day. The parties agreed to try the case in three days. When that proved impractical, they were accorded an additional two days for trial. In this context, the trial judge was entitled to exercise his discretion in managing and controlling the proceedings with a view to completing the trial within the time agreed to by the parties. In our view, the trial judge did not exceed the limits of that authority.

[10] The appellant emphasizes a difficulty that arose in relation to the evidence of Dr. Weir, the expert agreed to by the parties, on the issue of custody and mobility. Dr. Weir was unavailable for the week assigned to the trial. The parties agreed that his report would be filed and that the respondent would be entitled to question its weight given Dr. Weir’s unavailability for cross-examination. Counsel for the appellant complains that the trial judge refused to allow her to cross-examine the respondent by confronting her with Dr. Weir’s conclusions. The trial judge did not permit her to do so because, at the time of the cross-examination was being conducted, it did not appear that Dr. Weir would be a witness. We think the trial judge erred in this regard. However, we do not regard this error as being fatal to these proceedings. The appellant was not prevented from canvassing the issues raised by Dr. Weir in her cross-examination of the respondent. Moreover, after Dr. Weir was called as a witness, she could have renewed her request to cross-examine the respondent on the details of his report. She did not do so. In any event, we are not persuaded that the appellant was foreclosed in any material way from advancing the substance of his case before the trial judge and we would not give effect to this ground of appeal.

Conclusion

[11] Accordingly, the appeal is dismissed. The parties are to make brief written submissions with respect to costs. The respondent is to serve and file his submissions within ten days of the release of these reasons and any reply from the appellant to be made seven days thereafter.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”