DATE: 20050124

DOCKET: C40715

COURT OF APPEAL FOR ONTARIO

RE:

KATHLEEN MARY CAMPBELL (Plaintiff/ Respondent by appeal) -and- FRANK SZOKE (Defendant/Appellant by appeal)

BEFORE:

MacPHERSON, CRONK and LANG JJ.A.

COUNSEL:

Eric Shapiro

for the appellant

R. Brent Raby

for the respondent

HEARD AND RELEASED ORALLY:

January 20, 2005

On appeal from the judgment of Justice Andromache Karakatsanis of the Superior Court of Justice, sitting without a jury, dated September 8, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant argues that the trial judge erred: (i) in imputing income to the appellant without an evidentiary foundation; (ii) in ordering the appellant to pay spousal support to the respondent in the sum of $1,100 per month; and (iii) in ordering that this spousal support be retroactive to December 1998. We reject these grounds of appeal for the following reasons.

[2] First, the trial judge found as a fact that the appellant’s transfers of his assets to his children before and after the separation of the parties “did not stop him from managing and accessing those resources at will” and, further, that the appellant “continues to have the means he had throughout the relationship”. The trial judge stated:

I am satisfied that [the appellant] continues to be a man of significant means and continues to have the ability to draw on his capital as well as its income to provide for [the respondent] in the same manner as he has in the past.

[3] There was ample documentary and oral evidence at trial to support these findings which, in turn, underlie the trial judge’s conclusion that the appellant has the ability to pay spousal support to the respondent.

[4] Second, there is no doubt, given the prior lifestyle of the parties and the respondent’s severely limited sources of income, that the respondent is in need of financial support. The evidence established that, during their cohabitation, the appellant paid at least the sum of approximately $772 per month to the respondent for her support and expenses, plus additional funds to support her in their home in Florida. As well, the appellant was solely responsible for the payment of all costs associated with the lifestyle enjoyed by the parties. The trial judge, therefore, based the quantum of spousal support upon the amount of support that the appellant provided to the respondent throughout the years. The trial judge was entitled to fix the amount of spousal support on this basis.

[5] The third issue is whether the trial judge erred in awarding spousal support retroactively to December 1, 1998, the month following the date that this proceeding was commenced. In our view, the trial judge committed no error in so doing. Although the retroactive aspect of the trial judge’s support order resulted in immediate arrears owing by the appellant to the respondent, by failing to fully disclose and account for his assets, liabilities and income, the appellant failed to demonstrate that he was without the means to pay retroactive support. There are several factors that militate in favour of ordering retroactive support in this case:

(i) the respondent has a clear past and continuing need for support;

(ii) the appellant failed to discharge his financial disclosure obligations and the disclosure that he did make was incomplete and misleading;

(iii) the appellant was aware from an early date of the respondent’s intention to seek spousal support;

(iv) the trial judge found as a fact that a retroactive support order would not place an undue burden on the appellant;

(v) the respondent has no collateral and limited income. In practical terms, she cannot incur debt to assist her in maintaining anything other than a subsistence lifestyle;

(vi) the respondent’s standard of living decreased substantially upon separation, a condition that persisted at the time of trial; and

(vii) the respondent’s motion for interim support was dismissed on the basis of the appellant’s position that the parties were in an employer/employee relationship and were not spouses, a position unequivocally rejected by the trial judge: see S.(L.) v. P.(E.) (1999), 1999 BCCA 393, 67 B.C.L.R. (3d) 254 (C.A.) and Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40 (C.A.).

[6] Finally, there is no merit to the appellant’s assertion that trial fairness was compromised in this case.

[7] Accordingly, the appeal is dismissed. The respondent is entitled to her costs of the appeal fixed in the amount of $5,000, inclusive of disbursements and G.S.T.