DATE: 20050117
DOCKET: C41708
COURT OF APPEAL FOR ONTARIO
WEILER, MOLDAVER and SIMMONS JJ.A.
B E T W E E N :
LESLEY ANNE GREENBERG
Stephen M. Grant and Elana J. Waldman
for the appellant
Plaintiff (Respondent)
- and -
ROBERT ALAN DANIELS
Charles C. Mark Q.C. for the respondent
Defendant (Appellant)
Heard: January 11, 2005
On appeal from order of Justice Nancy L. Backhouse of the Superior Court of Justice dated March 29, 2004.
BY THE COURT:
[1] The appellant appeals from an order requiring him to pay lump sum spousal support of $400,000 and from the award of costs at trial. Although the appellant raises numerous grounds of appeal, the essence of his argument centres around three submissions. First, the appellant contends that no spousal support should have been awarded. Second, if spousal support was appropriate, a lump sum should not have been awarded. Third, the amount awarded was, in any event, manifestly excessive.
[2] In our view, the appeal should be dismissed. These arguments were all raised before the trial judge who rejected them and made strong findings of fact contrary to the appellant’s positions.
Background
[3] The appellant and the respondent lived together for approximately nine years. They met in 1991 when the respondent began to work for a business owned by the appellant. The parties were both married when they met, but divorced their respective partners and, in 1992 moved in together into a house owned by the respondent. Both had children from their previous marriages. The respondent had custody of her children, and the appellant had regular access to his.
[4] By 1993, the appellant’s business had failed, and he had incurred a large debt in other ventures. The appellant also lost his significant interest in certain family holdings. The appellant began to suffer from depression and substance abuse problems that progressed to the point that he stopped working for a period of about four and a half years. During this period, the respondent supported the appellant financially. She also encouraged the appellant to get help and supported the appellant’s decision to enter into a treatment centre for his substance abuse problem.
[5] By 1997, the appellant had returned to the workforce and became quite successful. He was also able to regain his share in his family’s holdings. In 1998, the respondent decided to take some time away from her employment. She did so for the purposes of starting her own business. However, she too became depressed and developed her own substance abuse problem. In 2000 the parties’ separated. The respondent brought a claim for spousal support.
The trial judge’s decision
[6] As already noted, the trial judge made strong findings of fact contrary to the appellant’s position. She found inter alia the following:
The respondent “was instrumental in helping the appellant through his depression and drug dependency and on to financial prosperity.” In this regard, she found that the appellant, “…may well not have attained the financial success that he presently enjoys without the assistance of [the respondent].”
The respondent’s “support of [the appellant] was to her own financial detriment. For four and a half years, [the appellant] did not live up to the agreement the parties had to contribute equally to the household expenses.” We note that the household expenses were $8000 a month and during the four and a half years, the appellant contributed only minimal amounts. Thus, on this evidence alone, the respondent suffered a financial detriment of approximately $215,000.
Apart from direct financial detriment, the respondent contributed immeasurably to the appellant’s ability to regain his ability to function both physically and emotionally at considerable cost to her own well being. In addition to being the sole support of the family, she ran the household, welcomed the appellant’s children into the home and melded their families together, encouraged the appellant to develop a relationship with a child from a previous relationship, urged the appellant to see a psychiatrist, coped with telephone calls at work concerning the appellant’s hysterics and threatened suicide, and never waivered in supporting the appellant when his brothers withdrew their support from him. By 1998, the respondent was, “exhausted from having carried all the responsibility” for a substantial part of the relationship. The trial judge concluded that the respondent, “has been economically disadvantaged and [the respondent’s] prospects have been dramatically improved during the 9 years the parties cohabited. While [the respondent] has the ability to earn income, her earning power is a fraction of [the appellant’s]. It is unlikely that she will earn substantially more in the future. Her job is not secure. Her expenses exceed her income.”
Finally, the trial judge found that “had the relationship not broken down, [the respondent] could have expected to have been in much more favourable circumstances than she now finds herself.”
[7] In our opinion, these findings are unassailable.
Analysis
1. Did the trial judge err in principle in awarding spousal support?
[8] While acknowledging the respondent’s contributions, the appellant submits that the trial judge considered only the disadvantages to the respondent from the relationship and did not consider the advantages including that the appellant paid his share of the household expenses throughout the last three years of their relationship and made certain post separation payments. The appellant further submits the trial judge erred in her assessment of the respondent’s earning capacity and argues that the respondent did not prove financial need. Consequently, the appellant says that the respondent is not entitled to support. We disagree.
[9] The appellant garnered a significant economic advantage by having the respondent take on the bulk of domestic and financial responsibilities, as well as providing him with emotional support, thereby enabling him to rehabilitate himself and eventually establish himself in the position he occupies today (assets in excess of $6.5 million dollars, salary in excess of $500,000 annually). The respondent, on the other hand, suffered an economic detriment and also became physically depleted. The appellant’s upward progress cannot be separated from the contributions made by the respondent as the appellant suggests. Detriment aside, given the magnitude of the appellant’s success, the respondent’s contributions to that success, in themselves justified a significant award of compensatory spousal support.
[10] Insofar as need is concerned, assuming, without deciding, that the trial judge was not entitled to take account of the financial statements that were in the court file but had not been introduced as evidence at trial, the respondent gave oral evidence confirming that she was unable to pay her debts. Accordingly, there was a basis for also awarding support due to need.
2. Was the award of a lump sum inappropriate?
[11] The appellant submits that any award of support should have been periodic and that a lump sum award was inappropriate. In support of this position the appellant relies on Elliott v. Elliott (1993), 1993 3429 (ON CA), 15 O.R. (3d) 265 (Ont. C.A.). In our opinion, Elliott is readily distinguishable. The court’s conclusion in that case was based on the cumulative effect of several considerations that are not present here. The appellant in that case did not enjoy the economic advantage that the appellant enjoys here. Moreover, unlike in Elliott, a lump sum award here would not result in significant hardship to the appellant. Nor is there difficulty in identifying the economic advantages and disadvantages arising from the relationship with sufficient accuracy to award a lump sum, a factor which militated against a lump sum award in Elliott.
[12] The trial judge found that in the circumstances a clean break was appropriate and we are not satisfied that she erred in this regard.
3. Was the amount awarded excessive?
[13] The appellant submits that the trial judge exceeded the reasonable range of judicial discretion afforded to her in making her award and that she failed to take into consideration the interim support paid of approximately $70,000 net, in awarding a lump sum support of $400,000.
[14] In our view the economic disadvantages suffered by the respondent, coupled with the dramatic increase in the appellant’s economic position as a result of cohabitation, justified the award that was made. Taking account of the quantum of the respondent’s claim (which we consider reasonable) the circumstances of this case did not require a mathematically precise calculation.
[15] The trial judge’s reasons demonstrate a strong command of the facts, including an awareness of the interim spousal support payments that were made. She did not err in not deducting the amounts of interim spousal support from the lump sum awarded as need was demonstrated on an interim basis, the statement of claim claiming a lump sum of $400,000 was issued almost three years before trial and no prejudgment interest was sought or awarded on the lump sum.
[16] The appeal with respect to the costs at trial was not pursued in oral argument. In any event, we would not interfere with the trial judge’s exercise of discretion respecting costs.
[17] Accordingly, we would dismiss the appeal with costs to the respondent fixed in the amount of $10,000 all inclusive.
RELEASED: January 17, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“M. J. Moldaver J.A.”
“Janet M. Simmons J.A.”