Court of Appeal for Ontario

Citation: Korwin v. Potworowski, 2007 ONCA 739 Date: 2007-10-29 Docket: C45621

Before: Winkler C.J.O., Doherty and Blair JJ.A.

Between:

Barbara Korwin Applicant (Appellant)

and

Andre Potworowski Respondent (Respondent in Appeal)

Counsel: Thomas R. Hunter for the applicant/appellant Allan Hirsch for the respondent

Heard and released orally: October 24, 2007

On appeal from the judgment of Justice Louise L. Gauthier of the Superior Court of Justice dated May 25, 2006.

Endorsement

[1] Ms. Korwin seeks to set aside that portion of the judgment of Gauthier J. dated May 25, 2006 providing for spousal and child support. Her primary complaints are that the trial judge erred:

(a) in failing to incorporate into the award for spousal support an amount reflecting a compensatory element to compensate Ms. Korwin for the economic disadvantages suffered as a result of the breakdown of the marriage, having regard to the family’s marriage and child-rearing roles;

(b) in failing to discount the respondent’s efforts to minimize his income by claiming personal expenses against his business income while married; and

(c) in attributing an income of $40,000 per year to Ms. Korwin, for purposes of calculating guidelines support for the children, based on the evidence of a non-qualified expert.

[2] We would not give effect to these grounds of appeal.

[3] In effect, the appellant seeks to have us retry the case in the face of adverse findings of credibility against her. A review of the trial judge’s reasons read as a whole, however, reveals that she was alive to the various pertinent factors relating to the determination of spousal and child support under s. 15 of the Divorce Act and s. 33 of the Family Law Act, including the appellant’s role as primary caregiver over the years and the fact that the appellant had been out of the work force for some time. She also addressed the argument that the respondent sought to claim excessive personal expenses against his consulting income, thus purporting to reduce his net personal income. With a few exceptions, she rejected this argument as she was entitled to do on the record.

[4] We are satisfied that her decision adequately addresses the “compensatory award” aspects of spousal support as called for in Moge v. Moge (1992), 1992 25 (SCC), 3 S.C.R. 813 and can find no reviewable error in her ruling with respect to spousal support.

[5] Nor do we see any error in her attribution of an income of $40,000 per year to Ms. Korwin. The trial judge clearly took a negative view of the appellant’s effort to obtain employment given her intelligence, her education and her interpersonal skills, and notwithstanding that she had previously worked in a narrowly specialized national security area. The trial judge accepted the evidence of Ms. Crystalli and Mr. Campbell as to Ms. Korwin’s earning potential and employability and concluded that the appellant should have made more reasonable efforts to obtain employment and retrain herself and that she should reasonably have been able to do so by September 2006. There was evidence to support this finding.

[6] We see no error in qualifying Mr. Campbell as an expert and, in any event, the trial judge appears to have relied more on Ms. Crystalli’s evidence than that of Mr. Campbell. Ms. Crystalli was the professional consultant approached by the appellant for advice when re-entering the workforce. The evidence also supported the trial judge’s attribution of the $40,000 annual income to Ms. Korwin.

[7] Accordingly, the appeal is dismissed.

[8] Costs of the appeal to the respondent, fixed in the amount of $12,500.00 all inclusive.

“Winkler C.J.O.”

“D. Doherty J.A.”

“R.A. Blair J.A.”