Court File and Parties

Citation: Graham v. Bruto, 2008 ONCA 260 Date: 2008-04-08 Docket: C46858

Court of Appeal for Ontario Before: Rosenberg, Simmons and Epstein JJ.A.

Between: Anne-Marie Graham, Applicant (Respondent in Appeal) and Rosario Bruto, Respondent (Appellant)

Counsel: Gary S. Joseph and Christine Marchetti for the appellant Nicole Tellier for the respondent

Heard and released orally: April 4, 2008

On appeal from the order of Justice Backhouse of the Superior Court of Justice dated February 23, 2007.

Endorsement

[1] We have not been persuaded that there are grounds to interfere with this decision. As held in Van de Perre v. Edwards, 2001 SCC 60, [2001] S.C.J. 60 (S.C.C.), the appellate court may only intervene in custody decisions if the trial judge erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. In our view the trial judge made no such error.

[2] In his helpful argument, Mr. Joseph argues that the case became diverted to the question of Sarah’s schooling and this was the only serious matter of controversy between the parents. We do not agree. The parties were unable to agree on many other important decisions such as health and dental care, religious training, method of communication, summer scheduling and use of a parenting coordinator and they required frequent court intervention. It was open to the trial judge to find that this was not an appropriate case for joint custody and parallel parenting.

[3] As to the lump sum award for child support, the appellant concedes that the amount of income attributed to him was not an error but submits that the trial judge failed to take into account the amount spent by the appellant when the children were in his care. Regrettably, while he was given the opportunity to do so, the appellant refused to quantify these expenditures. Given the record, the trial judge made no error.

[4] As to the imputed income going forward, the appellant submits that the amount was arbitrary and that there was a burden on the respondent to adduce evidence. However, this was not simply a case of deliberate underemployment; the appellant also failed to make proper financial disclosure. That said, in our view, there was a basis in the record for the amounts of imputed income. The trial judge had the various financial statements, such as they were, which showed various sources of income and large monthly expenditures. The trial judge also had the appellant’s lengthy and impressive resume that demonstrated that the appellant was underemployed.

[5] In our view, the income of $50,000 imputed to the appellant was, if anything, modest given this appellant’s experience and background.

[6] Finally, Mr. Joseph raises the possible conflict between the order of Goodman J. and the award of lump sum child support. However, Goodman J.’s order dealt with security for support and any equalization payment. The latter has yet to be resolved. No doubt, when that issue is resolved, the question of the application of Goodman J.’s order will also be resolved.

[7] Accordingly, the appeal is dismissed with costs fixed at $9,000 inclusive of G.S.T. and disbursements. In fixing this amount we take into account the late filing of the respondent’s material.