Court File and Parties

Citation: Stergios v. Kim, 2011 ONCA 836 Date: 2011-12-23 Docket: C52594

Court of Appeal for Ontario Doherty, Rosenberg and Lang JJ.A.

Between: Shaun James Stergios Applicant (Appellant)

and

Eun Ju Kim Respondent (Respondent in appeal)

Counsel: Andrea L. Di Battista, for the appellant Philip M. Epstein Q.C. and Erin K. Crawford, for the respondent

Heard: December 22, 2011

On appeal from the judgments of Justice Fred Graham of the Superior Court of Justice dated July 28, 2010 and November 18, 2010.

Endorsement

[1] The appeal is largely based on the appellant’s challenge to the trial judge’s factual and credibility findings. The appellant argues that the trial judge should have made adverse credibility findings against the respondent arising from such matters as her late disclosure of her immigration file, her pre-separation income, the particulars in her various financial statements, her evidence concerning the parties’ separation and the availability to her of further education in Canada. However, in comprehensive reasons, the trial judge carefully considered and rejected these challenges concluding that the respondent had adequately explained any deficiencies. Moreover, the trial judge determined that the appellant presented inconsistent evidence, deliberately understated his income in sworn affidavits, and was “demonstrably untruthful under oath during the trial and during the pre-trial financial disclosure process.” He concluded that no weight should be given to the appellant’s testimony “except where he made admissions that were against his interest.” The trial judge was in the best position to assess the credibility of the parties. There is no basis to interfere with his credibility assessment.

[2] The trial judge gave the appellant ample opportunity to obtain evidence to refute the respondent’s claims concerning her immigration position. Indeed, in the spring of 2008, the trial judge adjourned the trial so that the appellant could retain an immigration expert to give evidence. When the trial resumed in October 2008, the appellant chose to proceed without engaging an immigration expert. Accordingly, the only immigration expert called at trial was the respondent’s immigration lawyer.

[3] The trial continued for nine days with extensive, essentially unchallenged, evidence from the respondent’s immigration lawyer regarding her immigration application and, despite the appellant’s clandestine withdrawal of his sponsorship support, her prospects of successfully achieving status in Canada. The appellant argues that the respondent’s own immigration papers showed that she was “employed” pre-separation. However, the respondent’s immigration lawyer confirmed the respondent’s evidence that she had only characterized her volunteer work with the bank in South Korea as “employment” on his advice. The trial judge accepted the explanation that “Canadian Immigration considers any work that is normally paid to be a form of employment regardless of whether it is actually paid”.

[4] The respondent gave evidence concerning her employment prospects in South Korea and in Canada from a cultural perspective. The appellant alleges that this evidence, as well as the specifics of the respondent’s educational prospects, was not pleaded in her Answer. However, the respondent’s ability to be self sufficient in South Korea, and the particulars of her educational opportunities, were central to this litigation. The appellant raised no objection to this evidence at trial. Had he done so, the trial judge would have turned his attention to any necessary amendment to the Answer and potentially granted an adjournment to permit the appellant to address the matter. It is too late for the appellant to raise this issue for the first time on appeal.

[5] The substance of the respondent’s evidence was that South Korean culture and tradition visited adverse consequences on a South Korean female who came from a failed interracial marriage. Specifically, the respondent testified that she would suffer significantly reduced career opportunities in South Korea. Her evidence on this point was not successfully challenged in cross-examination or by any other evidence. There was also evidence that the appellant was well aware of the cultural importance of the respondent avoiding divorce. The respondent and her father had specifically and forcefully discussed this with the appellant at the time he first proposed marriage in South Korea. As well, during the marriage, the appellant made intermittent threats to end their relationship unless the respondent complied with a particular demand. In doing so, he reminded the respondent that she would be “nothing” in South Korean culture if they became divorced. On this basis, there was ample support for the trial judge’s conclusion that the respondent would be unable to reach her career potential in the country of her birth.

[6] The record before the trial judge included the history of the parties’ relationship and their circumstances in Canada and South Korea. During much of their relationship the respondent and her family supported the appellant to achieve his career potential. The evidence disclosed that the appellant undertook to do the same for the respondent once she was successfully sponsored to live in Canada. The evidence supported a finding that the respondent was entitled to compensatory and non-compensatory as well as contractual spousal support.

[7] Finally, the trial judge fully explained why the peculiar circumstances of this case took the support award outside what might have otherwise been awarded under the Spousal Support Advisory Guidelines. Those circumstances included “the severe economic disadvantage and hardship endured by [the respondent] who has been living off charity and accumulating debt for over five years” as well as to contractual and compensatory aspects of the support ordered. Accordingly, this ground of appeal does not succeed.

[8] The appeal is dismissed. Accordingly, it is unnecessary to address the appellant’s appeal of the trial costs, which was dependent on his success in this appeal.

[9] The costs of this appeal in the amount of $9,800, inclusive of all applicable taxes, are payable by the appellant to the respondent. A support deduction order will issue.

“D. Doherty J.A.”

“M. Rosenberg J.A.”

“S.E. Lang J.A.”