Court of Appeal for Ontario

Citation: Parenteau v. Dekany, 2014 ONCA 877

Date: 2014-12-05

Docket: C58849

Before: Blair, Rouleau and Pepall JJ.A.

Between:

Mark Parenteau Respondent

and

Katalin Dekany Appellant

Counsel: Mark Parenteau, in person Katalin Dekany, in person

Heard and released orally: November 28, 2014

On appeal from the order of Justice David Salmers of the Superior Court of Justice, dated May 23, 2014.

Endorsement

[1] Ms. Dekany seeks to set aside the order of Justice Salmers awarding her support of $1,200 per month for the period of June 1 to December 31, 2013 and in the amount of $1,050 per month thereafter. She submits these amounts are too low, and that the trial judge erred in a) finding that she was capable of earning an income of $10,000 per year, notwithstanding her accepted difficulties, and b) in imputing an income of $46,000 per year to Mr. Parenteau for the first period mentioned above, and $42,000 per year thereafter.

[2] Her attack is essentially a factual one, however. She submits the trial judge did not give adequate weight to the evidence of her doctor, that her emotional difficulties would "make it difficult" for her to obtain and maintain employment. She submits further that Mr. Parenteau was underemployed and that he underreported his income by various means and obtained other support from his father.

[3] We can only interfere with the trial judge's factual findings where there is palpable and overriding error. We find no such error here. The weighing of evidence is a task for the trial judge. Here, the trial judge took into account and considered all of the matters now raised again by Ms. Dekany in this Court. We cannot interfere.

[4] As the Supreme Court of Canada stated in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, para. 11, the Court should not overturn a support order "unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong". None of these errors occurred here. The appeal from the order on the motion to change is therefore dismissed.

[5] In a civil action dealt with at the same time by Justice Salmers, the appellant claimed damages for breach of contract and for the intentional infliction of emotional distress. On the contract claim, she acknowledges that the essence of the alleged contract was the respondent's promise to give her one half of the proceeds from the sale of the matrimonial home. This issue had already been the subject matter of the dispute addressed by and determined by Justice Kaufman in 2011. In any event, we agree with the trial judge's determination that no breach of contract had been established.

[6] With respect to the claim for damages for the intentional infliction of emotional distress, we agree with the trial judge's conclusion that there was insufficient, if any, evidence at trial to enable him to determine if further damages had been proven separate from those awarded by Justice Shaughnessy in 2012.

[7] As to the balance of the issues raised by Ms. Dekany we see no basis for interfering with the trial judge's determination. Both parties were unrepresented at trial, and as the trial judge noted, the evidence was necessarily imperfect. The trial judge did an admirable and fair job in the circumstances in our view. The appeal is therefore dismissed.

[8] Costs of the appeal to the respondent fixed in the amount of $750.

"R.A. Blair J.A."

"Paul Rouleau J.A."

"S.E. Pepall J.A."