COURT OF APPEAL FOR ONTARIO

CITATION: Hersey v. Hersey, 2016 ONCA 494

DATE: 20160620

DOCKET: C61631

Cronk, Blair and MacFarland JJ.A.

BETWEEN

Stephen Peter Hersey

Applicant/ Respondent on Appeal

and

Christine Hersey

Respondent/ Appellant on Appeal

Erica Tait and Rui Alves, for the appellant

Brahm Siegel, for the respondent

Heard: June 16, 2016

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated December 16, 2015.

By the Court:

[1] The appellant appeals the dismissal of her claim for increased retroactive and prospective spousal support on the basis of the respondent’s post-separation income increases and the fact that she is medically unable to work full-time.

[2] The respondent requests leave to cross-appeal the motion judge’s refusal to award him costs as the successful party on the motion.

The Appeal

[3] The parties were married in 1986 and separated either in January ’04 or April ’05. They do not agree on the separation date. They have one child who started university in 2015. The appellant is 61 and the respondent, 64. Divorce proceedings commenced in 2005 after the respondent assaulted the appellant.

[4] Between March ’07 and December ’09, while the divorce proceedings were ongoing, the appellant took three extended sick leaves from work. She says they were necessary to manage her deteriorating health and inability to cope with the divorce proceedings. She also asserts that the assault has had a significant impact on her mental health that continues to the present.

[5] There were conflicts in the evidence about how much time each devoted to childcare responsibilities during the marriage. The respondent worked fulltime as a lawyer at Sun Life and the appellant worked fulltime as a teacher.

[6] In 2007 a final order was issued in the divorce proceedings. The respondent was ordered to pay child support in accordance with the Child Support Guidelines and monthly spousal support of $2,000 (later increased to $2,256).

[7] In 2013 the appellant reduced her employment to part-time. She claimed she was medically unable to work full-time because of pain in her knees and an anxiety disorder, brought about as the result of the marriage breakdown and the respondent’s abusive litigation strategy towards her.

[8] In April, 2015 the respondent brought a motion seeking a reduction in the child support order because their son would be attending university in the fall. The appellant agreed to that change and then commenced her own motion for increased retroactive and prospective spousal support. The appellant’s motion was heard in December, 2015. The motions judge determined that the appellant was not entitled to increased spousal support. She appeals from that order.

[9] The parties agreed there had been a change in their financial circumstances. The respondent’s income in 2014 was $324,000. The appellant’s income had decreased to about $65,400 as a result of reducing her workload to part-time. Her full-time salary would have been $79,000.

[10] The appellant raises a number of issues on appeal, the primary ones being insufficiency of reasons and the failure of the motions judge to apply appropriate legal principles that apply on a spousal support variation proceeding.

[11] The various individual arguments made, all generally fit within these broad categories.

[12] We begin with the observation that a motion judge’s determination of support is entitled to deference in this court. Absent an error in principle, a material misapprehension of evidence or an award that is clearly wrong, this court must not overturn a support order because it might have reached a different result or balanced factors differently.

[13] The law does not require that a motion judge deal with every piece of evidence before her and every argument made. It will be sufficient if the reasons tell the parties what the judge decided and why. See R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3, at para 17.

[14] While the reasons here could have been more fulsome and it would have been preferable had the motions judge specifically referenced ss. 15.3(3) and 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), we are satisfied on reading her reasons as a whole, that she did implicitly consider those provisions. As this court said in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 524“…where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.” Judges are presumed to know the law.

[15] The fact of a variation in child support can in appropriate circumstances be considered a change in circumstance for the purpose of applying for variation of an earlier support order.

[16] The parties agreed there had been such a change in their financial circumstances and the motions judge cited this fact at para. 5 of her reasons.

[17] It would have been helpful to the parties and to this court if the motions judge had more clearly defined her findings in relation to the claims made. That said, we are satisfied here that reading her reasons as a whole in the context of the record, we know what she decided and why.

[18] In her reasons, the motions judge sets out in detail in para. 10 the bases upon which the appellant sought an increase in spousal support. She described them in this fashion:

− the increases in the respondent’s income since the date of separation;

− her medical condition necessitates her need for an increase in spousal support;

− the respondent’s income has increased significantly while hers has decreased significantly since the 2007 support order;

− the financial statements show that the respondent is better off than she is;

− the fact that child support is reduced;

− she is medically unable to work full-time;

− her medical condition (the stress and anxiety she suffers) is the result of the respondent’s attack on her at the time of the marriage breakdown;

− the respondent’s abusive litigation strategy towards her in the litigation.

[19] In her consideration of these issues, the motions judge relied on the principles summarized in Thompson v. Thompson, 2013 ONSC 5500, at para. 103. At para. 12 of her reasons, she quotes from that decision in some detail.

[20] She concluded on the evidence before her that the appellant failed to establish a right to share in the respondent’s post-separation income increases. She found that the careers of the parties were established prior to the marriage. The appellant was a teacher and the respondent, a lawyer. There had been no significant changes in the careers of either. The evidence about child care responsibilities during the marriage was conflicting. She concluded that the appellant had not made the sorts of sacrifices that the courts have required to justify an award for increased compensatory support. Accordingly, she concluded that spousal support should be calculated on the basis of the parties’ incomes as at the date of separation.

[21] It is implicit in the motions judge’s findings that she did not accept much of the appellant’s evidence. Specifically, she did not accept that the appellant’s medical condition was such that it prevented her from working full-time. She considered the evidence that the appellant offered but found that it was insufficient to support her claim. The appellant’s evidence in her financial statement was problematic because it included no evidence about the current value of the house she’d acquired soon after the separation or her pension…both significant assets. She also considered that the appellant did not move for an increase in spousal support from the time of the 2007 order until the respondent moved to decrease his child support obligation. After doing a “Divorce Mate” calculation, she concluded that what the respondent was currently paying for spousal support was within the suggested range.

[22] The appellant complains that the motion judge failed to consider her claim for retroactive spousal support and erred in her finding that the award she requested, in excess of $200,000, appeared unreasonable having regard to the financial circumstances of the respondent. We disagree. First, having concluded that no basis for an increase in spousal support was established, there was no need to consider a retroactive award. Second, the record disclosed that at the time of the hearing, the respondent was two years from retirement at which time his pension would be $70,000 per year.

[23] We again repeat that the reasons leave much to be desired. However, we are not persuaded that they are so deficient when placed against the record that was before the motions judge that the parties are unable to know why the judge reached the conclusions she did. The reasons are sufficient for appellate review.

[24] The appeal is dismissed.

The Cross-Appeal

[25] An award in relation to costs is a matter for the discretion of the judge at first instance. Absent a clear error, this court will not interfere with a costs award. Here, the motions judge denied the respondent his costs of the appellant’s motion and he appeals on the basis that, as the “successful party”, he was entitled to his costs.

[26] The motions judge here properly instructed herself on the law in relation to costs on a family law matter at paras. 8 and 9 of her costs endorsement. There was a history to this litigation of which the motions judge was aware. She considered that there had been offers to settle made. She also concluded that the respondent had made derogatory comments about the appellant in the litigation that “would have increased the conflict in these proceedings”. This was a factor she was entitled to consider and we would not interfere with her decision to order no costs.

[27] Accordingly the appeal and the cross-appeal are both dismissed.

[28] The respondent is awarded his costs of the appeal, fixed in the all-inclusive sum of $12,000 and the appellant is awarded her costs of the cross-appeal, fixed in the all-inclusive sum of $3,500. This leaves a net result owing from the appellant to the respondent in the sum of $8,500.

Released: June 20, 2016 “EAC”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”