Court of Appeal for Ontario

Date: 2017-02-28

Docket: C61264

Judges: Strathy C.J.O., Laskin and Trotter JJ.A.

Parties

Between

Melanie Laura Coad Applicant (Respondent on Appeal)

and

Robert Frank Coad Respondent (Appellant)

Counsel

Brigitte Gratl, for the appellant

James M. Peluch and Yervant Boghossian, for the respondent

Hearing and Appeal

Heard: February 22, 2017

On appeal from the order of Justice C.N. Herold of the Superior Court of Justice, dated October 16, 2015.

Endorsement

[1] Overview

This appeal arises from a trial that continued over the course of four days. At the conclusion of the trial, the trial judge ordered: (1) an equal division of net family property; (2) that the wife (respondent) was not required to pay child support; and (3) that the husband (appellant) pay spousal support of $500 per month, based on an imputed income of $40,000.

Background

[2] By way of brief background, when they separated in May of 2013, the parties had been together for about 18 years. They had two sons, who were 19 and 17 ½ years old at the time of trial, and who lived with the appellant. At the time of trial, the older son was in university. As the trial judge found, this son had essentially repudiated his relationship with his mother. The younger son, who has been diagnosed with Asperger's Syndrome, and who was also estranged from his mother, was still in high school.

[3] The appellant appeals the three orders made by the trial judge on the following grounds: (1) the comments and interventions of the trial judge throughout the proceedings gave rise to a reasonable apprehension of bias; (2) the trial judge erred in failing to hold that the two boys were children of the marriage and therefore in not ordering the wife to pay child support; (3) the trial judge erred in imputing income to the appellant and ordering spousal support on that basis; and (4) the trial judge erred in failing to make an unequal division of net family property. The appellant also applies to adduce fresh evidence.

[4] For the following reasons, we would not give effect to any of the grounds of appeal, and we would dismiss the fresh evidence application.

Reasonable Apprehension of Bias

[5] The appellant is unable to meet the very high threshold to succeed on this ground: see Cojocaru (Guardian ad litem of) v. British Columbia Women's Hospital & Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 29.

[6] The trial judge was very active in his conduct of this trial. It is clear from his many interventions that he was attempting to get the appellant (who was self-represented at the time) to focus on the financial issues that were in dispute, and prevent him from pursuing distracting and irrelevant side issues. The trial judge made some comments that were perhaps better left unsaid or, if said, said in a different way. However, looking at the record as a whole, we cannot conclude that there was a reasonable apprehension of bias.

Child Support

[7] The trial judge denied child support for a number of reasons. First, he found that, at the time of trial, the respondent's income was not sufficient to trigger any child support obligation. He found that, even if the respondent's income were to increase the following year to the point where she would be required to pay a nominal amount, her sons would be 20 and 18.

[8] Second, with respect to the younger son, the appellant requested that the respondent pay 50% of his post-secondary expenses. At the time, there were none as he was still in high school.

[9] Lastly, the trial judge found that the older son had repudiated his relationship with his mother and was no longer a child of the marriage. The trial judge also found that the younger son, who was to turn 18 within months of the trial, appeared to be headed in the same direction in terms of his relationship with his mother.

[10] We see no error in principle or any misapprehension of the evidence in the trial judge's conclusions that the respondent did not earn sufficient income to create a child support obligation in respect of the younger son. Moreover, there was insufficient evidence to establish that the older son was a child of the marriage.

Spousal Support

[11] The trial judge's award of spousal support was reasonable in the circumstances. Although the husband was on ODSP at the time of trial, his lifestyle leading up to the trial provided a reasonable basis for the trial judge to impute income to him in the amount of $40,000. The trial judge's award of spousal support based on that imputed income was reasonable.

Net Family Property

[12] The only substantial matrimonial asset was the proceeds of the sale of the matrimonial home, namely $112,722.27. The trial judge divided the proceeds equally between the parties. We can find no basis upon which to interfere with the trial judge's decision not to order an unequal division of net family property. The record does not come close to demonstrating that an equal division would be unconscionable within the meaning of s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3.

Fresh Evidence

[13] The appellant attempts to re-litigate the substantive issues at trial by adducing fresh evidence on appeal. We dismiss this application for the following reasons. We are not persuaded that the evidence is fresh. We also have concerns about whether the bulk of this evidence would have been admissible at trial. Moreover, the appellant has failed to satisfy us that, if admitted, the fresh evidence would have affected the outcome at trial on any of the issues discussed above.

Disposition

[14] Accordingly, the appeal is dismissed with costs to the respondent in the amount of $15,000, inclusive of H.S.T. and disbursements.

"G.R. Strathy C.J.O."

"John Laskin J.A."

"G.T. Trotter J.A."