Court of Appeal for Ontario

Date: July 19, 2019 Docket: C63949

Judges: Hoy A.C.J.O., Trotter and Jamal JJ.A.

Between

Penny Alalouf Applicant (Respondent)

and

Anwar Sumar Respondent (Appellant)

Counsel

Audrey Lee, for the appellant

Suzanne E. Deliscar, for the respondent

Heard: July 15, 2019

On appeal from: The order of Justice Lene Madsen of the Superior Court of Justice, dated May 26, 2017, with reasons reported at 2017 ONSC 3043.

Reasons for Decision

The Trial

[1] After the breakdown of their 15-year cohabitation/14-year marriage, the parties were able to settle parenting issues related to the children of the marriage. However, financial issues remained outstanding. After a nine-day trial, the trial judge made orders in relation to, among other things, the equalization of net family property, post-separation adjustments, as well as ongoing and retroactive spousal and child support. The trial judge declined to make an order relating to a cottage property situated on Saugeen First Nation land.

[2] The father appeals from nearly all orders made by the trial judge. He also submits that the trial judge erred in finding that she had no jurisdiction to deal with the cottage property. We would dismiss the appeal for the following reasons.

[3] Both parties were self-represented at this lengthy trial. The trial judge made credibility findings that were critical to her resolution of the many contentious issues she was tasked with deciding. At para. 2 of her reasons, the trial judge explained:

Unfortunately this case was marked by two issues which plague the effective resolution of many family law cases: the failure to make full, frank, and timely disclosure; and a failure to comply with temporary Court Orders. This case was also marked by a lack of candor on the part of the [the father] on numerous issues. All of these factors necessitated a trial where one should not have been required.

[4] The trial judge made specific credibility findings. In general, the trial judge found the mother to be a consistent and credible witness: at para. 5. However, she expressed concerns about the father's credibility "for a number of reasons": at para. 7. The trial judge listed examples, including: (1) she strongly suspected that the father altered the date on a Scotiabank Line of Credit statement (at para. 8); (2) she did not accept the father's evidence concerning how the balance of this line of credit was retired upon the sale of the matrimonial home (at paras. 9-10); and (3) she found that the father's February 7, 2015 sworn financial statement was "not accurate" in relation to a newly acquired job (at para. 11) and that he "misstated his income" in his updated financial statement sworn on January 7, 2017 (at para. 12). After citing other examples, the trial judge concluded that, "[i]t appears that on a range of issues Mr. Sumar has not been forthright with Ms. Alalouf, or with the Court": at para. 18. This led the trial judge to conclude that, "where the testimony of Ms. Alalouf and Mr. Sumar differs, I find the testimony of Ms. Alalouf more credible": at para. 5.

[5] These findings follow the father into this court. On appeal, a highly deferential standard of review is owed to the factual findings of a trial judge in family litigation: Choquette v. Choquette, 2019 ONCA 306, at para. 15; Johanson v. Hinde, 2016 ONCA 430, at para. 1; and Hersey v. Hersey, 2016 ONCA 494, 87 R.F.L. (7th) 272, at para. 12. The trial judge's credibility findings go a long way in explaining how she resolved many of the contentious issues.

The Cottage Property

[6] The father argues that the trial judge erred by failing to order that the mother convey to the father her interest in a cottage property. The parties acquired a jointly held leasehold interest in relation to a cottage situated on land of the Saugeen First Nation. In 2006, they purchased the cottage building for $49,000 and then took an assignment of a lease, under which the vendors had leased the property from a Band member, for an annual rent of $6,107.00. The lease expired in 2011 and has not been renewed. At the hearing of the appeal, we were informed that even though the lease has not been renewed, the parties continue to use the cottage property. Rent arrears have accumulated since 2015 and it is not apparent how the parties will pay them. We were further advised that the original owner of the land has passed away and litigation has ensued over that person's property, including the cottage.

[7] The trial judge was constrained in her ability to deal with this issue. At trial, neither the original lease of land to the vendors, nor the assignment of the lease to the parties, were produced. Nevertheless, on the basis of the information made available to her, the trial judge held that because the land is situated on a First Nation reserve, it is governed by the provisions of the Indian Act, R.S.C. 1985, c. I-5. Relying on this court's decision in Syrette v. Syrette, 2012 ONCA 693, 6 C.B.R. (6th) 324, the trial judge held, at para. 110, that she had no jurisdiction to make an order in relation to this land under s. 9 of the Family Law Act, R.S.O. 1990, c. F.3. She concluded that the occupancy, possession, ownership, and disposition of reserve lands governed by the Indian Act lies at the core of federal jurisdiction over "[l]ands reserved for the Indians" under s. 91(24) of the Constitution Act, 1867.

[8] It is unnecessary to address the correctness of the trial judge's conclusion on jurisdiction. The factual record before the trial judge, and before us, was completely inadequate. Without the original lease or the assignment, we are unable to determine the true nature of the parties' interests in this property, if any, whether any such interest is assignable, and what the value of any such interest may be. We are not prepared to rule on the constitutional issue in the abstract.

[9] Accordingly, we dismiss this ground of appeal. However, we recognize that this conclusion leaves the parties in limbo in dealing with this property. We can do no better than to endorse the trial judge's suggestions, at paras. 118-119, that the parties find a way to agree on how to deal with such interest as they may have in the property.

Payments on Joint Line of Credit

[10] The father submits that the trial judge erred in finding that the parties are equally responsible for paying interest accruing on a joint line of credit from January 1, 2017 (being just prior to the start of the trial), instead of from the date of separation. The father gave evidence that, from 2010 to 2017, he made all payments on that line of credit in the total amount of $16,000. Based on a spreadsheet prepared by the father, the trial judge found, at para. 92, that she had "no way of verifying that figure nor is it clear what portion related to the joint debt and what portion related to the debts in his own name solely." Bearing in mind the trial judge's concerns about the father's credibility, as outlined above, we see no basis to disturb her finding on this issue. We dismiss this ground of appeal.

Failure to Deduct Notional Disposition Costs from RRSP Values

[11] The father submits that the trial judge erred in failing to deduct notional disposition costs of the mother's RRSP at the date of marriage and the valuation date, and the notional disposition costs of the father's RRSP at the valuation date. The father contends that, had the trial judge made these deductions, the equalization payment (before post-separation adjustments) owed to him would have increased from $13,719.50 to $25,679.10.

[12] The trial judge declined to recognize these contingent debts because "neither party provided evidence regarding any costs of disposition with respect to the two RRSP accounts, nor were there entries to this effect on either party's NFP statement": at para. 83. The motion judge committed no error in her approach to this issue. This ground of appeal is dismissed.

Income Imputed for Support Purposes

[13] The father alleges that the trial judge made numerous errors in the imputation of his income for support purposes. In our view, there was an evidentiary basis to support the trial judge's conclusions. Again, the father's credibility was important. For example, when the father lost his job in 2016, he was earning a salary of $190,000 per annum. The father told the mother that he received two weeks of severance, when in fact he received 20 weeks.

[14] The trial judge provided detailed reasons for finding that the father was intentionally underemployed or unemployed during the relevant periods of time. She found that the father was not particularly motivated to find new employment that matched what he was capable of earning. For example, the trial judge noted, at para. 151, that, for the first half of 2016, the father did not look for work "due to his difficulties with the Family Responsibility Office and that it was not until July that he really started the job search. He should have been looking for work throughout this period."

[15] The trial judge's findings were reasonable. They reflect no palpable and overriding error. We dismiss this ground of appeal.

Refusing to Admit Evidence of New Employment

[16] The father submits that the trial judge erred by not permitting him to file evidence regarding employment he had allegedly just obtained.

[17] The evidentiary stage of the trial ended on January 25, 2017. On May 9, 2017 the parties were expected to make final submissions. In the context of a discussion about how the Family Responsibility Office was enforcing arrears against the father, he asked to file a letter that he said disclosed that he had found a new job, commencing the following week with a salary of $70,000 per annum. The father had failed to provide advance notice of this development to the mother. He made no hard copies of the offer letter; instead, he relied upon an electronic copy on his computer. After viewing the document on the screen of the father's computer, the mother disputed its authenticity. The trial judge said she would deal with the admissibility of the letter in her final reasons for judgment.

[18] Ultimately, the letter was not formally admitted into evidence. However, the trial judge said, at para. 200: "For all of the reasons set out above, I find that even if Mr. Sumar is now employed at a pay rate of $70,000, he is underemployed within the meaning of section 19 of the Child Support Guidelines."

[19] There is no basis to conclude that the trial judge improperly exercised her discretion in dealing with this proffer of evidence. The father offered this letter, not previously disclosed, at the last possible moment. In light of the trial judge's findings about the father's conduct during the litigation, her decision was justified.

[20] This ground of appeal is dismissed.

Spousal Support

[21] The father submits that the trial judge erred in ordering indefinite spousal support be paid to the mother, especially when the Spousal Support Advisory Guidelines provided a duration range of between 7.5 years and 15 years from the date of separation. The father submits that the mother did not give evidence that she assisted in any material way in advancing the father's career or "that she did anything more than what would be expected of any spouse in her situation." Moreover, the father submits that, by the time of trial, the mother was earning $30,000 per annum and was thus "close to being self-sufficient at a reasonable level."

[22] We reject the father's submissions. The trial judge, at para. 52, pointed to the father's testimony in which he acknowledged that he has had very good employment experience over the years and "agreed that he would not have been able to build his twenty-year e-commerce career without Ms. Alalouf having been home with the children." See also para. 179.

[23] The trial judge explained, at paras. 178-209, why she was ordering spousal support on both a compensatory and non-compensatory basis, and outlined the basis for the quantum and duration of support. The trial judge observed that, by assuming the household responsibilities that she did, the mother facilitated the advancement of the father's career at the expense of her own. As a result, she had suffered economic hardship. As the trial judge said, at para. 179: "Ms. Alalouf is unable to maintain anything approaching the lifestyle the parties shared during the marriage without spousal support."

[24] In terms of the duration of the spousal support order, the trial judge said, at para. 203, that "[t]here is no basis for a termination of spousal support at this time." Relying on Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, the trial judge declined to set a date upon which spousal support could be reviewed, leaving it to the parties to trigger a motion to vary based on a material change of circumstances: at paras. 207-208. We see no error in this approach.

[25] This ground of appeal is dismissed.

Section 7 Expenses

[26] The father submits that the trial judge erred in ordering that the father pay $300 per month for the children's horseback riding lessons as a s. 7 expense under the Child Support Guidelines, O. Reg. 391/97. He contends that the mother could reasonably have covered this expense given her income and the quantum of child support and spousal support ordered by the trial judge. At the hearing of the appeal, we were told that this is no longer an ongoing expense. However, any adjustment to this aspect of the trial judge's judgment may impact on the father's arrears.

[27] There is no basis to interfere with this aspect of the trial judge's decision. The trial judge applied the correct principles in determining that the expenses were necessary and reasonable. At trial, the father acknowledged that the lessons were good for the children. Living on a farm, they enjoyed this activity until the father stopped paying support. The trial judge did not err in finding that the expenses were necessary and reasonable in all of the circumstances: at para. 213.

[28] This ground of appeal is dismissed.

Conclusion

[29] The appeal is dismissed. The mother is entitled to costs in the amount of $9,135.97, inclusive of disbursements and taxes.

"Alexandra Hoy A.C.J.O."

"G.T. Trotter J.A."

"M. Jamal J.A."