Court of Appeal for Ontario

Date: 2019-09-30 Docket: C66210 Judges: Juriansz, Benotto and Miller JJ.A.

Parties

Between

Kay Valley Applicant (Respondent on Appeal)

and

Justin Hay Respondent (Appellant)

Counsel

Caitlin Dale, for the appellant Allison P. Williams, for the respondent on appeal

Heard: September 26, 2019

On appeal from: The order of Justice Patrick Monahan of the Superior Court of Justice, dated October 31, 2018, with reasons reported at 2018 ONSC 6521.

Reasons for Decision

Background

[1] The parties were married in 2000 and have two children born in 2002 and 2004. They separated in 2014 and acrimonious litigation followed.

[2] The husband appeals the trial judge's determination as to the wife's entitlement to compensatory support, the attribution of income to both parties for child and spousal support purposes, the set-off of equalization and the determination not to award limited term support. The wife had cross-appealed the spousal support determination on the basis of fresh evidence but withdrew the cross-appeal during submissions.

[3] We advised counsel that the appeal would be dismissed for reasons to follow. These are the reasons.

The Standard of Review

[4] For over two decades, the standard of review in family law matters has been clear. The high level of deference was clearly articulated in Hickey v. Hickey, [1999] 2 S.C.R. 518. We quote at some length since the principle seems to be ignored:

When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.

There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

[5] This approach has been followed many times by this court: see, for example, Senos v. Karcz, 2014 ONCA 459, at para. 36.

[6] In addition to the high level of deference, there is also the objective of proportionality which is emphasized in Family Law Rules, O. Reg. 114/99. In this case, both issues regarding deference and proportionality are engaged.

Compensatory Support

[7] The trial judge determined that the wife was entitled to spousal support on a compensatory basis. He concluded, at para. 98, that she "did forgo career opportunities during the marriage and that this has significantly impacted her ability to support herself". The husband submits that in coming to this conclusion, the trial judge was speculating and not drawing inferences based on the evidence. We disagree. This conclusion was open to him on the evidence that the wife moved to Vancouver, then to New York, then to Toronto to accommodate the husband's career. Once back in Toronto, the first child was born, and she became the primary caregiver for the children.

Imputation of Income

[8] For purposes of spousal and child support, the trial judge imputed $125,000 to the husband and $38,480 to the wife. The husband's income from 2012 to 2014 had been approximately $190,000 per year. For the period of 2015 to 2017, the trial judge concluded that, because the husband was self-employed, his reported income should be adjusted up to $177,000 per year. At the time of trial, the husband was actively seeking employment and expected to earn between approximately $110,000 and $130,000. The attribution of $125,000 was therefore reasonable. The trial judge based the wife's income on the amount she would be currently earning at a new job with Toyota. That amount is $38,480. The quantum of child and spousal support was based on these numbers.

[9] The financial disclosure at trial was less than optimum. There was no expert evidence called and the trial judge was left to estimate the parties' income on the basis of the evidence he had.

[10] The imputation of income for support purposes is a finding of fact made by the trial judge: see Pirner v. Pirner, [2005] O.J. No. 5093, at para. 20. It is not an exact science and this court has repeatedly upheld findings involving a trial judge's conclusions that "fairly reflect" parties' financial circumstances: see Mason v. Mason, 2016 ONCA 725; Ludmer v. Ludmer, 2014 ONCA 827.

[11] The fact that the parties – self-represented at trial – were not precise in their evidence does not prevent the trial judge from arriving at a fair determination on the basis of the evidence accepted. That is what occurred here.

Retroactive Spousal Support and Equalization

[12] The wife claimed retroactive support from the date of the separation to the date of trial.

[13] The trial judge determined that the husband was owed $43,472 for equalization and post-separation payments. However, on the basis of the husband's position, this amount was set off against the wife's claim of retroactive support. This resulted in no order for retroactive support. The husband alleges that the trial judge misunderstood his position. He submits that, because there was no retroactive support ordered, there should have been no set-off.

[14] Again, we do not agree.

[15] The trial judge stated that he took "this into account in [his] determination that no retroactive spousal support should be ordered": para. 125. Read in conjunction with his determination as to spousal support generally, it was open to the trial judge to set off the amount owing to the husband for equalization.

Duration of Spousal Support

[16] The husband submits that the trial judge erred by not awarding limited term spousal support. This was a 13 ½ year marriage; the wife was the primary caregiver and entitled to support. There was no evidence that her circumstances would change at an identifiable time. It was open to the trial judge not to impose a limited term on her support.

Disposition

[17] The appeal is dismissed with costs fixed on a partial indemnity scale of $13,000 all inclusive. The parties acknowledge that these costs may be applied to the costs of $15,000 ordered to be paid by the wife to the husband. In the result, the husband is owed $2,000 for costs of the trial, accounting for the off-set from costs of the appeal.

"R.G. Juriansz J.A." "M.L. Benotto J.A." "B.W. Miller J.A."