COURT OF APPEAL FOR ONTARIO

CITATION: Sewbans v. Sewbans, 2020 ONCA 559

DATE: 20200904

DOCKET: C67030

van Rensburg, Pardu and Huscroft JJ.A.

BETWEEN

Fameeda Sewbans

Applicant (Respondent)

and

Sylvan Sewbans

Respondent (Appellant)

Sylvan Sewbans, acting in person

Sukhjinder Bhangu, for the respondent

Heard: September 1, 2020 by videoconference

On appeal from the order of Justice Judy A. Fowler Byrne of the Superior Court of Justice, dated May 24, 2019.

REASONS FOR DECISION

[1] This is an appeal of certain aspects of a final order made after the trial of matrimonial proceedings. We dismissed the appeal, with reasons to follow. These are our reasons.

[2] The appellant and the respondent married in 1989. They have two children, one of whom was no longer a child of the marriage at the time of trial. In August 2014, the parties separated, but continued to live separately at the matrimonial home until that property’s sale in February 2015. In April 2015, the parties signed a separation agreement purporting to deal with support obligations and property issues. The separation agreement provided for child support obligations, a waiver of spousal support for both parties and the requirement that the respondent transfer her interest in an investment property to the appellant. The parties continued to cohabit at a rented property until November 2015, at which point the respondent moved out with the children.

[3] At the trial in January 2019 there were five issues: (1) whether the separation agreement was enforceable; (2) what retroactive and ongoing child support was owed by the appellant to the respondent; (3) whether the appellant owed any retroactive and/or ongoing spousal support to the respondent; (4) whether an equalization payment was owed by one party to the other; and (5) the post-separation adjustments, if any, to be made to the equalization payment.

[4] After concluding that the separation agreement was not enforceable (a finding that was not challenged on appeal), the trial judge ordered that the appellant pay the respondent: (i) $47,075 in spousal support arrears; (ii) $10,741.60 in child support arrears and $1,798.47 for s. 7 expenses under the Child Support Guidelines, O. Reg. 391/97; (iii) ongoing child support of $556 per month for one child; (iv) ongoing spousal support of $311 per month; and (v) an equalization payment of $255,819.23, accounting for all post-separation adjustments. The application judge ordered that substantially all of the equalization payment and spousal and child support arrears be satisfied by transferring an investment property from the appellant to the respondent.

[5] The appellant raised three issues on appeal.

[6] First, the appellant asserted that the trial judge erred by failing to grant his request that the trial be adjourned for three weeks because he had consulted with a lawyer who could not be prepared for trial on short notice. He submitted that if he had the benefit of counsel either to represent him or to give him advice, he would have been better equipped to assemble his evidence and to advance his interests at trial.

[7] This argument must be rejected. The trial judge carefully considered the relevant circumstances, including that the appellant had known about the trial date for six months, that he was aware that his former counsel would no longer be acting for him more than two months earlier, that he had contacted the lawyer he wished to retain only the day before the trial was to commence, and that, because of the trial list, any adjournment would mean that the trial would not be heard for approximately one year. A review of the record discloses that the appellant, notwithstanding that he represented himself at trial, brought forward appropriate documents, testified, called and cross-examined witnesses, and made submissions. The trial judge, in refusing an adjournment, took into account the relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice. As such, there is no basis to interfere: see Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, 270 O.A.C. 98, at para. 36.

[8] As his second ground of appeal the appellant submitted that the trial judge misapprehended the evidence when she determined child and spousal support. The appellant made two arguments here: he asserted that the trial judge relied on hearsay to conclude that he had a college education, when in fact he attended a retraining course after suffering a workplace injury, and he claimed that the trial judge erred in her assessment of the evidence when she refused to impute income to the respondent based on her ability to run a home daycare.

[9] On the first point, the trial judge reasonably concluded on the evidence before her that the appellant had a college education. The respondent testified that when they married, she was working while the appellant was attending college, and the appellant did not challenge this evidence in his own testimony. The appellant testified that he had attended the Toronto School of Business for retraining, after a workplace accident. In any event, whether the appellant’s return to school for retraining was part of a college program, or not, the trial judge’s conclusion that the respondent was entitled to spousal support and her imputation of income to the appellant were fully supported by the evidence. The appellant’s opportunity to pursue further education, while the respondent did not, was only one of a number of factors taken into consideration by the trial judge in concluding that the respondent was entitled to spousal support on both a compensatory and non-compensatory basis. And, in imputing income to the appellant, who was not working at the time of the trial, the trial judge referred to a number of factors apart from the appellant’s education: his age, health, work and earnings history, as well as his spending habits. Whether or not the appellant had a college education, in the sense of having earned a college diploma, was not the issue; rather the appellant, until 2017, had a long track record of gainful employment that was indicative of his income-earning capacity, and the trial judge reasonably concluded that, relying on his savings, investments, and a disproportionately large share of the marital assets, the appellant had not made sufficient efforts to become re-employed.

[10] As for the refusal to impute income to the respondent with respect to a home daycare, the trial judge carefully reviewed the evidence brought forward by both parties on this issue. She concluded that the appellant had failed to establish that the respondent could earn more running a home daycare than in her employment outside the home. Moreover, the trial judge observed that the house in which the respondent had been operating a home daycare at the date of separation had been sold, and she was living in rented accommodation after the house had been sold, where it was unlikely she would be permitted to operate a home daycare. There was no error in the trial judge’s determination that support should be based on the respondent’s actual income from employment (which was $33,600 in 2018), rather than an imputed amount as proposed by the appellant.

[11] Finally, the appellant asked that this court order a new trial so that he can put forward additional evidence both on the issue of imputing income to the respondent, and on the question of the disposition of the proceeds of the matrimonial home, which is relevant to equalization. A new trial can be ordered when an appeal is allowed and the court is satisfied that some substantial wrong or miscarriage of justice has occurred: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134.

[12] We are not prepared to order a new trial. All of the issues that had to be determined in the parties’ matrimonial proceedings were addressed during the five-day trial, with evidence and argument. As noted, the trial judge made a reasonable assessment of the respondent’s earning capacity based on the evidence of the parties and other witnesses. As for the proceeds of the matrimonial home, which the appellant retained after its sale, the trial judge deducted the amounts the appellant paid for the parties’ joint debt and their daughter’s student loans, and she noted that the appellant had acknowledged keeping the balance and depositing around $113,000 into his RRSP or trading account. Her treatment of the matrimonial home proceeds was fully supported by the evidence; indeed the appellant did not argue on appeal that the trial judge misapprehended or overlooked evidence on this issue. It is too late for the appellant, now, to assert that, if given the opportunity, he could bring forward more or different evidence respecting the respondent’s income or his disposition of the proceeds of sale of the matrimonial home.

[13] For these reasons the appeal was dismissed. Costs to the respondent fixed at $5,000, inclusive of applicable taxes and disbursements.

“K. van Rensburg J.A.”

“G. Pardu J.A.”

“Grant Huscroft J.A.”