COURT OF APPEAL FOR ONTARIO
CITATION: Plese v. Herjavec, 2020 ONCA 810
DATE: 20201216
DOCKET: C66506
Strathy C.J.O., Brown and Huscroft JJ.A.
BETWEEN
Diane Plese
Applicant (Respondent in Appeal)
and
Robert Herjavec
Respondent (Appellant)
And In the Matter of the Robert Herjavec Family Trust
BETWEEN
Robert Herjavec, Trustee
Applicant (Appellant)
and
Diane Plese, Brendan Alexander Herjavec and Skye Taylor Herjavec, Objecting Beneficiaries
Respondents (Respondents in Appeal)
Bryan R.G. Smith, Cassidy Johnston and Harold Niman, for the appellant
Laurie H. Pawlitza and Adam N. Black, for the respondent
Heard: October 5, 2020 by video conference
On appeal from the order of Justice Ruth E. Mesbur of the Superior Court of Justice, dated December 28, 2018, with reasons reported at 2018 ONSC 7749.
Strathy C.J.O.:
A. Introduction
[1] The appellant, Robert Herjavec, appeals from a spousal support order made in family law proceedings after a 24-year marriage to the respondent, Diane Plese.
[2] After a four-week trial, the trial judge ordered the appellant to make an equalization payment of $2,689,558 in lump sum, and a spousal support payment of $125,000 per month, to the respondent. The appellant was also ordered to pay child support of $14,233 per month, from May to August inclusive, for each year that the parties’ youngest daughter was in university.
[3] The appellant submits that the spousal support order should be set aside or substantially reduced.
[4] For the reasons that follow, I would dismiss the appeal.
B. Background
[5] The parties were married in 1990 and separated in 2014. They were 56 years old at the date of trial and had three adult children.
[6] In the early years of their marriage, the appellant was a self-employed entrepreneur, and the respondent was a full-time optometrist who ran her own office. The respondent began to work part-time after she gave birth to the parties’ first child in 1993. The respondent continued to work on a part-time basis between her subsequent maternity leaves.
[7] The appellant’s business, meanwhile, grew and prospered. In or around 2003, the appellant encouraged the respondent to stop working. The respondent agreed and left the workforce completely to focus on managing the household and taking care of the children. The appellant was happy with this arrangement as it permitted him to immerse himself in his diverse business activities.
[8] At trial, both parties described themselves as a good team.
[9] By the time of their separation, the parties had accumulated substantial assets and enjoyed an exceptional income. They lived in a large home in the “Bridle Path” area of Toronto. The property was purchased for $7 million and was sold, after their separation in 2018, for $17.395 million. The parties also owned a $2.6 million recreational property in Florida, a $5 million cottage in Muskoka, and a ski chalet in Caledon. They sent their children to exclusive private schools. They had access to a private jet, through the appellant’s company, which they used for European vacations with their children.
[10] The respondent commenced the current family law proceedings approximately seven months later, on March 3, 2015.
C. The Trial Judge’s Decision
(1) Overview
[11] There were five main issues at trial: breach of trust allegations against the appellant in relation to a family trust; equalization of net family property; spousal support; child support; and retroactive adjustments to spousal support and child support.
[12] The trial judge found that:
The appellant had breached his fiduciary duties as the sole trustee of the family trust. However, he had accounted for the amounts that he had taken from the trust, and the beneficiaries had received the amounts to which they were entitled.
The appellant’s net family property at the valuation date was $24,155,510, consisting primarily of his interest in his company, The Herjavec Group Inc. (“THG”). The respondent’s net family property was $18,835,699, consisting primarily of her ownership of the matrimonial home. The appellant was ordered to make an equalization payment to the respondent, in the amount of $2,689,558, significantly less than the $12 million she had sought.
The appellant was required to pay spousal support to the respondent, in the amount of $125,000 per month, for an indefinite duration.
The appellant was required to pay child support for the youngest daughter, in the amount of $14,233 per month, from May to August inclusive, for each year that she was in university.
The parties’ claims for retroactive adjustments were dismissed.
[13] Since the trial judge retired after the judgment was issued, another judge assessed the parties’ costs. He awarded costs to the appellant, in the amount of $450,000 (including $25,000 for the costs hearing). He reasoned that the majority of the time taken up at trial related to equalization issues, specifically the valuation of the appellant’s interest in THG. As the respondent’s equalization payment came out to less than 25% of what she believed she was entitled to, he concluded that the appellant had been the more successful party on this issue and at trial.
(2) The spousal support order
(a) Entitlement to spousal support
[14] In order to decide whether the respondent was entitled to spousal support, the trial judge noted that the “overarching criterion” was a determination of what was “reasonable”, having regard to the “conditions, means and other circumstances of the parties.” She reminded herself that she was required to consider the factors and objectives of a spousal support order, as stipulated by s. 15.2 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).
(i) The s. 15.2(4) Factors
[15] The trial judge began her analysis of entitlement by considering the factors set out in s. 15.2(4) of the Divorce Act, including (a) the length of time that the spouses cohabited; (b) the functions performed by each spouse during the cohabitation; and (c) whether there were any orders, agreements or arrangements relating to the support of either spouse.
[16] The trial judge made the following findings of fact in relation to the s. 15.2(4) factors:
The marriage was a lengthy one of nearly three decades.
The parties worked as a “team.” According to the appellant in one of his self-help books, the respondent’s income and steady employment provided them with a “safety net” in case one of his projects went “belly up” during his first years as an entrepreneur.
The respondent’s contributions from her own work were “critical” to the appellant’s financial success, particularly in the early years of their marriage.
When the respondent stopped working outside the home, she lost very steady employment and a financial safety net created from her own separate earnings: “[T]his is a compensable loss.”
Over the course of the marriage, the appellant became the prime income earner and asset acquirer, making him less available to attend to the household and take care of the family. The respondent consequently became responsible for raising the children and managing the household.
The respondent had been unable to contribute to her own support since 2003 and, at the age of 56, she was unlikely to be able to return to her previous profession. Absent anything else, she was in need of support.
In December 2015, Kiteley J. made an order for temporary spousal support of $124,115 per month. The appellant has been paying that amount since.
At the time of the temporary order, the appellant asserted that his 2015 income would be $1.7 million. In fact, his line 150 income was $4.553 million before the mandated adjustments under the Federal Child Support Guidelines, SOR/97-175. Using those adjustments, his 2015 income was $6.242 million. By comparison, the respondent had virtually no income of her own.
(ii) The objectives of a spousal support order
[17] The trial judge then turned to examine the objectives of a spousal support order, as outlined in s. 15.2(6) of the Divorce Act. The objectives (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) insofar as possible, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[18] In addressing these objectives, the trial judge made the following additional findings of fact.
The trial judge rejected the appellant’s submission (re-stated in this court) that the respondent’s capital position, at the end of the marriage, sufficiently compensated her for the economic disadvantages arising from the marriage. The appellant had a capital base of at least $32 million, including the value of THG (which had likely increased since valuation day) and a house in California. He also had the capacity to earn an income of more than $5.5 million per year. After buying a house and a cottage, which the respondent testified she intended to do, she would have $13.5 million, less than half of the appellant’s capital base.
The trial judge found that the parties’ capital bases did not generate the same level of income. The appellant’s assets gave him the ability to earn more than eight and a half times what the respondent could earn from her assets: “This disparity can only be corrected through a generous spousal support order.”
The trial judge noted that the respondent’s child care responsibilities resulted initially in reduced earning capacity and ultimately in her complete withdrawal from the workforce. The appellant, on the other hand, experienced no such reduction or diminution of his ability to earn income or acquire assets. On the contrary, both continued to grow.
The trial judge appreciated that the assessment of “economic hardship” in the context of this family required an examination of the luxurious lifestyle they enjoyed prior to their separation. She accepted the respondent’s evidence that her lifestyle had suffered since the marriage breakdown. She had no evidence to suggest that the appellant had experienced a similar reduction in his lifestyle. The trial judge concluded that “without spousal support, Ms. Plese will have suffered economic hardship as a result of the end of the marriage.”
The trial judge did not believe, in light of the respondent’s age and time away from the workforce, that her capital base would sustain a level of economic self-sufficiency comparable to what she enjoyed during the marriage. The trial judge addressed the reasons for this conclusion in considering the appropriate quantum and duration of the spousal support order, discussed below.
(iii) Conclusion on entitlement to spousal support
[19] Having considered the factors and objectives set out in the Divorce Act, the trial judge held that the respondent was entitled to support.
(b) Quantum and duration of the spousal support order
[20] The appellant’s position at trial was that the respondent should provide him with an equalization payment of about $3 million; that she should reimburse him for an overpayment of spousal support, in the amount of $500,000; and that his spousal support obligations should be terminated immediately. The trial judge described this position as “patently unreasonable.”
[21] Having rejected the appellant’s position, the trial judge considered how she would assess the appropriate quantum and duration of the spousal support order. She observed that “[n]either need alone nor blind application of the SSAGs [Spousal Support Advisory Guidelines] determine the appropriate amount of spousal support, nor its duration. The process is much more nuanced than that.” In particular, the jurisprudence delineated different approaches to the calculation of spousal support when the parties were high-income earners. Here, the respondent had an annual income of around $5.9 million and the appellant had an annual income of about $679,725.
[22] The trial judge decided to start her calculation of spousal support with an application of the SSAGs. By taking into account the length of the marriage, each party’s income, age at separation, and the number and ages of their children, the trial judge suggested a range of monthly spousal support from a low of $153,144, to a midrange of $178,664, to a high of $187,050. The high figure would have provided each of the parties with approximately half of the total Net Disposable Income (NDI). She noted that in situations involving lengthy marriages, courts will often fashion a spousal support order that results in each party having roughly the same NDI.
[23] The trial judge understood that the SSAGs do not necessarily apply if the payor spouse earns more than $350,000 per year. She recognized that, in some cases, the courts have conducted a “need and means” analysis to calculate spousal support: “what does the recipient spouse reasonably need to meet his or her reasonable expenses, having regard to the standard of living the parties enjoyed while they were living together?”
[24] The trial judge thus looked at the respondent’s needs in relation to her accustomed standard of living and her evidence that she intended to use some of her capital to buy a house and cottage. The trial judge calculated the respondent’s net monthly expenses at about $58,800. The net monthly expenses included the maintenance costs for the respondent’s new home and cottage, estimated to be at approximately half the maintenance costs of the Bridle Path property and the Florida property. The trial judge found that the respondent would need at least $58,800, net of tax, to maintain anything close to her former standard of living and that “[o]n a needs basis alone, Ms. Plese has significant entitlement to spousal support.”
[25] The trial judge briefly acknowledged the existence of a “compensatory model” for the calculation of spousal support before she turned to address the appellant’s arguments on quantum.
[26] The appellant urged the trial judge to invoke what he referred to as the “Halliwell principle” in determining the appropriate amount of spousal support in this case: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671. The trial judge dismissed the appellant’s argument, commenting that Halliwell requires “an individualized fact-specific analysis” which, in turn, entails a consideration of the effect of the equalization payment on spousal support. The trial judge explained that she had already dealt with the effect of the equalization payment in evaluating the respondent’s needs and means.
[27] The trial judge also noted that while the court in Halliwell mentioned that the SSAGs do not apply automatically after the payor’s gross income reaches $350,000 per year, they simultaneously made clear that the “$350,000 is not a ‘cap’ and spousal support can, and often will, increase for income above that ceiling.”
[28] The trial judge stated that she had considered all the above approaches, in the context of the overarching provisions of the Divorce Act, when she exercised her discretion to award the respondent spousal support. She ultimately found that a spousal support award of $125,000 per month would be appropriate in all the circumstances. The amount was significantly lower than any of the SSAGs scenarios. It gave the respondent about 39% of NDI, including child support. When child support ended in the near future, the respondent would have a net monthly income of about $87,000 and the appellant would have a net monthly income of $173,000. She concluded: “As I see it, this is a reasonable balancing of the economic consequences of the end of the marriage, coupled with reasonable compensation for Ms. Plese, over and above simply meeting her monthly needs.”
[29] In calculating the spousal support at $125,000 per month, the trial judge reviewed the ongoing capital positions of the parties. The appellant would retain THG, which she assumed was still worth $32 million because he did not adduce any evidence to the contrary. The appellant also had a home in California, and after making the equalization payment, would have $1.2 million remaining from the sale of the Florida property. He would therefore have remaining assets of over $33 million, excluding his home. The respondent, by comparison, would have $13.25 million in capital, after she purchased her house and cottage.
[30] On the issue of duration, the trial judge rejected the appellant’s position that spousal support should end after two years. According to the trial judge, “[t]here is nothing on Ms. Plese’s horizon that would suggest either her need for or entitlement to spousal support will change in that time.” The trial judge declined to order a termination date, noting that the SSAGs posit indeterminate duration of spousal support in such circumstances. The support would bind the appellant’s estate and would continue to be paid after his death, as a first charge against his estate.
(c) Other issues with respect to spousal support
[31] The trial judge ordered that in the event of any changes to the applicable tax laws, the amount of support should be changed to reflect a monthly net after-tax payment of $58,088.
D. Parties’ Submissions
[32] I summarize the positions of the parties when I address each issue on the appeal below.
E. Issues
[33] The appellant asserts three grounds of appeal:
The trial judge erred in her assessment of the respondent’s needs and means.
The trial judge erred in her determination of spousal support by failing to apply, or incorrectly applying, this court’s decision in Halliwell,and the SSAGs.
The trial judge erred in her order for indefinite spousal support by refusing to stipulate a termination date or review terms.
F. analysis
(1) Standard of Review
[34] The standard of review on all matters relating to support is highly deferential. The standard was recently summarized by this court in Ballanger v. Ballanger, 2020 ONCA 626, at para. 23: an appellate court “is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.” Appellate courts should not interfere with support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 11.
[35] There are good reasons for a deferential approach to support orders. As this court stated in Ballanger, at para. 22:
The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.
[36] The trial of this action lasted four weeks. There were 18 days of evidence. The trial judge heard from 13 witnesses, including the appellant and the respondent, two of their children, a number of experts on real estate and business valuation, and a forensic accounting expert concerning the appellant’s income.
[37] The appellant was successful on three important issues: the breach of trust claim, the valuation of THG, and the equalization payment. He does not challenge the trial judge’s findings on any of these. His position on spousal support, at least as expressed in counsel’s factum on this appeal, remains as it was at trial. He says that the trial judge’s order for spousal support should be set aside entirely and that the respondent should reimburse the amounts paid to her since December 30, 2018.
[38] As will be apparent, I share the trial judge’s view that this is patently unreasonable.
(2) The respondent’s needs and means
[39] The appellant submits that the trial judge erred:
(a) in assessing the respondent’s needs and means, specifically the calculation of her income-earning capital base which excluded the full value of the house and the cottage she intended to purchase;
(b) in estimating the professional fees that would be incurred in the acquisition of those properties;
(c) in estimating the respondent’s future maintenance expenses without an up-to-date budget; and
(d) in double counting the child care expenses claimed by the respondent, when she was receiving child support.
[40] Although I will address each of these submissions, it is important to observe, as the trial judge did, that spousal support is driven by both compensatory and non-compensatory, or needs-based, considerations: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 201. The appellant’s argument focuses only on errors in assessing need, despite the fact that the respondent’s strongest entitlement to support was compensatory: to “recognize any economic advantages” arising from the marriage (Divorce Act, s. 15.2(6)(a)), to compensate her for her partnership role during a marriage of nearly 25 years, and to give her a continued share of the fruits of that partnership.
[41] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at 870, the Supreme Court of Canada explained how a court should evaluate the compensatory grounds for spousal support:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon dissolution.
[42] The trial judge was entitled to approach the question of the respondent’s entitlement by referring to the standard of living the parties enjoyed during their marriage. The trial judge was also entitled to determine that “without spousal support, Ms. Plese w[ould] have suffered economic hardship as a result of the end of the marriage.” The respondent’s contribution to the parties’ financial security in the early years of the marriage enabled the appellant to take business risks that might otherwise not have been possible. Coupled with the respondent’s role as the primary caregiver to their three children, the trial judge properly concluded that there was a firm basis on which to make a compensatory spousal support award.
(a) Determining the respondent’s “needs and means”
[43] The appellant submits that in determining the respondent’s “needs” and “means” (i.e. the capital base from which she could earn income in the future), the trial judge erred by deducting the entire value of the house and the cottage the respondent claimed she intended to purchase. The appellant makes much of the fact that, in the respondent’s questioning prior to trial, she did not mention her intention to buy a cottage. According to the appellant, this oversight casts doubt on the respondent’s trial evidence that she intended to do so. The appellant also submits that the trial judge erred in estimating the professional fees and transaction fees for the real estate purchases, and the “start-up costs” of the respondent’s new home. The appellant argues that if these errors had not been made, the respondent’s capital base for investment would have been substantially greater and she would have had sufficient income to meet her needs.
[44] The appellant’s submissions have no traction in this court. They do not come close to the “palpable and overriding” error standard of review applicable to the trial judge’s findings of fact. The trial judge was entitled to accept the respondent’s evidence that she intended to buy a house and a cottage. There are costs associated with their acquisition. The trial judge was entitled to reasonably estimate those costs. The appellant has failed to demonstrate that her estimate was unreasonable.
[45] The trial judge was also entitled to conclude that the respondent could buy a house and a cottage reasonably commensurate with the standard of living she and the appellant had enjoyed, without having to allocate some of that capital for investment purposes.
[46] Where “need” drives a support award, there is a real evidential burden to demonstrate that need. However, the appellant’s emphasis on the assessment of “need” here overlooks that the true driver of support was compensation for the respondent’s partnership role in the parties’ marriage. The appellant has not established that the trial judge made a palpable and overriding error in her determination of the respondent’s needs and means, having regard to the compensatory nature of entitlement.
(b) Absence of Budget
[47] Relatedly, the appellant submits the trial judge erred in estimating the respondent’s future maintenance expenses for the home and the cottage without a written, up-to-date budget. The trial judge acknowledged that she “somewhat arbitrarily” took half of the maintenance costs for the parties’ Bridle Path house and Florida property to estimate what the respondent was likely to spend on maintenance in the future.
[48] Again, this was entirely within the fact-finding responsibility of the trial judge. I am not satisfied that a budget of future expenses was necessary and, even if it was, the trial judge was entitled to make these findings of fact on the evidence before her, which included a budget for the period of July 2017 to July 2018. The trial judge appreciated that budgets are inherently unreliable as predictors of future expenses.
(c) Child care expenses
[49] The parties agreed that their youngest daughter continued to be a child of the marriage and was, therefore, entitled to support. She lived away from home while she attended university and lived with the respondent May through August, inclusive. The trial judge used the table amount of support to order a payment of $14,233 per month for the four months that the daughter was living with the respondent.
[50] The trial judge determined that, “in the unique circumstances of this case,” it would be inappropriate to make a specific award for section 7 expenses. The respondent’s financial statement included the cost of the child’s post-secondary education, and with the spousal support order that had been made, the respondent could “easily fund these expenses.”
[51] The appellant submits that the inclusion of child care expenses in the respondent’s budget led to a “double-counting” because the amount became part of both the spousal support order and the child support order. Furthermore, the inclusion of the child care expenses as an “ongoing” cost was inappropriate since the parties’ daughter was already in the third year of a four-year program at her university.
[52] The trial judge anticipated this very issue at para. 344 of her reasons, where she noted that child support would soon end:
As I see it, a spousal support award of $125,000 per month is appropriate in all the circumstances of this case. The amount is significantly lower than any of the SSAGs scenarios. It will give Ms. Plese about 39% of NDI, including child support. Since child support will end soon, I look at Ms. Plese's situation without child support as well. In the months she does not receive child support, she will have monthly net income of just about $87,000 while Mr. Herjavec will have roughly $173,000 per month after tax. As I see it, this is a reasonable balancing of the economic consequences of the end of the marriage, coupled with reasonable compensation for Ms. Plese, over and above simply meeting her monthly needs.
[53] In my view, any error made by the trial judge here was immaterial. The trial judge was rightfully focused on the “big picture.”
(3) The “Halliwell principle”
[54] The appellant submits that the trial judge made an error in principle when she failed to consider Halliwell in calculating his income for the purposes of spousal support. He asserts that, in cases where a payor’s income exceeds $350,000, Halliwell requires the court to calculate the payor’s income based on the mid-way point between the SSAGs “cap” and the payor’s actual income. That mid-way point should then be used to determine the appropriate range for support. The appellant contends that the trial judge’s order goes beyond the so-called “Halliwell range” and that if she had appropriately assessed the respondent’s needs and means, she would not have awarded spousal support at all.
[55] The appellant also submits that the trial judge failed to account for his debts in the calculation of his capital base.
[56] I would not accept these submissions. The trial judge was alive to the lesson in Halliwell. At para. 341 of her reasons, she stated that the calculation of spousal support for high-income parties must be “an individualized fact-specific analysis” that considers the effect of the equalization payment: Halliwell, at para. 107. The trial judge explained that she dealt with the effect of the equalization payment when she assessed the respondent’s needs and means, having regard to all the circumstances of the case.
[57] Halliwell does not require the court to impute the payor’s income at the mid-way point between the SSAGs “cap” and the payor’s actual income. Rather, Halliwell, at para. 116, emphasizes what the SSAGs have always stated: “Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine a location within that range” (emphasis added).
[58] The appellant’s submission that the support award “far exceeds the Halliwell range” is simply inaccurate. The Halliwell range includes, at the upper end, the use of the full amount of the payor’s income. The award here is within the appropriate range.
[59] Dancy v. Mason, 2019 ONCA 410, 25 R.F.L. (8th) 93, does not assist the appellant. In that case, this court approved the motion judge’s use of the payor’s full income (over $600,000) as the appropriate input number. This court simply noted that the motion judge might have selected an income input between the $350,000 SSAGs ceiling and the payor’s actual income, but that he was not obliged to do so.
[60] Ultimately, the error in Halliwell was the trial judge’s failure to fully consider the effects of the equalization payment, beginning with the question of entitlement. Here, in her analysis of entitlement, the trial judge looked at the respondent’s capital base resulting from the equalization payment and the potential investment income. The trial judge understood that the ability of the respondent’s capital base to meet her future needs could not be examined in isolation. She attributed some of the respondent’s capital base to the costs of residences, which were not income-producing, and the remainder to income-generating vehicles at an appropriate rate of return. She also compared the capital base of the respondent to that of the appellant. She found that, after the equalization payment, the appellant still had a substantial capital base through THG, his income of more than $5.5 million per year, his “luxurious” home in California, and other assets and savings.
[61] The appellant has identified no error of principle in the trial judge’s approach.
[62] The appellant’s submission that the trial judge erred by failing to account for his debts ring hollow in the face of the absence of evidence of an up-to-date valuation of THG. The trial judge explicitly inferred that had it been to his benefit, the appellant would have produced a valuation. I agree. If, at some future date, there are material changes in the appellant’s financial circumstances, including the valuation of THG, he has his remedies.
(4) Indefinite Support
[63] The appellant submits that the trial judge erred in awarding “indefinite” support and in making it binding on the appellant’s estate. He argues that this means that there can be no review of the order.
[64] The trial judge, at para. 347 of her reasons, referred to the spousal support order being for an “indeterminate” period. Indeterminate simply means that no termination date is specified in advance. There is nothing in the trial judge’s order or in the underlying reasons to deprive the appellant of his right to seek a review should a material change occur in either his or the respondent’s circumstances.
[65] I would not give effect to this ground of appeal.
G. disposition
[66] I would dismiss the appeal in its entirety. As a result, there is no need to address the issue of changes to the U.S. tax regime.
[67] The appellant shall pay the respondents costs of the fresh evidence motion in the amount of $4,000, and the costs of the appeal in the amount of $30,000, both amounts inclusive of disbursements and all applicable taxes.
Released: “G.R.S.” DEC 16 2020
“George R. Strathy C.J.O.”
“I agree. David Brown J.A.”
“I agree. Grant Huscroft J.A.”