Court of Appeal for Ontario
Date: 2021-07-16 Docket: C68278
Before: Brown, Roberts and Zarnett JJ.A.
Between:
Bruce Boudreau Applicant (Respondent)
And:
Randi Jakobsen Respondent (Appellant)
Counsel: Michael J. Stangarone and Stephen P. Kirby, for the appellant Jenna Beaton and Jessica Grys, for the respondent
Heard: In writing
On appeal from the order of Justice Sharon Shore of the Superior Court of Justice dated February 5, 2020.
Reasons for Decision
Overview
[1] The appellant appeals from the trial judge’s order requiring her to pay spousal support to the respondent, whom the trial judge found was the appellant’s common law spouse.
[2] The parties met at university in Nova Scotia in 1989 and became romantically involved. They moved to Toronto and started living together in 1997, later moving into a house purchased by the appellant in 2008. The parties never married and have no children. The appellant achieved substantial success in her career. She paid the household, mortgage, vacation and other expenses for the parties throughout the relationship. She financially supported the respondent who had access to her bank and credit cards, as well as a joint bank account. They cared for two dogs together. They presented to the public as a couple.
[3] The respondent suffers from mental health issues and has been mostly unemployed, earning no more than $10,000 in any of the few years he worked. He performed no household duties for the parties nor did he otherwise contribute to the appellant’s professional success. The relationship ended on April 7, 2018 when the respondent was charged with assaulting the appellant. The appellant was 49 and the respondent was 52 years old at the time of separation.
[4] The parties were self-represented at a trial that lasted nine days. The trial judge concluded that the parties were common law spouses. While she acknowledged that there were times that the respondent was likely unable to work because of his mental health issues, she found that the respondent had failed to provide any medical evidence to support his inability to work and, rather, chose not to accept work that he felt was “beneath him”. She found that the respondent was intentionally underemployed and financially advantaged by living with the appellant. She imputed to the respondent a yearly income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. She denied his claims based on unjust enrichment and joint family venture, and found he was not entitled to compensatory spousal support. However, the trial judge ordered the appellant to pay the respondent retroactive and ongoing spousal support in an amount below the lowest end of the Spousal Support Advisory Guidelines from May 1, 2018, subject to review on December 31, 2025 at the latest, unless a material change in circumstances justified an earlier review.
Issues
[5] The appellant submits that the trial judge made the following substantive reversible errors: she erred in finding that the parties were “spouses” under s. 29 of the Family Law Act, R.S.O. 1990, c. F.3; and she erred in awarding spousal support to the respondent in respect of which she provided inadequate reasons. In addition, the appellant argues that the trial judge erred in failing to allow the parties to make submissions regarding costs and in failing to determine the issue of costs. We shall consider each submission in turn.
(i) Did the trial judge err in finding that the parties were spouses?
[6] The appellant submits the trial judge’s finding that the parties were common law spouses was based on a narrow review of select documentary evidence and a failure to consider other relevant evidence that undermined her conclusion.
[7] We see nothing in the trial judge’s reasons to suggest she relied on only some of the documentary evidence to the exclusion of other relevant evidence. Rather, her reasons demonstrate that she carefully reviewed all the relevant evidence.
[8] The trial judge reviewed the applicable definition of “spouse” under s. 29 of the Family Law Act, meaning: “a spouse defined in subsection 1(1)” including “either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years”. She noted that s. 1(1) of the Act defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage”. The trial judge correctly instructed herself that the question to be answered was whether the parties were in a conjugal relationship. In determining whether a conjugal relationship existed between the parties, she carefully reviewed the relevant evidence in accordance with the well-established factors set out in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), as adopted and affirmed by the Supreme Court in M. v. H., [1999] 2 S.C.R. 3.
[9] The trial judge made negative assessments of the parties’ and witnesses’ testimony. It was therefore reasonable and necessary for the trial judge to turn to documentary evidence to assist her in determining the issue. The trial judge found that both parties had serious credibility and reliability issues and that they “gave whatever answer they thought would assist them in advancing their case and the answers changed during the trial”. She reviewed in detail the inconsistent and unreliable elements in each party’s testimony and in their witnesses’ testimony. Her assessment was amply supported by the record.
[10] The appellant had denied financially supporting the respondent and maintained that they were no more than friends and roommates. The trial judge found that the appellant’s contentions were contradicted by her own documents. Importantly, the trial judge saw that the appellant had consistently named the respondent as her common law spouse and beneficiary in important documents, including: her will, powers of attorney for property and care, her life insurance policy, pension plan, group retirement savings plan, extended medical and health insurance, and in her income tax returns, where he was also claimed as a dependant. The trial judge observed that the appellant had deliberately failed to disclose these documents until just before the trial. We also note that on cross‑examination, the appellant admitted that she indicated that the respondent was her common law spouse in her will and powers of attorney because she felt that he was.
[11] We reject the appellant’s assertion that the trial judge erred in failing to refer explicitly to documentation signed by the respondent to transfer land in Nova Scotia in which he stated that he was not married or a spouse. It is well established that the trial judge was not required to refer to every piece of evidence, notably evidence that did not and could not have a material effect on her decision. The respondent testified that his statement was correct because common law spouses are not recognized as “married” or “spouses” in Nova Scotia. Whether or not the respondent’s assertion is accurate, this isolated piece of evidence does not undermine the significant evidentiary support for the trial judge’s conclusion that the parties lived together in a conjugal relationship.
[12] We see no error in the trial judge’s analysis on this issue that warrants appellate intervention. Her determination that the parties were spouses under the provisions of the Family Law Act because they had “lived together in a conjugal relationship” for 21 years involves questions of fact and mixed fact and law that are subject to deference on appeal absent palpable and overriding error: Climans v. Latner, 2020 ONCA 554, at para. 61; Opie v. Zegil (1997), 28 R.F.L. (4th) 405 (Ont. C.A.), at paras. 15-17. The appellant does not suggest that the trial judge applied incorrect statutory provisions or inapplicable legal principles to determine whether a conjugal relationship existed. She has not identified any palpable or overriding error. Essentially, the appellant objects to the outcome of the trial judge’s analysis and asks us to reweigh the evidence and redo the trial judge’s findings. That is not our task on appeal.
(ii) Did the trial judge err in awarding retroactive and ongoing spousal support to the respondent?
[13] The appellant submits the trial judge erred in awarding any spousal support to the respondent because she erroneously applied the criteria under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) for determining eligibility to spousal support when she should have considered the factors under the Family Law Act. She also says the trial judge’s reasons are inadequate to explain the amount and duration of the support ordered, especially given the respondent’s failure to provide an evidentiary basis for his support claim.
[14] This court in Ballanger v. Ballanger, 2020 ONCA 626, at paras. 22-23, recently and compendiously reiterated the well-established deferential appellate standard of review and its rationale in relation to support orders:
The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. 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.
An appeal court can therefore only interfere with the trial judge's decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 11-12.
[15] There is no dispute that in determining the respondent’s entitlement to spousal support, the trial judge explicitly referenced only the statutory criteria set out in s. 15.2(6) of the Divorce Act, which has no application to common law spouses, rather than the factors mandated for her analysis under ss. 33(8) and (9) of the Family Law Act. While this was an error, the question is whether this error is so material that it wholly undermines the trial judge’s decision.
[16] In our view, it does not. There is significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self‑sufficiency within a reasonable period of time figures prominently in both statutes. Giving the trial judge’s reasons the generous reading they require, it is clear that she considered all the relevant factors in determining whether spousal support was warranted, including the respondent’s lack of contributions and work efforts, his mental health issues, his diminished resources, the appellant’s income, the parties’ lifestyle during their relationship, the parties’ ages, and the length of their relationship.
[17] There was ample evidence to support the respondent’s economic dependence on the appellant during their relationship and his need for financial support following separation. The respondent’s unchallenged evidence was that he was in receipt of disability benefits, lived in shelters and frequented food banks. Economic self-sufficiency does not mean mere subsistence but is a relative concept tied to the achievement of a reasonable standard of living having regard to the lifestyle the couple enjoyed during their relationship and the time needed to reach the goal of self-sufficiency: Rioux v. Rioux, 2009 ONCA 569, at paras. 42-44; Fisher v. Fisher, 2008 ONCA 11, 288 D.L.R. (4th) 513, at paras. 58-59; Chutter v. Chutter, 2008 BCCA 507, 301 D.L.R. (4th) 297, at paras. 55-61.
[18] The trial judge’s award of spousal support was not so high that it warrants intervention. Rather, it was below the lowest range of the SSAGs having regard to the parties’ respective ages, the length of their relationship and the income earned by the appellant and imputed to the respondent. Given the finding that the parties had cohabited for 21 years and the respondent was 52 at the time of separation, the trial judge could have awarded time-unlimited support in accordance with the Rule of 65 under the SSAGs. She did not do so.
[19] The trial judge was alive to the respondent’s deliberate failure to become economically self-sufficient notwithstanding any demonstrated impediment other than his self-imposed aversion to what he saw as low-level work that “would really rip out [his] soul”. As a result, she imputed income to him and implicitly imposed a time-limited award by ordering a mandatory review of her support order no later than 2025. By her findings and her review order, the trial judge sent a strong message that the respondent will have to show significant efforts toward economic self-sufficiency by the time of any review or risk the termination or reduction of the spousal support order on that basis alone.
[20] We see no basis to interfere.
(iii) Trial costs
[21] The appellant submits that the trial judge erred in failing to allow the parties to make submissions as to costs and in failing to make any provision for costs in her decision. We disagree.
[22] As the parties were unrepresented at trial, to obtain an award of costs, it was incumbent on the appellant to demonstrate that she forewent income or incurred disbursements in relation to the trial: Fong v. Chan (1990), 181 D.L.R. (4th) 614, at para. 26. There is no evidence in the record to support the appellant’s claim for any trial costs. In any event, success was mixed at trial.
[23] We therefore decline to make any order respecting the trial costs.
Disposition
[24] Accordingly, the appeal is dismissed.
[25] If the parties cannot agree on the disposition of costs of the appeal, they may make brief written submissions of no more than two pages, plus a costs outline within ten days of the release of these reasons.
“David Brown J.A.”
“L.B. Roberts J.A.”
“B. Zarnett J.A.”