Court and Parties

Court of Appeal for Ontario Date: 2021-09-24 Docket: C68480

Before: Rouleau, Hoy and Thorburn JJ.A.

Between: Alyssa Beth Diamond Applicant/Responding Party (Respondent)

And: Wayne Mark Berman Respondent/Moving Party (Appellant)

Counsel: David Sherr, for the appellant Mark Greenstein, Ashley F. Krol and Katie Hunter, for the respondent

Heard: September 20, 2021 by video conference

On appeal from the orders of Justice McGee of the Superior Court of Justice, dated March 16 and June 4 2020, with reasons reported at Diamond v. Berman, 2020 ONSC 1566 and Diamond v. Berman, 2020 ONSC 3492, and from the cost order, dated July 16 2020, with reasons reported at Diamond v. Berman, 2020 ONSC 4301.

Reasons for Decision

[1] This appeal arises from a bitter family law dispute. After an 11-day trial, the trial judge ordered the appellant to pay spousal support at the high-end of the spousal support advisory guidelines, calculated in accordance with the appellant’s income and expected income increases, and the respondent’s income set at $40,000 without providing for later increases.

[2] Following the decision, the appellant, by motion, submitted that the trial judge had erroneously applied the “without child support” formula to calculate the spousal support award for the January to August 2019 period. The appellant argues that the “custodial payor” formula ought to have been used. Although the trial judge acknowledged having applied the wrong formula, she nonetheless declined to revise her order. The trial judge also awarded the respondent full recovery costs fixed in the amount of $180,800.

[3] On appeal, the appellant argues that the trial judge erred: i. in refusing to impute a higher level of income to the respondent; ii. in determining the quantum of spousal support; and iii. in awarding the respondent full recovery costs.

[4] In our view, the appeal must be dismissed.

[5] With respect to the first ground of appeal, the appellant argues that the trial judge seriously misapprehended the evidence regarding the respondent’s actual income, her working hours, her credentials and the availability of full-time work or supplemental employment. In short, the appellant maintains that the trial judge made multiple errors in her fact finding.

[6] We see no basis to interfere with the trial judge’s decision. She based her refusal to impute additional income largely on the evidence of the respondent’s expert on rehabilitation. According to that evidence and the respondent’s testimony at trial, the trial judge determined that part-time work was widespread among dental hygienists and that the respondent was earning at the high-end of hourly wages in her field. The respondent worked part-time throughout the course of the marriage. The trial judge also found that, over the course of the marriage, the appellant discouraged the respondent from working longer hours and pursuing opportunities to upgrade her qualifications. As a result, the trial judge concluded that the respondent’s rate of employment was consistent with her occupation, her experience and her age, and that the appellant had not demonstrated that the respondent was underemployed or capable of earning more than she was at present.

[7] With respect to the alleged factual errors, the appellant is, in effect, seeking to reargue his case on appeal. He asks this Court to review and reinterpret the trial evidence so that we might make findings of fact different from those made by the trial judge. As an example, he argues that the trial judge’s finding that the respondent’s annual earnings were approximately $40,000 was contrary to the evidence. If, as found by the trial judge, the respondent worked 20 hours a week at $46 per hour, the appellant submits that she should earn an annual income of $47,840. This does not, in our view, constitute palpable and overriding error. As noted by the respondent, the trial judge’s finding is explained by the fact that the respondent’s paid hours on any particular day may vary if patients cancelled or the schedule of appointments was not filled. Further, the 20 hours a week include unpaid lunch breaks. It is not the function of this court to retry the case. From our review, all of the trial judge’s factual findings are well-anchored in the evidence and we see no basis to interfere.

[8] On the issue of spousal support, the appellant argues that the trial judge committed errors of fact and law in awarding spousal support “at the high-end range”. In his submission, they were equal partners in the marriage and the respondent suffered no deprivation to her career. In addition, the appellant maintains that, after he advised the trial judge that the amount she awarded was based on an incorrect premise, the trial judge ought to have changed the amount of support ordered.

[9] We reject this ground of appeal. The trial judge correctly instructed herself on the applicable principles in finding that the respondent would bear a disproportionate share of the economic consequences of the marriage, and that the respondent focussed on the needs of the household. The trial judge relied on the deep economic integration of the parties to determine that the breakdown of the financial unit would have a more serious impact on the respondent. We see no error in her conclusion in that regard.

[10] The trial judge’s decision not to change the amount of support ordered despite the error noted by the appellant was explained by the trial judge in supplementary reasons. Her explanation is equally free of error.

[11] Finally, on the issue of costs, we see no basis to grant leave. The trial judge’s decision to award full recovery costs is well-supported by her reasons. We note in particular that, despite the award of full recovery costs, the trial judge nonetheless carefully reviewed the amount being claimed by the respondent and effected substantial reductions from the amount sought.

[12] For these reasons, the appeal is dismissed. Costs to the respondent fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Paul Rouleau J.A. Alexandra Hoy J.A. J.A. Thorburn J.A.