Court of Appeal for Ontario

DATE: 20211012 DOCKET: C68442

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Natalie Burke Applicant (Respondent)

and

Shawn Poitras Respondent (Appellant)

Counsel: Gordon S. Campbell, for the appellant Judith Wilcox, for the respondent

Heard: September 23, 2021 by video conference

On appeal from the order of Justice Laurie Lacelle of the Superior Court of Justice, dated May 21, 2020, with reasons reported at 2020 ONSC 3162, and from the costs order, dated July 17, 2020, with reasons reported at 2020 ONSC 4389.

Reasons for Decision

[1] The parties were married for 13 years and separated in 2014 after the respondent left the matrimonial home due to the appellant’s abusive conduct. The parties have three children. The oldest child lives primarily with the appellant and the parties share parenting time for the two younger children.

[2] After the appellant repeatedly failed to respect his disclosure obligations and failed to comply with court orders requiring financial disclosure to the respondent, the appellant’s answer was struck. Except in relation to the issues of decision-making responsibility and parenting time, the decision to strike the appellant’s answer was confirmed by this court in Burke v. Poitras, 2018 ONCA 1025, 22 R.F.L. (8th) 266. As a result, the matter proceeded as an uncontested trial.

[3] In lengthy reasons, the trial judge awarded the respondent child and spousal support including substantial arrears, an equalization payment and exclusive possession of the matrimonial home, among other relief. The trial judge also ordered that the appellant not be permitted to proceed with any future motions pertaining to the issues in the present litigation without leave of the court.

[4] In our court, the appellant raises four grounds of appeal and seeks to file fresh evidence. He argues that the trial judge erred in:

1. failing to conduct an independent inquiry into the appellant’s trial participation rights;
2. failing to scrutinize the respondent’s evidence on a standard of balance of probabilities;
3. ordering spousal support to the respondent for an indefinite period of time and not providing for a review; and
4. awarding costs against the appellant.

The fresh evidence application

[5] The appellant seeks to introduce the affidavit of Alain Gravelle, a chartered accountant whose firm has provided accounting services to the appellant and his businesses for over a decade. The affidavit and attachments attempt to rebut the accounting evidence led by the respondent’s accounting expert at trial and accepted in the trial judge’s reasons and award.

[6] We deny leave to file the fresh evidence. In our view, it does not meet the test from Palmer v. The Queen, [1980] 1 S.C.R. 759.

[7] The information contained in the proposed fresh evidence could, with due diligence, have been adduced at trial. In large measure, it consists of financial information about the appellant and his businesses that was not produced prior to trial in violation of the outstanding court orders. The appellant’s continued refusal to disclose this information led to the striking of his answer. Now, he seeks to circumvent that sanction by introducing evidence in the form of fresh evidence to critique the respondent’s accounting expert and the trial judge’s decision.

[8] Not only did the appellant refuse to disclose the financial information required to properly determine his income and his business revenues, he also refused to instruct his accountants to cooperate with the respondent’s expert. Had the appellant allowed this cooperation, the information he now seeks to file would have been considered by the respondent’s expert and, to the extent it was relevant, included and commented on in his report.

[9] The appellant cannot argue that we should now accept this evidence and rely on it and his accountant’s interpretation of that evidence to challenge the respondent’s accounting expert and the findings of the trial judge. The respondent’s accountant clearly explained the need to make assumptions given the absence of disclosure. It is not open to the appellant to now seek to introduce the very evidence he refused to disclose prior to trial to overturn the decision on appeal.

The appellant’s participation rights

[10] The appellant argues that the trial was unfair as he was provided with no opportunity to participate. In his submission, even a limited right of participation would have attenuated the alleged unfairness and led to a more balanced result. The appellant emphasizes his Grade 9 education and his lack of sophistication. He submits that he was unable to assert his participation rights because he was told he would need a lawyer and could not afford one. In his view, the trial judge ought to have allowed him to question the witnesses and test the evidence.

[11] We disagree. By order dated May 17, 2018, the appellant’s answer was struck due to his failure to comply with the court’s disclosure order. The order did not provide him with a right to participate in the ongoing proceeding. Pursuant to the Family Law Rules, O. Reg. 114/99, the appellant was not entitled to participate in the case in any way. As noted above, the appellant’s appeal of the order striking his answer was dismissed.

[12] Nonetheless, the Superior Court, on its own motion, set a date for a hearing prior to trial to determine whether the appellant ought to be provided with some degree of participation in the coming trial. The appellant was aware of the date of the hearing but chose not to appear. He claims he could not complete the paperwork but, as noted by the respondent, the appellant has no difficulty communicating with her by text message and operates a very successful business. As a result, the court ordered that no participation rights were to be afforded to the appellant. No appeal was taken from that order.

[13] Although he was not allowed to participate, the appellant was present throughout the trial. The trial judge had, in our view, the discretion to vary the non-participation order and allow some degree of participation. However, the appellant did not move to vary the order and, given his disruptive conduct over the course of the trial and his continued refusal to comply with the disclosure orders, there was no basis to do so. As a result, we see no unfairness.

Failing to scrutinize the respondent’s evidence

[14] The appellant argues that the trial judge simply accepted the evidence tendered by the respondent at trial without analysis or scrutiny. In particular, the appellant argues that the evidence of the respondent’s accounting expert ought to have been rejected as it was largely based on speculation.

[15] We do not agree. The trial judge carefully evaluated the evidence. The respondent’s accountant expert was quite clear as to when and on what basis he made assumptions as to the appellant’s income and expenses. For example, he concluded that the appellant used corporate income for personal expenses based, in part, on several expensive personal purchases on the appellant’s corporate credit card and bank account. Further, he noted that the appellant’s company did not distribute its income, nor did it require significant capital investments. In the absence of evidence to the contrary, the trial judge accepted the expert’s reasoning. She noted that retained earnings are not necessarily income, but that the appellant failed to provide evidence to rebut these assumptions.

[16] Therefore, trial judge explained why she accepted the expert’s evidence and the basis for her findings. Based on the record, the trial judge’s conclusions are reasonable and we see no basis to interfere.

Was the amount and duration of spousal support reasonable?

[17] The appellant argues that it was not appropriate for the trial judge to simply adopt the calculations using the Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016) (SSAGs) and to not provide for the termination of spousal support within a reasonable time. He reiterates that he has a Grade 9 education, whereas the respondent is a nurse in a supervisory position at the local hospital. In the circumstances, a lower amount of support ought to have been ordered for a definite duration.

[18] We disagree. The trial judge considered the principles in Moge v. Moge, [1992] 3 S.C.R. 813, and determined that support on a compensatory basis was appropriate in the circumstances. She saw no reason to depart from the number generated from the SSAGs and noted that the marriage resulted in significant economic advantages to the appellant. We note that “indefinite” support simply means that the duration is not specified. The SSAGs stress that “indefinite” does not necessarily mean “permanent”. It only means that no time limit can be set at the time of the order or agreement: p. 28.

[19] The trial judge’s reasons are fulsome in explaining how she reached these conclusions and are owed deference on appeal. We see no basis to interfere.

Costs

[20] The appellant argues that the award of costs in the amount of $217,229.25 after a three-day uncontested trial was excessive.

[21] We would not interfere with the trial judge’s costs award. She provided detailed reasons for the award, accounting for the appellant’s conduct, including the breach of the disclosure orders, and found the amount of costs sought by the respondent to be just and proportionate. The appellant has not demonstrated any error in the trial judge’s exercise of discretion in that regard.

Conclusion

[22] 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.”