Court File and Parties

Court of Appeal for Ontario Date: 20220805 Docket: C69161

Tulloch, Lauwers and Paciocco JJ.A.

Between: LemLem Kahsai Applicant (Respondent)

And: Kidane Hagos Respondent (Appellant)

Counsel: Alexandre Martel, for the appellant J. Alison Campbell, for the respondent

Heard: June 21, 2022

On appeal from the order of Justice Pamela MacEachern of the Superior Court of Justice, dated January 25, 2021.

Reasons for Decision

[1] The appellant challenges a family law order requiring him to pay child support and spousal support to the respondent. The appellant raises no jurisprudential issues. He points to no particular errors of law made by the trial judge. It is not this court’s role to retry a case. The appeal is dismissed.

[2] The appellant argues that the trial judge’s management of the trial was unfair and favoured the respondent. He submits that the trial judge misapprehended the evidence and issues, erred in law in her analysis of the issues of spousal support, unjust enrichment, joint family venture, child support and whether a restraining order should be issued against the appellant. The appellant also argues that the trial judge erred in her credibility assessments and that she engaged in speculation and conjecture in her analysis.

[3] There is no basis for any of the appellant’s arguments. The trial judge did not misapprehend the issues. Her reasons are clear and address each issue comprehensively.

[4] The appellant’s claim that the trial judge’s management of the trial was unfair and favoured the respondent does not bear up under scrutiny. The management of a trial is confided to the trial judge; it is not this court’s function to micromanage a trial in retrospect: R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 15-17, aff’d 2022 SCC 9. The trial judge was patient with the parties and counsel, allowing the trial to stretch well beyond the estimated schedule. We will not criticize her modest efforts to corral counsel. Those efforts were balanced and reasonable.

[5] The appellant’s complaints relate in part to issues on which the trial judge was obliged to make credibility assessments of the parties and their witnesses. These assessments were clear and rooted in the evidence. The appellant takes particular issue with the trial judge’s assessment of his credibility. Her finding that the appellant was not credible was well-supported by her references to the inconsistencies in his evidence. The trial judge also pointed to some limitations in the respondent’s evidence. Her credibility assessment was balanced.

[6] Two elements of the appellant’s evidence in particular stand out as especially incredible and implausible. The first concerns the nature of his relationship with the respondent.

[7] The parties’ relationship began in 1978, in Eritrea. Their oldest child, Sham, was born there in 1980. In 1984, they immigrated to Canada as a family, settling in Ottawa. The parties separated in 1985 and divorced in 1987. Sham primarily resided with her mother after their separation, but had access to her father. In September 1990, the parties resumed cohabitation. They lived together until September 22, 2013, when Ms. Kahsai moved out of the family home to Toronto. During this period of cohabitation, they had two more children, Cessen, born in 1993, and Saare, born in 1995.

[8] Despite this evidence, the appellant asserted that “[the parties] had never been in a committed relationship either before 1985 or after 1990”. This was belied by their having a child together in 1980 and immigrating to Canada as a family in 1984, as well as their resumption of cohabitation from 1990 to 2013 and their life together as a family during this period, which included the births of two more children. The appellant’s position in argument was also contradicted by his own pleadings and affidavit, in which he admitted that the parties had been married.

[9] Counsel for the appellant argued that one of the trial judge’s factual findings with respect to the parties’ relationship betrays her bias in the respondent’s favour. This was the trial judge’s finding that the date of the marriage was January 10, 1980, as pleaded by the respondent, and not May 15,1978, as set out in the Certificate of Divorce and pleaded by the appellant. Based on the evidentiary issues noted above, the trial judge did not accept the appellant’s evidence that the parties never married and chose to use the respondent’s pleaded date as the date of marriage for the purposes of the trial.

[10] While this might have been a mistake, in light of the 1980 date on the Certificate of Divorce, the mistake was immaterial. The appellant’s submission seems to ignore the fact that his position at trial was that there had been no marriage at all. This submission, which was not credible as explained above, made the issue about the marriage date being 1978 or 1980 entirely inconsequential to the issues at trial. The trial judge made this point in the course of the respondent’s cross-examination, when she noted: “it’s pretty – pretty limited relevance in my view, what happened in 1978 when everyone admits they were married and they had a child and then got divorced”. The trial judge’s decision to accept the respondent’s marriage date is no basis for making the accusation that she was biased and it does not prove the truth of the accusation.

[11] The second element of the evidence that stands out and firmly establishes the appellant’s lack of credibility concerns his finances.

[12] Mr. Hagos’s income was hotly disputed at trial and both parties tendered expert evidence on the issue. The appellant’s expert was J.C. Desnoyers. The respondent’s expert was Stephen Pittman. Both experts agreed that the financial information provided by the appellant regarding his company, Shamar, was unreliable.

[13] The trial judge made the following statements about the financial evidence:

Mr. Desnoyers also testified that it is not common to have financial statements that cannot be reconciled. Shamar is not a small operation – it is a corporation that has total revenue of approximately $750,000 per year. The state of Shamar's financial statements and accounts was highly unusual.

Despite these concerns, Mr. Hagos did not call his accountant who prepared the financial statements to give evidence in support of Shamar's financial statements or to explain his accounting practices. How Shamar's financial statements were created, including how expenses paid on behalf of Mr. Hagos were accounted for in Shamar's financial statements, is a significant area. This is important because the evidence at trial was that Shamar paid for almost all of Mr. Hagos' personal expenses….

Mr. Hagos used Shamar as his personal bank account, withdrawing funds when needed.

The trial judge also observed that Mr. Desnoyers was compelled to make several significant adjustments to his opinion in response to Mr. Pittman’s evidence.

[14] Getting a true picture of the appellant’s finances proved elusive, but the trial judge formed the view that his income level and his assets were higher than he asserted. She drew an adverse inference against the appellant due to the misrepresentations he made on the issue of his income and his failure to provide the necessary financial documentation. The trial judge found him to be “motivated by a wish to avoid a support obligation to [the respondent]”. In the end, the trial judge found that imputing an income of no less than $100,000 per year to the appellant was warranted. This was not an unreasonable finding.

[15] Next, the appellant asserts that the calculation of the lump sum payment in lieu of spousal support was erroneously calculated on a monthly base of about $1,800, rather than the interim amount of $1,000 fixed by Labrosse J. on April 1, 2019. The number set by the trial judge reflected her determination to put the figure in the high and not the middle range of the support guidelines. This was a discretionary decision owed appellate deference: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12. It does not defy common expectations, as the appellant submits.

[16] One of the trial judge’s reasons for picking the range was compensatory. The appellant asserts that being home-bound and caring for the children cannot justify such an award. But that was not the only basis for the compensatory award. The trial judge identified other factors relevant to the setting of the range of spousal support and its duration: “the role [the respondent] adopted during the parties' relationship, the [parties’] ages, the length of their relationship, and the economic consequences that flowed from their relationship which overwhelmingly were in Mr. Hagos' favour”.

[17] The appellant also argues that this was not a proper case in which to give a lump sum award in lieu of periodic spousal support. The trial judge noted the following factors in support of this award: “the length of the relationship, the parties' ages, the roles adopted during the relationship, the relationship's economic consequences, and Ms. Kahsai's strong compensatory claim to support”. The trial judge further noted that the lump sum would provide the respondent with an “immediate capital payment to address her immediate financial situation”, which had been disadvantaged by the parties’ 33-year-relationship. The trial judge wanted to disengage the parties from each other, noting: “In weighing the advantages and disadvantages of a lump sum, I find that the benefits of a lump sum, particularly from ending the litigation between the parties and Mr. Hagos’ conduct within this litigation, and securing a support payment to Ms. Kahsai, outweighs the disadvantages”. None of these considerations is unreasonable. The appellant argues that the lump sum award effectively deprives him of a future motion to vary, prejudicing him in light of his advanced age at 67 years and his reduced ability to work. This ongoing engagement is precisely what the trial judge sought to stop.

[18] As part of her analysis, the trial judge made several observations about the appellant’s approach to the proceedings:

Throughout Mr. Hagos' testimony, he took credit for all of the family's successes and blamed Ms. Kahsai for all of its challenges…

In his evidence, Mr. Hagos was motivated to present himself as a saviour, while Ms. Kahsai was the villain. Mr. Hagos was consistent in attacking Ms. Kahsai's character from every possible angle. In Mr. Hagos' view, Ms. Kahsai was stupid, uneducated, financially irresponsible, promiscuous, had a poor reputation, had no friends, did not contribute anything to the family, was a parasite, and was a bad and neglectful parent.

[19] Contrary to the appellant’s disparaging submissions, the respondent is a responsible individual who upgraded herself and has made progress in her employment with the federal government. Her child-care and housekeeping responsibilities belie the appellant’s assertions. She plainly made financial contributions to the family throughout the parties’ relationship and deferred her own upgrading to permit the appellant to pursue his more lucrative path. There is no basis for the appellant’s attack on the trial judge’s compensatory approach to spousal support.

[20] We find she took a similar careful approach to the other issues raised by the appellant, which there is no need to detail further.

[21] The appeal is dismissed with costs. If the parties are unable to agree on costs, then the respondent may file a written submission no more than three pages in length within ten days of the date of the release of these reasons; the appellant may file a written submission no more than three pages in length within ten days of the date the respondent’s submission is due.

“M. Tulloch J.A.” “P. Lauwers J.A.” “David M. Paciocco J.A.”