Court of Appeal for Ontario

Date: 2023-07-10 Docket: C70634

Miller, Paciocco and Coroza JJ.A.

Between:

Piotr Jasiobedzki Applicant (Appellant)

and

Ewa Jasiobedzka Respondent (Respondent)

Counsel: Piotr Jasiobedzki, acting in person John W. Bruggeman, for the respondent

Heard: June 16, 2023

On appeal from the orders of Justice Erika Chozik of the Superior Court of Justice, dated March 24, 2022, with reasons at 2022 ONSC 1854, and September 9, 2022, with reasons at 2022 ONSC 5134.

Paciocco J.A.:

Overview

[1] The husband, Piotr Jasiobedzki, appeals two spousal support orders made after trial. The first such order was made on March 24, 2022. In that order the trial judge found the husband liable to pay to his wife, the respondent, Ewa Jasiobedzka:

1. ongoing support, effective March 31, 2022, of $5,979 per month,
2. a lump sum “catch-up amount” for a shortfall in the support he had paid between January 7, 2020, and March 31, 2022, pursuant to an interim support order, and
3. “retroactive support”, from the fall of 2017.

[2] The trial judge also ordered the parties to attempt to settle the after-tax quantum of support payments 2 and 3, as well as the precise date upon which the retroactive support payments would begin.

[3] When the parties proved unable to resolve these issues the trial judge received further submissions and then issued her order of September 9, 2022, the second order under appeal. This second order set the lump sum catch‑up amount at $36,433, identified the start date of the retroactive support as November 1, 2017, and set the amount of the retroactive support at $86,108. She issued costs payable to the wife in the amount of $30,000.

[4] The husband, who did a commendable job as a self-represented litigant, raises numerous grounds of appeal, challenging all three support payments.

Issues

[5] The husband’s grounds of appeal can conveniently be organized and analysed as follows:

A. Did the trial judge make clerical and factual errors that require correction in the trial judge’s endorsements? B. Did the trial judge err in calculating mid-range spousal support, when quantifying the ongoing support? C. Did the trial judge err by not imputing income to the wife? D. Did the trial judge err in calculating retroactive support by setting a start date of November 1, 2017? E. Did the trial judge err in calculating retroactive support by not awarding occupation rent? F. Did the trial judge err in calculating the retroactive support? G. Did the trial judge err in quantifying the lump sum catch-up amount? H. Should the proposed fresh evidence be received? I. Should leave be granted to appeal the costs award, and if so, was the costs award erroneous?

[6] For the reasons that follow, I would dismiss each of these grounds of appeal.

Analysis

[7] I will begin by reaffirming that “the scope of appellate review in family cases is narrow”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 100; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1013, at para. 11. This is because finality and expedition are of heightened importance in family law matters, and multiple court hearings, which can drain family resources, should not be encouraged. Moreover, most determinations are driven by factual decisions, and trial judges who have a close opportunity to consider the complete evidentiary record first-hand and to assess the credibility of witnesses are best situated to determine the facts. Therefore, an appellate court is not to interfere “[a]bsent an error of law or an overriding error of fact”, including a “serious misapprehension of [material] evidence”: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12; Barendregt, at paras. 101-104; Calin v. Calin, 2021 ONCA 558, at para. 16. As a result, a factual error will not support a successful appeal unless the error is clear and had an important bearing on the decision, and even a misapprehension of evidence will not ground an appeal unless it is a serious misapprehension relating to a material issue in the case.

[8] This court will not interfere with a spousal support award even where there is a clear “error in the precise manner in which the trial judge calculated the amount of the lump sum award for spousal support” if, “when all factors are considered, it remains a fit and appropriate award in the circumstances of the case.”: Green v. Green, 2015 ONCA 541, 387 D.L.R. (4th) 512.

A. Did the trial judge make factual and clerical errors that require correction in the trial judge’s endorsements?

[9] The husband takes issue with numerous factual findings the trial judge made, including relating to the percentage of the funds from the joint bank account that he used after separation; the husband’s views on the sale of the matrimonial home; the relative living expenses that the husband and wife incurred after the separation; and the amount of wealth the wife had access to after separation. He asks that we correct at least one of the errors in the endorsement, a clerical error where the trial judge transposed figures in a calculation that had no direct bearing on the issues on this appeal, which all related to the quantum of support to be paid.

[10] We do not have the authority to revise the decisions that come before us to rectify errors. An appeal is from a judge’s order, not from their reasons. This court’s powers on appeal therefore relate only to the order: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134; see Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107, at para. 26, citing Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, 340 O.A.C. 271, at para. 13, MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, 88 O.R. (3d) 269, at para. 44. The endorsement cannot be corrected, even if errors appear. Our task is to determine whether any errors that may have occurred, including the factual errors the husband asserts, provide a basis for setting aside the trial judge’s orders.

[11] Notably, many of the “errors” the husband identifies, including those I have described in para. 9 above, play either no role or only a secondary role on the quantification of the spousal support orders, the issues on this appeal. I will therefore confine my analysis to alleged factual errors that could, if committed, undermine the trial judge’s decision.

B. Did the trial judge err in calculating mid-range spousal support, when quantifying the ongoing support?

[12] The trial judge found that there was no practical or principled basis for imposing high range support payments. In order to quantify the ongoing support order that she made, she therefore purported to identify the mid-range of support under the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (“SSAG”) based on the husband’s 2020 income of $156,255. The appellant argues that the trial judge erred by awarding mid-level support of $5,979 based on his income of $156,255, when mid-level support for that income is in fact $5,697. He claims that the trial judge effectively imposed a high-level support award, contrary to her stated intention. However, the trial judge’s identification of the mid‑range support quantum of $5,979 was based on the appellant’s income inclusive of any taxes and deductions, $164,641. This was the income used in the uncontested DivorceMate calculation filed by the parties, and it is consistent with the direction in chapter 6.1 of the SSAG to use “gross” income, before taxes and deductions, for the purpose of calculating support. I would reject this ground of appeal.

C. Did the trial judge err by not imputing income to the wife?

[13] In identifying “fair support”, it is for a trial judge in a family law matter to decide whether to impute income, based on the evidence before them: Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 51 (citations omitted); Levin v. Levin, 2020 ONCA 604, at para. 12. I see no error in the trial judge’s decision to decline to impute as income to the wife the value of the Canada Pension Plan (“CPP”) and Old Age Security (“OAS”) benefits that she was eligible to receive but chose to postpone. The trial judge offered two appropriate reasons for this decision. First, the wife received professional advice that it would be financially advantageous for her to delay those payments until age 70 despite her eligibility. The trial judge concluded that there is no principled reason to compel her to act to her financial detriment. Second, the trial judge recognized that when the wife does begin to receive this income, the ongoing support payments would be reduced accordingly. Although the trial judge did not say so explicitly, since the amount of the CPP and OAS payments the wife will ultimately receive will be elevated because of the delay, the husband will benefit from an even greater reduction in the support payments he will have to make going forward. These were judgment calls the trial judge was entitled to make to which I must show deference.

D. Did the trial judge err in calculating retroactive support by setting a start date of November 1, 2017?

[14] Although a retroactive support obligation ordinarily begins when formal notice of a spousal support claim has been provided (in this case, January 6, 2020), a trial judge may elect to calculate retroactive support from the date of effective notice where there is reason to do so: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 207-12; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 5 and 121. The trial judge chose to do so, finding that the husband had effective notice that the wife wanted support by November 1, 2017. The trial judge found that the husband and wife had a conversation in the fall of 2017 at which point the husband knew the wife had a claim to spousal support. The husband also understood that he would be required to pay support. As the parties could not agree on the exact date of the conversation, the trial judge accepted the husband’s mid-season recommendation of November 1, 2017, and in doing so declined to award retroactive support from the earlier, September 19, 2017, date that the wife requested. The trial judge found the delay between the effective and formal notice to be sufficiently explained. The wife had mental health challenges and was entirely dependent on the husband, thereby lacking the emotional means to make a support claim. Despite the husband’s disagreement with these findings, there is no basis for interfering with the trial judge’s determination. I would deny this ground of appeal.

E. Did the trial judge err in calculating retroactive support by not awarding occupation rent?

[15] If the trial judge had attributed “occupation rent” to the wife for the period when she had exclusive possession of the matrimonial home, it would have reduced the retroactive support payments. There is no basis for interfering with the trial judge’s decision not to do so. The husband misunderstands Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 47. That decision does not, as the husband argues, support the proposition that “an equal joint owner” is entitled to occupation rent as of right. In the material passage, the trial judge in Higgins was in fact expressing doubt about the correctness of any such suggestion, ultimately holding, correctly, that occupation rent is merely a tool for balancing competing equities: Higgins, at para. 54. The decision whether to attribute occupation rent is a discretionary determination for the trial judge to be exercised where the trial judge considers it to be “reasonable and equitable” to do so: Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), at para. 49. This court will not interfere with the exercise of such discretion “unless the finding is unreasonable, or the trial judge has erred in principle”: Griffiths, at para. 50. Here, we have no basis for interfering with the trial judge’s exercise of that discretion. She explained her view that occupation rent was not required to render justice between the parties, given that the husband had not been paying support during her period of occupancy, he participated in the delay in selling, and he profited from the appreciation in value of the matrimonial home that occurred as a result of that delay. There is no basis for interfering with these findings of fact and I would not do so.

F. Did the trial judge err in calculating the retroactive support?

[16] The trial judge recognized that, in the period between separation and the commencement of the interim support order, the husband made payments in lieu of support through an arrangement with the wife that she could access funds in their joint bank account and continue to use joint credit cards to support herself. The trial judge accepted the wife’s quantification of the amount she accessed prior to obtaining an interim spousal support order, rejecting the amount proposed by the husband, a difference of approximately $15,000. The husband claims that this decision, which affected the calculation of retroactive support, was made in error. The husband is attempting to relitigate this factual issue before us, which is not permissible. I see no error of law or material error of fact and must defer to the trial judge’s judgment.

[17] The husband also argues that the trial judge erred by not treating household expenses he paid directly during the retroactive period as money received by the wife in lieu of support. The trial judge was clearly aware of the husband’s position that these expenses should be included, reciting it in her decision. She correctly recognized that the decision to award retroactive spousal support is based on fairness. It is evident that she was not persuaded that fairness required crediting the household expenses the husband made. As indicated, she found that he was aware that he would have to provide support, yet she found that the quantum the wife received even after those expenses were paid was but a fraction of what she was entitled to, while she lived in poverty in an unhealthy emotional state and dependence. The trial judge also found that “ultimately, the Husband [who was a joint owner of the matrimonial home] got some value from those expenditures: the property increased in value and he shared in the equity”. Once again, the trial judge was entitled to make those factual findings and to make the decision that she did.

[18] The husband’s most trenchant complaint about the trial judge’s calculation of the retroactive support is that the trial judge awarded the wife the difference between the support he ought to have paid based on his gross income and the amounts the wife withdrew from a joint bank account over the relevant period. The latter amounts were taken from a bank account containing the husband’s after‑tax earnings. In his submissions, the husband emphasized that the trial judge compared apples to oranges by using a gross amount and a net amount in the same calculation. In his submission, the calculation ought either to have reduced the support owed by the amount of tax the wife would have paid at the time or increased the amounts she in fact received to reflect the benefit of having received them tax-free. I am not persuaded that this was a reversible error. In Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 54, this court held that judges are not required to make provision for tax adjustments for retroactive spousal support awards. The decision whether to do so is discretionary based on whether a tax adjustment is required to achieve a fair support award. The trial judge explicitly considered the husband’s request to “gross up” the amount the wife received in lieu of support and intentionally chose not to do so. She also refrained from awarding pre-judgment interest, a decision which materially benefited the husband. The trial judge’s decision has not rendered the spousal award unfair. I see no basis for interfering with the decision of the trial judge.

[19] Finally, the husband argues that the trial judge erred in imposing a level of retroactive spousal support payments that exceeded more than 50% of his net disposable income, contrary to the SSAG. It is clear from reading the trial judge’s decision as a whole that her decision to award the spousal support she did was based on her assessment of what would be fair in all the circumstances. I cannot find that the modest extent to which the retroactive support payments exceeded 50% of the husband’s net disposable income was unfair, particularly given that he was not required to pay prejudgment interest, a discretionary concession to the husband that assisted in offsetting the imbalance. I see no basis for intervening.

G. Did the trial judge err in quantifying the lump sum catch-up amount?

[20] The trial judge identified the catch-up amount attributable to the period from March 1, 2020, when an order for interim support took effect, and March 31, 2022, when the trial judge settled the amount of ongoing support at $36,433, by subtracting the amount paid in interim support ($5,000 per month x 25 months = $125,000) from the amount the husband should have been paying according to the final ongoing support order ($5,979 per month x 27 months = $161,433). The husband argues that the trial judge erred by not adding credit for his payment of expenses and for the wife’s joint account withdrawals at the outset of that period. As indicated, the trial judge arrived at what she considered to be fair support orders, and the catch-up amount she ordered is not unfit or inappropriate in the circumstances. We cannot interfere with her decision. I would dismiss this ground of appeal.

H. Should the proposed fresh evidence be received?

[21] I have examined the fresh evidence presented by the husband and none of it can affect the decisions I have arrived at. It is therefore inadmissible because it lacks the cogency to meet the requisite legal test: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

[22] In particular, the fresh evidence confirming that the wife paid $5,000 from the joint account towards legal fees during the “grace period” does not give rise to a ground of appeal. I am not persuaded that it was outside the understanding of the parties for the wife to use the money she was depending upon at the time to pay a modest legal retainer for the legal work that was underway.

I. Should leave be granted to appeal the costs award and, if so, was the costs award erroneous?

[23] I would not grant the husband leave to appeal the costs order below. The costs appeal lacks merit. Costs awards attract a high level of deference: Frazer v. Haukioja, 2010 ONCA 249, 101 O.R. (3d) 528, at para. 75; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] S.C.R. 303, at para. 27. The trial judge was aware of the “split success” when awarding costs to the wife. I am also not persuaded that the husband achieved superior success on the issue of retroactive support because the amount ordered is closer to the “0” he advocated than the amount the wife requested. The husband lost entirely in his effort to avoid retroactive support payments.

[24] The costs appeal is denied.

Conclusion

[25] I would dismiss the appeal and award costs on the appeal payable to the wife in the amount of $10,000 inclusive of applicable taxes and disbursements.

Released: July 10, 2023 “B.W.M.” “David M. Paciocco J.A.” “I agree. B. W. Miller J.A.” “I agree. Coroza J.A.”