Court of Appeal for Ontario

Date: 2025-06-27
Docket: COA-25-CV-0029
Panel: Copeland, Wilson and Rahman JJ.A.

Between:
Matthew Bosrock
Applicant (Respondent)

and

Susan Hutchison
Respondent (Appellant)

Counsel:
Robert McGlashan, for the appellant
Sharon G.H. Bond, for the respondent

Heard: June 23, 2025

On appeal from the order of Justice Mohan Sharma of the Superior Court of Justice, dated December 6, 2024, with reasons reported at 2024 ONSC 6782.

Reasons for Decision

[1] The appellant appeals from the trial judge’s order requiring her to pay spousal support to the respondent. She also applies for leave to appeal the trial judge’s costs award in favour of the respondent. At the conclusion of the hearing, we dismissed the appeal and the application for leave to appeal the costs order with reasons to follow. These are our reasons.

[2] There were two main issues at trial. The first issue was whether the respondent was entitled to rectification to change the terms of an agreement the parties made about the respondent’s equity in the parties’ jointly-owned home. That issue was decided in the appellant’s favour and is not at issue in this appeal.

[3] The second issue was whether the appellant was obliged to pay the respondent spousal support. That issue required the trial judge to decide the following questions: 1) whether the parties were “spouses” pursuant to s. 29 of the Family Law Act, R.S.O. 1990, c. F.3; 2) if so, whether the respondent was entitled to non-compensatory spousal support; 3) what the parties’ respective incomes should be for the purpose of calculating the amount of support; and 4) what the amount and duration of support should be.

[4] The trial judge found that the parties were spouses. The trial judge also determined that the respondent was entitled to non-compensatory support. In fixing the amount of monthly spousal support, the trial judge concluded that it was appropriate to use the appellant’s actual income, rather than a lower amount that was closer to the Spousal Support Advisory Guidelines’ (Ottawa: Department of Justice, 2008) (“SSAG”) ceiling of $350,000. The trial judge determined that the duration of support should be five years and six months, rather than the seven-and-a-half years the respondent claimed.

[5] The appellant does not take issue with the trial judge’s determination that the respondent is entitled to non-compensatory spousal support. She takes issue with the amount of spousal support the trial judge ordered her to pay. The appellant alleges that the trial judge committed three errors in fixing the amount of support she is required to pay. Each of the alleged errors will be addressed below.

1. Assessment of Income

[6] First, the appellant alleges that the trial judge failed to conduct an individualized and fact-specific assessment in deciding what her income should be for the purpose of applying the SSAG. The appellant submits that the trial judge’s failure to do so means that this court need not afford the decision the usual deference to which a trial court’s determination of support is entitled.

[7] We do not agree that the trial judge’s assessment is deficient. The trial judge explained why he decided to use the appellant’s actual income in calculating the range of spousal support. Specifically, the trial judge carefully considered both parties’ budgets, including reducing the respondent’s proposed budget by $87,000, resulting in annual expenses of $115,280. He noted that the budget did not include expenses for travel and vacations, which the couple enjoyed regularly. It also included modest housing costs of $3,480, which the trial judge identified as a “marked departure from the home in which the parties lived.” Even with the reduced budget, the trial judge identified that the quantum of SSAG-generated support using the appellant’s full income and at the high end of the range would result in “net disposable income for the [respondent] that would not meet his current budget.” The trial judge made a further observation: “It would also not meet his budget were I to reduce it to account for education costs, and then increase it such that it was not a significant decline departure from the standard that they enjoyed while a couple.” Conversely, the appellant submitted annual expenses of $407,580, and even using her full income as input and using the high range of support, the trial judge found that she would still be able to meet her budget. This comparison of the parties’ respective financial circumstances is both individualized and fact-specific.

[8] Moreover, the trial judge’s reasons demonstrate that he was alive to the length of the relationship and the fact that the parties were not married. This is not a case where the trial judge mechanically applied the SSAG without explaining his reasoning. The trial judge set out the range and then explained why he fixed support at the high end of the range. This was a discretionary decision with which we see no basis to interfere.

2. Consideration of Mortgage Repayments

[9] Second, the appellant argues that the trial judge did not adequately consider that the appellant paid back the mortgage payments the respondent previously made on the parties’ jointly-owned home when setting spousal support. She points to this court’s direction in Halliwell v. Halliwell, 2017 ONCA 349, para 107, which states that “an individualized, fact-specific analysis requires a consideration of the effects of the equalization payment.” The appellant relies on this statement to argue that the repayment of the respondent’s contributions to the mortgage should have been similarly considered. Under the agreement the parties made when they bought their home, the respondent was entitled to receive the total amount of mortgage payments he made if the relationship ended. This was $494,279 less the $230,000 the appellant had already returned to him.

[10] We do not agree that the trial judge failed to consider the return of the mortgage payments. The trial judge explicitly found that the respondent was not entitled to compensatory support, but only needs-based support. As already discussed, he then reviewed the parties’ relative budgets to assess need. Furthermore, the trial judge’s reasons advert to the return of this money and the appellant’s argument that this return of capital in their home meant that the respondent had lived in the home rent-free. We see no error in his treatment of this issue.

3. Imputation of Income

[11] Finally, the appellant alleges that the trial judge erred in imputing only $50,000 in income to the respondent, rather than the $70,000 that the appellant claimed was appropriate.

[12] We do not agree that the trial judge made any error in deciding how much income to impute to the respondent. The trial judge correctly stated that there must be an evidentiary basis on which to impute income. In this case, he explained that there was no such evidence adduced at trial. On that basis, he appropriately accepted the respondent’s position that he could earn an income of $50,000. There is no basis to interfere with this conclusion.

4. Costs

[13] The appellant also sought leave to appeal the trial judge’s decision to award costs to the respondent in the amount of $55,000. The appellant argues that, given the divided success at trial, the trial judge should not have awarded costs to the respondent. She submits that the costs award does not adequately account for the appellant’s success on the rectification issue. The appellant also alleges that the costs award is so large on its own that it warrants this court’s scrutiny.

[14] We disagree. The trial judge’s costs decision addresses all the issues disputed at trial: rectification, whether the respondent qualified as a spouse, and if so, what was the period of cohabitation, and lastly, whether the respondent was entitled to spousal support and in what amount. The trial judge turned his mind to the fact that there was divided success, but concluded that the respondent was entitled to costs because the issues of whether the respondent was a “spouse” and the amount and duration of spousal support consumed most of the trial time. There is no basis for this court to intervene with this discretionary decision. Leave to appeal costs is refused.

5. Disposition

[15] The appeal and the application for leave to appeal costs are dismissed. The respondent is entitled to his costs of the appeal in the amount of $25,000 all‑inclusive, as agreed upon by the parties.

“J. Copeland J.A.”
“D.A. Wilson J.A.”
“M. Rahman J.A.”