Dunne v. McNeil, 2020 ONSC 1217

CITATION: Dunne v. McNeil, 2020 ONSC 1217

DIVISIONAL COURT FILE NO.: DC-19-2493

DATE: 20200225

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Penny, Kristjanson JJ.

BETWEEN:

RODERICK DUNNE

Plaintiff (Appellant)

– and –

CAROLE MCNEIL

Respondent

Michael Swindley, for the Plaintiff (Appellant)

Carolyn Shelley, for the Respondent

HEARD: February 24, 2020

ORAL REASONS FOR JUDGMENT

ASTON J.

[1] The only issue on this appeal is whether the Motion Judge erred in imputing an annual income of $130,000 to Mr. Dunne.

Motion to Introduce Fresh Evidence

[2] Ms. McNeil seeks to introduce fresh evidence on the appeal. The gist of that evidence is that within a few weeks of the decision under appeal Mr. Dunne found new employment at an income level consistent with the imputed income of $130,000.

[3] As we already ruled, this evidence is not admissible on the appeal.

[4] First, the evidence did not exist at the time of hearing. An appeal addresses whether the Motion Judge erred on the record before him, and more particularly on the facts and circumstances at that time. Second, the evidence, even taken at its highest, is not “conclusive” of the issue on appeal. Finally, it is not necessary to consider this evidence to fairly deal with the issue on appeal, nor to properly apply the objectives of the Family Law Rules. The proper procedure for addressing changed financial circumstances after a final order is to bring a motion to change, a procedure available to either party now or in the future.

The Appeal

[5] Imputation of income is a question of mixed fact and law. The standard of review is clear from the jurisprudence. On an extricable legal question, the standard of review is correctness. However, if the question involves the application of a legal test to a set of facts, the standard of review is palpable and overriding error. In Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10-12, the Supreme Court addressed the degree of deference to be afforded in family law cases dealing with support orders. An appeal court must only intervene if there is a material error, a serious misapprehension of the evidence or an error of law.

Background Facts

[6] The original order for spousal support of $3,000 monthly was made on consent August 26, 2013, premised on an income of $129,856 for Mr. Dunne. In November 2015 his employment was terminated. It was not a voluntary or intentional termination. He received a $55,000 severance. He continued to pay the $3,000 monthly support for about 18 months, but then discontinued any payments and ultimately brought his Motion to Change. Mr. Dunne had some subcontracting work in 2016 and only seeks to vary the spousal support as of July 1, 2017.

[7] In attempting to identify an error of law, the Appellant focuses on the statement at para. 74 of the Reasons that when quantifying imputed income “evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test”. However, when read holistically the Reasons reveal that the Motion Judge considered more than just the income Mr. Dunne earned before the 2013 Order. He specifically alluded to his higher earnings in 2013, 2014 and 2015. He referred to the rate of pay Mr. Dunne earned as a contract software developer in 2016. He specifically referenced Mr. Dunne’s age, education, experience at Blackberry, special skills as a software developer and the absence of any health issue. The Motion Judge found as a fact that Mr. Dunne had marketable skills as a software developer, that jobs in his field in the Ottawa area paid $130,000 a year on Mr. Dunne’s own admission and that Mr. Dunne had failed to prove any diligent effort to obtain such a job in the period after July 1, 2017. The conclusion that Mr. Dunne was intentionally unemployed, then under employed, after July 1, 2017 is supported by cogent evidence.

[8] The ultimate conclusion that Mr. Dunne was capable of earning $130,000 per year after July 1, 2017 was not speculative. It was a reasonable inference consistent with the approach laid out in Drygala v. Pauli, 2002 CarswellOnt 3228 (C.A.). Sometimes prior employment income is a rational and sufficient basis for quantifying imputed income. This is one of those cases and the Reasons adequately address why that is so.

[9] The Motion Judge properly rejected the Appellant’s argument that the Respondent had failed to meet an onus of proof on the issue of quantifying his imputed income. Drygala imposes no such obligation on her and the weight of subsequent jurisprudence explains why it would be unfair to impose such a burden on the support recipient when all the information and evidence is within the knowledge and control of the payor.

[10] There is no identified error of law. The quantification of imputed income is supported by evidence, is rational and is adequately explained in the Reasons. The appeal is therefore dismissed.

Justice D. Aston

Justice M. Penny

Justice F. Kristjanson

Date of Reasons for Judgment: February 24, 2020

Date of Release: February 25, 2020