CITATION: Naegels v. Robillard, 2020 ONSC 3918

DIVISIONAL COURT FILE NO.: 19DC2491

DATE: 20200709

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Lederer, and Kristjanson JJ.

BETWEEN:

KAREN NAEGELS

Applicant (Respondent on Appeal)

– and –

DWAYNE ROBILLARD

Respondent (Appellant)

Karla Policelli for the Respondent on Appeal

Steven J. Greenberg, for the Appellant

HEARD at Toronto (by videoconference): June 16, 2020

REASONS FOR DECISION

kristjanson j.

[1] This is an appeal from the final order of Justice D. Summers of the Superior Court of Justice, Family Branch, dated April 29, 2019, reported at 2019 ONSC 2662, which was made after a five-day family law trial. Mr. Robillard takes issue with the quantum and duration of spousal support, as well as an award for unjust enrichment based on the finding of a joint family venture. For reasons set out below the appeal is dismissed.

Background

[2] The parties lived in a common-law relationship for almost 11 years between May 2004 and January 11, 2015. Mr. Robillard worked full time during the relationship. Ms. Naegels worked outside the home for the first five years, after which time the trial judge found her poor health caused her to leave the workforce.

[3] The parties did not have children together. Ms. Naegels’ child from a prior relationship lived with them, and Mr. Robillard’s two children from a prior marriage resided with them on alternate weekends and eventually on overnight visits during the week.

[4] The trial judge found that Ms. Naegels had a right to needs-based spousal support given health issues which prevent her from working. The appellant does not challenge Ms. Naegels’ entitlement to needs-based spousal support. Considering the significant shortfall between Ms. Naegels’ need and the amount of support payable, as well as Ms. Naegels’ inability to work, the trial judge set both the quantum and the duration of support at the high end of the range established by the Spousal Support Advisory Guidelines (“SSAG”).

[5] The trial judge further determined that Mr. Robillard had retained the proceeds of a joint family venture to which Ms. Naegels contributed 35% of the value. On this basis she ordered Mr. Robillard to pay $26,580 on the grounds of unjust enrichment.

Jurisdiction

[6] The support order was made in Family Court under ss. 30 and 33 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Section 48 of the FLA provides, “An appeal lies from an order of the Ontario Court of Justice under this Part to the Superior Court of Justice.” Section 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), provides: “A statutory provision referred to in the Schedule to section 21.8 or in section 21.12 that provides for appeals from decisions of the Ontario Court of Justice to the Superior Court of Justice shall be deemed to provide for appeals from decisions of the Family Court to the Divisional Court.” The FLA, except Part V, is listed in the Schedule.

[7] The Divisional Court has jurisdiction over the unjust enrichment award under ss. 19(1)(a) and 19(1.2)(a) of the CJA, as it is an order to make a single payment under $50,000.

The Issues and Analysis

[8] There are two issues on this appeal:

(a) Did the trial judge err in setting the quantum and duration of spousal support?

(b) Did the trial judge err in finding that there had been unjust enrichment?

The Standard of Review

[11] The correctness standard applies to pure questions of law. The standard of palpable and overriding error applies to questions of fact and, absent an error in principle or extricable question of law, to questions of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[9] An award of support is fact-based and discretionary. A trial judge’s order for spousal support is entitled to significant deference on appeal. The appellate court “…should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong” (see Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at para. 11.) This deferential approach recognizes the importance of the trial judge’s role in evaluating the evidence and hearing the witnesses directly. It also promotes finality in litigation. An appellate court may not overturn a support order simply because it would have made a different decision or balanced the factors differently.

Quantum and Duration of Support

[10] The trial judge set spousal support at the high end of the range for both amount and duration under the SSAG, at $1,900 per month until June 15, 2026, subject to variation in the event of a material change in circumstance. In setting quantum the trial judge accepted a claw-back calculation of Ms. Naegels’ Ontario Disability Support Program (“ODSP”) benefits, and used Mr. Robillard’s current income while taking into account his $400 per month child support obligation. Given these findings, SSAG sets a range of monthly support from $1,459 to $1,946.

[11] Mr. Robillard submits that the trial judge made a legal error by excluding Ms. Naegels’ ODSP income when determining spousal support. Ms. Naegels conceded at trial that she had not reported the receipt of interim spousal support to the ODSP so ODSP income had not been clawed back. Under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, spousal support is treated as income and deducted dollar-for-dollar from an ODSP income recipient’s support. This is referred to as a claw-back.

[12] The trial judge made no error in law or in principle in holding that ODSP, a form of social assistance, is not to be treated as income when calculating spousal support. This approach is consistent with Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), p.18. ODSP recipients are obligated to report the receipt of spousal support to the program, and ODSP support payments are liable to be clawed back. Indeed, Mr. Robillard conceded in oral argument that Ms. Naegels may well be liable to repay ODSP amounts received.

[13] The trial judge gave reasons for the exercise of her discretion over both quantum and duration. The trial judge considered the SSAG range, finding that the high end would not enable Ms. Naegels to meet all her needs. The trial judge also considered the parties’ respective net disposable incomes when considering the amount of spousal support to award. The trial judge found that the high end of the range leaves Ms. Naegels with 24.6 % of the available net disposable income while Mr. Robillard is left with 73.6% of the net disposable income. She acknowledged that not all need can be addressed with spousal support, and referred to appropriate authority: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at paragraph 54.

[14] The trial judge identified the significant shortfall between the amount of support payable and Ms. Naegels’ need, as well as her continuing inability to work, in setting support at the high end of the SSAG for duration. It was open to the trial judge to award the maximum duration of support suggested by the SSAG, or even longer than the maximum duration when justified: Alalouf v. Sumar, 2019 ONCA 611 at paras. 21 and 24. As acknowledged in section 12.4 of the SSAG, the Guidelines may produce ranges for both amount and duration that are inadequate in cases involving illness and disability.

[15] Mr. Robillard submits that the trial judge erred in law in finding that Ms. Naegels could not work, on the grounds that Ms. Naegels did not provide objective, independent expert evidence on this point. I do not agree. The trial judge’s finding of disability was grounded in the evidence before her. Ms. Naegels’ physician testified about her own opinions and observations, based in part on an assessment done by a psychiatrist at the Royal Ottawa Hospital; Ms. Naegels’ surgeries; visits to several specialists; visits to several pain clinics; and Ms. Naegels’ medical treatment and prescriptions.

[16] Ms. Naegels’ testimony, supported by the testimony from her family doctor and her mother, along with the fact that Ms. Naegels qualified for ODSP, had not worked since 2009, had been declared a special party, and required special accommodations at trial, were all evidence upon which the trial judge was entitled to base her decision. It is within the trial judge’s discretion to order spousal support based on inability to work without independent medical experts or reports.

[17] Significant deference is owed to a trial judge’s order regarding spousal support. Mr. Robillard has established no error in law or principle, nor any palpable and overriding error of fact or mixed fact and law, relating to the spousal support order.

Unjust Enrichment and Joint Family Venture

[18] Mr. Robillard submits that the trial judge erred in holding that Ms. Naegels contributed 35% to the accumulation of family wealth as part of a joint family venture. He argues that no evidence linked Ms. Naegels’ contribution to the joint family venture with the accumulation of wealth. He submits that “there must at least be a disproportionate responsibility of household domestic labour in addition to or giving up something tangible such as a job for the sake of the other spouse and this results in the ability of that spouse to increase wealth.”

[19] That is not a requirement for establishing unjust enrichment in the context of a joint family venture as explained in Kerr v. Baranow, 2011 SCC 10. A joint family venture is characterized by a relationship in which the contributions of both parties have resulted in an accumulation of wealth. In Kerr v. Baranow, at para. 89 the Court identified four non-exhaustive factors to be considered in determining whether the parties have engaged in a joint family venture: (i) the mutual efforts of the parties, (ii) their degree of economic integration; (iii) their actual intent during the relationship, and (iv) the prioritization of the family unit in decision-making. A finding of joint family venture must be grounded in the evidence. Once the court has found that a joint family venture exists, in order to justify a remedy in unjust enrichment the court must then find that one party has retained a disproportionate share of the assets which are the product of their joint efforts: Kerr v. Baranow, para. 60. The trial judge conducted her analysis in accordance with the analytical framework established in Kerr v. Baranow.

[20] The trial judge found, on the evidence “viewed globally”, that the parties had both contributed to a joint family venture that was linked to the accumulation of wealth during cohabitation. The trial judge analyzed the four factors identified in Kerr v. Baranow and found that a joint family venture existed. The trial judge’s findings are supported on the evidence, including that Ms. Naegels contributed all of her income, which included employment income, ODSP payments, and child support payments, to the family expenses; she helped care for Mr. Robillard’s children; the parties actually intended to function as a family; and both parties contributed to the joint family venture linked to the accumulation of wealth. Consideration of the parties’ respective contributions and entitlement to a share in their joint family venture is not a bookkeeping exercise, but takes account of all contributions, both pecuniary and non-pecuniary: Gonsalves v. Scrymgeour, 2017 ONCA 630, at paras. 9-10.

[21] The trial judge made a finding of unjust enrichment because Mr. Robillard retained a disproportionate share of the assets that were the product of the parties’ joint efforts during the relationship. Ms. Naegels, who contributed her full income toward the family, left the relationship with debt of $6,720 and no assets. A portion of this debt was incurred by Mr. Robillard for his own use. Mr. Robillard, on the other hand, left the relationship with an additional net worth of $75,955. The trial judge’s findings are not based on the worth of or contribution to specific assets, but rather the change in the global value of the assets and net worth based on the evidence before her at trial. This includes the change in assets and liabilities, including the value of the cottage mortgage, based on Mr. Robillard’s own financial statement. While it would have been preferable if the trial judge had more clearly set out the basis for the award of $26,580, it is consistent with the evidence at trial, including Ms. Naegels’ indebtedness and the increase in Mr. Robillard’s net worth.

[22] The trial judge made findings of fact supported by the evidence and related those findings to the joint family venture factors and unjust enrichment principles identified in Kerr v. Baranow. There was no error in law or principle, and no palpable and overriding error of fact or mixed fact and law.

Conclusion

[23] The appeal is dismissed.

[24] Ms. Naegels has succeeded on the appeal and is presumptively entitled to costs. There is no basis for granting costs on a substantial indemnity basis.

[25] Reasonableness and proportionality are touchstones in the fixing of costs. Ms. Naegels is awarded her partial indemnity costs of $6,073.00, inclusive of HST and disbursements, which are reasonable and proportionate.

[26] This order is effective from the date it is made and is enforceable without any need for entry and filing.

Kristjanson J.

I agree _______________________________

Swinton J.

I agree _______________________________

Lederer J.

Released: July 9, 2020

CITATION: Naegels v. Robillard, 2020 ONSC 3918

DIVISIONAL COURT FILE NO.: 19DC2491

DATE: 20200709

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Lederer, and Kristjanson JJ.

BETWEEN:

KAREN NAEGELS

Applicant (Respondent on Appeal)

– and –

DWAYNE ROBILLARD

Respondent (Appellant)

REASONS FOR DECISION

KRISTJANSON J.

Date of Release: July 9, 2020