Santa v. Sheridan, 2022 ONSC 5940

CITATION: Santa v. Sheridan, 2022 ONSC 5940

DIVISIONAL COURT FILE NO.: DC-33-43

DATE: 2022-10-24

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.R. ASTON, H.E. SACHS, GORDON JJ.

BETWEEN:

Catherine Sheridan Nee Santa

Appellant

– and –

John David Sheridan

Respondent

Michael H. Tweyman, for the Appellant

Amanda Taerk, for the Respondent

HEARD at Brampton via Zoom: October 19, 2022

DECISION ON APPEAL

R.D. GORDON J.

Overview

[1] On April 8, 2021 Justice McGee made a final order that varied the child and spousal support payable by the respondent. The appellant brings this appeal, taking issue with the trial judge’s findings that: (1) The respondent’s post-separation increases in income should not be considered in assessing his spousal support obligations; (2) The spousal support variation was to be retroactive to January 1, 2018 as opposed to 2016; (3) The respondent’s income at the date of separation was $117,000 as opposed to $137,000; and (4) Spousal support be assessed having regard to the low range of the SSAG calculations.

Factual Background

[2] The parties began cohabiting in 1989 and were married on June 20, 1992. When they separated on April 26, 2010 their four children remained in the appellant’s care. She was then 45 years of age.

[3] In September of 2011 the parties entered into Minutes of Settlement dealing with, among other things, child, and spousal support. A final order was taken out which obliged the respondent to pay to the appellant child support of $3,000 per month and spousal support of $1,500 per month. The order recited that the respondent’s “annual gross income at F.G. Lister & Company is currently approximately $137,642.00”.

[4] The respondent brought a Motion to Change in June of 2013 alleging a change in circumstances of both he and the appellant, including that two of the children were no longer eligible for support. He sought a variation of his child support obligations and the termination or variation of his spousal support payments. In the end, by the decision of Justice Lemon dated November 6, 2014, it was determined that the respondent’s income had decreased and the required adjustments to child and spousal support for the years in question. Justice Lemon adjusted the support retroactively to November 1, 2011 (a date mere weeks after the original order) and he found the respondent’s 2011 income was $116,966 not $137,642. The court declined to terminate spousal support. Ongoing spousal support was ordered at the rate of $868 per month based upon the respondent’s 2013 income of $96,157.36.

[5] The respondent brought a second Motion to Change in January of 2019. He sought a variation of child support to reflect that the remaining two children were no longer eligible for support and termination of spousal support effective February 1, 2019. The appellant disputed his claims and asserted her own claim that his income had increased substantially and that his support should be adjusted to reflect those increases. It was this motion to change that resulted in the final order under appeal.

Jurisdiction

[6] This court has jurisdiction to deal with this appeal as it involves a final order for periodic payments that amount to less than $50,000 in a 12-month period.

Standard of Review

[7] The standard of review for judicial appeals is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law the standard is correctness. On questions of fact the standard is palpable and overriding error. On questions of mixed fact and law, such as the case before us, where there is an extricable legal principle, the standard of review is correctness. Where the issue involves the application of the correct legal principles to the evidence, the standard of review is palpable and overriding error.

[8] This appeal is based on questions of fact and/or mixed fact and law. There is no extricable legal question. It follows that the standard of review is palpable and overriding error.

[9] This standard of appellate review recognizes the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balance the factors differently. [See Hickey v. Hickey 1999 691 (SCC), [1999] 2 S.C. R. 518 at para. 12; Hendriks v. Hendriks, 2022 ONCA 165 at paras. 17 and 18].

Analysis

Post-Separation Increases in Income

[10] The Motion to Change here is a motion to change the order of Lemon J., not the original order of September 2011. It is premised on the finding that the respondent’s 2011 income was $117,000. The trial judge determined that the appellant was not entitled to an increase in spousal support based on the respondent’s post-separation increases in income because the increases were the result of factors unrelated to the marriage. Specifically, she accepted the respondent’s evidence that his work performance improved significantly after separation after becoming sober and entering into a stable relationship. She also accepted the respondent’s evidence that changes in his work situation resulting from his stepfather’s retirement and transfer of clients to him was reflected in his bonus increases for the years in question.

[11] As was the case in Hendriks these are factual findings which the trial judge was entitled to make. There is no indication that she misapplied the law or misapprehended the evidence, and no basis to interfere with the discretionary conclusion she reached. Put simply, her decision is owed deference.

Date of Retroactivity

[12] The appellant’s claim to increased spousal support pre-dating 2018 was based upon undisclosed increases in the respondent’s income. Once it was determined by the trial judge that his increases in income after 2011 were not to be considered as a basis for variation, there was no basis to make the claim retroactive beyond January 1, 2018. The fact that increases in income were undisclosed becomes immaterial.

[13] The appellant complains that the trial judge completed her analysis on the issue of post-separation increase of income before determining whether there had been a material change in circumstance. However, as explained in Hendriks at para. 57, the court must first consider the impact of the respondent’s post-separation increase in income; and when the judge finds that the appellant is not entitled to share in his post-separation increase in income, the assessment of appropriate variation should proceed using the respondent’s income at the time of the order being varied.

[14] As the trial judge determined there to have been a material change in circumstances on January 1, 2018 due to the termination of child support, that was the appropriate date for retroactivity.

Respondent’s Income at Date of Separation

[15] In determining the appropriate variation for the period of January 1, 2018 to March 1, 2020 the trial judge assessed the appellant’s claim from the vantage of the lifestyle enjoyed during the marriage and used the respondent’s rounded income of $117,000 for the year 2011 to make her calculations.

[16] The appellant contends that the trial judge was clearly wrong and that the respondent’s income during the year of separation was in the rage of $137,000 as evidenced by the provision in the initial order providing for support.

[17] There was no evidence at trial concerning the respondent’s 2010 income. The final order made in September of 2011 indicated that his current income was approximately $137,642. From the decision of Lemon J. in the first motion to change, it is apparent that the respondent’s actual 2011 income was $117,000.

[18] In determining the respondent’s income during the marriage the trial judge had little evidence to work with. There were no findings of fact to assist her in the reasons of Lemon J. respecting the period pre-dating the original order. The only evidence before her was the estimate of the Respondent’s 2011 income as contained in the original order, and the factual finding by Justice Lemon that his 2011 income was $117,000. In the absence of any other evidence of the Respondent’s income during the marriage, her use of $117,000 was a reasonable inference. It is not a palpable error.

Use of the Low End of the SAGG Guidelines

[19] The trial judge found that an appropriate amount of support would be the low range of the SSAG’s because: (1) She did not have a reliable budget from the appellant; (2) She did not have any evidence of the income available to the appellant from her new partner, or whether her living situation has reduced expenses; (3) She was not satisfied that the appellant had pursued employment with the intention of self-sufficiency rather than expedience.

[20] As outlined in Gray v. Gray, 2014 ONCA 659, it is appropriate to consult the SSAG’s when a support variation is sought. However, when there are complicating factors such as there were in this case, an analysis of the facts is required to assess whether the ranges are appropriate.

[21] The trial judge undertook the appropriate analysis of the facts. She determined that the evidence provided by the appellant was not sufficient to entitle her to anything more than the low end of the SAGG’s. In our view, this was an appropriate exercise of her discretion and is deserving of deference.

Conclusion

[22] The appeal is dismissed. The appellant shall pay costs to the respondent of $6,000 all-inclusive, within 12 months.

R.D. Gordon J.

I agree _______________________________

D.R. Aston J.

I agree _______________________________

H.E. Sachs J.

Released: October 24, 2022ctober ___, 2022