SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-17975

DATE: 20130412

RE: Nancy Helen Abernethy, Applicant/Respondent in Appeal

AND:

Christopher Warren Peacock, Respondent/Appellant in Appeal

BEFORE: Justice Bonnie L. Croll

COUNSEL:
James H. Herbert, for the Applicant/Respondent in Appeal

Howard E. Warren, for the Respondent/Appellant in Appeal

HEARD: April 4, 2013

ENDORSEMENT

[1] The Appellant Mr. Peacock appeals the order of Justice Cohen of the Ontario Court of Justice dated March 16, 2012 whereby he was ordered to pay support to the Respondent Ms. Abernethy in the amount of $1,900 per month for an indeterminate period. Justice Cohen (the trial judge) presided over the second trial in this matter. Mr. Peacock also appeals the order of costs made by the trial judge relating to both the first and second trial in this matter, although he takes no issue with the quantum of the costs.

Background

[2] The parties were married in March 1983 and separated in June 1996. They had three children, who were 12, 9 and 5 years old at the date of separation and are now adults. On April 29, 1997, the parties signed a Separation Agreement which provided, among other things, that the children would live primarily with Ms. Abernethy, and that she would receive child support of $2013 per month and spousal support of $300 per month.

[3] In October 2007, Ms. Abernethy applied for increased support pursuant to sections 35 and 37 of the Family Law Act, R.S.O. 1990, c. F.3. This first trial took place over five days in August, November, and December 2009 before Justice Scully of the Ontario Court of Justice. Justice Scully issued his decision in July 2010, which, among other terms, increased ongoing spousal support from $363 per month to $1,200 per month effective October 1, 2007 and terminated as of June 30, 2009.

[4] Justice Scully stated that he relied on the principle in the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) that spousal support ought to be normally limited to 13 years from the date of separation. He explained his reasoning at paragraph 66:

The difficult circumstances in which Ms. Abernethy finds herself, at present, are solely due to her disastrous decision in 2004 to leave CanWest Global and move to London. Mr. Peacock is not responsible for that decision nor is he responsible for Ms. Abernethy’s current financial position. The Spousal Support Guidelines suggest that for a marriage of a duration as in this case and considering when the youngest child, Heather, completed high school, spousal support ought normally to be limited to 13 years from the date of separation. I believe that the application of that principle in this case is merited.

[5] Justice Scully did not hear costs submissions from either party and made no order as to costs, as he found that each party had realized mixed success in their claims.

[6] Ms. Abernethy successfully appealed Justice Scully’s decision to this court. On May 18, 2011, Justice Paisley held that Justice Scully erred in principle in failing to expressly consider the exceptions to time limited support set out in the Spousal Support Advisory Guidelines, in particular the “Small Amounts, Inadequate Compensation” exception in section 12.11. A new trial was ordered.

[7] The “Small Amounts, Inadequate Compensation” exception is set out below:

12.11 Section 15.3: Small Amounts, Inadequate Compensation under the With Child Support Formula

The with child support formula gives priority to child support, as required by s. 15.3(1) of the Divorce Act and by similar provisions found in provincial statutes. In cases where the spouses have three or four children, or where there are large section 7 expenses, there may be little or no room left for spousal support, despite the substantial economic disadvantage to the custodial parent. The maximum time limits may end spousal support after the last child finishes high school or after the length of the marriage, despite the potential inadequacy of the compensation in such cases. The Advisory Guidelines must be consistent with section 15.3(2) and section 15.3(3) of the Divorce Act and thus there must be an exception for duration, using the terms of s. 15.3(2):

• as a result of giving priority to child support

• the court is unable to make a spousal support order or the court makes a spousal support order in an amount less than it otherwise would have been

• or the parties agree to those terms as part of an agreement

This section 15.3 exception would recognize that spousal support may have to continue past the time limits in these cases. And, further, in some of these cases, the amount of spousal support may even have to increase upon variation or review as the children cease to be “children of the marriage”, but any of these increases in amount should remain within the formula ranges. These outcomes are entirely consistent with compensatory theory and section 15.3 of the Divorce Act. [Emphasis in original, footnotes omitted.]

[8] Ms. Abernethy then brought a motion for temporary support that was heard on August 23, 2011. The motions judge at the Ontario Court of Justice dismissed her application and stated in the endorsement that Ms. Abernethy’s efforts to self-support were “minimal or possibly worse”.

[9] The second trial occurred over three days in late November and early December 2011. In reasons released on March 16, 2012, the trial judge ordered spousal support in the amount of $1,900 per month for Ms. Abernethy to continue indefinitely; payment of arrears of spousal support owed; and that spousal support be collected by the Family Responsibility Office. On July 19, 2012, the trial judge made a costs order relating to both the first and second trial in the sum of $45,000, plus disbursements and GST of $2000, payable by Mr. Peacock to Ms. Abernethy.

Appeal

[10] Mr. Peacock submits that the trial judge erred in a number of findings and that the trial judge improperly applied the law. In particular, the Notice of Appeal states that the trial judge erred by finding that:

a. Ms. Abernethy had not failed to comply with the Separation Agreement by not taking the dental chair side assistant course;

b. Ms. Abernethy could not afford to take the dental chair side assistant course;

c. Ms. Abernethy was justified in not taking the dental chair side assistant course;

d. Ms. Abernethy did not breach the Separation Agreement, or alternatively, that her breaches of the Agreement were irrelevant, and explained;

e. Ms. Abernethy’s failure to disclose that her income exceeded $20,000 per annum was justified;

f. Ms. Abernethy’s altering of a cheque for support was justified;

g. Ms. Abernethy’s decision to leave CanWest and move with the children to London was reasonable;

h. Ms. Abernethy developed no marketable skills during cohabitation;

i. Ms. Abernethy’s services were required to look after the needs of the three children, which resulted in her having no meaningful or substantial employment;

j. Mr. Peacock was unencumbered by the daily concerns of looking after three children;

k. The effect of the marriage and the separation improved Mr. Peacock’s economic prospects, and impaired Ms. Abernethy’s;

l. Ms. Abernethy has been seeking to improve her position in attempting to improve her skills, and that the test was met by Ms. Abernethy for compensatory spousal support;

m. It was reasonable to impute only $20,000 of income to Ms. Abernethy.

[11] Notwithstanding the rather lengthy list of errors alleged, Mr. Peacock’s submissions on the appeal were focused in large part on the trial judge’s assessment of the decision by Ms. Abernethy to leave her employment at CanWest. Ms. Abernethy had worked at CanWest in Toronto from 2000 to 2004, and there is no issue that during those years she earned more that she had ever earned previously, increasing from $27,000 to $37,000 in just 2 years. In 2004, Ms. Abernethy left CanWest to move to London, Ontario. Justice Scully described this move as “disastrous”. Mr. Peacock submits that Ms. Abernethy’s decision to leave CanWest to move to London disentitles her to spousal support.

[12] It was Ms. Abernethy’s testimony that she decided to leave the CanWest position because she felt the job was a “dead end” with no upward mobility. At the time she left, Ms. Abernethy had secured a commission sales position in London which she expected to provide reasonable pay. She also stated that she moved because she needed to sell her home in Toronto in order to pay for section 7 expenses and personal debt, the cost of living in London was lower than in Toronto and she had a brother living in London. In contrast to the finding of Justice Scully, the trial judge found that Ms. Abernethy’s decision to leave CanWest and move to London, while possibly a mistake in retrospect, was within reason.

[13] The trial judge heard and assessed Ms. Abernethy’s evidence-in-chief and in cross-examination, and was clearly alive to Mr. Peacock’s strong criticism of Ms. Abernethy’s decision to leave the CanWest employment, noting, at paragraph 24 of her reasons, “A great deal of the respondent’s case involves blaming the applicant for failure to become self-supporting. In particular, he strongly criticizes her for leaving her employment with CanWest”. While Mr. Peacock submits that it was a serious misapprehension of evidence for the trial judge to conclude that it was within reason for Ms. Abernethy to leave her well-paying position at CanWest, it is apparent that the trial judge looked at other factors beyond the CanWest salary, including her proximity to her brother, the lower cost of living in London, her need to sell the home, and promising prospects about an already secured new position. Although the employment opportunity in London did not materialize as expected, in my view, there is no basis upon which to conclude that the trial judge misapprehended the evidence or drew an improper inference from the facts she accepted in concluding that the move to London was within reason.

[14] This case can be distinguished from Robinson v. Robinson (1993), 1993 8491 (ON CA), 15 O.R. (3d) 485 (C.A.), where following separation, the wife moved from London to Toronto and obtained full-time employment in an unskilled clerical position. In Robinson, the wife was university-educated and clearly moving to a position that paid less than she had the capacity to earn. In this case, Ms. Abernethy had no particular training and as described by the trial judge, always had a marginal position in the workforce. Ms. Abernethy believed that the position in London had the potential to be equally as remunerative as the CanWest job. Overall, I am satisfied that the trial judge considered all of the evidence in context and her conclusion that Ms. Abernethy’s decision was within reason is a finding which she was entitled to make.

[15] Mr. Peacock also referred to numerous letters sent by his solicitor to Ms. Abernethy's solicitor on the issue of access. The trial judge stated that she would read all the letters that had been disclosed in a document brief, however, there is no reference to these letters in the trial judge’s reasons. Mr. Peacock claims that the failure to reference the letters leads to the inference that the trial judge did not read them, which he submits is a reviewable error. In the alternative, Mr. Peacock submits that the trial judge’s failure to reference the letters was a reviewable error.

[16] Reasons do not need to address every piece of evidence to be sufficient: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. Indeed, as McLachlin C.J. stated at paragraph 64 of R. v. R.E.M., “A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the life issues on the trial”. This well-established principle was again reinforced by the Ontario Court of Appeal in the recently decided Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, at paragraph 7, where the court noted, “the application judge need not comment on every piece of evidence.” While the trial judge did not specifically refer to the letters, her reasons are thorough and detailed and it is apparent that she dealt with all the evidence, including the evidence as to access issues: see paragraph 18.

[17] Mr. Peacock further submits that the trial judge erred in concluding that Ms. Abernethy was entitled to compensatory support. In this regard, the trial judge reviewed the evidence and made numerous findings of fact.

[18] At paragraph 27 of her reasons, the trial judge noted as follows:

• The marriage was “traditional.” The applicant remained at home and took responsibility for the domestic aspects of the marital life. The applicant was the primary caregiver of the children, and the respondent was the primary breadwinner. This was not disputed;

• The decision that the applicant would stay home, rather than place the children in daycare, was clearly mutual;

• The applicant has no post-secondary education and developed no marketable skills during cohabitation;

• The applicant had no meaningful or substantial employment during the marriage. I find this circumstance occurred not because she lacked the will or the desire to work, but because her services were required to look after the needs of the three children;

• The respondent obtained a post-secondary degree during the marriage;

• The respondent was fortunate to have a family business to employ him. He began at the bottom, in shipping and receiving, and continued a steady climb to a management position. He was unencumbered by the daily concerns of looking after three children;

• At the time of the separation, the children were young, 12, 9, and 5, and the applicant continued to be absorbed with their care. She was limited in the hours she could work, and in her ability to focus on her own advancement;

• The applicant’s financial stresses were exacerbated by the respondent’s under payment of section 7 expenses – a matter that was only resolved with Justice Scully’s decision;

• Similarly, child support was only adjusted to conform to the respondent’s income by Justice Scully’s decision in 2009. These funds were not available to the applicant when she needed them.

[19] The trial judge noted, at paragraph 40, that she was “struck by the respondent’s refusal or his inability to recognize that the applicant contributed to his success by her assumption of domestic responsibilities.” In contrast, she accepted Ms. Abernethy’s evidence that as a result of her assumption of childcare responsibilities, she “forever lost 15 years” and that it affected the rest of her life. The trial judge applied the Moge principles to this factual foundation and determined that the party’s circumstances were such that a compensatory support was justified: see Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813. Again, I am not persuaded that the trial judge misapprehended the evidence, and on her fact-driven findings, I am satisfied that the award made was justified in law.

[20] Mr. Peacock claims that it was “amazing” that the trial judge had no problem with Ms. Abernethy’s credibility. In my view, this ground of appeal and submissions regarding credibility suggest that I should make factual conclusions that differ from those made by the trial judge. In large part, this contention underlies the entire appeal. With respect, I do not accept this position. It is well established that it is the trial judge who can best assess reliability and credibility and appreciate the facts, particularly after hearing three days of evidence from the parties. The factual conclusions reached were directly connected to the weight that the trial judge attributed to all the evidence, and it is not the function of appellate review to revisit this fact finding exercise, absent palpable error.

[21] The trial judge’s factual findings are entitled to considerable deference. I am satisfied that there was no reviewable misapprehension of the evidence and no improper inferences were drawn. The trial judge then correctly applied spousal support law to the factual findings she made. As stated in at paragraph 18 of Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518,

There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. 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 balanced the factors differently.

[22] Finally, I note Mr. Peacock’s submission that the deference accorded to the trial judge’s decision should also be accorded to Justice Scully’s decision. I cannot accept this position. It is the trial judge’s decision from which this appeal is taken and it is her fact finding that is critical. Justice Paisley’s order of a new trial on the issue of spousal support meant precisely that – that the trial judge was to conduct a new trial and make new findings of fact with regard to spousal support: see Tauber v. Tauber, 2001 28234 (ON SC), [2001] O.J. No. 3259 (S.C.J.), aff’d 2003 8918 (ON CA), [2003] O.J. No. 1083 (C.A.), at para. 38. The trial judge decided the issue of spousal support de novo and it is to her findings of fact that deference must be given on appeal.

Conclusion

[23] For these reasons, the appeal is dismissed, both with respect to the spousal support and the issue of costs.

[24] If the parties are unable to agree on costs of this appeal, this shall be addressed by way of written submissions. Ms. Abernethy has until April 26, 2013 to make submissions; Mr. Peacock has until May 3, 2013 to respond. Ms. Abernethy has a further period until May 10, 2013 to reply to Ms. Peacock’s submissions. Submissions shall be no more than three pages in length.

CROLL J.

Date: April 12, 2013