ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
COURT FILE NO.: FS-13-5400-00
DATE: 20140711
B E T W E E N:
CARLTON ADOLPHUS GLASGOW
Mr. S.M. Fehrle, for the Appellant
Appellant
- and -
DAHLIA MATILDA GLASGOW
In Person
Respondent
HEARD: June 23, 2014
REASONS FOR JUDGMENT
[Appeal of the Final Order of the Honourable Madam Justice Parent,
dated November 8, 2013]
Fragomeni J.
[1] The appellant husband Carlton Adolphus Glasgow, appeals from the Final Order of the Honourable Madam Justice Parent of the Ontario Court of Justice at Brampton, dated November 8, 2013.
[2] The appellant sets out the following grounds of appeal in his Notice of Appeal:
an Order that the Final Order of the Honourable Mr. Justice Zuker dated August 25, 2004 of the Ontario Court of Justice at 47 Sheppard Avenue East, Toronto, be varied such that the ongoing spousal support in the amount of $1,200.00 per month (now indexed to $1,419.81 per month) payable by the respondent to the applicant be terminated effective June 1, 2013;
an Order that the Final Order of the Honourable Mr. Justice Sherr dated April 22, 2010 of the Ontario Court of Justice at 47 Sheppard Avenue East, Toronto, be varied such that the arrears of spousal support in the amount of $41,973.00 payable by the respondent to the applicant be payable at the rate of $200.00 per month instead of $50.00 per month; and
costs of the Motion to Change and of the Appeal herein.
The legal grounds for my appeal are:
The learned Trial Judge erred in fact in holding that the medical reports of the respondent’s family physician, Dr. Felix Asekomhe, indicated that the respondent was unable to engage in full-time employment but did not address his ability to have part-time employment. In fact, the medical report of Dr. Asekomhe dated June 26, 2013 stated “Given his age and medical history he will not be able to work.” Also, the medical report of Dr. Asekomhe dated October 23, 2013 stated “He is unable and unfit to work in his trade due to knee problem, back problems and problem with sleep at night.” Further, the medical reports of Dr. Asekomhe were not challenged or contradicted by the applicant at Trial.
The learned Trial Judge erred in fact in holding that the respondent could work part-time because his Financial Statement indicated that he earned some self-employment income in 2013. The respondent testified at Trial that all such self-employment income ended in or about May 2013 and that he was unable to do any further work due to his age and medical problems. This testimony was not challenged or contradicted by the applicant at Trial.
The learned Trial Judge erred in fact in holding that the respondent’s common-law relationship with Lynda Campbell would not likely end in the event that the spousal support obligations of the respondent were not lowered in this proceeding because Lynda Campbell would no longer continue to support the respondent. This testimony was not challenged or contradicted by the applicant at Trial.
The learned Trial Judge erred in law in holding that the respondent was not entitled to submit that the applicant’s LIRA in the amount of $46,500.00 should be considered as a source of income to be imputed to the applicant because the LIRA also existed during previous court proceedings in 2004 and 2010 and therefore there were no material change in circumstances with respect to the LIRA. It is submitted that a review proceeding does not require demonstration of a material change in circumstances, but rather allows for a fresh look at the financial circumstances of both the support payor and the support recipient.
The learned Trial Judge erred in law in holding that the respondent was not entitled to submit that the applicant’s adult daughter, Nicole Glasgow, who resided with the applicant and was employed, should be considered as a source of income to be imputed to the applicant because the adult daughter also resided with the applicant during previous court proceedings in 2010 and therefore there was no material change in circumstances with respect to the adult daughter. It is submitted that a review proceeding does not require demonstration of a material change in circumstances, but rather allows for a fresh look at the financial circumstances of both the support payor and the support recipient.
The learned Trial Judge erred in fact and in law in holding that the low range of the Spousal Support Advisory Guidelines was not appropriate, and that the mid range should be used. It is submitted that the respondent’s actual pension income puts him close to the poverty level and that therefore the low range of the Spousal Support Advisory Guidelines was appropriate.
The learned Trial Judge erred in fact and in law in holding that the repayment by the respondent of the spousal support arrears of $41,973.00 should be increased from $50.00 per month to $913.00 per month because this would not “create a hardship” on the respondent. It is submitted that the combined effect of the Trial Judge’s decision of ordering ongoing spousal support of $506.00 per month and arrears repayment of $913.00 per month is a total obligation of $1,419.00 per month, which is the same unsustainable monthly payment that forced the respondent to bring the present Motion to Change. The new total support obligation places the respondent in the same position of extreme financial hardship that leaves him with insufficient money each month to pay his basic expenses.
OVERVIEW AND BACKGROUND
[3] The husband is 71 years old and is a retired electrician. The wife is 68 years of age. The parties were married in November 1969 and they separated in August 2000. The husband moved out of the matrimonial home in August 2004.
[4] There are two children of the marriage, both of whom are adults.
[5] The wife commenced court proceedings in 2004 in the Ontario Court of Justice. On August 25, 2004 a final order was made on consent and signed by Justice Zuker. With respect to spousal support the husband was ordered to pay spousal support to the wife in the amount of $1,200 per month indexed.
[6] In 2010, the husband brought a motion to change seeking to vary the spousal support order and the spousal support arrears that had accumulated pursuant to Justice Zuker’s 2004 order.
[7] On April 22, 2010, Mr. Justice Sherr of the Ontario Court of Justice made the following order in part:
a) Dahlia’s Motion to strike Carlton’s pleadings was dismissed;
b) Carlton’s Motion to Change was dismissed;
c) Carlton must pay arrears at $50.00 per month commencing January 1, 2011. If any ongoing support payment or arrears payment are late more than 30 days, then the entire amount of arrears is immediately payable.
d) FRO may collect arrears from any government source or lottery sources or prize winnings;
e) Carlton may apply for a review of the spousal support order in three years. This does not preclude his right to move to change if there is a material change in circumstances;
f) Carlton’s annual income was imputed to be $40,000.00 and Dahlia’s annual income was imputed to be $11,200.00.
g) On May 19, 2010, costs of the Motion were ordered against Carlton in the amount of $7,000.00.
[8] In May 2013 the husband commenced the current motion to change in accordance with the review clause set out in the April 22, 2010 order. The husband set out the following circumstances in support of this current motion to change:
In August 2013 he turned 71. He no longer has the energy or physical health to work at any form of regular or full-time employment;
The husband’s total income is comprised of the following:
(a) Pension Income IBEN Local 353 - $1,140.33 per month
(b) Canada Pension - $448.34 per month
(c) Old Age Pension - $546.08 per month
- He has no savings and significant debt. The husband sets out the following debt in his May 10, 2013 Financial Statement:
(a) CIBC Line of Credit - $15,000.00
(b) CIBC Visa - $5,000.00
(c) Spousal Support Arrears - $40,191.00
(d) Canada Revenue Agency - $53,702.13
(e) Lawyer’s Fees – Anthony Speciale - $30,000.00
(f) Lynda Campbell – girlfriend
For rent owing and legal fees - $18,000.00
[9] The motion to change was heard by way of a trial on October 28, 2013. On November 8, 2013 Madam Justice Parent released her Reasons for Judgment that included the following orders:
a) The Order dated August 25, 2004 is varied to reduce ongoing spousal support from $1,200 to $506.00 per month commencing June 1, 2013.
b) For purposes of this Motion, Carlton’s income is imputed to be $28,479.00 per year and Dahlia’s income is imputed to be $14,591.52 per year.
c) The Order dated April 22, 2010 is varied to increase Carlton’s repayment of the accumulated arrears of support ($41,973.00) from $50.00 per month to $913.00 per month effective June 1, 2013. If Carlton is more than 30 days late of any ongoing support payment after December 1, 2013 and any arrears payment after December 1, 2013, the entire amount of arrears shall immediately become due and payable.
d) Dahlia’s claim for an order prohibiting Carlton from filing any further proceedings seeking to vary his spousal support order is hereby dismissed.
e) Each party shall bear their own costs of this Motion.
[10] The husband’s position at this appeal relates to four main areas, namely:
The imputation of the husband’s income;
Declining to impute income to the wife;
The correct range under the Spousal Support Advisory Guidelines (SSAG); and
The appropriate level of arrears of monthly support payment.
[11] The husband submits at this appeal that the total monthly obligations of $1,419 ($506 ongoing spousal support and $913 payment toward arrears) leaves him living at below the poverty level. This payment on an annual pension income of $25,617 is impossible to maintain.
[12] The wife did not file any responding material or factum at this appeal, though she was present at the hearing. Her position is that Justice Parent did not err in making the decision she did and it should not be changed on appeal.
[13] I will deal with each ground of appeal raised by the husband in his Factum.
Issue 1: Did the learned trial judge err in fact in finding that the medical reports of the husband’s family physician, Dr. Felix Asekomhe, indicated that the husband was able to have part-time employment?
[14] The husband points to the report of Dr. Asekomhe, dated June 26, 2013 in which the doctor states:
Given his age and medical history he will not be able to work.
[15] Further in Dr. Asekomhe’s October 23, 2013 reports it states:
He is unable and unfit to work in his trade due to knee problem, back problem and problem with sleep at night.
[16] Neither of these medical reports were challenged or contradicted at trial.
Reasons of the Trial Judge
[17] Justice Parent sets out the following on this issue:
The medical evidence and the Respondent’s direct testimony satisfies the Court that this additional income will be closer to the $3,000.00 range and not a higher amount as perhaps the evidence established in the previous Motion to Change. In including the amount of $3,000.00 to the Respondent, I have considered the medical evidence which indicates an inability on the Respondent to “actively engage in full employment”, and does not address part-time employment, the Respondent’s own sworn Financial Statement and the grossing-up the income in order to provide for the absence of tax consequences on any amounts of self-employed income received by him due to non-inclusion to the Canada Revenue Agency.
Standard of Review
[18] Findings of fact made by a trial judge should not be set aside unless it can be shown that the facts found by the trial judge are:
(a) clearly wrong;
(b) unreasonable; or
(c) unsupported by the evidence.
[19] In H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 the court stated the following, at paras. 55-56:
55 "Palpable and overriding error" is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard. In Housen, for example, the majority (at para. 22) and the minority (at para. 103) agreed that inferences of fact at trial may be set aside on appeal if they are "clearly wrong". Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.
56 In my respectful view, the test is met as well where the trial judge's findings of fact can properly be characterized as "unreasonable" or "unsupported by the evidence". In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, McLachlin J. (as she then was) explained why courts of appeal must show particular deference to trial courts on issues of credibility. At the same time, however, she noted (at pp. 131-32) that
it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.
The statutory framework in criminal matters is, of course, different in certain respects. But as a matter of principle, it seems to me that unreasonable findings of fact -- relating to credibility, to primary or inferred "evidential" facts, or to facts in issue -- are reviewable on appeal because they are "palpably" or "clearly" wrong. The same is true of findings that are unsupported by the evidence. I need hardly repeat, however, that appellate intervention will only be warranted where the court can explain why or in what respect the impugned finding is unreasonable or unsupported by the evidence. And the reviewing court must of course be persuaded that the impugned factual finding is likely to have affected the result. [Emphasis in original.]
[20] The standard of review on a question of law is that of correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8).
[21] The standard of review on a question of mixed fact and law is set out in Housen, at paras. 33 and 36 as follows:
33 Where, however, an erroneous finding of the trial judge can be traced to an error in his or her characterization of the legal standard, then this encroaches on the law-making role of an appellate court, and less deference is required, consistent with a "correctness" standard of review. This nuance was recognized by this Court in St-Jean v. Mercier, 2002 SCC 15, at paras. 48-49:
A question "about whether the facts satisfy the legal tests" is one of mixed law and fact. Stated differently, "whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact" (Southam, at para. 35).
Generally, such a question, once the facts have been established without overriding and palpable error, is to be reviewed on a standard of correctness since the standard of care is normative and is a question of law within the normal purview of both the trial and appellate courts. [Emphasis added.]
36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
[22] In Children’s Aid Society of Toronto v. G.S., 2012 ONCA 783, 299 O.A.C. 24 the court dealt with the standard of review, at para. 19 as follows:
In C.(G.C.) v. New Brunswick (Minister of Health and Community Services), [1988] 1 S.C.R. No. 1073, at para. 5, the Supreme Court of Canada said the following about the deferential standard of review applicable in family law cases in the context of a child welfare proceeding:
... trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment.
[23] I am satisfied that the medical reports filed, read in their entirety could result in a finding that the husband could work to the extent found by the trial judge. As such I am not satisfied that the learned trial judge made a palpable and overriding error in so finding. The October 23, 2013 medical reports limits the assessment to work in his trade so it was open to the trial judge to focus on full-time employment in his trade. In the October 23, 2013 report Dr. Asekomhe summarizes his assessment as follows:
In summary Glasgow Calton is 71 year-old man with longstanding history of chronic back pain, knee pain and obstructive sleep apnea. As a result of his medical problems he lacks the stamina and physical fitness for his trade as an electrician. He is unable and unfit to work in his trade due to knee problem, back problems and problem with sleep at night. If he has to be activity engaged in full employment he will be a possible hazard to himself and others.
It was open to the judge to find that the report did not address the issue of part time employment.
[24] In these circumstances the husband’s income was properly set at the total of his pension incomes, namely, $25,617 plus $2,862 in self-employment income for 2013. The trial judge did not err in including some part-time income in the husband’s total income.
Issue 2: Did the learned trial judge err in fact in finding that the husband could work part-time because his Financial Statement indicated that he earned some self-employment income in 2013?
[25] The same analysis applies to this issue as with Issue #1 and I reach the same conclusion.
Issue 3: Did the learned trial judge err in fact in holding that the husband’s common-law relationship with Lynda Campbell would not likely end in the event that the spousal support obligations of the husband were not lowered?
Testimony of Lynda Campbell
[26] Lynda Campbell testified at trial as follows, at p. 54 of the Proceedings at Trial:
Q. Are you aware what Mr. Glasgow is asking for in this court case? Are you aware what result he is asking for in this case?
A. Yes.
Q. What is that?
A. For his payments to be reduced or eliminated.
Q. Now, if he is unsuccessful and cannot reduce his spousal support, can you tell me if that will have an effect on your relationship with him?
A. Yes, it will, because I am ten years away from retirement myself, and I need to look at what I need to have to retire, and right now I am carrying probably seventy-five to eighty percent of the household expenses. So I would possibly have to have him find his own place and me get some boarders.
Q. Are you familiar with Mr. Glasgow’s health situation?
A. Yes, I am.
Q. Do you know if he is still able to work in any gainful employment?
A. I would say no. He has shoulder pain, knee pain, lower back pain. He has got some sleep apnea. I wouldn’t want him doing my electrical work.
[27] I am not satisfied that the learned trial judge made a palpable and overriding error on this aspect of the evidence. On the record before her and considering the testimony of Ms. Campbell and the circumstances of her relationship with the husband, it was open to the trial judge to make the finding she did.
[28] Ms. Campbell stated that if the spousal support is not reduced it will have an effect on the relationship but there was no clear indication that the relationship would end. As I indicated, it was open to the trial judge to make the finding she did.
Issue 4: Did the trial judge err in law in holding that the $46,500 LIRA held by the wife should not be a source of income to be imputed to the wife? The learned trial judge held that since this LIRA amount existed at the time of the 2004 order and the 2010 order, the husband did not establish a material change of circumstances.
[29] The husband submits that an automatic review proceeding does not require demonstration of a material change in circumstances but rather allows for a fresh look at the financial circumstances of both the support payor and the support recipient.
[30] In Jordan v. Jordan, 2011 BCCA 518, 345 D.L.R. (4th) 480 [2011] B.C.J. No. 2408 the court set out the following, at para. 33:
By comparison, the right to a review of a support order is created by a term or condition of an agreement (see Scott v. Scott, 2008 BCCA 457 at para. 24, McEachern v. McEachern, 2006 BCCA 508 at para. 32) or court order (see Schmidt v. Schmidt, 1999 BCCA 701 at paras. 8-9, Domirti v. Domirti, 2010 BCCA 472 at paras. 32-34). A review hearing does not require a preliminary threshold finding of a change of circumstances, but the agreement or order will usually define a period of time that must pass or an event or condition that must occur before the right to a review is triggered. If the condition is met, the court moves directly into a consideration of the issue(s) to be reviewed and whether the evidence supports a change in the earlier order.
[31] In Kennedy v. Kennedy, [1996] O.J. No. 3282 (C.J.), Czutrin J. stated the following, at para. 14:
By providing for a review rather than an indefinite, limited period or until the happening of a specified event order, the parties agreed and the court ordered that the issue of support will be returned to the court on 1 July 1995 and a change in circumstances was not necessary for the court to have jurisdiction.
[32] The husband also refers the court to Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 at paras. 56 and 58:
However, where the payee spouse receives assets on equalization in exchange for a part of her former spouse’s pension entitlement, she must use those assets in a reasonable attempt to generate income at least by the time the pension starts to pay out. The reason for this requirement is clear. The payee spouse cannot save the assets that she receives upon equalization and choose instead to live on the liquidation of the payor spouse’s pension when he retires. If she were permitted to do so, the payee spouse would accumulate an estate while the payor spouse’s estate is liquidating.
The obligation of the payee spouse to generate investment income from the assets that she received on equalization is not an onerous one. It is not predicated upon insensitive standards on how the payee spouse should have managed her finances from the point of separation. Nor does it require investment-savvy decisions, premised upon an extensive knowledge of the marketplace. The obligation on the payee spouse to generate income from her assets would be satisfied by investing in a capital depleting income fund which would provide a regular annual income.
Reasons of Trial Judge
[33] The reasons of Justice Parent are as follows, at paras. 30-31:
A review of the evidence indicates that the Applicant has had the LIRA since her retirement in 2001. The Applicant’s Financial Statement sworn May 21st, 2004 and filed as Exhibit 7 in this hearing, lists a “Locked in Retirement Fund – 3345644-3” in the amount of $62,135.78 on page 5. The Applicant’s Financial Statement sworn March 30th, 2010 and filed as Exhibit 8 in this hearing, lists a “Retirement Fund – Mackenzie Investments (Locked in) – 3345644-3” in the amount of $54,106.44 on page 5.
The evidence clearly establishes this investment vehicle existed at the time of the initial order of Justice Zucker and at the Motion to Change hearing before Justice Sherr. The Respondent has not raised any evidence as to a material change in circumstances justifying that this income, at the amount he wishes to attribute to the Applicant, should be imputed.
[34] I agree with the husband’s position on this issue, save and except for the quantum proposed. In the circumstances of the respective position of the parties the wife should be required to access this LIRA account. If she was to draw it out at $2,500 per year this would assist her in meeting her day to day living obligations. It is my view that $2,500 annually is fair and reasonable.
Issue 5: Did the trial judge err in law in holding that no rental income ought to be attributed to the wife from her daughter Nicole who resides with her? Did the trial judge err in holding that this was not a material change in circumstances?
[35] The husband puts forward the same argument as in Issue # 4 that on a review the husband does not have to establish a material change in circumstances. The husband submits that the wife should be requiring her 40 year old daughter Nicole to pay room and board of at least $100 per week. This rental amount of $5,200 is an income that should be imputed to the wife.
Reasons of the Trial Judge
[36] The reasons of the trial judge on this issue are as follows:
The evidence further establishes that the parties’ adult daughter has been residing with the Applicant since at least 2010. The Applicant, at page 1 of Exhibit 8, identifies that her current financial situation is for herself and the daughter in question. This fact was therefore in existence at the time of the hearing of the Respondent’s Motion to Change in 2010.
Testimony of the Wife
[37] In cross-examination, the wife stated as follows at pp. 68-69 of the Proceedings at trial:
Q. Is there a reason why she isn’t ----
A. It’s permanent part-time. But she has been looking, and she has looked, and she was with agencies before this one and everything. But this is the one she has. She kept on giving out resumes to get a full-time job where she can make maybe forty hours.Because, Mr. Fehrle, is only because she cannot afford to go out there financially. Nicole wants to go out on her own again, but with what pay she gets she cannot go out there on her own.
Q. I am going to suggest to you that Nicole could look for two part-time jobs to make up to close to forty hours a week. Has she ever tried to do that, two part-time jobs?
A. She had two part-time jobs back in…when she was living on her own, 2003, 2004.
Q. But we are now at 2013.
A. Yes.
Q. And my question is, has she ever tried to get two part-time jobs? Since she seems to be very valued at No Frills, can she not get two jobs to make up to the close to forty hours per week?
A. It’s hard out there to get job. Do you know how hard it is to get a job?
Q. Now, does Nicole have any children of her own?
A. No.
Q. And does she have a spouse at all?
A. No.
Q. Now, you heard Mr. Glasgow state that he thinks it’s fair for Nicole to contribute $100.00 a week towards rent since she has a bedroom at your home. That’s $5,200.00 a year. Do you believe that’s reasonable for Nicole to pay $100.00 a week?
A. No, it’s not reasonable. Mr. Glasgow can said what he pleases, he doesn’t live there any more. He is no longer there any more. But if Nicole cannot afford to pay, where is she going to get the money?
[38] I agree with the position of the husband that the trial judge erred in holding that the husband had to demonstrate a material change in circumstances on this issue. However, I am not satisfied that in the total circumstances as the trial judge found them to be, that not imputing the $5,200 rental income to the wife was an error. I am satisfied that the record established that the daughter was unable to contribute $100 per week for room and board. I am satisfied, however, that the learned trial judge erred in not attributing any rental income to the wife. In my view that amount ought to have reasonably been set at $200 per month.
Issue 6: Did the learned trial judge err in law in holding that the mid-range of the SSAG should be used and not the low end as proposed by the husband?
[39] The husband submits that the husband’s pension income puts him close to the poverty level and therefore the low range is appropriate.
Reasons of the Trial Judge
[40] The trial judge stated the following in her reasons, at paras. 36-37:
A Spousal Support Guidelines (SSAG) calculation at these respective amounts results in a range of support of low-$434.00; mid - $506.00 and high-$534.00. Attached to these Reasons is a copy of these calculations.
Counsel for the Respondent submits that the low range of support should be awarded should support be deemed to continue. I find insufficient evidence to support the position raised on behalf of the Respondent. Accordingly, I find that the mid-range of support of $506.00 should be awarded. I further find that there is no reason to vary the terms of the previous orders by removing the indexing of this amount. The adjusted amount of spousal support therefore will be payable effective June 1st, 2013.
[41] I am not satisfied that the trial judge erred in law in using the mid-range. The evidentiary record before her provided a sufficient basis to make that determination.
[42] In balancing the various factors in a support matter, the decision of the trial judge is entitled to considerable deference. In Van de Perre v. Edwards (2001), 2001 SCC 60, 204 D.L.R. (4th) 257 (S.C.C.) at para 11, Bastarache J. referred to the reasons of the court in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 10 and 12:
In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that the appellate court remind itself of the narrow scope of appellate review. L’Heureux-Dubé J. stated in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. [10 and 12]:
[Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
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.
Issue 7: Did the trial judge err in fact and law in holding that the repayment by the husband of spousal support arrears of $41,973 should be increased from $50 per month to $913 per month?
Reasons of the Trial Judge
[43] The trial judge stated the following at paras. 38-43 of her reasons:
A Statement of Arrears from the Family Responsibility Office was filed by the Applicant at Tab 12 of Exhibit 1. This sworn document indicates that the arrears of support owed by the Respondent to the Applicant is $34,973.31 and unpaid court costs in the amount of $7,000.00 for a total of $41,973.31. The Respondent also owes an administration fee of $400.00 to the Family Responsibility Office.
The Applicant seeks an order varying the order of Justice Sherr dated April 22nd, 2010 to provide that the Respondent pay all arrears, which includes the court costs, in a lump sum.
Given the totality of the evidence regarding the Respondent’s current financial circumstances, the claim advance by the Applicant is not reasonable. However, it is equally unreasonable to continue the repayment of these arrears at the rate of $50.00 per month. This repayment schedule would result in the arrears being paid in almost seventy (70) years.
The Court has determined that a material change in circumstances has been established to review, and lower, the Respondent’s ongoing spousal support obligation. A review of the Respondent’s total financial circumstances however does not lead the Court to conclude that the Respondent is in a position of hardship so as not to be in a position to increase the repayment of the accumulated arrears that he clearly owes to the Applicant.
The Respondent has testified that at his current pension incomes, being his employment, CPP and Old Age pensions, totalling $25,617.00 per year, he retains in the range of $400.00 to $500.00 per month following the payment of his spousal support payment of $1,429.00 to the Applicant. The Respondent’s common-law partner testified that he retains in the range of $700.00 to $800.00 per month. In either circumstances, I find that this does not create a hardship on the Respondent which justifies maintaining the repayment of the arrears at the rate of $50.00 per month.
Accordingly, an order is granted varying paragraph 3 of Justice Sherr’s order dated April 22nd, 2010 to provide that effective June 1st, 2013, the Respondent shall repay the accumulated arrears at the rate of $913.00 per month. If the Respondent is more than thirty (30) days late of any ongoing support payment after December 1st, 2013 and any arrears payment after December 1st, 2013, then the entire amount of arrears shall immediately become due and payable.
[44] I am satisfied that the learned trial judge erred in increasing the spousal support arrears payment from $50 per month to $913 per month. The total support obligation of $1,419 per month on a total income of $28,479 per year is not sustainable by the husband and would result in an unfair distribution of the total incomes of these parties.
[45] Order to issue as follows:
The husband’s total income is $28,479;
The wife’s total income is set as follows:
(a) CPP - $ 8,592.84
(b) Old Age Security - $ 5,998.68
(c) Rental Income from her daughter Nicole - $ 2,400.00
(d) LIRA - $ 2,500.00
Total $19,491.52
The mid-range pursuant to the SSAG is $333. The husband shall pay to the wife spousal support in the sum of $333 per month commencing June 1, 2013. The total arrears shall be adjusted accordingly.
The spousal support arrears are payable at the rate of $200 per month commencing July 1, 2014.
The parties shall file written costs of the appeal within 30 days.
Fragomeni J.
Released: July 11, 2014
COURT FILE NO.: FS-13-5400-00
DATE: 20140711
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
B E T W E E N:
CARLTON ADOLPHUS GLASGOW
- and –
DAHLIA MATILDA GLASGOW
REASONS FOR JUDGMENT
Fragomeni J.
Released: July 11, 2014