COURT FILE NO.: FS-18-317
DATE: 20190815
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY LAW APPEAL
RE: Kavleen Sethi, Applicant/Respondent in appeal
AND: Jaskaran Singh Sethi, Respondent/Appellant in appeal
BEFORE: Van Melle, J.
COUNSEL: Alexander Novak, for the Applicant/Respondent in appeal
Maryam Manteghi, for the Respondent/Appellant in appeal
HEARD: August 12, 2019
REASONS FOR JUDGMENT
[On appeal from the Judgment of Justice A.W. Sullivan dated November 22, 2018]
VAN MELLE, j.
[1] The appellant, Jaskaran Singh Sethi, appeals from the judgment of the Honourable Justice A.W. Sullivan, dated November 22, 2018 wherein Justice Sullivan ordered Mr. Sethi to pay spousal support of $1,500 per month to Ms. Sethi commencing December 1, 2018 and ending December 31, 2020.
Background
[2] The parties entered into an arranged marriage on June 1, 2015. Both parties were born in India. Mr. Sethi came to Canada in 2008 as a student and became a Canadian citizen prior to his marriage. Ms. Sethi has a Bachelor of Commerce degree from India as well as a Master of Economics, both of which were completed in English. For 10 years prior to the marriage she was working in India as a full-time immigration consultant.
[3] After the marriage, Ms. Sethi remained in India for approximately one year while Mr. Sethi completed the immigration sponsorship application. She arrived in Canada in June 2016.
[4] The parties lived with each other for approximately four months and separated on September 19, 2016 after being married for one year and four months. There are no children of the marriage.
[5] Ms. Sethi began working soon after her arrival in Canada. During the four months that she cohabited with Mr. Sethi she held three part-time jobs where her total income for the 6-month period was $9,702.
[6] After the separation in September 2016, Ms. Sethi began working full-time at Serta Mattresses where her salary was $28,000 per year. She stayed there for approximately 4 months. She quit her job in January 2017 and began receiving Employment Insurance which she received until June 2017.
[7] Ms. Sethi commenced an application for spousal support on June 8, 2017.
[8] On March 12, 2018 Justice Clay presided over a Trial Management Conference. From Justice Clay’s endorsement, it appears that Mr. Sethi brought a motion to strike Ms. Sethi’s pleadings. Justice Clay made the following order:
This R’s motion to dismiss the Application in its entirety is denied.
The matter shall only proceed to trial on the basis of the A’s claim to a contractual right to be supported by the R due to his immigration sponsorship of her.
This matter is adjourned to the trial audit on March 28/18 at 9:30 a.m. in court 201.
The A’s oral motion for a delay to permit her to retain counsel is dismissed without prejudice to counsel for the A seeking an adj. at the trial audit if that counsel has been retained for a trial.
[9] A two-day trial proceeded before Justice Sullivan on October 31 and November 1, 2018.
Argument
[10] Mr. Sethi’s first argument is that Justice Sullivan, in his decision, incorrectly stated the date of separation as September 19, 2017 instead of September 19, 2016. He submits that this caused Justice Sullivan to rely on a longer period of cohabitation in order to assess spousal support than he should have.
[11] This argument can be dispensed with fairly quickly as there is no reason to believe that the error in the year of separation was anything other than a typing error. In fact, at paragraph 67 of his reasons, Justice Sullivan says:
I understand that the parties did not live together here in Canada for any great length of time other than the months that they were together after Kavleen arrived here in June 2016, however, this does not take away from the commitment that was made to each other and recognized in their marriage to one another.
[12] The main argument is that Justice Sullivan, although acknowledging Justice Clay’s Trial Management Order, permitted testimony and considered impermissible evidence, namely Ms. Sethi’s testimony regarding her inability to work due to physical and psychological issues.
[13] Mr. Sethi submits that Justice Sullivan considered factors outside the scope of the trial management judge’s direction which consideration led to errors in fact and law.
[14] Mr. Sethi alleges that Justice Sullivan erred by (a) considering Ms. Sethi’s needs based on her physical and emotional inability to work when Justice P. Clay specifically directed otherwise; (b) by not obtaining and considering the Spousal Support Advisory Guidelines when deciding the quantum of spousal support and (c) by refusing to impute income to Ms. Sethi due to her psychological and emotional health upon which she was barred from proceeding to trial.
[15] Mr. Sethi argues as well that Justice Sullivan did not follow the Spousal Support Advisory Guidelines when it came to establishing quantum of support and that he failed to explain his departure from the Guidelines.
[16] Ms. Sethi’s counsel argues that there is a difference between advancing a spousal support claim based on psychological and physical abuse and relying on some of the facts of psychological and physical abuse to address the issue of quantum and duration. Ms. Sethi asks that Justice Sullivan’s Order be upheld and the appeal dismissed.
Standard of review
[17] In Berger v. Berger, 2016 ONCA 884 (Ont. C.A.) the Ontario Court of Appeal dealt with the standard of review when appealing support orders:
[43] With respect to the review of support orders, in Mason v. Mason, 2016 ONCA 725, at para. 110, this court held that a deferential approach to support awards was appropriate due to their fact-based and discretionary nature:
Because of the fact-based and discretionary nature of support awards, a trial judge's order for spousal support is entitled to significant deference on appeal. This deferential approach to support awards promotes finality in family law litigation and also recognizes the importance of the trial judge's role in seeing and hearing the parties and other witnesses testify. An appeal court is not entitled to overturn a spousal support order simply because it would have balanced the relevant factors differently or arrived at a different decision: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-12.
[44] Nonetheless, this court recognized in Mason, at para. 111, that an appeal court must intervene in a support award where: "the trial judge's reasons disclose an error in principle, a significant misapprehension of the evidence or if the award is clearly wrong: Hickey, at para. 11."
[45] This reflects the approach to the standard of review for findings of fact as set out in Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235. In that case, the Supreme Court held at para. 10 that findings of fact should be reversed where it can be established that the finding is a "palpable and overriding" error. In H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56, Fish J. clarified that the "palpable and overriding" error test is met if the findings are "clearly wrong" or can "properly be characterized as 'unreasonable' or 'unsupported by the evidence'."
[18] Applying the standard of review to this case, I am not persuaded that the trial judge’s reasons disclose an error in principle, a significant misapprehension of the evidence or that the award is clearly wrong.
[19] From the structure of Mr. Sethi’s argument is appears that he anticipated an attack on the order made by Justice Clay at the Trial Management Conference. Counsel went to great lengths to argue that the order made by Justice Clay limiting the issues for trial was made on consent. It was not. It was Justice Clay who felt that there was an absence of evidence supporting two of Ms. Sethi’s claims. He wrote the following in his endorsement:
I find that the failure to provide the psychiatrists [sic] report is not a reason to strike the pleadings as the A is not relying on mental health problems as a reason that she cannot work and needs spousal support.
I note that the A did state in her Application that she was relying on psychological abuse as one reason for s/s. Her failure to produce a psychiatrists report, the fact that she was employed on a full time basis from the separation to her decision to stop working due to back problems and her statement in court today that she is not relying on mental health issues have a consequence. The A’s claim of psychological abuse will be struck and she cannot proceed to trial on that basis.
This leaves two possible claims of entitlement. The issue of need, based upon an inability to work due to a back problem will not proceed to trial either. The mother was employed on a full time basis in India and in Canada until well after the separation. The physical problems were not mentioned in her Application. She now states that her back problem was aggravated by a fall that occurred 14 months after separation.
The final ground of support is contractual. This was pleaded. The R sponsored the A to come to Canada. He is responsible for her not becoming dependant [sic] upon the state for a defined period of time. She is currently dependant. The R claims the marriage was a fraud. The A claims that it was legitimate and she has a contractual right to support.
[20] Ms. Sethi does not take issue with Justice Clay’s Order. She has not sought, nor is she now seeking to set it aside.
[21] A reading of Justice Sullivan’s Reasons along with the trial transcript shows that Justice Sullivan did not make impermissible findings, nor did he base his decision regarding entitlement to spousal support on anything other than the Sponsorship Application.
[22] Regarding the quantum of spousal support, Justice Sullivan accepted the evidence as corroborated by the financial statements of the parties. He accepted that Ms. Sethi’s intention to go back to school in Canada had been communicated to Mr. Sethi. This had nothing to do with psychological or physical issues.
[23] Mr. Sethi argues that Justice Sullivan did not apply the Spousal Support Advisory Guidelines and that he did not explain his departure from the Guidelines. I do not agree. Firstly, trial counsel did not provide him with the Guideline calculations. Secondly, there is a section in his Reasons headed Application of the Spousal Support Guidelines. In this section he reviews the obligation of the Court to consider the Guidelines. He states that he has taken the jurisprudence and the facts of this particular case into consideration. The Spousal Support Guidelines are guidelines and are not mandatory. Immigration sponsorship is just one of the factors that may be taken into account in departing from the Guidelines.
[24] At the conclusion of argument, I asked both parties for their costs outlines. Mr. Novak’s outline was provided right away and placed into a sealed envelope for consideration by me after deciding the appeal. Ms. Manteghi provided her outline later in the day and it too was placed into a sealed envelope. Mr. Novak on behalf of Ms. Sethi claims costs of $2,607.09 based on an hourly rate of $136.43. Given that Mr. Novak was called to the bar in 1990 this appears to be a partial indemnity claim and appears to be reasonable.
[25] Mr. Sethi’s counsel’s Bill of Costs is $27,527.18, thus Mr. Sethi cannot argue that the amount claimed by Ms. Sethi is more than he would expect to pay.
[26] In reviewing Mr. Sethi’s counsel’s costs submission I note that there are several items that are not properly included. I suspect this is because the costs submission was put together very quickly at the last minute. These are entries are for hearings where costs were specifically not ordered (April 1, 2019); entries for hearings where no costs were ordered, and entries for hearings where costs had already been determined (May 16, 2019). As well, there is an entry for February 11, 2019 relating to a criminal hearing, which again does not properly form part of a costs submission relating to a Family Law appeal.
Disposition
[27] The appeal is dismissed. Justice Sullivan’s Order and the Support Deduction Order are reinstated forthwith. Costs of $2,607.09 are payable by Mr. Sethi to Ms. Sethi forthwith.
Van Melle, J.
Released: August 15, 2019
COURT FILE NO.: FS-18-317
DATE: 20190815
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RE: SETHI and SETHI
BEFORE: VAN MELLE, J.
COUNSEL: Alexander Novak, for the Applicant/Respondent in appeal
Maryam Manteghi, for the Respondent/Appellant in appeal
REASONS FOR JUDGMENT
Van Melle, J.
Released: August 15, 2019