Good evening.

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of July 10, 2023.

There were only two substantive decisions released this week, both family law decisions dealing with spousal support.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jasiobedzki v Jasiobedzka, 2023 ONCA 482

Keywords: Family Law, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Barendregt v. Grebliunas, 2022 SCC 22, Van de Perre v. Edwards, 2001 SCC 60, Hickey. v. Hickey, [1999] 2 S.C.R. 518, Calin v. Calin, 2021 ONCA 558, Green v. Green, 2015 ONCA 541, Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, Korman v. Korman, 2015 ONCA 578, Levin v. Levin, 2020 ONCA 604, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37, Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), Fielding v. Fielding, 2015 ONCA 901, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Truscott, 2007 ONCA 575, Frazer v. Haukioja, 2010 ONCA 249, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Nairne v Nairne, 2023 ONCA 478

Keywords: Family Law, Spousal Support, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8), Hickey v. Hickey, [1999] 2 S.C.R. 518, Fletcher v. Manitoba Public Insurance Corp., [1990] 3 S.C.R. 191, Moge v. Moge, [1992] 3 S.C.R. 813, Bracklow v. Bracklow, [1999] 1 S.C.R. 420

Short Civil Decisions

Grady v Grady, 2023 ONCA 481

Keywords: Wills and Estates, Testamentary Disposition, Matrimonial Home, Rules of Civil Procedure, rr. 1.04(1) and 1.04(1.1), Hryniak v Mauldin, 2014 SCC 7, Hansen Estate v Hansen, 2012 ONCA 112, Re McKee and National Trust Co. Ltd. et al. (1975), 7 O.R. (2d) 614

9383859 Canada Ltd. v Saeed, 2023 ONCA 484

Keywords: Costs

CIVIL DECISIONS

Jasiobedzki v Jasiobedzka, 2023 ONCA 482

Miller, Paciocco and Coroza JJ.A

Counsel:

P. J., acting in person as the appellant

J. Bruggeman, for the respondent

Keywords: Family Law, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Barendregt v. Grebliunas, 2022 SCC 22, Van de Perre v. Edwards, 2001 SCC 60, Hickey. v. Hickey, [1999] 2 S.C.R. 518, Calin v. Calin, 2021 ONCA 558, Green v. Green, 2015 ONCA 541, Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, Korman v. Korman, 2015 ONCA 578, Levin v. Levin, 2020 ONCA 604, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37, Higgins v. Higgins (2001), 19 R.F.L. (5th) 300 (Ont. S.C.), Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.), Fielding v. Fielding, 2015 ONCA 901, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Truscott, 2007 ONCA 575, Frazer v. Haukioja, 2010 ONCA 249, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The appellant, the husband, challenged two spousal support orders made after trial. The first order made on March 24, 2022, found the appellant liable to pay the respondent three heads of support. First, ongoing support, effective March 31, 2022, of, $5,979 per month. Second, a lump-sum "catch-up amount" for a shortfall in the support he had paid between January 7, 2020 and March 31, 2022. Third, "retroactive support" from the fall of 2017.

The trial judge issued a second order on September 9, 2022 setting the lump-sum catch-up amount at $36,433, with a retroactive support date of November 1, 2017, and set the amount of the retroactive support at $86,108. Costs were payable to the wife in the amount of $30,000.

issues:

  1. Did the trial judge make clerical and factual errors that require correction in the trial judge's endorsements?
  2. Did the trial judge err in calculating mid-range spousal support, when quantifying the ongoing support?
  3. Did the trial judge err by not imputing income to the wife?
  4. Did the trial judge err in calculating retroactive support by setting a start date of November 1, 2017?
  5. Did the trial judge err in calculating retroactive support by not awarding occupation rent?
  6. Did the trial judge err in calculating the retroactive support?
  7. Did the trial judge err in quantifying the lump sum catch-up amount?
  8. Should the proposed fresh evidence be admitted?
  9. Should leave be granted to appeal the costs award, and if so, was the costs award erroneous?

holding:

Appeal dismissed.

reasoning:

  1. No.

The appellant argued that the trial judge erred in numerous factual findings including the percentage of the funds from the joint bank account used after separation; the husband's views on the sale of the matrimonial home; the relative living expenses that the husband and wife incurred after the separation; and the amount of wealth the wife had access to after separation. The appellant requested that the Court correct the errors in the endorsement.

The Court declined to do so, as it does not have the authority to revise the reasoning of the decisions that come before it; an appeal is from a judge's order, not their reasons. The endorsement cannot be corrected even if errors appear. The Court stated that its task was to determine whether the errors that were made provided the basis for setting aside the trial judge's orders. The Court concluded that the errors identified by the appellant played either no role or a secondary role in the quantification of the spousal support orders.

  1. No.

The appellant argued that the trial judge erred by awarding mid-level support of $5,979 based on his income of $156,255, when mid-level support for that income is in fact $5,697. The appellant further claimed that the trial judge effectively imposed a high-level support award.

The Court rejected this argument given that the trial judge's identification of the mid-range support quantum of $5,979 was based on the appellant's income inclusive of any taxes and deductions, $164,641.

  1. No.

The appellant argued that the trial judge erred by not imputing income to the respondent.

The Court found no error in the trial judge's decision to decline to impute as income to the respondent the value of the Canada Pension Plan ("CPP") and Old Age Security ("OAS") benefits that she was eligible to receive but chose to postpone. The Court supported the trial judge's reasons that it was appropriate to do so on two grounds. First, the respondent received professional advice that it would be financially advantageous for her to delay those payments until age 70 despite her eligibility and there was no principled reason to compel her to act to her financial detriment. Second, the trial judge recognized that when the respondent does begin to receive this income, the ongoing support payments would be reduced accordingly. Although the trial judge did not say so explicitly, since the amount of the CPP and OAS payments the respondent will ultimately receive will be elevated because of the delay, the appellant will benefit from an even greater reduction in the support payments he will have to make going forward.

  1. No.

The Court found that the trial judge did not err in calculating retroactive support by setting a starting date of November 1, 2017, because a trial judge may elect to calculate retroactive support from the date of effective notice where there is reason to do so. The trial judge found that the husband had effective notice that the wife wanted support by November 1, 2017. Accordingly, the Court found no basis to interfere.

  1. No.

The Court found that the trial judge did not err in calculating retroactive support by not awarding occupation rent. If the trial judge had attributed "occupation rent" to the wife for the period when she had exclusive possession of the matrimonial home, it would have reduced the retroactive support payments.

The decision whether to attribute occupation rent is a discretionary determination for the trial judge to be exercised where the trial judge considers it to be "reasonable and equitable" to do so. The Court found no basis for interfering with the trial judge's decision.

  1. No.

The appellant argued that the trial judge erred in calculating the retroactive support on four grounds.

First, the appellant argued that the trial judge's decision to accept the respondent's quantification of the amount she accessed from a joint bank account prior to obtaining an interim spousal support order amounted to an error. The Court found no error of law or material error of fact.

Second, the appellant argued that the trial judge erred by not treating household expenses he paid directly during the retroactive period as money received by the wife in lieu of support. Yet, the quantum the wife received even after those expenses were paid was but a fraction of what she was entitled to. The Court found that the trial judge rightly awarded retroactive spousal support based on fairness.

Third, the appellant argued that the trial judge's calculation awarded the respondent the difference between the support he ought to have paid based on his gross income and the amounts the respondent withdrew from a joint bank account over the relevant period. But the latter amounts were taken from a bank account containing the husband's after-tax earnings. The appellant asserted the calculation ought either to have reduced the support owed by the amount of tax the wife would have paid at the time or increased the amounts she in fact received to reflect the benefit of having received them tax-free.

The Court held that judges are not required to make provision for tax adjustments for retroactive spousal support awards and the decision whether to do so is discretionary based on whether a tax adjustment is required to achieve a fair support award.

Fourth, the appellant argued that the trial judge erred in imposing a level of retroactive spousal support payments which exceeded more than 50% of his net disposable income, contrary to the Spousal Support Advisory Guidelines. The Court found that the trial judge's decision to award the spousal support was based on her assessment of what would be fair in the circumstances and there was no reason to intervene.

  1. No.

The appellant argued that the trial judge erred by not giving him credit for his payment of expenses and for the respondent's joint account withdrawals at the outset of that period. The Court found that the trial judge arrived at what she considered to be fair support orders, and the catch-up amount was not unfit or inappropriate.

  1. No.

The appellant sought to introduce fresh evidence confirming that the wife paid $5,000 from the joint account towards legal fees during the "grace period".  The Court concluded that none of the proposed evidence would affect the decision of the Court and therefore the evidence was not admitted.

  1. No.

The Court asserted that leave would not be granted and the cost appeal lacked merit. The trial judge was aware of the "split success" when awarding costs to the respondent. The Court was not persuaded that the appellant achieved superior success on the issue of retroactive support on the basis that the amount ordered was closer to the "0" advocated than the amount the wife requested.

Nairne v Nairne, 2023 ONCA 478

Roberts, Favreau and Copeland JJ.A

Counsel:

M. Feigenbaum, for the appellant

J. Mills and E. Visco, for the respondent

Keywords: Family Law, Spousal Support, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2, Family Law Act, R.S.O. 1990, c. F.3, ss. 33(8), Hickey v. Hickey, [1999] 2 S.C.R. 518, Fletcher v. Manitoba Public Insurance Corp., [1990] 3 S.C.R. 191, Moge v. Moge, [1992] 3 S.C.R. 813, Bracklow v. Bracklow, [1999] 1 S.C.R. 420

facts:

The appellant, Ms. N, and the respondent, Mr. N, had been married for 21 years. They had two adult children. They separated in 2015. They were both chartered accountants. By the time they separated, Ms. N earned $118,516 and Mr. N earned $423,748 per year.

The trial judge awarded Ms. N $2,500 per month in spousal support until Mr. N's retirement from his current employment. The trial judge also made an order based on a proposal by Mr. N that the matrimonial home would be transferred to Ms. N and that Mr. N's share of the proceeds from the transfer would be in the form of an interest-free mortgage to Ms. N until she dies, decides to sell the home, or no longer resides in it on a fulltime basis.

Ms. N appealed the quantum and duration of spousal support. She argued that the trial judge failed to consider the significant disproportion in their incomes and the different contributions they made throughout the marriage to raising the children and looking after the household.

issues:

  1. Did the trial judge err in the amount of spousal support?
  2. Did the trial judge err in the duration of spousal support?

holding:

Appeal dismissed.

reasoning:

  1. No.

The Court noted that the starting point in reviewing any spousal support decision is significant deference, absent reviewable error. As the Supreme Court cautioned in Hickey v. Hickey, "appeal courts 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."

The Court held that the spousal support award of $2,500 per month could not be looked at in isolation. It was evident that, in making this award, among other factors, the trial judge considered the financial benefit Ms. N would receive from an interest-free mortgage on the matrimonial home, potentially for her lifetime. The Court noted that this was a proposal to which Ms. N agreed. While the trial judge did not calculate the specific value of this benefit to Ms. N, there was no doubt that it was significant, even if it ran only to the point when and if Ms. N no longer resided at the property fulltime or sold it.

The Court noted that the value of the property was approximately $1.8 million at the time of trial. Once the amounts for past child support and spousal support were deducted from Mr. N's share of the value of the house, Ms. N received an interest-free mortgage of approximately $561,000. The Court indicated that there was substantial value to not having to pay interest on a mortgage of approximately $561,000. The $2,500 per month award while Mr. N continued to work had to be viewed in combination with the value of the interest-free mortgage. The value of the interest-free loan would continue to accrue to Ms. N after Mr. N retires, at a time when the disparity between the parties' incomes would be much smaller.

The Court noted while it held that the trial judge did not make any reversible errors, it did not mean to endorse all facets of the trial judge's approach to assessing Ms. N's entitlement to spousal support. The Court was of the view that the trial judge arguably took a narrow approach in his assessment of the evidence regarding the parties' respective roles during the marriage and needs following the marriage, and in reaching the conclusion that Ms. N had not established any compensatory entitlement and only "questionable" needs-based entitlement. Ms. N only became a chartered accountant five years after their first child was born and, throughout her career, she worked in the public sector earning far less than Mr. M.

In addition, the Court held that while the trial judge recognized that Mr. N retreated from the relationship in 2010, approximately five years before the separation, he appeared to have given little to no weight to Ms. N's primary role in looking after the children during this time. In determining entitlement to spousal support on the basis of compensation and need, the trial judge was required to weigh the overall circumstances of the parties, rather than requiring Ms. N to prove in detail the role she played prior to the marriage breakdown and her financial needs after the breakdown: Moge v. Moge; Bracklow v. Bracklow.

However, despite the issues that the Court identified with the trial judge's approach to assessing Ms. N's entitlement to spousal support, the Court noted that the trial judge did advert to all relevant circumstances, including those set out under s. 15.2 of the Divorce Act, and s. 33(8) of the Family Law Act. Looking at the award as a whole, the Court held that trial judge committed no error in principle in his award of spousal support, nor was his award clearly wrong.

  1. No.

The Court noted Ms. N's argument that the trial judge should not have placed a time limit on the payment of spousal support and that, even if it was appropriate for him to do so, the time limit should not have referred to his retirement from a specific employer.

The Court saw no error in the trial judge's termination of spousal support when Mr. N retires, especially given that Ms. N would continue to benefit from the interest-free mortgage thereafter. However, as was conceded by Mr. N, the order should be modified to remove the reference to the specific employer, in the event Mr. N worked for a different employer before he retires.

SHORT CIVIL DECISIONS

Grady v Grady, 2023 ONCA 481

Feldman, Benotto and Roberts JJ.A

Counsel:

H. Nesathurai and G. M. Perinot, for the appellant

W. MeInychuk, for the respondent

Keywords: Wills and Estates, Testamentary Disposition, Matrimonial Home, Rules of Civil Procedure, rr. 1.04(1) and 1.04(1.1), Hryniak v Mauldin, 2014 SCC 7, Hansen Estate v Hansen, 2012 ONCA 112, Re McKee and National Trust Co. Ltd. et al. (1975), 7 O.R. (2d) 614

9383859 Canada Ltd. v Saeed, 2023 ONCA 484

Doherty, Feldman and Roberts JJ.A

Counsel:

S.S., acting in person for the appellant corporation

M. Russel, for the responding parties M.S. and M.S.

S. Tock, for the responding parties N.G., V.R., M.S. and R.S.

Keywords: Costs

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