sept. 27. 2020

COURT OF APPEAL SUMMARIES (September 21 – September 25, 2020)

Levin v. Levin, 2020 ONCA 604 (CanLII)

[Watt, Trotter and Zarnett JJ.A.]

COUNSEL:

P. I. Waldmann, for the appellant

Ryan M. Kniznik, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Equalization of Net Family Property, Family Law Rules, O Reg 114/99, rule 18(14), Rados v. Rados, 2019 ONCA 627, Bak v. Dobell, 2007 ONCA 304, Korman v. Korman, 2015 ONCA 578, Fielding v. Fielding, 2015 ONCA 901

FACTS:

The appellant and respondent had been married for 26 years and had two children. They were unable to resolve financial and property issues, culminating in an eight-day trial that ended unfavourably for the appellant. The appellant argued that the trial judge erred on the issues of spousal support, child support, net family property and costs. The respondent resisted any changes to the decision, except for some minor inaccuracies in two of the trial judge’s calculations.

ISSUES:

Did the trial judge err in:

(1) calculating the appellant’s income?

(2) calculating the respondent’s income?

(3) calculating net family property?

(4) determining the timing of the review date for support?

(5) the costs award?

HOLDING:

Appeal allowed in part.

REASONING:

Credibility Finding

The Court found the trial judge’s reasons to be sound, subject to a few minor calculation errors. Credibility was at the heart of this family law trial. The trial judge found the respondent’s testimony was generally consistent and credible. However, the trial judge found many inconsistencies in the appellant’s testimony. The Court held that a trial judge’s findings of fact, including credibility assessments, are entitled to substantial deference on appeal especially in family law cases. Additionally, the Court stated that imputation of income for support purposes is a discretionary and fact-specific exercise which should be afforded deference.

(1) Did the trial judge err in calculating the appellant’s income?

No. The appellant argued that the trial judge misapprehended the evidence in over-imputing income to him and under-attributing income to the respondent. The Court disagreed. Once satisfied that there is undeclared income, trial judges have considerable leeway in imputing additional income to calculate support. The Court gave deference to the manner in which the trial judge calculated the appellant’s income and found the amount of income imputed to be reasonable.

(2) Did the trial judge err in calculating the respondent’s income?

Yes. The respondent accepted that the trial judge miscalculated her income for 2017. However, the appellant argued that the trial judge also underestimated the respondent’s income for 2018 and on a go-forward basis. The Court disagreed with the appellant and found that the trial judge made no error in the imputed income of the respondent. The Court corrected the minor errors conceded by the respondent.

(3) Did the trial judge err in calculating net family property?

Yes. The respondent agreed that the trial judge erred in her calculation of net family property and the amount of the equalization payment that the appellant should receive. The Court found the effect of this minor error was an increase in the equalization payment and corrected the trial judge’s order to reflect this change.

(4) Did the trial judge err in determining the timing of the review date for support?

No. The trial judge ordered that her decision on support issues could be reviewed in 2021 because that is when it was anticipated that the respondent would be self-sufficient. The appellant gave no reason for requesting a variation of this order. The Court found no error in the trial judge’s decision, and found the review date to be sensible.

(5) Did the trial judge err in the costs award?

No. The Court found that the trial judge’s costs decision revealed no error in principle. Rule 18(14) of the Family Law Rules, entitled the respondent, “…unless the court orders otherwise…” to “costs to the date the offer was served and full recovery of costs from that date”. The trial judge determined that there was no basis to depart from this rule. The Court found this reasonable and, in quoting precedent, stated that in family law cases, there is arguably even greater reason to afford deference to the quantum of costs awarded.


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