



COURT OF APPEAL FOR ONTARIO

CITATION: Choquette v. Choquette, 2019 ONCA 306

DATE: 20190417

DOCKET: C65197

Watt, Miller and Nordheimer JJ.A.

BETWEEN

Kevin Ronald Choquette

Applicant (Respondent)

and

Yvonne Elizabeth Choquette

Respondent (Appellant)

Gary Joseph and Meghann Melito, for the appellant

Harold Niman and Meysa Maleki, for the respondent

Heard: November 15, 2018

On appeal from the order of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated March 1, 2018, with reasons reported at
    2018 ONSC 1435.

B.W. Miller J.A.:

[1]

In 1994, the parties separated after a marriage of 15 years, divorcing two
    years later. After a trial in 1996, the respondent, Mr. Choquette, was ordered
    to pay spousal support in the amount of $4,750 per month on an indefinite
    basis. The award was premised on the appellant, Ms. Choquette, quickly
    returning to the workforce. The appellant did not do so, and the respondent
    continued to pay spousal support for 22 years. In 2016, in anticipation of his
    retirement, the respondent brought a motion to change the spousal support
    order, asking that spousal support be terminated. The appellant brought a
    cross-motion to increase support to $15,000 per month.

[2]

The motion judge allowed the respondents motion and ordered spousal
    support terminated effective October 5, 2016. Costs were awarded against the
    appellant in the amount of $50,000. The appellant appeals.

[3]

For the reasons given below, the appeal is dismissed.

Background

[4]

When the parties married, they each had degrees in commerce and were employed
    commensurate with their education. The appellant left work when their first
    child was born. She returned to work briefly after their first child turned
    four, and ultimately stopped working outside the home. By then, the respondent
    was working in the securities business and earning a very good income for the
    family.

[5]

At the date of trial in 1996, there were two children of the marriage,
    aged 13 and 6. The appellants care of the children, particularly the eldest,
    was a significant issue at trial. The respondent was awarded custody of both
    children and thereafter the appellant had effectively no involvement with the
    older child, and limited access to the younger. In 2000, that limited access
    was further reduced to two hours per week every second week, on a supervised basis
    only. From that point, the appellants involvement in the childrens lives more
    or less ceased.

[6]

By the time of the 1996 trial, the respondent had become a bank analyst
    with a brokerage firm and had earned approximately $390,000 the previous year. Later
    in his career he would earn well in excess of $1 million per year. The
    appellant was not employed at the time of trial, but had obtained a CMA accounting
    designation after separation as well as a real estate agents licence. She
    testified that she planned to become self-sufficient.

[7]

The respondent had initially appealed the support order to this court, raising
    a concern that it did not satisfy the objective of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.) in encouraging the appellant to become
    self-sufficient. However, this court was satisfied with the trial judges
    finding on the evidence that the appellant would return to the workplace and
    move relatively quickly towards self-sufficiency. Although the appellant had
    been out of the professional workforce for 10 years during the marriage, she
    had business experience, had since obtained further professional qualifications
    and did not have child care responsibilities. This court further stated:

[T]he husbands concerns that the wife may not become self-sufficient
    as quickly as anticipated by the trial judge are better dealt with on a
    variation application brought in that eventuality. The non-happening of an
    anticipated event can constitute a material change in circumstances within the
    meaning of the
Divorce Act
. [Citations omitted.]

[8]

The appellant never re-entered the workforce. Her income has been almost
    exclusively from spousal support. She has purchased rental properties, some of
    which operate at a loss, and also has an organic farming business that also
    operates at a loss. She now has a net worth of $781,112, after leaving the
    marriage with a net worth of approximately $200,000.

[9]

The respondent brought the current motion seeking to terminate support.

[10]

Before
    the motion judge, the appellant argued that she was frustrated in her attempts
    to find work because of the residual impact of having been out of the workforce
    and at home with the children for ten years during the marriage. Additionally,
    she suffered further disadvantage from having relocated to Toronto, where she
    had no business contacts, which she did for the benefit of the respondents
    career and to the detriment of her own. She also sought to introduce evidence
    that she suffered from depression, which prevented her not only from obtaining
    meaningful work, but also from even looking for work.

[11]

The
    motion judge, however, found
that the appellant never obtained
    employment, despite having marketable skills, because she never made any serious
    attempt to do so.
Although she argued before the motion judge that she
    had been incapable of working or obtaining employment because of depression and
    disability, and obtained an adjournment of the motion in order to provide
    evidence to that effect, she ultimately provided no evidence. The motion judge
    found her not to be credible.

[12]

The
    motion judge concluded [t]he only order that can be made to promote her
    self-sufficiency would be a termination of support. He further stated:

I am mindful that this order may create economic hardship for
    Mrs. Choquette, because she does not appear to be self-sufficient at present.
    However, the question I must address in this case is whether she remains
    entitled to spousal support from her former spouse. In my view, having regard
    to the provisions of the
Divorce Act
, it is clear she is not.

[13]

The
    appellant appeals both the decision and the award of costs against her in the
    amount of $50,000.

Issues

[14]

The
    appellant advances several grounds of appeal that can be organized as follows.
    She argues that the motion judge erred:

(1)

by giving
    the objective of self-sufficiency pre-eminence over other objectives of spousal
    support in the
Divorce Act
;

(2)

in finding
    that the appellant is not entitled to support on a compensatory basis;

(3)

in finding
    that the appellant was not entitled to share in the post-separation increase in
    income; and

(4)

by terminating
    support rather than reducing it or imputing income.

Analysis

[15]

In
Johanson v. Hinde
, 2016 ONCA 430, at para. 1, this court recently
    emphasized the deferential standard of review owed to factual findings of trial
    judges in family litigation:

The deferential standard of review of decisions of trial judges
    on questions of fact, and questions of mixed fact and law, is designed to
    promote finality and to recognize the importance of trial judges appreciation
    of the facts. If anything, this is more accentuated in family litigation.

Deference was also emphasized in
Hersey v. Hersey
,
    2016 ONCA 494, at para. 12:

Absent an error in principle, a material misapprehension of
    evidence or an award that is clearly wrong, this court must not overturn a
    support order because it might have reached a different result or balanced
    factors differently.

Issue 1: Giving pre-eminence to
    the objective of self-sufficiency

[16]

The
    trial judge had determined that the appellant was capable of becoming
    self-supporting relatively quickly. That finding was relied on by this court in
    dismissing the respondents appeal of the support order. This court anticipated
    that the appellants failure to return to the paid workforce would constitute a
    material change in circumstances, which the motion judge found to be the case. Given
    the motion judges finding that there had been a material change in
    circumstances, the remaining question was whether there should be a variation
    in support, or whether support should be terminated.

[17]

The
    appellant argued that, at this stage of the analysis, the motion judge erred in
    placing too much weight on the objective of self-sufficiency as applied to her
    circumstances. Section 17(7) of the
Divorce Act
does not create a
    requirement that a former spouse become self-sufficient. It merely directs that
    a support order should, among other objectives,
encourage
a former
    spouse to become self-sufficient, and only in so far as practicable.

[18]

The
    appellant is not self-sufficient and argues that to the extent that it ever was
    practicable that she become self-sufficient, it is not now, 22 years later. She
    is 62 years of age, her professional qualifications are stale and her former
    professional experience is irrelevant. Termination of support, she argues,
    cannot encourage her to become self-sufficient, because that objective cannot
    be realized.

[19]

It
    does not follow, from that submission, that an unreasonable emphasis was placed
    on the objective of self-sufficiency. In determining whether support ought to
    be terminated, while self-sufficiency was a factor of particular importance,
    the motion judge specifically assessed each of the objectives under s. 17(7) of
    the
Act
. None of the objectives spoke in favour of continued support.
    With respect to the recognition of economic advantage or disadvantage arising
    out of the marriage, the motion judge found that any disadvantage to the
    appellant had been compensated for by the length of the support. With respect
    to apportioning financial consequences for child care, the motion judge noted
    that all responsibility for child care, post-trial, was borne by the
    respondent. With respect to economic hardship faced by the appellant, the
    motion judge determined that any economic hardship arising from the breakdown
    of the marriage had long been addressed through the provision of support, and any
    current economic hardship was not a result of the marriage or its breakdown,
    but her own choices.  As this court noted in
Walsh v. Walsh
, 2007 ONCA
    218, 36 R.F.L. (6th) 262, at para. 13, [u]nless, it can be said that the judge
    gave unreasonable emphasis to the self-sufficiency factor, this court has no
    basis for interfering.

Issue 2: Compensatory nature of
    support

[20]

The
    appellant argues that the motion judge committed a palpable and overriding
    error in finding that the trial judge did not award spousal support on a
    compensatory basis - to compensate for her lost economic opportunities caused
    by the marriage - and in finding that she was in any event fully compensated by
    the support order.

[21]

The
    appellant was home with the children for 10 years and not in the workforce. The
    respondent argues that the appellants parenting of the children was not merely
    ineffectual, but a source of significant and long-lasting harm to both
    children, particularly the eldest. But whatever her deficiencies as a parent, the
    fact remains that the appellant did remove herself from the workforce for 10
    years to care for the children. The appellant argues that the support order
    made by the trial judge was intended in part to compensate the appellant for
    foregone economic opportunities, and in part to address her needs.

[22]

The
    principles of compensation are addressed under s. 15(7)(a-c) and s. 17(7)(a-c)
    of the
Divorce Act
:
Moge v. Moge
, [1992] 3 S.C.R. 813, at p.
    860. The motion judge and the trial judge each considered these factors in detail.
    The motion judge was alive to the fact that the appellant withdrew from paid
    work outside the home, that the appellant had significant child care
    responsibilities, and that the appellants child care obligations were sharply
    reduced at the time of separation and eliminated entirely by 2000, when all of
    the burdens of parenting were on the respondent.

[23]

Even
    assuming, without deciding, that the motion judges characterization of the
    basis for spousal support ordered by the trial judge was an error, it would
    have been neither palpable nor overriding. The trial judge did not expressly
    state the basis of the support order, but he did anticipate that it would be
    varied relatively quickly as the appellant moved to self-sufficiency.
    Furthermore, even assuming the order was made in part on a compensatory basis,
    as the respondent argues, that would not entitle the appellant to support in
    perpetuity. Although the Spousal Support Advisory Guidelines had not been enacted
    at the time of separation, they do provide a measure of what is a reasonable quantum
    and duration of support:
Gray v. Gray
, 2014 ONCA 659, 122 O.R. (3d)
    377, at para. 42. In these circumstances, the high end for length of support would
    be 15 years. The respondent paid support for 22 years. Even if the appellant is
    correct and the motion judge ought to have characterized the basis of the
    spousal support ordered by the trial judge as entirely compensatory in nature,
    this would not affect the result.

Issue 3: Entitlement to share
    in the post-separation increase in the respondents income

[24]

The
    appellant argues the motion judge erred in not finding that the appellant was
    entitled to share in the respondents substantial post-separation increase in
    income. She argues that she indirectly contributed to his ability to earn high
    income, because her sacrifices during the marriage enabled it.

[25]

I
    would not accede to this ground of appeal. The support order made no provision
    for support to be indexed to any increases in income. This makes sense as the
    trial judge anticipated that the support order would soon be varied to account
    for the appellants return to the workforce. Furthermore, given the motion
    judges finding that the appellant made no attempt to become self-sufficient, it
    is entirely appropriate that she not be entitled to participate in his increase
    in income:
Walsh v. Walsh
(2006), 29 R.F.L. (6th) 164,  at para. 42,
    revd in part, on other grounds, 2007 ONCA 218.

Issue 4: Was variation
    preferable to termination?

[26]

The
    appellant argues that the remedy ordered  termination of support  is
    unnecessarily harsh. There were other, more appropriate, alternatives open to
    the motion judge, such as imputing to the appellant the income that she ought
    to have earned had she returned to the workforce, and reducing ongoing support
    accordingly. It would have been more appropriate, she argues, to impute income
    because there is no evidence that she could have become self-sufficient (in the
    sense that she could have achieved the standard of living enjoyed by the
    parties at the date of separation) even if she had made reasonable efforts to
    do so.

[27]

The
    appellant concedes that where there is a lack of effort to achieve
    self-sufficiency, it can be appropriate to reduce support to incentivize a
    recipient to make appropriate efforts towards self-sufficiency:
Juvatopolos
    v. Juvatopolos
(2004), 9 R.F.L. (6th) 147 (Ont. S.C.), at para. 27, affd
    (2005), 19 R.F.L. (6th) 76 (Ont. C.A.). But she argues that it is too late in
    the day for her. She is not now capable of supporting herself at the standard
    of living the family enjoyed during the marriage, no matter what the incentive.

[28]

The
    respondent argues that the motion judge found that to the extent the appellant
    may suffer financial hardship as a result of termination of support, this is
    not the result of the marriage or its breakdown, but of her own improvident
    choices.

[29]

The
    motion judge considered that the appellant is not without significant
    resources, notwithstanding that the respondent has amassed considerably more.
    But the motion judge found that the mere fact that there is a disparity between
    the resources of the appellant and the resources of the respondent does not, in
    the circumstances of these parties, supply a juristic reason to continue
    support. I agree that the result appears harsh, given the resources available
    to the respondent. But the motion judge was entitled to make the order that he
    did, and there is no basis on which we should interfere with it.

DISPOSITION

[30]

I
    would dismiss the appeal and deny leave to appeal the costs order. I would
    award the respondent costs of the appeal in the agreed amount of $15,000
    inclusive of disbursements and HST.

Released: DW APR 17 2019

B.W. Miller J.A.

I agree. David Watt
    J.A.

I agree. I.V.B.
    Nordheimer J.A.


