



COURT OF APPEAL FOR ONTARIO

CITATION: Diamond v. Berman, 2021 ONCA 653

DATE: 20210924

DOCKET: C68480

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Alyssa Beth Diamond

Applicant/Responding Party
(Respondent)

and

Wayne
    Mark Berman

Respondent/Moving
    Party
(Appellant)

David Sherr, for the appellant

Mark Greenstein, Ashley F. Krol and
    Katie Hunter, for the respondent

Heard: September 20, 2021 by video conference

On appeal from the orders of Justice McGee
    of the Superior Court of Justice, dated March 16 and June 4 2020, with reasons
    reported at 2020 ONSC 1566 and 2020 ONSC 3492, and from the cost order, dated
    July 16 2020, with reasons reported at 2020 ONSC 4301.

REASONS
    FOR DECISION

[1]

This appeal arises from a bitter family law dispute.
    After an 11-day trial, the trial judge ordered the appellant to pay spousal
    support at the high-end of the spousal support advisory guidelines, calculated
    in accordance with the appellants income and expected income increases, and
    the respondents income set at $40,000 without providing for later increases.

[2]

Following the decision, the appellant, by
    motion, submitted that the trial judge had erroneously applied the without
    child support formula to calculate the spousal support award for the January to
    August 2019 period. The appellant argues that the custodial payor formula
    ought to have been used. Although the trial judge acknowledged having applied
    the wrong formula, she nonetheless declined to revise her order. The trial
    judge also awarded the respondent full recovery costs fixed in the amount of
    $180,800.

[3]

On appeal, the appellant argues that the trial
    judge erred:


i.

in refusing to impute a higher level of income
    to the respondent;


ii.

in determining the quantum of spousal support;
    and


iii.

in awarding the respondent full recovery costs.

[4]

In our view, the appeal must be dismissed.

[5]

With respect to the first ground of appeal, the
    appellant argues that the trial judge seriously misapprehended the evidence regarding
    the respondents actual income, her working hours, her credentials and the
    availability of full-time work or supplemental employment. In short, the
    appellant maintains that the trial judge made multiple errors in her fact
    finding.

[6]

We see no basis to interfere with the trial
    judges decision. She based her refusal to impute additional income largely on
    the evidence of the respondents expert on rehabilitation. According to that
    evidence and the respondents testimony at trial, the trial judge determined
    that part-time work was widespread among dental hygienists and that the
    respondent was earning at the high-end of hourly wages in her field. The
    respondent worked part-time throughout the course of the marriage. The trial
    judge also found that, over the course of the marriage, the appellant discouraged
    the respondent from working longer hours and pursuing opportunities to upgrade
    her qualifications. As a result, the trial judge concluded that the
    respondents rate of employment was consistent with her occupation, her
    experience and her age, and that the appellant had not demonstrated that the
    respondent was underemployed or capable of earning more than she was at
    present.

[7]

With respect to the alleged factual errors, the
    appellant is, in effect, seeking to reargue his case on appeal. He asks this Court
    to review and reinterpret the trial evidence so that we might make findings of
    fact different from those made by the trial judge. As an example, he argues
    that the trial judges finding that the respondents annual earnings were approximately
    $40,000 was contrary to the evidence. If, as found by the trial judge, the
    respondent worked 20 hours a week at $46 per hour, the appellant submits that
    she should earn an annual income of $47,840. This does not, in our view,
    constitute palpable and overriding error. As noted by the respondent, the trial
    judges finding is explained by the fact that the respondents paid hours on
    any particular day may vary if patients cancelled or the schedule of
    appointments was not filled. Further, the 20 hours a week include unpaid lunch
    breaks. It is not the function of this court to retry the case. From our review,
    all of the trial judges factual findings are well-anchored in the evidence and
    we see no basis to interfere.

[8]

On the issue of spousal support, the appellant
    argues that the trial judge committed errors of fact and law in awarding spousal
    support at the high-end range. In his submission, they were equal partners in
    the marriage and the respondent suffered no deprivation to her career. In
    addition, the appellant maintains that, after he advised the trial judge that
    the amount she awarded was based on an incorrect premise, the trial judge ought
    to have changed the amount of support ordered.

[9]

We reject this ground of appeal. The trial judge
    correctly instructed herself on the applicable principles in finding that the
    respondent would bear a disproportionate share of the economic consequences of
    the marriage, and that the respondent focussed on the needs of the household. The
    trial judge relied on the deep economic integration of the parties to determine
    that the breakdown of the financial unit would have a more serious impact on
    the respondent. We see no error in her conclusion in that regard.

[10]

The trial judges decision not to change the
    amount of support ordered despite the error noted by the appellant was
    explained by the trial judge in supplementary reasons. Her explanation is
    equally free of error.

[11]

Finally, on the issue of costs, we see no basis
    to grant leave. The trial judges decision to award full recovery costs is
    well-supported by her reasons. We note in particular that, despite the award of
    full recovery costs, the trial judge nonetheless carefully reviewed the amount
    being claimed by the respondent and effected substantial reductions from the
    amount sought.

[12]

For these reasons, the appeal is dismissed.
    Costs to the respondent fixed in the amount of $15,000 inclusive of
    disbursements and applicable taxes.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

J.A.
    Thorburn J.A.


