



COURT OF APPEAL FOR ONTARIO

CITATION: Makeeva v. Makeev, 2021 ONCA 232

DATE: 20210414

DOCKET: C67320 & C68478

Rouleau, Brown and Miller JJ.A.

BETWEEN

Natalia
    Makeeva

Applicant

(Appellant/Respondent by way of cross-appeal)

and

Andrey Makeev

Respondent

(Respondent/Appellant by way of cross-appeal)

Ruslana Korytko, for the appellant/respondent
    by way of cross-appeal

John W. Bruggeman, for the respondent/appellant
    by way of cross-appeal

Heard: March 29 by video conference

On
    appeal from the judgments of Justice E. Ria Tzimas of the Superior Court of
    Justice, dated July 18, 2019 and June 19, 2020 with reasons reported at 2019
    ONSC 4334 and 2020 ONSC 3750.

REASONS FOR DECISION

[1]

After a trial of the family law issues, the
    appellant was ordered to pay $905 per month in spousal support indefinitely on
    the grounds that, after the dissolution of their 15-year marriage, the
    respondent was suffering financially. The trial judge also ordered that the
    appellant pay $17,419.60 as an equalization payment.

[2]

After the judge issued her decision, the
    appellant attempted to reopen the trial and file fresh evidence about the
    respondents potential income and his counsels alleged misconduct in registering
    a mortgage on the parties matrimonial home. The trial judge dismissed this
    motion largely on the basis that this evidence would not change her original
    judgment.

[3]

The appellant raises five grounds of appeal. She
    argues that the trial judge erred in:

1.

allowing the interpreter to continue
    interpreting despite the appellants stated concerns about her competency;

2.

failing to order a lump sum child support
    payment;

3.

imputing the respondents income at $28,000 per
    year;

4.

awarding spousal support; and

5.

failing to admit the fresh evidence.

[4]

The respondent cross-appeals and argues that the
    trial judge erred by failing to deduct the value of a date of marriage asset
    from the respondents net family property.

[5]

For the reasons that follow, we dismiss the
    appeal and allow the cross-appeal.

The competency of the interpreter

[6]

The appellant argues that due to the alleged
    incompetency of the Russian language interpreter there were inaccuracies and
    omissions in the translation over the course of the trial, and that this
    affected the appellants ability to properly cross-examine the respondent. The
    appellant maintains that the errors were substantial and resulted in an unfair
    trial.

[7]

We disagree.

[8]

It was only on the seventh day of trial that the
    appellants lawyer, who is fluent in Russian, raised a concern respecting the
    quality of the translation. When the issue was raised, the trial judge provided
    three options to the appellant on how to proceed. The appellant chose to
    continue the trial using the same interpreter.

[9]

Having chosen to proceed with the interpreter,
    she cannot now raise this as a ground of appeal. Further, it is significant in
    our view that we have been provided with no expert evidence as to any inaccuracies
    that could potentially have changed the outcome on an issue of importance.

Was a lump sum child support payment
    appropriate?

[10]

The appellant argues that the trial judge ought
    to have made a lump sum child support payment order. In her submission, it was evident
    that, since separation, the respondent had regularly failed to pay periodic
    child support and contribute towards the childrens s. 7 expenses. In her view,
    therefore, a lump sum child support payment was clearly in the best interests
    of the children. Despite the appellants request for such an order, the trial
    judge did not, in her reasons, explain why the request was denied.

[11]

We see no error in the trial judges refusal to
    award a lump sum child support payment. This is an issue of mixed fact and law.
    Lump sum support is considered appropriate where there is real risk that
    periodic payments will not be made. The appellant was unable to direct the
    court to evidence showing that the respondents behaviour was indicative of
    future non-payment of child support. No basis has been provided for interfering
    with the trial judges decision not to award a lump sum child support payment.

The imputation of income to the respondent

[12]

The appellant submits that the trial judges
    decision to impute the respondents income at $28,000 is unreasonable. She
    maintains that the appellant is intentionally underemployed and that the figure
    the trial judge chose as imputed income is not based on the evidence.

[13]

Given factors such as the age, education,
    experience, skills and health of the respondent, as well as the job
    opportunities he could pursue, the appellant argues that the court should have
    imputed income to the respondent of $60,000 per year as a licensed journeyman
    electrician. Alternatively, given that several years earlier the respondent had
    been a truck driver, the trial judge could have imputed a salary of $50,000,
    representing the salary he had been earning in that role.

[14]

We disagree. Imputation of income is an issue of
    mixed fact at law. The trial judges determination is anchored in factual
    findings which are to be afforded deference and are not to be disturbed without
    showing that the judge committed palpable and overriding errors. On appeal, the
    appellant can point to no error, let alone a palpable and overriding error.

[15]

The trial judge found that the respondents English
    language skills were limited and that he had been working as a handyman for the
    Russian-speaking community in the Greater Toronto Area. There was no admissible
    evidence presented at trial to support the suggestion that, although he was qualified
    as a journeyman electrician, he could have earned anything approaching $60,000
    per year.

[16]

Further, there was no basis to impute to the
    respondent the income of a truck driver. The respondent gave evidence that he
    had quit his truck driving job in 2008 due to back problems. The trial judge
    accepted that evidence. There was no basis in the evidence to find that he
    could return to that employment.

[17]

The respondent lives a modest lifestyle. Nothing
    that he earned suggested an income greater than what he reported in his sworn
    financial statements. The imputation of income in the amount of $28,000 was reasonable
    in all of the circumstances.

The award of spousal support to the
    respondent

[18]

The appellant submits that in determining that
    she should pay spousal support to the respondent, the court failed to give
    sufficient consideration, or any consideration, to s. 15.3(1) of the
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.)
and s. 38.1(1) of the
Family Law Act
, R.S.O. 1990, c. F.3,
which direct the court to give
    priority to the support of children over an order for spousal support. She argues
    that the court failed to evaluate the respondents claim for spousal support in
    conjunction with the appellants ability to meet both her own and the
    respondents reasonable needs.

[19]

The appellant also submits that the trial judge
    ignored relevant case law and made a spousal support order shifting the entire
    burden of the economic disadvantage of the marriage and its breakdown onto the
    appellant. As the evidence discloses, she was the primary caregiver for the
    parties children. Had the trial judge properly considered the parties
    financial circumstances as a result of the separation and division of assets,
    as well as their respective earning capacities, the trial judge ought to have
    concluded that no spousal support should be paid by the appellant.

[20]

We dismiss this ground of appeal. The trial
    judge correctly found that the respondent was entitled to compensatory support
    resulting from his having forgone paid work and career opportunities in order
    to care for the children while the appellant was pursuing her nursing degrees.
    The record also shows a substantial disparity in the income of both parties.
    The respondent is 62 years old and earning close to minimum wage. The appellant
    is 38 years old with a prosperous career ahead of her.

[21]

Based on the respondents imputed income of
    $28,000 and the appellants income of $92,000, there is a substantial
    inequality in the parties income. This was a 15-year marriage with two
    children. In our view, the trial judges decision to award spousal support
    based on the mid-range of the spousal support advisory guidelines for an
    indefinite duration was reasonable and entitled to deference.

The dismissal of the fresh evidence motion

[22]

After the trial judge gave her decision but
    before the final order was issued and entered, the appellant brought a motion
    to present evidence related to two issues: (a) an apparent impropriety by
    respondents trial counsel, who allegedly registered a private mortgage against
    the matrimonial home and failed to disclose it to the court; and (b) the trial
    judges mistaken belief that the appellant had attempted to establish that the
    respondent is a master electrician and had misled a judge who had earlier
    involvement in the matter.

[23]

The appellant maintains that the court erred in refusing
    to admit the fresh evidence or in failing to declare a mistrial to avoid a
    potential miscarriage of justice. The appellant also contests the trial judges
    award of the costs of the motion to the respondent.

[24]

We see no error in the trial judges dismissal
    of the motion. The trial judge found that even if she had known at trial of the
    alleged improper mortgage transaction entered into by the respondents trial
    lawyer, it would have had no impact on her assessment of the respondents
    evidence or his lawyers representations to the court. The trial judge had
    already found the respondents evidence to be highly suspect, incongruent, and
    unreliable. It is apparent, therefore, that there was no basis to reopen the
    trial to admit the evidence.

[25]

As for the documents said to be relevant to the
    allegation of having misled an earlier judge, the trial judge found that the
    documents had been available prior to trial and that some had even been put
    forward, and excluded, as potential evidence. In any event, the judge found
    that they were of no assistance as they were confirmatory of the income she had
    imputed to the respondent. The trial judges refusal to reopen the trial ought
    not to be interfered with. There is also no basis upon which to interfere with
    the trial judges decision to award the costs of the motion to the respondent.

The respondents cross-appeal

[26]

The respondent submits that the trial judge
    erred in failing to deduct the agreed value of a solely owned date of marriage
    asset from the respondents net family property. This resulted in an error in
    the amount of equalization payment owed by the appellant to the respondent. In
    her reasons, the trial judge found that a condominium owned by the respondent at
    the date of marriage valued at $64,785 was not a matrimonial home and, as a
    result, should not be excluded from equalization. Because the condominium was a
    date of marriage asset of the respondent, she ought, however, to have deducted
    the value of the condominium from the respondents assets in the equalization
    calculations.

[27]

The appellant argues that the respondent has
    taken the trial judges finding that the condominium was not a matrimonial home
    out of context. In her submission, when the judges reasons are read as a
    whole, it is clear that the intention of the court was that the condominium
    should not be included in the respondents pre-married assets because the
    condominium had been sold and the funds reinvested. It should be excluded from
    the net family property calculations.

[28]

In our view, the cross-appeal ought to be
    allowed. Having found that the condominium was not a matrimonial home, the
    trial judge ought to have deducted the value of the date of marriage asset in
    the equalization calculations. Although the trial judge discusses the reinvestment
    in her reasons, she does not explain why the deduction was not done.

[29]

Adjusting for the $64,785 condominium that was
    owned by the respondent at the time of their marriage, and accounting for a $2,000
    arithmetic error, the equalization payment ought to have been in the amount of $50,812.10.

Conclusion

[30]

We dismiss the appeal and allow the
    cross-appeal. The equalization payment ordered by the trial judge is amended to
    the amount of $50,812.10. Costs payable by the appellant are fixed in the
    amount of $25,000 inclusive of taxes and disbursements.

Paul
    Rouleau J.A.

David
    Brown J.A.

B.W.
    Miller J.A.


