





CITATION:
Davis v. Crawford, 2011 ONCA
          294



DATE:
20110414



DOCKET: C50603



COURT OF APPEAL FOR ONTARIO



Goudge, Simmons, Cronk, Armstrong and Lang JJ.A.



BETWEEN



Elizabeth Mary Davis



Respondent (Applicant)



and





Lawrence
          William Crawford



Appellant (Respondent)



Erin L. Reid, for the appellant



William R. Clayton, for the respondent



Heard: February 9, 2011



On appeal from the judgment of Justice Mary E.
Marshman
of the Superior Court of Justice dated May 13,
          2009.



Simmons and Lang JJ.A.:



I.         INTRODUCTION

[1]

The issue on this appeal is whether the trial judge
    erred in awarding lump sum spousal support to the respondent in the amount of
    $135,000. To decide this issue, it is necessary that we consider the principles
    that govern such awards.

[2]

For the reasons that follow, we would dismiss the
    appeal.

II.        BACKGROUND

[3]

The appellant and the respondent were common law
    spouses. They began living together in London, Ontario in December 1982, when
    they were 41 and 42 years of age respectively. Both parties had been married previously
    and both had children from their former marriages.

[4]

After 23 years together, the parties separated in June
    2005. At the time of trial in February 2009, the appellant was 64 years of age
    and the respondent was 66.

(1)       The Parties Work Histories

(a)
The Appellant

[5]

When the parties began living together in 1982, the
    appellant had just started a collection business, Imperial Collection Agencies,
    with a business partner. The appellant owned 50% of Imperial through a numbered
    company, 1145441 Ontario Limited (114), and his business partner, David
    Gordon, owned the other 50%.

[6]

In about 1996, Mr. Gordon indicated he planned to
    retire. The appellant bought him out in 1997 and incorporated a new business,
Torlon
Credit Recovery Inc.
Torlon
purchased Imperials client list and subsequently paid a percentage of its
    revenue to Imperial.

[7]

Mr. Gordon died in late 2003. As a result of insurance
    payouts, the appellants company, 114, received a capital dividend of $220,000
    and a regular dividend of $112,707. The company, in turn, declared dividends to
    the appellant, which were paid out to him and his daughter Kathy between
    October 2004 and July 2006. According to the appellants evidence at trial, he
    gave his daughter Kathy $125,476 and loaned her another $50,000, which he
    subsequently forgave.

[8]

The appellant also testified that he sold the
Torlon
business to a Stephen Shaw in August 2003. He said
    that he retired from
Torlon
in 2003 and that he subsequently
    received only small payments to reimburse him for expenses incurred assisting Mr.
    Shaw and entertaining clients. He claimed that he retained half the
    shareholdings only to ensure that a corporate loan was repaid.

[9]

According to the appellant, as of January 2009 (the
    month before the trial began), the retained earnings in 114, from which he had
    previously been drawing dividend income, were exhausted. From this point on, he
    testified, his only sources of income would be his R.R.S.P. and C.P.P., plus
    Old Age Security when he turned 65. The appellant valued his R.R.S.P. at
    $435,871 as of March 2008. He testified that he had been told by his financial
    advisor to withdraw $1,700 monthly from his R.R.S.P. to make it last as long as
    possible.

(b)
The Respondent

[10]

Between 1982 and 1996, the respondent worked full-time
    at
University
Hospital
    in

London in
    the human resources department. She was promoted during this period and by 1996
    was earning an annual salary of $53,000. She retired in 1996 and received a
    $30,000 severance package.  The
    respondent worked intermittently between 1996 and 1999 and did some work for
Torlon
during this period.

[11]

In 1999, the respondent was diagnosed with a
    non-malignant brain tumour. She had successful surgery in January 2000, but
    suffered a stroke and was hospitalized for three months. Following her surgery,
    the respondent retired from the workforce.

[12]

At the time of trial, the respondents income was $2,250
    per month, consisting of about $1,210 per month from a workplace pension and
    about $1,040 per month in Old Age Security and C.P.P. payments. Her financial
    statement, sworn January 12, 2009, shows a monthly deficit of income versus
    expenses of $1,470.76.

(2)       The Parties Living Arrangements during
    Cohabitation

[13]

Until 1997, the parties lived in houses owned by the
    appellant in

London.
    They moved to Toronto in 1997, but soon after moved to an apartment in London
    and then to a cottage they had purchased on
Kosh
Lake
    in 1990. In 2002, they purchased a property on White Lake; in 2003, they sold
    the
Kosh
Lake property.

[14]

During the course of their relationship, the parties
    both contributed to their household expenses from their respective incomes. On
    the trial judges undisputed findings, they enjoyed a comfortable lifestyle
    throughout their relationship and lived in upscale housing, at least while
    in

London. They
    enjoyed
cottaging
from early on  and enjoyed
    searching for properties with older tear down cottages.

[15]

The respondent raised issues at trial concerning
    whether the appellant improperly diverted to himself portions of the proceeds
    of sale of the

Kosh

Lake property or portions of the
    proceeds of various mortgages on both the

Kosh

Lake
    and

White
Lake properties.

(3)       Post-Separation Arrangements

[16]

Following the parties separation, the respondent
    continued to live in the White Lake property until it was sold in 2006 for
    $625,000.

[17]

The appellant maintained the mortgage on the White Lake
    property while the respondent occupied it. He also continued to pay the loan
    payments on a car in his name that the respondent drove. Although, at some
    point, the appellant cancelled the respondents medical coverage, he reinstated
    it after she confronted him and thereafter maintained it, at least until the
    White Lake property was sold. Based on our review of the record, it appears
    that, prior to the sale of the White Lake property, the appellant was making
    payments benefitting the respondent amounting to more than $1,500 per month.

[18]

Subject to a consent payout of $25,000 to each party,
    the net proceeds of sale of the

White
Lake property were held
    in trust pending trial. As of December 4, 2008, the appellants share of the
    net proceeds was $172,041.50.

(4)       The Respondents Application and the
    Positions of the Parties at Trial

[19]

The respondent issued her application against the
    appellant on December 6, 2007.  She made
    no direct claim regarding property. In addition to lump sum spousal support,
    the respondent claimed periodic spousal support commencing June 8, 2005. She
    did not bring a motion for interim support prior to trial.

[20]

At trial, the respondents sole request was for lump
    sum spousal support in an amount equal to the appellants share of the net
    proceeds of sale of the

White
Lake property. The appellant
    countered that, on the facts of this case, the respondent was not entitled to any
    spousal support.

III.      THE TRIAL
    JUDGES REASONS

[21]

In the course of reviewing the background facts of this
    matter, the trial judge rejected the appellants evidence that he did not
    divert to his own use monies from the sale of the

Kosh

Lake
    property or from the mortgaging of the

Kosh

Lake
    and

White
Lake properties. She also noted, [t]he
    [respondent] had every reason to believe that the

White
Lake
    cottage would be free and clear of any mortgages when it was ultimately sold.

[22]

The trial judge began her analysis by considering the
    financial positions of the parties. She found that, [w]
ith
some minor exceptions, the [respondents] assets consist of her interest in the

White
Lake property and her [workplace]
    pension which generates approximately $1,200 per month.

[23]

Turning to the appellant, the trial judge observed,
    [t]he [appellants] assets are more difficult to quantify. She noted the
    details of his R.R.S.P. and then stated, [h]
owever
,
    I find that the [appellant] also has other assets, some of which are not
    capable of quantification. The trial judge itemized three other financial
    resources to which she concluded the appellant was entitled.

[24]

First, she found that the appellant was the beneficial
    owner of $175,476 paid by 114 to his daughter Kathy in late 2005 and 2006.
    Second, she concluded that
Torlon
continued to do
    business and that the appellant continued to be a one-half owner of that business.
    She said, [t]his is an asset which I cannot ignore but cannot quantify.
    Third, she concluded that it was highly likely that the appellant and his new
    significant other were engaging in the same venture which the parties did
    during their cohabitation, i.e., purchasing a tear-down cottage and building a
    new one.

[25]

The trial judge found that the respondents existing
    assets and means were   considerably
    less than the appellants. She noted as well that the appellant was likely to
    receive a significant inheritance from an uncle in the near future.

[26]

Importantly, the trial judge recognized the
    significance of the parties cohabitation, observing, [w]
hile
they may not have commingled their financial resources as many partners do,
    they lived together and relied on each other for financial and non-financial
    support over a lengthy period. She also concluded, [t]he [respondent] will
    never be able to maintain a reasonable lifestyle in any way comparable to that
    enjoyed by the parties during cohabitation without support from the [appellant].

[27]

The trial judge rejected the appellants argument that,
    as an unmarried spouse, he could not be required to pay lump sum spousal
    support from assets not subject to the provincial property regime. She
    concluded that this was an appropriate case for lump sum spousal support, and
    that the respondent was entitled to an award of $135,000:

The [appellant] argues that any order I make for
    lump sum support is in effect a redistribution of assets which is not permitted
    by the Act because the parties were not married  I disagree.
Section 34(1)(b) of the
Family Law Act
specifically permits the payment of a lump
    sum
for support.
I can think of no
    more appropriate case for lump sum support than the present one. The [respondent]
    is deprived of any claim for property because the parties were not married.
    That does not mean that the [appellants] assets should not be available for a
    support order, if the [respondent] is otherwise entitled to support, and I find
    that she is
.



I find that in the circumstances of this case the
    [respondent] is entitled to lump sum support. However, I do not agree with her
    contention that I should simply order a lump sum equal to the [appellants]
    share of the net proceeds of sale of the White Lake property.

I have come to the conclusion that
an appropriate lump sum payment for spousal
    support is $135,000. That puts the [respondent] in a slightly better position than
    she would have been had the White Lake property been mortgage-free. At a 4 per
    cent rate of interest, it will generate approximately $1,000 monthly income for
    15 years.

The quantification of lump
    sum support is not an exact science
but I find the sum of $135,000 is fair.
    [Emphasis added.]

IV.      THE
    APPELLANTS POSITION ON APPEAL

[28]

The appellant submits that the trial judge erred in
    awarding spousal support on the facts of this case, as the parties assets and
    means are approximately equivalent. He contends that the trial judge made
    palpable and overriding errors and engaged in speculation in holding that he
    (the appellant) has assets in addition to his R.R.S.P. and his share of the
    proceeds of sale of the

White
Lake property. In support
    of this submission, the appellant delivered a motion to admit fresh evidence in
    an effort to demonstrate that the trial judges findings concerning the monies he
    gave his daughter and his ongoing interest in
Torlon
are wrong.

[29]

In any event, the appellant submits that the trial
    judges decision to award lump sum spousal support is contrary to the principles
    enunciated in
Mannarino
v.
Mannarino
(1992), 43 R.F.L. (3d) 309 (Ont. C.A.). In
Mannarino
, this court said that
    lump sum spousal support is only to be awarded in very unusual circumstances,
    where there is a real risk that periodic support will not be paid, and that lump
    sum spousal support should not be awarded to effect a redistribution of
    property in the guise of support or where it would be unfair to deprive the
payor
of the ability to apply for a variation:

The law is clear that lump sum maintenance should
    be awarded only in very unusual circumstances, where there is a real risk that
    periodic payments would not be made. Such awards should not constitute a
    redistribution of family assets in the guise of support. See
Jazenko
v.
Jazenko
(1985), 46 R.F.L. (2d) 351 (

Ont.
    Dist. Ct.), and
Zabiegalowski
v.
Zabiegalowski
(1992), 40 R.F.L. (3d)
    321 (Ont. U.F.C.).



Execution of the judgment at trial would result not
    only in a substantial redistribution of family property but would make it
    impossible for the husband to apply to the court for a reduction of support
    should there be a substantial change in his personal circumstances in the
    future.

In our view, the judgment for lump sum support in
    this case was contrary to the law and was unfair.

[30]

The appellant submits that his interpretation of
Mannarino
has
    been applied in a number of decisions of this court (for example, see
Elliot v. Elliot
(1993), 15 O.R. (3d) 265;
Willemze
-Davidson v. Davidson
(1997), 98
    O.A.C. 335;
Eccles v. Eccles
(2003),
    43 R.F.L. (5th) 321
)  and that recent decisions departing from the
Mannarino
principles were incorrectly decided (for example, see
Greenberg
    v. Daniels
(2005),
20 R.F.L. (6th) 287;
Vynnyk
v.
Baisa

(2008),
55 R.F.L. (6th) 239
).

[31]

The appellant acknowledges that lump sum spousal
    support may properly be awarded in other limited circumstances: situations involving
    very short-term marriages; in some circumstances, to effect a clean break
    between the parties, particularly in situations involving domestic violence;
    and perhaps even in very exceptional cases as an award of compensatory support.

[32]

However, the appellant submits that these situations
    fit generally within the
Mannarino
principles. They are made only in very unusual circumstances involving at least
    some of the
Mannarino
factors together with other limited special circumstances, such as those described
    above.

[33]

The appellant contends that an award of lump sum
    spousal support is always inappropriate where it is used to effect a
    redistribution of capital or where there is a possibility that one party may
    need to vary the order.

[34]

According to the appellant, none of the factors that
    would justify an award of lump sum spousal support is present in this case and
    the factors that are present militate against such an award. In particular, the
    appellant points out that he voluntarily paid the respondents living expenses
    until the

White
Lake property was sold. Thereafter, he
    continued to pay her car loan and provide medical benefits. Further, on the
    facts of this case, the appellant takes the position that the lump sum award amounts
    to a redistribution of capital. Finally, the appellant argues that, depending
    on his health, he may well require his share of the proceeds of sale of the
    matrimonial home as he ages to provide for himself.

[35]

In the alternative, the appellant submits that the
    amount of the lump sum award is excessive.

V.        ANALYSIS

(1)       The Trial Judges Findings Concerning
    the Appellants Assets

[36]

We are not satisfied that the appellant has
    demonstrated that the trial judge made palpable and overriding errors or that
    she engaged in speculation in holding that the appellant has assets in addition
    to his R.R.S.P. and his share of the proceeds of sale of the White Lake
    property.

[37]

The trial judges findings concerning the appellants
    assets are findings of credibility, which are entitled to considerable
    deference. She found it impossible to believe that the appellant, an
    experienced businessman, favoured one of his daughters over his other children
    by providing her with a gift of $175,476 on the eve of his retirement,
    particularly where his evidence was not supported by any testimony from the
    daughter.

[38]

Similarly, the trial judge found it simply not
    believable that the appellant had no ongoing interest in
Torlon
where the appellant retained a 50% interest in the company, where no post-2005
    financial statements were produced and where his evidence was not supported by
    any testimony from Mr. Shaw.

[39]

Further, the trial judge found the appellants
    testimony that he had no knowledge about a mortgage his significant other
    placed on her property simply incredible having regard to the appellant and
    respondents history of purchasing tear-down cottages and the fact that his
    evidence was not supported by any testimony from his new partner.

[40]

The trial judges findings of credibility were rooted
    in her assessment of the evidence. Having rejected the appellants evidence, it
    was open to the trial judge to draw the inferences that she did based on the
    record that was before her.  There is no basis
    upon which to interfere with her findings regarding the appellants assets.

(2)       The Appellants Fresh Evidence Application

[41]

The appellants fresh evidence application is
    dismissed. The application consists largely of affidavits and exhibits that
    could have been produced at trial. The material contains no explanation as to why
    the affiants of the affidavits were not called at trial and no explanation
    concerning why the exhibits that existed at the time of trial were not produced
    prior to trial.

[42]

We also note that the 2006 and 2007 financial
    statements for
Torlon
that Mr. Shaw claims were
    prepared following the trial are undated. Moreover, Mr. Shaws explanation that
Torlon
has only recently been able to afford to have
    these Statements prepared is bald and unpersuasive.

[43]

As a whole, the fresh evidence application fails
    entirely to meet the requirement of demonstrating that such evidence could not
    have been obtained, by the exercise of reasonable diligence, prior to trial:
R. v. Palmer
, [1980] 1 S.C.R. 759
;
Sengmueller
v.
Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.).

[44]

The proposed fresh evidence that is central to the
    issues on appeal is the affidavits of the appellants daughter and Mr. Shaw.

[45]

The appellants daughters affidavit supports the
    appellants claim that he, in fact, advanced to her a significant sum of money.
[1]
However, the fact that the money was advanced to the appellants daughter was
    not the issue at trial. The issue was whether the money was being sheltered for
    the appellant.

[46]

The daughter explains that the appellant gave her the
    money so she and her husband could purchase a house where the appellant could
    live with them. However, the fact remains that the appellants name does not
    appear on a deed to property to which he apparently contributed about $150,000.
    Although this omission is not addressed directly by the appellants daughter,
    the explanation appears to be that it was intended that the appellant could
    live in the home rent and utility free in the future. The same plan apparently remains
    in effect as a contingency plan for the future, even though the appellant is
    not living with his daughter now.

[47]

Significantly, the affidavit of the appellants
    daughter does not provide any disclosure of her familys income and assets that
    would reveal whether she and her husband have funds equivalent to the monies
    advanced by the appellant available in relatively liquid form elsewhere.

[48]

Having regard to the appellants failure to call his
    daughter as a witness at trial, the relationship between the parties, the
    timing of the alleged gift (post-separation and allegedly on the eve of, or
    post, retirement) and the daughters failure to provide financial disclosure,
    her affidavit, filed on the fresh evidence application, lacks sufficient weight
    to meet the fourth branch of the
Palmer
test for the admission of fresh evidence (credible


evidence
,
    which if
believed, could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result).
[2]

[49]

Mr. Shaws affidavit confirms, by relatively bald
    statements, the appellants evidence that
Torlon
pays
    the appellant only for expenses. Appended to the affidavit are unaudited and
    undated financial statements for
Torlon
for 2006 and
    2007. Mr. Shaw gives no explanation concerning why the appellant continues to
    retain an interest in
Torlon
. This material, too,
    lacks sufficient weight to meet the fourth branch of the
Palmer
test.

[50]

The remaining affidavit from Dwayne Scott deals with
    issues collateral to the central issues on appeal.


(3)       The
    Principles for Awarding Lump Sum Spousal Support

[51]

We reject the appellants submission that
Mannarino

should be treated as restricting a
    courts ability to award lump sum spousal support to situations where there is
    a real risk that periodic payments would not be made or to other limited and
    very unusual circumstances. To the extent that
Mannarino
has been interpreted in
    that way, in our view, that interpretation is incorrect.

[52]

Both the
Family
    Law Act
, R.S.O. 1990, c.F.3 and the
Divorce
    Act
(1985, c. 3 (2nd Supp.)) contain provisions conferring a broad
    discretion on judges to make an award of periodic or lump sum spousal support,
    or to make an award comprising both forms of support.

[53]

Sections 34(1)(a) and (b) of the
Family Law Act
provide
as follows:

34.
(1)
In an application under section 33, the court
may

make

an
interim or final
order
,

(a)
requiring
that an
    amount be paid periodically
, whether annually or otherwise and whether for
    an indefinite or limited period, or until the happening of a specified event; [
and
]

(b)
requiring
that a lump
    sum be paid
or held in trust. [Emphasis added.]

[54]

Section 15.2(1) of the
Divorce Act
reads as follows:

15.2

(1) A court of competent jurisdiction
may
, on application by either or both spouses,
make an order requiring a spouse

to
secure or
pay
, or to
    secure and pay,
such lump sum or periodic
    sums, or such lump sum and periodic sums,

as the court thinks reasonable for the support of the other spouse.
[Emphasis added.]

[55]

Both Acts include sections addressing the
    purposes of an order for spousal support and the factors to be taken into
    account in making such an award: see Appendix A.

[56]

Specifically, s. 33(8) the
Family Law Act
provides that the purposes of spousal support are to:

(a)
recognize
the spouses contribution to the relationship and
    the economic consequences of the relationship for the spouse;

(b)
share
the economic burden of child support equitably;

(c)
make
fair provision to assist the spouse to become able to
    contribute to his or her own support; and

(d)
relieve
financial hardship, if this has not been done by
    orders under Parts I (Family Property) and II (Matrimonial Home).

[57]

None of these sections contains restrictions of the
    type set out in
Mannarino
.

[58]

Had Parliament or the Legislature intended that the discretion
    to make an award of lump sum spousal support to a married or an unmarried
    spouse be as highly constrained as the appellant argues is prescribed in
Mannarino
, those
    bodies surely would have said so.  Moreover,
    we can find nothing in the legislative history relating to either Act, or to
    predecessor Acts, suggesting such an intention.

[59]

However, the spousal support provisions in both Acts
    and the jurisprudence interpreting those provisions (including
Mannarino
and its
    progeny) do provide considerable guidance concerning the factors that should be
    considered in determining whether an award of lump sum spousal support is
    appropriate in any particular case.

[60]

It is well accepted  and undisputed  that a lump sum
    award should not be made in the guise of support for the purpose of
    redistributing assets:
Mannarino
;
Willemze
-Davidson v. Davidson
(1997), 98
    O.A.C. 335 (C.A.),
at
para
. 32. Moreover, the
    governing legislation does not recognize redistribution of assets as one of the
    purposes of a spousal support award.

[61]

That said, a lump sum order can be made to

relieve [against] financial hardship, if this has not been done by
    orders under Parts I (Family Property) and II (Matrimonial Home):
Family Law Act
, s. 33(8
)(
d).

[62]

In any event, the purpose of an award must always be
    distinguished from its effect. Any lump sum award that is made will have the
    effect of transferring assets from one spouse to the other. The real question
    in any particular case is the underlying purpose of the order:
Willemze
-Davidson
at
para
.
    32.

[63]

Similarly, it is well accepted that an important
    consideration in determining whether to make a lump sum spousal support award
    is whether the
payor
has the ability to make a lump
    sum payment without undermining the
payors
future
    self-sufficiency.

[64]

Under s. 33(9) of the
Family Law Act
,
[
i
]
n determining the amount and duration, if any, of support for a spouse 
    in relation to need, the court shall consider

among other things:

(a)
the
dependants and
respondents current assets and means
;

(b)
the
assets and means
    that the
dependant
and respondent are
    likely to have in the future
;

...

(d)
the
respondents
    capacity to provide support
. [Emphasis added.]

[65]

These statutory provisions make it clear that ability
    to pay is an important consideration in making an award of spousal support, including
    lump sum spousal support.

[66]

Most importantly, a court considering an award of lump
    sum spousal support must weigh the perceived advantages of making a lump sum
    award in the particular case against any presenting disadvantages of making
    such an order.

[67]

The advantages of making such an award will be highly
    variable and case-specific. They can include but are not limited to:
    terminating ongoing contact or ties between the spouses for any number of
    reasons (for example: short-term marriage; domestic violence; second marriage
    with no children, etc.); providing capital to meet an immediate need on the
    part of a dependant spouse; ensuring adequate support will be paid in
    circumstances where there is a real risk of non-payment of periodic support, a lack
    of proper financial disclosure or where the
payor
has
    the ability to pay lump sum but not periodic support; and satisfying immediately
    an award of retroactive spousal support.

[68]

Similarly, the disadvantages of such an award can
    include: the real possibility that the means and needs of the parties will
    change over time, leading to the need for a variation; the fact that the parties
    will be effectively deprived of the right to apply for a variation of the lump
    sum award; and the difficulties inherent in calculating an appropriate award of
    lump sum spousal support where lump sum support is awarded in place of ongoing indefinite
    periodic support.

[69]

In the end, it is for the presiding judge to consider
    the factors relevant to making a spousal support award on the facts of the
    particular case and to exercise his or her discretion in determining whether a
    lump sum award is appropriate and the appropriate quantum of such an award.

[70]

As we have said, we do not endorse the submission that
    lump sum spousal support awards must be limited to very unusual circumstances
    as a matter of principle. Nonetheless, we agree that most spousal support
    orders will be in the form of periodic payments. To a large extent, this is for
    four very practical reasons.

[71]

First, in many instances, monies will simply not be
    available to fund a lump sum support award either to take the place of, or to supplement,
    an award of periodic support.  Instead,
    support will be paid from one spouses income, the only available source for
    support payments, and it will be paid to finance the ongoing needs of the other
    spouse, which will generally be of a periodic rather than lump sum character.

[72]

Second, for married couples, the court will have
    determined already the amount to be paid to equalize the value of the spouses net
    family properties: see s. 5,
Family Law
    Act
. In many circumstances, this payment will obviate any requirements a
    dependent spouse may have for transitional capital.

[73]

Third, in many cases, there will be no considerations
    favouring a lump sum award from the perspective of either spouse.

[74]

Fourth, in at least some cases where there are
    considerations favouring a lump sum award, the general exigencies of life,
    including the possibility that the parties means and
needs
    will
change, will outweigh the considerations favouring a lump sum
    award.

[75]

Irrespective of whether the proposed support is
    periodic or lump sum, it is incumbent upon counsel to provide the judge deciding
    the matter with submissions concerning the basis for awarding and the method of
    calculating the proposed support, together with a range of possible outcomes. Further,
    it is highly desirable that a judge making a lump sum award provide a clear
    explanation of both the basis for exercising the discretion to award lump sum
    support and the rationale for arriving at a particular figure. Clear presentations
    by counsel and explanations by trial judges will make such an award more transparent
    and enhance the appearance of justice. Over time, this approach will
    undoubtedly foster greater consistency and predictability in the result.

[76]

As part of this approach, where an award of lump sum
    spousal support is made as a substitute for an award of periodic support, it is
    preferable that, with the benefit of submissions from counsel, the judge consider
    whether the amount awarded is in keeping with the
Spousal Support Advisory Guidelines

(Ottawa, Department of Justice, 2008) (the 
Guidelines
)
.  If it is not, some reasons should be provided
    for why the
Guidelines
do not provide
    an appropriate result:
Fisher v. Fisher
(2008)
,
88 O.R. (3d) 241 (C.A.), at
para
.
    103
.

(4)       Application
    of the Principles for Awarding Lump Sum Spousal Support
    to the Facts of this Case

(a)       Standard of Review

[77]

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:
Hickey v. Hickey
,

[1999] 2 S.C.R. 518, at
para
. 11.

(b)       Discussion

[78]

Although the trial judge did not offer a detailed
    explanation for her award, read fairly, her reasons make it clear that she
    awarded lump sum spousal support based on a real concern that the appellant
    would not pay periodic support and to
effect
a clean
    break between these parties. Again, while the trial judge did not say so
    explicitly, it is apparent that these factors outweighed considerations
    militating against lump sum spousal support.

[79]

A main theme of the trial judges reasons was her credibility-based
    findings that the appellant had greater assets and means than he was prepared
    to acknowledge and that he was attempting to shelter assets from the
    respondents reach. Having regard to these findings, it is readily apparent
    that the trial judge concluded there was a real risk the appellant would not
    pay periodic support and that this factor alone mandated an award of lump sum
    support, even though the appellant would be deprived of the ability to seek a
    variation. Further, the appellants failure to make proper disclosure made a
    clean break highly desirable  in the absence of a clean break, the respondent
    likely faced unending litigation to maintain her entitlement to spousal
    support.

[80]

In all the circumstances, we see no basis on which to
    interfere with the trial judges decision to award lump sum spousal support.

[81]

Turning to quantum, as we read her reasons, the trial
    judge awarded an amount of support that she concluded would generate an income
    stream of $1,000 per month for 15 years using a 4% interest rate.

[82]

It is unfortunate that the trial judge did not provide
    additional details concerning how she arrived at either the $1,000 per month
    quantum or the 15-year duration as the basis for her calculations.  However, the respondents financial statement
    discloses that the respondent has a monthly deficit well in excess of $1,000
    per month based on claimed expenses that are in a relatively modest range. Further,
    it is apparent from her reasons that the trial judge was satisfied that the
    appellant had the means to maintain a much higher standard of living than the
    respondent and that, without a significant payment, the respondent would be
    relegated to a significantly lower standard of living than that which the
    parties enjoyed together for 23 years. Although the trial judge did not refer
    specifically to the income tax consequences of a lump sum support award, she is
    an experienced family law judge and we are not prepared to conclude that she
    did not take the income tax consequences into account. On our review of the
    record and the trial judges reasons, it is reasonable to conclude that the
    trial judge decided that her calculations should be premised on the respondent
    receiving $1,000 per month net of tax. Finally, given that the respondent had
    attained the age of 66 and that there was no evidence indicating she was not in
    good health, we cannot say that using a 15-year income stream projection was
    unreasonable. In making that award, the trial judge undoubtedly took account of
    the contingency that the respondents need for support could be longer or
    shorter than 15 years. Although a more detailed explanation of the figures the
    trial judge used in making her calculations would have been desirable, in the
    end, we cannot say the award was clearly wrong.

[83]

We note that the appellant does not challenge the trial
    judges arithmetic. Indeed, neither counsel provided us with any calculations
    to establish that the award of $135,000 is clearly wrong in any way, including as
    being outside the ranges that would be generated by the
Guidelines
.

VI.      DISPOSITION

[84]

Based on the foregoing reasons, the appeal is
    dismissed. The respondent may file brief written submissions concerning costs
    of the appeal within seven days of the release of these reasons and the
    appellant may respond within seven days of receiving the respondents
    submissions.


Signature:      Janet Simmons
    J.A.


 S
. E. Lang J.A. 

I agree S.
    T. Goudge J.A
. 

I agree E.
    A. Cronk J.A.

I agree
    Robert P. Armstrong J.A.

RELEASED: STG APRIL 14, 2011


APPENDIX A

FAMILY LAW ACT

PART III
SUPPORT OBLIGATIONS

...

Order for support

33.
(1) A
    court may, on application, order a person to provide support for his or her
    dependants and determine the amount of support.

Applicants

(2)  An
    application for an order for the support of a dependant may be made by the
    dependant or the dependants parent.

...

Purposes of order for support of spouse

(8)  An order for the support of a spouse
    should,

(a) recognize the spouses contribution to the relationship
    and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able
    to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by
    orders under Parts I (Family Property) and II (Matrimonial Home).

Determination of amount for support of spouses, parents

(9)  In
    determining the amount and duration, if any, of support for a spouse or parent
    in relation to need, the court shall consider all the circumstances of the
    parties, including,

(a)
the
dependants and respondents
    current assets and means;

(b) the assets and means that the dependant and respondent
    are likely to have in the future;

(c) the dependants capacity to contribute to his or her own
    support;

(d) the respondents capacity to provide support;

(e) the dependants and respondents age and physical and
    mental health;

(f) the dependants needs, in determining which the court
    shall have regard to the accustomed standard of living while the parties
    resided together;

(g) the measures available for the dependant to become able
    to provide for his or her own support and the length of time and cost involved
    to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to
    provide support for another person;

(
i
) the desirability of the
    dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the
    respondents career potential;

(k) Repealed.

(l) if the dependant is a spouse,

(
i
) the length of time the
    dependant and respondent cohabited,

(ii) the effect on the spouses earning capacity of the
    responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a
    child who is of the age of eighteen years or over and unable by reason of
    illness, disability or other cause to withdraw from the charge of his or her
    parents,

(iv) whether the spouse has undertaken to assist in the
    continuation of a program of education for a child eighteen years of age or
    over who is unable for that reason to withdraw from the charge of his or her
    parents,

(v) any housekeeping, child care or other domestic service
    performed by the spouse for the family, as if the spouse were devoting the time
    spent in performing that service in remunerative employment and were
    contributing the earnings to the familys support,

(v.1) Repealed.

(vi) the effect on the spouses earnings and career
    development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other
    than out of public money.

Conduct

(10)  The
    obligation to provide support for a spouse exists without regard to the conduct
    of either spouse, but the court may in determining the amount of support have
    regard to a course of conduct that is so unconscionable as to constitute an
    obvious and gross repudiation of the relationship.

Application of child support guidelines

(11)  A
    court making an order for the support of a child shall do so in accordance with
    the child support guidelines.

Exception: special provisions

(12)  Despite
    subsection (11), a court may award an amount that is different from the amount
    that would be determined in accordance with the child support guidelines if the
    court is satisfied,

(a) that special provisions in an order or a written
    agreement respecting the financial obligations of the parents, or the division
    or transfer of their property, directly or indirectly benefit a child, or that
    special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the child support guidelines
    would result in an amount of child support that is inequitable given those
    special provisions.

Reasons

(13)  Where
    the court awards, under subsection (12), an amount that is different from the
    amount that would be determined in accordance with the child support
    guidelines, the court shall record its reasons for doing so.

Exception: consent orders

(14)  Despite
    subsection (11), a court may award an amount that is different from the amount
    that would be determined in accordance with the child support guidelines on the
    consent of both parents if the court is satisfied that,

(a) reasonable arrangements have been made for the support of
    the child to whom the order relates; and

(b) where support for the child is payable out of public
    money, the arrangements do not provide for an amount less than the amount that
    would be determined in accordance with the child support guidelines.



DIVORCE ACT

Spousal Support Orders

Spousal support order

15.2

(1) A court of
    competent jurisdiction may, on application by either or both spouses, make an
    order requiring a spouse to secure or pay, or to secure and pay, such lump sum
    or periodic sums, or such lump sum and periodic sums, as the court thinks
    reasonable for the support of the other spouse.

Interim order

(2) Where an
    application is made under subsection (1), the court may, on application by
    either or both spouses, make an interim order requiring a spouse to secure or
    pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and
    periodic sums, as the court thinks reasonable for the support of the other
    spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may
    make an order under subsection (1) or an interim order under subsection (2) for
    a definite or indefinite period or until a specified event occurs, and may
    impose terms, conditions or restrictions in connection with the order as it
    thinks fit and just.

Factors

(4) In making an
    order under subsection (1) or an interim order under subsection (2), the court
    shall take into consideration the condition, means, needs and other
    circumstances of each spouse, including

(
a
) the
    length of time the spouses cohabited;

(
b
) the
    functions performed by each spouse during cohabitation; and

(
c
) any
    order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an
    order under subsection (1) or an interim order under subsection (2), the court
    shall not take into consideration any misconduct of a spouse in relation to the
    marriage.

Objectives of spousal support order

(6) An order made
    under subsection (1) or an interim order under subsection (2) that provides for
    the support of a spouse should

(
a
)
    recognize any economic advantages or disadvantages to the spouses arising from
    the marriage or its breakdown;

(
b
)
    apportion between the spouses any financial consequences arising from the care
    of any child of the marriage over and above any obligation for the support of
    any child of the marriage;

(
c
) relieve
    any economic hardship of the spouses arising from the breakdown of the
    marriage; and

(
d
) in so
    far as practicable, promote the economic self-sufficiency of each spouse within
    a reasonable period of time.





[1]
The
    appellant claims that he gave his daughter about $175,000. In her affidavit she
    confirms that the appellant advanced about $150,000 for the purchase of a
    house.



[2]
This court has observed on other occasions
    that there may be a difference between the final branch of the
Palmer
test and the final branch of the
Sengmueller
test,
    in that the final branch of the
Sengmueller
test may set out a more stringent test. For
    example, see
Chiang (Trustee of) v.
    Chiang
(2009), 93 O.R. (3d) 483 (C.A.), at
paras
.
    72-77.
The
parties did not address this issue. It is
    unnecessary that we resolve it. We have reached our conclusion applying the
    less stringent test.


