



COURT OF APPEAL FOR ONTARIO

CITATION: Rogers v. Rogers, 2014 ONCA 590

DATE: 20140820

DOCKET: C56964

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Jennifer Leslie Rogers

Applicant (Respondent)

and

Kevin Lindsay Rogers

Respondent (Appellant)

Ted R. Laan, for the respondent (appellant)

Laura E. Oliver, for the applicant (respondent)

Heard and released orally:  August 11, 2014

On appeal from the orders of Justice Snowie of the Superior
    Court of Justice, dated March 28, 2013 and April 23, 2013.

ENDORSEMENT

Issue #1  The Excluded Property Issue

[1]

This argument on this issue arises primarily, if not exclusively, from
    the trial judges findings of fact.  Those findings were very much influenced
    by the strong credibility findings made by the trial judge against the
    appellant, his witnesses and the documents those witnesses relied on in
    advancing their claim.  The trial judge gave reasons for her findings.  She
    also, at para. 19, identified the three significant factual questions to be
    addressed on this issue.

[2]

Deference sounds the keynote in this courts review of the trial judges
    findings of fact.  In our view, her credibility assessment and the findings of
    fact that flowed primarily from that assessment are supported by the record and
    her reasons reveal no misapprehension of the evidence.  We cannot say that her
    assessment is unreasonable.  Consequently, we cannot interfere with that
    finding.

[3]

In a related submission, counsel argued that the trial judge misapplied
    the test for tracing by requiring that the asset in issue be kept separate from
    other assets as a precondition to tracing.  We do not agree that the trial
    judge imposed that requirement.  The trial judge simply found on the totality
    of the evidence that the appellant could not trace the excluded assets into an
    asset he owned as of the date of separation.

Issue #2  The Value of the Shares

[4]

This was also a fact-driven issue.  The trial judge was entitled to reject
    the evidence of the appellants expert.  She gave reasons for doing so and, in
    our view, those reasons are not unreasonable or unsupported by the evidence.  The
    trial judge, importantly, also relied on certain correspondence from the
    appellant to his wife (Exhibit 15).  That correspondence was inconsistent with
    the evidence advanced at trial by the appellant and inconsistent with the premise
    of the appellants expert testimony.

[5]

We would not interfere with the trial judges assessment of the expert
    evidence.  Consequently, there is no basis to interfere with her finding as to
    the value of the shares at the time of marriage.

[6]

The appeal is dismissed.

[7]

Counsel have very helpfully agreed that if the appeal were to be
    dismissed, as we have concluded it must be, that an order in terms of the draft
    order submitted by counsel for the respondent should issue.  We so order.

[8]

The respondent is entitled to costs in the amount of $11,000, inclusive
    of disbursements and relevant taxes.

Doherty J.A.

John Laskin J.A.

Gloria Epstein J.A.


