



COURT OF APPEAL FOR ONTARIO

CITATION: Perri v. Perri, 2017 ONCA 1001

DATE: 20171219

DOCKET: C62765

Pepall, Lauwers and Pardu JJ.A.

BETWEEN

Margaret Perri

Applicant (Respondent)

and

Enzo Perri

Respondent (Appellant)

Andrew Kania, for the appellant

Karen Cunningham and Athena McBean, for the respondent

Heard: December 11, 2017

On appeal from the judgment of Justice Kofi N. Barnes of
    the Superior Court of Justice, dated September 16, 2016, with reasons for
    judgment reported at 2016 ONSC 5833.

REASONS FOR DECISION

[1]

The appellant husband argues that the application
    judge erred in awarding lump sum support for the respondent wife on the
    following grounds:

1)

He awarded compensatory support although the
    wifes career prospects were in no way diminished by the marriage; there was no
    economic disadvantage which flowed from the marriage.

2)

He failed to consider the impact of the child of
    the marriage residing with the husband on the amount of Spousal Support Guideline
    support which he used as a basis for the calculation of lump sum support.

[2]

This was a 22 year marriage. The parties had two
    children. The older daughter was no longer a child of the marriage within the
    meaning of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.)
at the time of
    trial, but was living with her mother. Just two or three weeks before trial,
    the son moved from his mothers home to reside with his father. He was 19 years
    old at the time of trial. He was halfway through completing a three year
    community college program. The wife was earning about $63,300 a year as a legal
    secretary. The husband's annual income was about $100,000. The wife was 49
    years old at the time of trial; the husband is the same age as the wife.

Application judges decision

[3]

The application judge found that the wife was
    entitled to compensatory support. He found that she had suffered economic
    hardship from the breakdown of the marriage at paras. 62, 77, and 82 of his
    reasons:

I conclude Ms. Perri suffered economic
    hardship as a result of the breakdown of the marriage. She was employed at the
    time of the marriage breakdown and remains employed. However, her decision to
    put the needs of the children first impacted the selection of the type of
    organization where she could work, effectively stifling her upward mobility and
    corresponding ability to increase her earnings.

[]

I have explained that Ms. Perri has suffered
    economic hardship arising from the breakdown of the marriage. She has lost the
    intra spousal financial and other support she enjoyed during the marriage. Her
    standard of living has deteriorated as a result of the marriage breakdown.

[]

The fact that Ms. Perri sacrificed her ability
    to earn a higher income was mitigated by the financial support and contributions
    of Mr. Perri. The marriage breakdown has left Ms. Perri without access to that
    support. Hence, her reduced earning potential has become a liability. She has
    suffered economic hardship from the breakdown of the marriage. In these
    circumstances, Ms. Perris entitlement to ongoing spousal support arises on a
    compensatory basis.

[4]

At the hearing below, both parties said they
    preferred a lump sum spousal support order rather than periodic payments. There
    was a high degree of animosity between the parties. The application judge accepted
    that a clean break would be appropriate. He calculated the support payment
    according to the mid-point of the Spousal Support Advisory Guidelines (Support
    Guidelines) amount, $1,194.00 per month, and selected a 10 year duration for
    the support payment, to arrive at a lump sum spousal support order of $143,280 
    which he indicated was to be adjusted for tax consequences. Periodic support payments
    would be taxable in the hands of the wife, and tax-deductible for the husband,
    while lump sum support payments did not have these tax consequences.

[5]

The application judge declined to make any order
    that the son continued to be a child of the marriage. The son had only moved to
    his fathers home within a few weeks of the trial. The application judge
    indicated that there were many unanswered questions about the son at para. 55
    of his reasons:

such as how Matthew is paying for his
    education, whether his parents are contributing, if he is going to be working
    during school, whether he is paying for his education from savings or student
    loan; and if he still needs financial support from his parents, et cetera.

Standard of review

[6]

The standard of review of spousal support
    decisions is deferential. As this court observed in
Halliwell v.
    Halliwell
, 2017 ONCA 349, at para. 88, [a]ppellate
    courts should not interfere with support orders unless the reasons disclose an
    error in principle, a significant misapprehension of the evidence, or the award
    is clearly wrong.

Analysis

[7]

We would dismiss this appeal, except with
    respect to the narrow issues discussed below which are not controversial.

[8]

The husband argues that the wife could have, and
    could still, opt to work in downtown Toronto as a legal secretary and thereby
    earn more income. On this basis, the husband submits that no compensatory
    support should have been ordered. This, however, is not conclusive of the
    support issue. The application judge specifically found that after separation,
    the husband enjoyed much the same standard of living that he had before
    separation, but that the same was not true for the wife. The
Divorce
    Act
, ss. 15.2(6)(a) and (c),
mandate consideration of not only economic disadvantage flowing from
    the marriage, but also economic disadvantage flowing from the breakdown of the
    marriage. The application judges order was not simply an award based on the
    disparity of the parties incomes. It was also a recognition of a 22 year
    marriage during which the parties had two children.

[9]

The husband also argues that the application judge
    ought to have factored into the Support Guideline figure, which formed the
    basis of his lump sum calculation, recognition that the wife was obliged to contribute
    support for their son. The husband submits that this would have resulted in a
    base monthly Support Guideline figure of $917.00 per month for the entire 10
    year spousal support period, subject to a variation application by the wife
    when the son ceased to be a child of the marriage. As it turns out, the son
    finished school some 16 months after the trial.  He now lives with his
    grandmother.

[10]

Given that the son had moved into his fathers home
    within a few weeks of the trial, and the absence of full information about the
    sons circumstances, the application judge did not err by refusing to treat the
    son as a child of the marriage for the purposes of calculating spousal support.
    More information was required to make a finding that the son was a child of the
    marriage. See, for example, the factors

dealing with the determination of whether a child continues to be a
    child of the marriage within the meaning of the
Divorce Act
listed in
Pepin v. Jung
(2003), 39
    R.F.L. (5th) 383 (Ont. S.C.), [2003] O.J. No. 1779, at para. 15. The proposed
    fresh evidence is of no utility because it still does not deal with the gaps in
    the evidence about the son identified by the application judge.

[11]

The application judge did not foreclose
    consideration of this issue. He indicated that the issue of whether the son was
    still a child of the marriage could be revived with a proper evidentiary
    record. Neither party attempted to do so.

[12]

The wife agrees that an adjustment should be
    made to reflect the non-taxable nature of the lump sum spousal support ordered.
    The application judge ought to have calculated that adjustment or invited
    written submissions on that issue.

[13]

The parties are not in substantial disagreement
    as to the marginal tax rates applicable to the husband and the wife as at the
    date of trial: 41.8% for the husband and 30.2% for the wife. We would apply an
    amount equal to the halfway point between these two figures, or 36%.

[14]

Paragraphs 3 and 4 of the divorce order dated September
    16, 2016, specifying lump sum support amounts subject to adjustment for tax
    consequences shall be set aside and replaced as follows:

3.

The Respondent, Enzo Perri, shall pay the
    Applicant, Margaret Perri, retroactive lump sum spousal support in the amount
    of $14,840.32, payable within 30 days of September 16, 2016.

4.

The Respondent, Enzo Perri, shall pay the
    Applicant, Margaret Perri, lump sum spousal support in the amount of $91,699.20,
    payable within 30 days of September 16, 2016.

[15]

The application judge also ordered the husband to
    designate the wife as the sole irrevocable beneficiary on the life insurance
    policy available through his employer at para. 5 of the divorce order. This paragraph
    shall be varied as follows:

5.

The Respondent, Enzo Perri, shall designate the
    Applicant, Margaret Perri, as sole irrevocable beneficiary on his life
    insurance policy available through his employment
until the lump sum spousal
    support is paid and as security for payment of the lump sum spousal support.

[Emphasis added indicating variation.]

[16]

Paragraph 13 of the divorce order requires the
    husband to provide ongoing financial disclosure so long as spousal support is
    paid, each year, within 30 days of the anniversary of the divorce order, in
    accordance with s. 24.1 of the Child Support Guidelines. We are told that this
    paragraph was inserted at the insistence of counter staff in Brampton, ON. This
    paragraph is not appropriate where only lump sum spousal support is ordered.
    There is no need for ongoing disclosure. This paragraph is deleted from the
    order.

[17]

The divorce order should also provide that any
    amounts in default should bear post-judgment interest in accordance with s. 129
    of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, and is varied to add this proviso.

[18]

In oral argument, the husband did not pursue the
    portion of the appeal advanced in his factum against the costs awarded against
    him by the application judge.  We see no basis upon which to grant leave to appeal
    costs and leave to appeal costs is denied.

[19]

The appeal is allowed to the extent described
    above. The wife may make brief written submissions as to costs, due within 30
    days after the release of this decision. The husbands submissions are due 30
    days thereafter.

S.E.
    Pepall J.A.

P.D. Lauwers J.A.

G. Pardu
    J.A.


