



COURT OF APPEAL
    FOR ONTARIO

CITATION: Burke v. Poitras, 2021 ONCA 703

DATE: 20211012

DOCKET: C68442

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Natalie Burke

Applicant (Respondent)

and

Shawn Poitras

Respondent (Appellant)

Gordon S. Campbell, for the appellant

Judith Wilcox, for the respondent

Heard: September 23, 2021 by video conference

On
    appeal from the order of Justice Laurie Lacelle of the Superior Court of
    Justice, dated May 21, 2020, with reasons reported at 2020 ONSC 3162, and from
    the costs order, dated July 17, 2020, with reasons reported at 2020 ONSC 4389.

REASONS FOR
    DECISION

[1]

The parties were married for 13 years and separated in 2014 after the
    respondent left the matrimonial home due to the appellants abusive conduct.
    The parties have three children. The oldest child lives primarily with the
    appellant and the parties share parenting time for the two younger children.

[2]

After the appellant repeatedly failed to respect his disclosure
    obligations and failed to comply with court orders requiring financial disclosure
    to the respondent, the appellants answer was struck. Except in relation to the
    issues of decision-making responsibility and parenting time, the decision to
    strike the appellants answer was confirmed by this court in
Burke v.
    Poitras
, 2018 ONCA 1025, 22 R.F.L. (8th) 266. As a result, the matter proceeded
    as an uncontested trial.

[3]

In lengthy reasons, the trial judge awarded the respondent child and
    spousal support including substantial arrears, an equalization payment and
    exclusive possession of the matrimonial home, among other relief. The trial
    judge also ordered that the appellant not be permitted to proceed with any
    future motions pertaining to the issues in the present litigation without leave
    of the court.

[4]

In our court, the appellant raises four grounds of appeal and seeks to
    file fresh evidence. He argues that the trial judge erred in:

1.

failing to conduct an independent inquiry into the appellants trial
    participation rights;

2.

failing to scrutinize the respondents evidence on a standard of balance
    of probabilities;

3.

ordering spousal support to the respondent for an indefinite period of
    time and not providing for a review; and

4.

awarding costs
    against the appellant.

The fresh evidence application

[5]

The appellant seeks to introduce the affidavit of Alain Gravelle, a
    chartered accountant whose firm has provided accounting services to the
    appellant and his businesses for over a decade. The affidavit and attachments attempt
    to rebut the accounting evidence led by the respondents accounting expert at
    trial and accepted in the trial judges reasons and award.

[6]

We deny leave to file the fresh evidence. In our view, it does not meet
    the test from
Palmer v. The Queen
,
[1980] 1 SCR 759.

[7]

The information contained in the proposed fresh evidence could, with due
    diligence, have been adduced at trial. In large measure, it consists of financial
    information about the appellant and his businesses that was not produced prior
    to trial in violation of the outstanding court orders. The appellants
    continued refusal to disclose this information led to the striking of his answer.
    Now, he seeks to circumvent that sanction by introducing evidence in the form
    of fresh evidence to critique the respondents accounting expert and the trial
    judges decision.

[8]

Not only did the appellant refuse to disclose the financial information
    required to properly determine his income and his business revenues, he also refused
    to instruct his accountants to cooperate with the respondents expert. Had the
    appellant allowed this cooperation, the information he now seeks to file would
    have been considered by the respondents expert and, to the extent it was
    relevant, included and commented on in his report.

[9]

The appellant cannot argue that we should now accept this evidence and
    rely on it and his accountants interpretation of that evidence to challenge
    the respondents accounting expert and the findings of the trial judge. The
    respondents accountant clearly explained the need to make assumptions given
    the absence of disclosure. It is not open to the appellant to now seek to
    introduce the very evidence he refused to disclose prior to trial to overturn
    the decision on appeal.

The appellants participation rights

[10]

The appellant argues that the trial was unfair as he was provided with
    no opportunity to participate. In his submission, even a limited right of
    participation would have attenuated the alleged unfairness and led to a more
    balanced result. The appellant emphasizes his Grade 9 education and his lack of
    sophistication. He submits that he was unable to assert his participation
    rights because he was told he would need a lawyer and could not afford one. In
    his view, the trial judge ought to have allowed him to question the witnesses
    and test the evidence.

[11]

We disagree. By order dated May 17, 2018, the appellants answer was
    struck due to his failure to comply with the courts disclosure order. The order
    did not provide him with a right to participate in the ongoing proceeding. Pursuant
    to the
Family Law Rules
, the appellant was not entitled to participate
    in the case in any way: O. Reg. 114/99. As noted above, the appellants appeal
    of the order striking his answer was dismissed.

[12]

Nonetheless, the Superior Court, on its own motion, set a date for a hearing
    prior to trial to determine whether the appellant ought to be provided with
    some degree of participation in the coming trial. The appellant was aware of
    the date of the hearing but chose not to appear. He claims he could not
    complete the paperwork but, as noted by the respondent, the appellant has no
    difficulty communicating with her by text message and operates a very
    successful business. As a result, the court ordered that no participation
    rights were to be afforded to the appellant. No appeal was taken from that
    order.

[13]

Although he was not allowed to participate, the appellant was present
    throughout the trial. The trial judge had, in our view, the discretion to vary
    the non-participation order and allow some degree of participation. However, the
    appellant did not move to vary the order and, given his disruptive conduct over
    the course of the trial and his continued refusal to comply with the disclosure
    orders, there was no basis to do so. As a result, we see no unfairness.

Failing to scrutinize the respondents evidence

[14]

The appellant argues that the trial judge simply accepted the evidence
    tendered by the respondent at trial without analysis or scrutiny. In
    particular, the appellant argues that the evidence of the respondents
    accounting expert ought to have been rejected as it was largely based on
    speculation.

[15]

We do not agree. The trial judge carefully evaluated the evidence. The
    respondents accountant expert was quite clear as to when and on what basis he
    made assumptions as to the appellants income and expenses. For example, he
    concluded that the appellant used corporate income for personal expenses based,
    in part, on several expensive personal purchases on the appellants corporate
    credit card and bank account. Further, he noted that the appellants company did
    not distribute its income, nor did it require significant capital investments.
    In the absence of evidence to the contrary, the trial judge accepted the
    experts reasoning. She noted that retained earnings are not necessarily
    income, but that the appellant failed to provide evidence to rebut these
    assumptions.

[16]

Therefore, trial judge explained why she accepted the experts evidence
    and the basis for her findings. Based on the record, the trial judges
    conclusions are reasonable and we see no basis to interfere.

Was the amount and duration of spousal support reasonable?

[17]

The appellant argues that it was not appropriate for the trial judge to
    simply adopt the calculations using the
Spousal Support Advisory Guidelines:
    The Revised Users Guide
(April 2016)
(
SSAG
s) and to not provide for the termination of spousal support
    within a reasonable time. He reiterates that he has a Grade 9 education,
    whereas the respondent is a nurse in a supervisory position at the local
    hospital. In the circumstances, a lower amount of support ought to have been
    ordered for a definite duration.

[18]

We disagree. The trial judge considered the principles in
Moge v.
    Moge
, [1992] 3 S.C.R. 813, and determined that support on a compensatory
    basis was appropriate in the circumstances. She saw no reason to depart from
    the number generated from the
SSAG
s and noted that the marriage
    resulted in significant economic advantages to the appellant. We note that
    indefinite support simply means that the duration is not specified. The
SSAG
s
    stress that indefinite does not necessarily mean permanent. It only means
    that no time limit can be set at the time of the order or agreement: p. 28.

[19]

The trial judges reasons are fulsome in explaining how she reached
    these conclusions and are owed deference on appeal. We see no basis to
    interfere.

Costs

[20]

The appellant argues that the award of costs in the amount of $217,229.25
    after a three-day uncontested trial was excessive.

[21]

We would not interfere with the trial judges costs award. She provided
    detailed reasons for the award, accounting for the appellants conduct, including
    the breach of the disclosure orders, and found the amount of costs sought by
    the respondent to be just and proportionate. The appellant has not demonstrated
    any error in the trial judges exercise of discretion in that regard.

Conclusion

[22]

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.


