



COURT OF APPEAL FOR ONTARIO

CITATION: Levin v. Levin, 2020 ONCA 604

DATE: 20200924

DOCKET: C66262

Watt, Trotter
    and Zarnett JJ.A.

BETWEEN

Alla Levin

(Applicant)

Respondent

and

Nikolay Levin

(Respondent)

Appellant

Peter I. Waldmann, for the appellant

Ryan M. Kniznik, for the respondent

Heard: in writing

On appeal from
    the order entered on November 14, 2018 by Justice Mary E. Vallee of the
    Superior Court of Justice, with reasons reported at 2018 ONSC 6805, and from
    the costs order entered on February 08, 2019, with reasons reported at 2019
    ONSC 932.

REASONS FOR DECISION

Introduction

[1]

Mr. and Mrs. Levin were married and have two
    children. Their marriage broke down after almost 26 years. In the meantime, they
    have been unable to resolve financial and property issues, culminating in an
    eight-day trial that ended unfavourably for Mr. Levin. The trial judge made
    various substantive orders in Ms. Levins interest and awarded her costs in the
    amount of $65,030.53.

[2]

This appeal concerns spousal support, child
    support, net family property, and costs. The appellant, Mr. Levin, appeals the
    trial judges decision on these issues, focusing largely on alleged errors in
    imputing income. Ms. Levin, the respondent, acknowledges some minor
    inaccuracies in two of the trial judges calculations (one involving her 2017
    income and the other involving the amount of the equalization payment owed to
    Mr. Levin), and invites this court to make the necessary adjustments. She
    resists any further changes to the trial judges decision and the costs order.

[3]

Subject to rectifying the minor errors conceded
    by Ms. Levin, we dismiss the appeal.

Background

[4]

The parties were married in Ukraine in 1990.
    They immigrated to Israel in 1991 and remained there until they immigrated to
    Canada in 2013. They have two daughters. The older daughter is an adult, born
    in 1993. The younger daughter was born in 2008 and has a learning disability.
    Ms. Levin is her primary caregiver.

[5]

The Levins are both well-educated. Ms. Levin has a
    masters degree in nursing and has been working as a Registered Practical Nurse
    (RPN) and Personal Support Worker (PSW).  Mr. Levin has a software
    engineering degree and works as an electrician. Mr. Levin worked full-time
    throughout the marriage. Ms. Levin worked mostly part-time.
Ms. Levin expects to complete her Ontario registered nursing program
    and become self-sufficient by May 2021. Accordingly, the trial judges order
    allows Mr. Levin to request a review of spousal support at that time.

[6]

Mr. Levin was ordered to pay $2,511 per month in
    spousal and child support until a review of support in May 2021, based on his 2018
    income of $118,033. The trial judge accepted that it was reasonable for Ms.
    Levin to try to return to school and have only part-time income imputed to her
    for the duration of the 3-year degree, in the amount of $33,994. The trial
    judge ordered payment of arrears calculated in accordance with these imputed
    incomes.

Analysis

[7]

As already noted, the trial lasted eight days.
    The trial judge delivered detailed and lengthy (43-pages) reasons, addressing
    the many issues raised by the parties. As the paragraphs that follow will show,
    the trial judges reasoning was sound, subject to a few minor calculation
    errors. Therefore, it is entitled to deference on appeal.

A.

Credibility Findings

[8]

Credibility was at the heart of this family law
    trial. The trial judge made extensive credibility findings that informed her
    determination of the parties incomes.

[9]

The trial judge identified a few minor
    shortcomings in the evidence of Ms. Levin, but found that [o]therwise, Ms.
    Levins testimony was generally consistent and credible:
Levin v. Levin
,
2018 ONSC 6805, [2018] O.J. No. 5931, at para. 9.

[10]

Mr. Levin did not fare as well. The trial judge
    itemized numerous internal and external inconsistencies in his testimony,
    largely in relation to financial disclosure. As discussed below, a key issue in
    imputing income to Mr. Levin was determining whether he worked for cash. He
    denied that he did. However, in a recorded telephone conversation with Ms.
    Levin in 2016, Mr. Levin said: I am trying to make some cash off the books in
    order to pay you, fucking whore, to pay the lawyer. Once again, I dont give a
    shit if its a maximum or minimum to pay you and also to support myself, you
    see? Thats why I [am] working for cash:
Levin v. Levin
,
at para.
    38.

[11]

This evidence assumed prominence in the trial
    judges reasons. It led to the following finding of the trial judge, at para. 39
    of her reasons:

When I consider Mr. Levins answers in
    cross-examination, his demeanour, and the contradictions in his evidence in contrast
    to the documentary evidence, I conclude that he was not a credible or reliable
    witness. Where his evidence conflicts with Ms. Levins evidence, hers will be
    preferred.

[12]

A trial judges findings of fact, including
    credibility assessments, are entitled to substantial deference on appeal
    especially in family law cases:
Rados v. Rados,
2019 ONCA 627, 30
    R.F.L. (8th) 374, at para. 23.
Moreover, the imputation of income for support purposes is
    a discretionary and fact-specific exercise:
Bak v.
    Dobell
,
    2007 ONCA 304, 86 O.R. (3d) 196, at para. 73, affd in
Korman v. Korman
,

2015 ONCA 578, 126 O.R. (3d) 561,
    at paras. 49 and 51.

B.

Attribution of the Appellants Income

[13]

The appellant argues that the trial judge
    misapprehended the evidence in over-imputing income to him and
    under-attributing income to Ms. Levin. Subject to one minor error in relation
    to Ms. Levins income, discussed below, we disagree.

[14]

In imputing income to Mr. Levin, the trial judge
    relied on the fact that, during the relevant time frames, his expenditures
    exceeded his stated income. Mr. Levin submits that this approach is flawed
    because the trial judge treated mortgage payments as an expenditure when his income
    included the net rental income from the same property. The net rental income already
    deducted the mortgage payments; thus, the trial judges approach counted them
    twice. He also submits that discrepancies between his expenditures and his
    income are explained by post-separation payments made to Ms. Levin.

[15]

We do not accept these submissions. Once
    satisfied that there is undeclared income, trial judges have considerable
    leeway in imputing additional income to calculate support. The trial judge
    found Mr. Levin to be an untrustworthy witness, and this guided her approach.
    Mr. Levins own position on his income, especially in 2017, shifted multiple
    times. Moreover, Mr. Levins double counting argument is belied by the trial
    judges finding that he under-declared his rental income from 2016. More
    importantly, as noted above, the trial judge found that Mr. Levin received
    money under-the-table, even though his bank accounts did not show cash
    deposits. In other words, her concerns about his credibility were well founded.
    The amount of income imputed to Mr. Levin was reasonable. We would not
    interfere with the manner in which the trial judge calculated Mr. Levins
    income for any of the years in question.

C.

Attribution of the Respondents Income

[16]

Ms. Levin accepts that the trial judge
    miscalculated her income for 2017 when determining arrears obligations for that
    year. The trial judge found that her income was $33,994.00 when it should have
    been $60,928.99. When this error is corrected, the combined arrears for child
    and spousal support for 2017 is $24,190.79 (instead of $35,026.79).

[17]

Mr. Levin submits that the trial judge
    underestimated Ms. Levins income for 2018 and on a go-forward basis. We
    disagree. The trial judge imputed income of $33,994.00 for the three years it
    is expected to take Ms. Levin to complete her studies. This represents 51% of
    her Line 150 income for 2017. The trial judge did so because the respondent
    will be unable to work full-time during this period. The trial judge made no
    error in reaching this conclusion.

D.

Net Family Property

[18]

Mr. Levin submits that the trial judge erred in
    her calculation of net family property and the amount of the equalization
    payment that he should receive. Ms. Levin agrees. This has the effect of
    increasing the equalization payment by $2,500. The appellant is entitled to an
    equalization payment of $39,091.51.

E.

The Review of Support Issues

[19]

The trial judge ordered that her decision on
    support issues could be reviewed in 2021. The appellant wishes to change the
    order so that he may request a review of support at any time. The trial judge
    chose May 2021 because this is when it is anticipated that Ms. Levin will have
    completed the steps required to achieve self-sufficiency. The appellant gives
    no reason for requesting a variation of this order. The timing of the review
    date in May 2021 seems eminently sensible. Thus, we see no error in the trial
    judges decision on this issue and we decline to interfere.

F.

The Costs Award at Trial

[20]

Mr. Levin challenges the trial judges costs
    award. The trial judge delivered careful reasons for her decision. She
    considered two offers made by the respondent prior to trial; offers that were
    more favourable to Mr. Levin than what he achieved at trial. Rule 18(14) of the
Family Law Rules
, O. Reg. 114/99 entitles Ms. Levin, unless the
    court orders otherwise to costs to the date the offer was served and full
    recovery of costs from that date. The trial judge determined that there was no
    basis to depart from this rule. Moreover, Ms. Levin did not request costs up to
    the point of the first offer; she only requested full recovery from the date of
    that offer onwards.

[21]

The trial judge further found that, even without
    the offers to settle, she would have ordered costs in the same amount because
    of Mr. Levins bad behaviour during the course of litigation, which she
    itemized at para. 18 of her Costs Endorsement:
Levin v. Levin
,
2019
    ONSC 932, [2019] O.J. No. 655.

[22]

As this court held in
Fielding v. Fielding
,
    2015 ONCA 901, 129 O.R. (3d) 65, at para. 69: In family law, there is arguably
    even greater reason to afford deference to the quantum of costs awarded. The
    trial judges costs decision reveals no error in principle.

Disposition

[23]

The appeal is allowed in part. We correct the
    minor errors conceded by Ms. Levin, as noted above. For the sake of clarity,
    the appeal is dismissed other than the following corrections to the trial
    judges order:

i.

Paragraph 3 shall be revised to reflect that Mr.
    Levins support arrears for 2017 shall be $24,190.79 [instead of $35,026.79];

ii.

Paragraph 12 shall be revised to reflect that Ms.
    Levins equalization payment to Mr. Levin shall be $39,091.51 [instead of
    $36,519.51]; and

iii.

Paragraph 21 shall be revised so that the
    adjusted arrears total [net off-set payment] owing from Mr. Levin to Ms. Levin
    shall be $25,422.70 [instead of $38,758.70, which reflects the $10,836.00
    adjustment to 2017 support arrears, plus the $2,500.00 equalization payment
    increase, for a total reduction of $13,336.00 in the net payment owing].

[24]

The appeal from the costs decision is dismissed.

[25]

Ms. Levin is entitled to her costs on appeal. If
    the parties are unable to agree on quantum, they may make written submissions. Ms.
    Levin shall submit a bill of costs and written submissions that are no longer
    than four pages within 14 days of the release of this decision. Mr. Levin will
    be permitted to file a bill of costs and submissions that are no longer than
    four pages within 10 days of receiving Ms. Levins materials. No reply
    submissions shall be filed.

David Watt J.A.

Gary Trotter J.A.

B. Zarnett J.A.


