



COURT OF APPEAL FOR ONTARIO

CITATION: Boudreau v. Jakobsen, 2021 ONCA
    511

DATE: 20210716

DOCKET: C68278

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Bruce Boudreau

Applicant

(Respondent)

and

Randi Jakobsen

Respondent

(Appellant)

Michael J. Stangarone and Stephen P.
    Kirby, for the appellant

Jenna Beaton and Jessica Grys, for the respondent

Heard: In writing

On appeal
    from the order of Justice Sharon Shore of the Superior Court of Justice dated February
    5, 2020.

REASONS FOR DECISION

Overview

[1]

The appellant appeals from the trial judges order
    requiring her to pay spousal support to the respondent, whom the trial judge
    found was the appellants common law spouse.

[2]

The parties met at university in Nova Scotia in
    1989 and became romantically involved. They moved to Toronto and started living
    together in 1997, later moving into a house purchased by the appellant in 2008.
    The parties never married and have no children. The appellant achieved
    substantial success in her career. She paid the household, mortgage, vacation
    and other expenses for the parties throughout the relationship. She financially
    supported the respondent who had access to her bank and credit cards, as well
    as a joint bank account. They cared for two dogs together. They presented to
    the public as a couple.

[3]

The respondent suffers from mental health
    issues and has been mostly unemployed, earning no more than $10,000 in any of
    the few years he worked. He performed no household duties for the parties nor
    did he otherwise contribute to the appellants professional success. The
    relationship ended on April 7, 2018 when the respondent was charged with
    assaulting the appellant. The appellant was 49 and the respondent was 52 years
    old at the time of separation.

[4]

The parties were self-represented at a trial
    that lasted nine days. The trial judge concluded that the parties were common
    law spouses. While she acknowledged that there were times that the respondent was
    likely unable to work because of his mental health issues, she found that the
    respondent had failed to provide any medical evidence to support his inability
    to work and, rather, chose not to accept work that he felt was beneath him. She
    found that the respondent was intentionally underemployed and financially
    advantaged by living with the appellant. She imputed to the respondent a yearly
    income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. She
    denied his claims based on unjust enrichment and joint family venture, and
    found he was not entitled to compensatory spousal support. However, the trial judge
    ordered the appellant to pay the respondent retroactive and ongoing spousal
    support in an amount below the lowest end of the
Spousal Support Advisory
    Guidelines
from May 1, 2018, subject to review on December 31, 2025 at the
    latest, unless a material change in circumstances justified an earlier review.

Issues

[5]

The appellant submits that the trial judge
    made the following substantive reversible errors: she erred in finding that the
    parties were spouses under s. 29 of the
Family Law Act
, R.S.O. 1990,
    c. F.3; and she erred in awarding spousal support to the respondent in respect
    of which she provided inadequate reasons. In addition, the appellant argues
    that the trial judge erred in failing to allow the parties to make submissions
    regarding costs and in failing to determine the issue of costs. We shall
    consider each submission in turn.

(i)

Did the trial judge
err
in finding that the
    parties were spouses?

[6]

The appellant submits the trial judges
    finding that the parties were common law spouses was based on a narrow review
    of select documentary evidence and a failure to consider other relevant
    evidence that undermined her conclusion.

[7]

We see nothing in the trial judges reasons to
    suggest she relied on only some of the documentary evidence to the exclusion of
    other relevant evidence. Rather, her reasons demonstrate that she carefully
    reviewed all the relevant evidence.

[8]

The trial judge reviewed the applicable
    definition of spouse under s. 29 of the
Family Law Act
, meaning: a
    spouse defined in subsection 1(1) including either of two persons who are not
    married to each other and have cohabited, (a) continuously for a period of not
    less than three years. She noted that s. 1(1) of the Act defines cohabit as
    to live together in a conjugal relationship, whether within or outside marriage.
    The trial judge correctly instructed herself that the question to be answered
    was whether the parties were in a conjugal relationship. In determining whether
    a conjugal relationship existed between the parties, she carefully reviewed the
    relevant evidence in accordance with the well-established factors set out in
Molodowich
    v. Penttinen
(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), as adopted and
    affirmed by the Supreme Court in
M. v. H.
, [1999] 2 S.C.R. 3.

[9]

The trial judge made negative assessments of
    the parties and witnesses testimony. It was therefore reasonable and
    necessary for the trial judge to turn to documentary evidence to assist her in
    determining the issue. The trial judge found that both parties had serious
    credibility and reliability issues and that they gave whatever answer they
    thought would assist them in advancing their case and the answers changed
    during the trial. She reviewed in detail the inconsistent and unreliable
    elements in each partys testimony and in their witnesses testimony. Her
    assessment was amply supported by the record.

[10]

The appellant had denied financially supporting the
    respondent and maintained that they were no more than friends and roommates.
    The trial judge found that the appellants contentions were contradicted by her
    own documents. Importantly, the trial judge saw that the appellant had
    consistently named the respondent as her common law spouse and beneficiary in
    important documents, including: her will, powers of attorney for property and
    care, her life insurance policy, pension plan, group retirement savings plan,
    extended medical and health insurance, and in her income tax returns, where he
    was also claimed as a dependant. The trial judge observed that the appellant
    had deliberately failed to disclose these documents until just before the
    trial. We also note that on cross‑examination, the appellant admitted
    that she indicated that the respondent was her common law spouse in her will
    and powers of attorney because she felt that he was.

[11]

We reject the appellants assertion that the trial judge
    erred in failing to refer explicitly to documentation signed by the respondent
    to transfer land in Nova Scotia in which he stated that he was not married or a
    spouse. It is well established that the trial judge was not required to refer
    to every piece of evidence, notably evidence that did not and could not have a
    material effect on her decision. The respondent testified that his statement was
    correct because common law spouses are not recognized as married or spouses
    in Nova Scotia. Whether or not the respondents assertion is accurate, this isolated
    piece of evidence does not undermine the significant evidentiary support for
    the trial judges conclusion that the parties lived together in a conjugal
    relationship.

[12]

We see no error in the trial judges analysis on this issue
    that warrants appellate intervention. Her determination that the parties were
    spouses under the provisions of the
Family Law Act
because they had
    lived together in a conjugal relationship for 21 years involves questions of
    fact and mixed fact and law that are subject to deference on appeal absent
    palpable and overriding error:
Climans v. Latner
¸ 2020 ONCA 554, at
    para.
61;
Opie v. Zegil
(1997), 28 R.F.L. (4th) 405 (Ont. C.A.), at paras.
15-17. The appellant does not suggest that the trial judge
    applied incorrect statutory provisions or inapplicable legal principles to
    determine whether a conjugal relationship existed. She has not identified any
    palpable or overriding error. Essentially, the appellant objects to the outcome
    of the trial judges analysis and asks us to reweigh the evidence and redo the
    trial judges findings. That is not our task on appeal.

(ii)

Did the trial judge err in awarding retroactive and ongoing spousal
    support to the respondent?

[13]

The appellant submits the trial judge erred in awarding any
    spousal support to the respondent because she erroneously applied the criteria under
    the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.) for determining
    eligibility to spousal support when she should have considered the factors
    under the
Family Law Act
. She also says the trial judges reasons are
    inadequate to explain the amount and duration of the support ordered,
    especially given the respondents failure to provide an evidentiary basis for
    his support claim.

[14]

This court in
Ballanger v. Ballanger
, 2020 ONCA
    626, at paras. 22-23, recently and compendiously reiterated the
    well-established deferential appellate standard of review and its rationale in
    relation to support orders:

The Supreme Court of Canada has instructed
    courts of appeal to accord significant deference to the decisions of trial
    judges relating to support orders. The discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. The
    deferential standard of review avoids giving parties an incentive to appeal
    judgments to attempt to persuade the appeal court that the result should be
    different. This approach promotes finality in family law litigation and
    recognizes the importance of the appreciation of the facts by the trial judge.

An appeal court can therefore only interfere
    with the trial judge's decision if there is a material error such as a serious
    misapprehension of the evidence, or an error in law. It is not entitled to
    overturn a support order simply because it would have made a different decision
    or balanced the factors differently: see
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
at paras. 11-12.

[15]

There is no dispute that in determining the respondents
    entitlement to spousal support, the trial judge explicitly referenced only the
    statutory criteria set out in s. 15.2(6) of the
Divorce Act
, which has
    no application to common law spouses, rather than the factors mandated for her
    analysis under ss. 33(8) and (9) of the
Family Law Act
. While this was
    an error, the question is whether this error is so material that it wholly
    undermines the trial judges decision.

[16]

In our view, it does not. There is significant overlap
    between the
Divorce Act
and the
Family Law

Act
criteria. Significantly, the promotion of economic self‑sufficiency within
    a reasonable period of time figures prominently in both statutes. Giving the
    trial judges reasons the generous reading they require, it is clear that she
    considered all the relevant factors in determining whether spousal support was
    warranted, including the respondents lack of contributions and work efforts,
    his mental health issues, his diminished resources, the appellants income, the
    parties lifestyle during their relationship, the parties ages, and the length
    of their relationship.

[17]

There was ample evidence to support the respondents
    economic dependence on the appellant during their relationship and his need for
    financial support following separation. The respondents unchallenged evidence
    was that he was in receipt of disability benefits, lived in shelters and
    frequented food banks. Economic self-sufficiency does not mean mere subsistence
    but is a relative concept tied to the achievement of a reasonable standard of
    living having regard to the lifestyle the couple enjoyed during their
    relationship and the time needed to reach the goal of self-sufficiency:
Rioux
    v. Rioux
, 2009 ONCA 569, at paras. 42-44;
Fisher v. Fisher
, 2008
    ONCA 11, 288 D.L.R. (4th) 513, at paras. 58-59;
Chutter v. Chutter
,
    2008 BCCA 507, 301 D.L.R. (4th) 297, at paras. 55-61.

[18]

The trial judges award of spousal support was not so high that
    it warrants intervention. Rather, it was below the lowest range of the SSAGs
    having regard to the parties respective ages, the length of their relationship
    and the income earned by the appellant and imputed to the respondent. Given the
    finding that the parties had cohabited for 21 years and the respondent was 52
    at the time of separation, the trial judge could have awarded time-unlimited
    support in accordance with the Rule of 65 under the SSAGs. She did not do so.

[19]

The trial judge was alive to the respondents deliberate
    failure to become economically self-sufficient notwithstanding any demonstrated
    impediment other than his self-imposed aversion to what he saw as low-level
    work that would really rip out [his] soul. As a result, she imputed income to
    him and implicitly imposed a time-limited award by ordering a mandatory review
    of her support order no later than 2025. By her findings and her review order,
    the trial judge sent a strong message that the respondent will have to show significant
    efforts toward economic self-sufficiency by the time of any review or risk the
    termination or reduction of the spousal support order on that basis alone.

[20]

We see no basis to interfere.

(iii)

Trial costs

[21]

The appellant submits that the trial judge erred in failing
    to allow the parties to make submissions as to costs and in failing to make any
    provision for costs in her decision. We disagree.

[22]

As the parties were unrepresented at trial, to obtain an
    award of costs, it was incumbent on the appellant to demonstrate that she forewent
    income or incurred disbursements in relation to the trial:
Fong v. Chan
(1990), 181 D.L.R. (4th) 614, at para. 26. There is no evidence in the record
    to support the appellants claim for any trial costs. In any event, success was
    mixed at trial.

[23]

We therefore decline to make any order respecting the trial
    costs.

Disposition

[24]

Accordingly, the appeal is dismissed.

[25]

If the parties cannot agree on the disposition of costs of
    the appeal, they may make brief written submissions of no more than two pages,
    plus a costs outline within ten days of the release of these reasons.

David
    Brown J.A.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.



