



COURT OF APPEAL FOR ONTARIO

CITATION: Alalouf v. Sumar, 2019 ONCA 611

DATE: 20190719

DOCKET: C63949

Hoy A.C.J.O., Trotter
    and Jamal JJ.A.

BETWEEN

Penny Alalouf

Applicant (Respondent)

and

Anwar Sumar

Respondent (Appellant)

Audrey Lee, for the
    appellant

Suzanne E. Deliscar, for the respondent

Heard: July 15, 2019

On appeal from the order of Justice
    Lene Madsen of the Superior Court of Justice, dated May 26, 2017, with reasons
    reported at 2017 ONSC 3043.

REASONS FOR DECISION

[1]

After the breakdown of their 15-year cohabitation/14-year marriage, the
    parties were able to settle parenting issues related to the children of the
    marriage. However, financial issues remained outstanding. After a nine-day
    trial, the trial judge made orders in relation to, among other things, the
    equalization of net family property, post separation adjustments, as well as ongoing
    and retroactive spousal and child support. The trial judge declined to make an
    order relating to a cottage property situated on Saugeen First Nation land.

[2]

The father appeals from nearly all orders made by the trial judge. He
    also submits that the trial judge erred in finding that she had no jurisdiction
    to deal with the cottage property. We would dismiss the appeal for the
    following reasons.

The Trial

[3]

Both parties were self-represented at this lengthy trial. The trial
    judge made credibility findings that were critical to her resolution of the
    many contentious issues she was tasked with deciding. At para. 2 of her
    reasons, the trial judge explained:

Unfortunately this case was marked by two issues which plague
    the effective resolution of many family law cases: the failure to make full,
    frank, and timely disclosure; and a failure to comply with temporary Court
    Orders. This case was also marked by a lack of candor on the part of the [the
    father] on numerous issues. All of these factors necessitated a trial where one
    should not have been required.

[4]

The trial judge made specific credibility findings. In general, the
    trial judge found the mother to be a consistent and credible witness: at para.
    5. However, she expressed concerns about the fathers credibility for a number
    of reasons: at para. 7. The trial judge listed examples, including: (1) she strongly
    suspected that the father altered the date on a Scotiabank Line of Credit
    statement (at para. 8); (2) she did not accept the fathers evidence concerning
    how the balance of this line of credit was retired upon the sale of the
    matrimonial home (at paras. 9-10); and (3) she found that the fathers February
    7, 2015 sworn financial statement was not accurate in relation to a newly
    acquired job (at para. 11) and that he misstated his income in his updated
    financial statement sworn on January 7, 2017 (at para. 12). After citing other
    examples, the trial judge concluded that, [i]t appears that on a range of
    issues Mr. Sumar has not been forthright with Ms. Alalouf, or with the Court:
    at para. 18. This led the trial judge to conclude that, where the testimony of
    Ms. Alalouf and Mr. Sumar differs, I find the testimony of Ms. Alalouf more
    credible: at para. 5.

[5]

These findings follow the father into this court. On appeal, a highly
    deferential standard of review is owed to the factual findings of a trial judge
    in family litigation:
Choquette v. Choquette
, 2019 ONCA 306, at para.
    15;
Johanson v. Hinde
, 2016 ONCA 430, at para. 1; and
Hersey v.
    Hersey
, 2016 ONCA 494, 87 R.F.L. (7th) 272, at para. 12. The trial judges
    credibility findings go a long way in explaining how she resolved many of the
    contentious issues.

The Cottage Property

[6]

The father argues that the trial judge erred by failing to order that
    the mother convey to the father her interest in a cottage property. The parties
    acquired a jointly held leasehold interest in relation to a cottage situated on
    land of the Saugeen First Nation. In 2006, they purchased the cottage building for
    $49,000 and then took an assignment of a lease, under which the vendors had
    leased the property from a Band member, for an annual rent of $6,107.00. The
    lease expired in 2011 and has not been renewed. At the hearing of the appeal,
    we were informed that even though the lease has not been renewed, the parties
    continue to use the cottage property. Rent arrears have accumulated since 2015
    and it is not apparent how the parties will pay them. We were further advised
    that the original owner of the land has passed away and litigation has ensued
    over that persons property, including the cottage.

[7]

The trial judge was constrained in her ability to deal with this issue. At
    trial, neither the original lease of land to the vendors, nor the assignment of
    the lease to the parties, were produced. Nevertheless, on the basis of the
    information made available to her, the trial judge held that because the land
    is situated on a First Nation reserve, it is governed by the provisions of the
Indian
    Act
, R.S.C. 1985, c. I-5.  Relying on this courts decision in
Syrette
    v. Syrette
, 2012 ONCA 693, 6 C.B.R. (6th) 324, the trial judge held, at
    para. 110, that she had no jurisdiction to make an order in relation to this
    land under s. 9 of the
Family Law Act
, R.S.O. 1990, c. F.3. She
    concluded that the occupancy, possession, ownership, and disposition of reserve
    lands governed by the
Indian Act

lies at the core of federal
    jurisdiction over [l]ands reserved for the Indians under s. 91(24) of the
Constitution
    Act
, 1867
.

[8]

It is unnecessary to address the correctness of the trial judges
    conclusion on jurisdiction. The factual record before the trial judge, and
    before us, was completely inadequate. Without the original lease or the
    assignment, we are unable to determine the true nature of the parties
    interests in this property, if any, whether any such interest is assignable,
    and what the value of any such interest may be. We are not prepared to rule on
    the constitutional issue in the abstract.

[9]

Accordingly, we dismiss this ground of appeal. However, we recognize
    that this conclusion leaves the parties in limbo in dealing with this property.
    We can do no better than to endorse the trial judges suggestions, at paras.
    118-119, that the parties find a way to agree on how to deal with such interest
    as they may have in the property.

Payments on Joint Line of Credit

[10]

The
    father submits that the trial judge erred in finding that the parties are
    equally responsible for paying interest accruing on a joint line of credit from
    January 1, 2017 (being just prior to the start of the trial), instead of from the
    date of separation. The father gave evidence that, from 2010 to 2017, he made
    all payments on that line of credit in the total amount of $16,000. Based on a spreadsheet
    prepared by the father, the trial judge found, at para 92, that she had no way
    of verifying that figure nor is it clear what portion related to the joint debt
    and what portion related to the debts in his own name solely. Bearing in mind
    the trial judges concerns about the fathers credibility, as outlined above,
    we see no basis to disturb her finding on this issue. We dismiss this ground of
    appeal.

Failure to Deduct Notional Disposition Costs from RRSP Values

[11]

The
    father submits that the trial judge erred in failing to deduct notional
    disposition costs of the mothers RRSP at the date of marriage and the
    valuation date, and the notional disposition costs of the fathers RRSP at the valuation
    date. The father contends that, had the trial judge made these deductions, the
    equalization payment (before post separation adjustments) owed to him would
    have increased from $13,719.50 to $25,679.10.

[12]

The
    trial judge declined to recognize these contingent debts because neither party
    provided evidence regarding any costs of disposition with respect to the two
    RRSP accounts, nor were there entries to this effect on either partys NFP
    statement: at para. 83. The motion judge committed no error in her approach to
    this issue. This ground of appeal is dismissed.

Income Imputed for Support Purposes

[13]

The
    father alleges that the trial judge made numerous errors in the imputation of
    his income for support purposes. In our view, there was an evidentiary basis to
    support the trial judges conclusions. Again, the fathers credibility was important.
    For example, when the father lost his job in 2016, he was earning a salary of $190,000
    per annum. The father told the mother that he received two weeks of severance,
    when in fact he received 20 weeks.

[14]

The
    trial judge provided detailed reasons for finding that the father was
    intentionally underemployed or unemployed during the relevant periods of time.
    She found that the father was not particularly motivated to find new employment
    that matched what he was capable of earning. For example, the trial judge noted,
    at para. 151, that, for the first half of 2016, the father did not look for
    work due to his difficulties with the Family Responsibility Office and that it
    was not until July that he really started the job search. He should have been
    looking for work throughout this period.

[15]

The
    trial judges findings were reasonable. They reflect no palpable and overriding
    error. We dismiss this ground of appeal.

Refusing to Admit Evidence of New Employment

[16]

The
    father submits that the trial judge erred by not permitting him to file
    evidence regarding employment he had allegedly just obtained.

[17]

The
    evidentiary stage of the trial ended on January 25, 2017. On May 9, 2017 the
    parties were expected to make final submissions. In the context of a discussion
    about how the Family Responsibility Office was enforcing arrears against the father,
    he asked to file a letter that he said disclosed that he had found a new job,
    commencing the following week with a salary of $70,000 per annum. The father
    had failed to provide advance notice of this development to the mother. He made
    no hard copies of the offer letter; instead, he relied upon an electronic copy
    on his computer. After viewing the document on the screen of the fathers
    computer, the mother disputed its authenticity. The trial judge said she would
    deal with the admissibility of the letter in her final reasons for judgment.

[18]

Ultimately,
    the letter was not formally admitted into evidence. However, the trial judge
    said, at para. 200: For all of the reasons set out above, I find that even if
    Mr. Sumar is now employed at a pay rate of $70,000, he is underemployed within
    the meaning of section 19 of the
Child Support Guidelines
.

[19]

There
    is no basis to conclude that the trial judge improperly exercised her
    discretion in dealing with this proffer of evidence. The father offered this
    letter, not previously disclosed, at the last possible moment. In light of the
    trial judges findings about the fathers conduct during the litigation, her decision
    was justified.

[20]

This
    ground of appeal is dismissed.

Spousal Support

[21]

The
    father submits that the trial judge erred in ordering indefinite spousal
    support be paid to the mother, especially when the Spousal Support Advisory
    Guidelines provided a duration range of between 7.5 years and 15 years from the
    date of separation. The father submits that the mother did not give evidence
    that she assisted in any material way in advancing the fathers career or that
    she did anything more than what would be expected of any spouse in her
    situation. Moreover, the father submits that, by the time of trial, the mother
    was earning $30,000 per annum and was thus close to being self-sufficient at a
    reasonable level.

[22]

We
    reject the fathers submissions. The trial judge, at para. 52, pointed to the fathers
    testimony in which he acknowledged that he has had very good employment experience
    over the years and agreed that he would not have been able to build his
    twenty-year e-commerce career without Ms. Alalouf having been home with the
    children. See also para. 179.

[23]

The
    trial judge explained, at paras. 178-209, why she was ordering spousal support
    on both a compensatory and non-compensatory basis, and outlined the basis for
    the quantum and duration of support. The trial judge observed that, by assuming
    the household responsibilities that she did, the mother facilitated the
    advancement of the fathers career at the expense of her own. As a result, she
    had suffered economic hardship. As the trial judge said, at para. 179: Ms.
    Alalouf is unable to maintain anything approaching the lifestyle the parties
    shared during the marriage without spousal support.

[24]

In
    terms of the duration of the spousal support order, the trial judge said, at
    para. 203, that [t]here is no basis for a termination of spousal support at
    this time. Relying on
Leskun v. Leskun
, 2006 SCC 25, [2006] 1 S.C.R.
    920, the trial judge declined to set a date upon which spousal support could be
    reviewed, leaving it to the parties to trigger a motion to vary based on a
    material change of circumstances: at paras. 207-208. We see no error in this
    approach.

[25]

This
    ground of appeal is dismissed.

Section 7 Expenses

[26]

The
    father submits that the trial judge erred in ordering that the father pay $300
    per month for the childrens horseback riding lessons as a s. 7 expense under
    the
Child Support Guidelines
, O. Reg. 391/97
.
He contends that
    the mother could reasonably have covered this expense given her income and the
    quantum of child support and spousal support ordered by the trial judge. At the
    hearing of the appeal, we were told that this is no longer an ongoing expense.
    However, any adjustment to this aspect of the trial judges judgment may impact
    on the fathers arrears.

[27]

There
    is no basis to interfere with this aspect of the trial judges decision. The
    trial judge applied the correct principles in determining that the expenses
    were necessary and reasonable. At trial, the father acknowledged that the
    lessons were good for the children. Living on a farm, they enjoyed this activity
    until the father stopped paying support. The trial judge did not err in finding
    that the expenses were necessary and reasonable in all of the circumstances: at
    para. 213.

[28]

This
    ground of appeal is dismissed.

Conclusion

[29]

The
    appeal is dismissed. The mother is entitled to costs in the amount of $9,135.97,
    inclusive of disbursements and taxes.

Alexandra Hoy A.C.J.O.

G.T. Trotter J.A.

M. Jamal
    J.A.


