



COURT OF APPEAL FOR ONTARIO

CITATION: Politis v. Politis, 2021 ONCA 541

DATE: 20210728

DOCKET: C68238

Tulloch, Nordheimer and Jamal
    JJ.A.

BETWEEN

Catherine Elizabeth Politis

Applicant
    (Appellant and

Respondent
    by way of cross-appeal)

and

Themistocles Politis

Respondent
    (Respondent and

Appellant
    by way of cross-appeal)

Herschel I. Fogelman and Lauren Daneman,
    for the appellant and respondent by way of cross-appeal

James D. Singer, for the respondent and
    appellant by way of cross-appeal

Heard: April 6, 2021 by video conference

On appeal from the order of Justice E. Llana
    Nakonechny of the Superior Court of Justice, dated February 27, 2020, with
    reasons reported at 2020 ONSC 1306.

On cross-appeal from the costs
    endorsement of Justice E. Llana Nakonechny of the Superior Court of Justice,
    dated April 9, 2020.

Tulloch J.A.:

A.

Introduction

[1]

The parties were married for 25 years. They
    separated in 2008, when they were both 48 years old. By the time of trial, the
    parties had been separated for eleven years and the appellant had resided with
    her new partner, Mr. Burleigh, for at least eight years.

[2]

After a six-day trial, the trial judge held that
    the appellant established a prima facie entitlement to spousal support on both
    a compensatory and needs-based model. The trial judge reduced the spousal
    support payments that the respondent owed to the appellant, reasoning that the appellants
    second spouse had an increasing obligation to contribute. The trial judge
    further ordered the support payments to terminate as of October 2026. The trial
    judge awarded costs of $45,000 all-inclusive to the appellant.

[3]

On appeal, the appellant submits that the trial
    judge erred in law in her determination of the quantum and duration of spousal
    support. The respondent cross-appeals the costs order awarded against him at
    trial.

[4]

For the reasons that follow, I would dismiss
    both the appeal and the cross-appeal.

B.

Overview of the facts

[5]

As noted above, the parties were married for 25 years.
    They had three children together. The children are now adults and independent.

[6]

The appellant has a high school education. She
    was a full-time homemaker and caregiver to the parties children throughout the
    marriage. She has not been employed since separation. She was diagnosed with
    Lyme disease in October 2012, affecting her ability to re-enter the
    workforce. At trial, her position was that she had no ability to earn income or
    contribute to her own support.

[7]

The respondent is a civil engineer. He earns
    income through his own professional corporation, which he has owned since 1992.

[8]

At the time of separation, the parties did not
    have any significant assets, besides the matrimonial home, which was
    significantly encumbered. The net proceeds of sale were $113,263.05. Neither
    party paid any equalization payments to the other.

[9]

In 2015, the appellant brought a motion for
    interim spousal support. On November 13, 2015, the motion judge ordered the
    respondent to pay spousal support in the amount of $5,288 per month on an
    interim basis, based on an imputed income of $200,500. The respondent paid the outstanding
    arrears of support, totalling $52,880, to the appellant from his share of the
    net proceeds of the sale of the family home. In calculating the quantum of
    interim support, the motion judge took into consideration a monthly amount
    contributed by Mr. Burleigh to the appellants expenses.

[10]

At trial, the appellant sought increased monthly
    spousal support for an indefinite period. She argued that the respondent
    underpaid support as his income was actually higher than the income imputed by the
    motion judge. For his part, the respondent sought a termination of spousal
    support, and credit for overpayments made to the date of trial. His position
    was that the entirety of his support obligation should shift to the appellants
    new partner.

C.

Decision below

[11]

There were three issues before the trial judge:
    (1) whether the appellant was entitled to spousal support; (2) if so, what was
    the respondents income for the purpose of calculating spousal support; and (3)
    what was the effect of the appellants cohabitation with her new spouse on
    entitlement to, as well as quantum and duration of, spousal support.
    Additionally, the trial judge determined the quantum of costs to be awarded in
    relation to these proceedings.

[12]

The sections that follow summarize the trial
    judges conclusions on each of these issues, in turn.

(1)

The Appellants Entitlement to Spousal Support

[13]

The trial judge found that the appellant had
    established a prima facie entitlement to spousal support on both a compensatory
    and needs-based model. On this issue, the trial judge made the following
    findings of fact: the parties had a long-term marriage; the appellant was a
    stay-at-home parent, but the respondent assisted her with home and parenting
    responsibilities when he could; as a result of the appellants age, health,
    lack of education and work experience, she had a difficult time re-entering the
    workforce following separation; and she cannot be self-sufficient based on her
    own income or assets.

(2)

The Respondents Income for Support Purposes

[14]

For the quantum of spousal support, the starting
    point was determining whether the amount imputed to the respondents income in the
    interim order was appropriate. The appellant sought an adjustment upward, while
    the respondent sought credit for overpayment.

[15]

While the respondents income deviated somewhat from
    the amount imputed by the motion judge in the two years since the interim order
    was issued in 2015, the trial judge found that the sums paid to the appellant ultimately
    balanced out. Accordingly, the trial judge decided that: On balance, and
    taking into account the means, needs, and circumstances of the Applicant and
    the financial support she received from Mr. Burleigh in the relevant years,
    neither an increased payment nor a credit for overpayment is appropriate in
    this case.

(3)

The Effect of the Appellants Common Law Spouse
    on the Quantum and Duration of Spousal Support

[16]

The trial judge found that the appellant and Mr.
    Burleigh began a committed relationship in 2009 and began cohabitating in 2011.
    She noted that a spouses re-partnering does not disentitle her to spousal
    support but does affect quantum and duration.

[17]

The trial judge found that the appellant enjoys
    a standard of living with Mr. Burleigh that is comparable to, or better
    than, the standard of living that the parties enjoyed during their marriage. The
    trial judge concluded that while a greater portion of the Applicant's need
    should now be met by Mr. Burleigh, the economic loss from her marriage to the
    Respondent has not been completely compensated by the support paid by the
    Respondent to date.

[18]

The trial judge disbelieved several aspects of
    the appellants evidence, including: that she had no knowledge of Mr.
    Burleighs financial circumstances; and that she was obligated to repay a loan
    to Mr. Burleigh on a monthly basis. According to the trial judge, the
    appellants evidence concerning her financial arrangement with Mr. Burleigh did
    not ring true.

[19]

The trial judge found that the appellant received
    a net financial benefit from Mr. Burleigh in the amount of at least $3,100 per
    month. The trial judge grossed-up this amount to a notional income of $44,268
    per year. The respondents income was $193,816. The trial judge determined that
    the Spousal Support Advisory Guidelines formula (SSAGs) range for this income
    differential contemplates both needs based and compensatory support. She
    further identified the SSAGs formula range as follows: $4,673 at the low end, $5,452
    at the mid range, and $6,185 at the high end.

[20]

In determining the amount of support to be paid
    by the respondent, the trial judge considered the SSAGs ranges, the partially
    compensatory and initially partially needs-based nature of the applicants
    entitlement, as well as the benefit she receives from her cohabitation with Mr.
    Burleigh. The trial judge concluded that spousal support payments should not be
    terminated as the appellant had not yet been fully compensated for her economic
    loss. However, the trial judge reduced the amount owed based on her
    significantly decreased need given her second spouses ability to support her.

[21]

As of November 1, 2019, the respondent was
    ordered to pay spousal support in the amount of $3,000 per month up to and
    including October 1, 2024. Commencing November 1, 2024, the respondent was
    ordered to pay spousal support to the appellant in the amount of $1,500 per
    month up to and including October 1, 2026. Thereafter, the trial judge held
    that spousal support shall terminate.

[22]

The respondent was also ordered to pay
    $10,446.50 to the appellant to reimburse her for debts paid by her on the
    respondents behalf.

(4)

Costs

[23]

The trial judge awarded costs of $45,000 all
    inclusive to the appellant. On balance, she found that the appellant was the
    more successful party based on the claims made by the parties in the pleadings
    and at trial, as well as the outcome of the trial. She was entitled to a
    portion of her costs.

D.

ISSUES RAISED by the appellant

[24]

The appellant argues that the trial judge erred in
    her determination of the quantum and duration of spousal support because she
    deviated from the values generated by the SSAGs formula. Additionally, the
    appellant argues that the trial judge effectively double-counted the
    contributions of the appellants new spouse, first as a source of income and
    then as benefits paid to the appellant.

E.

standard of review in relation to the
    appellants grounds of appeal

[25]

Before addressing each of these issues, it is
    important to briefly set out the applicable standard of review as it shapes the
    contours of the discussion below.

[26]

This court should not overturn a support order
    "unless the reasons disclose an error in principle, a significant
    misapprehension of the evidence, or unless the award is clearly wrong":
Hickey
    v. Hickey
, [1999] 2 S.C.R. 518, para. 12. This court is not entitled to
    overturn a support order simply because it would have made a different decision
    or balanced the factors differently. This deferential posture is informed by
    both the discretion involved in making support orders and the importance of
    finality in family law litigation.

F.

analysis of the appellants grounds of appeal

[27]

As noted above, the appellant first takes issue
    with the trial judges determination of the quantum and duration of spousal
    support, namely, she asserts that the trial judge deviated from the SSAGs formula
    ranges of support entitlement and from the Rule of 65. She also asserts
    insufficiency of reasons. As I will explain, I disagree.

(1)

SSAGs Guidance

[28]

The appellant is correct in pointing out that
    the ranges generated by the
Spousal Support Advisory Guidelines
(Ottawa: Department of Justice, 2008) formulas are the presumptive starting
    point for awarding support:
McKinnon v. McKinnon
, 2018 ONCA
    596, [2018] O.J. No. 3487, at para. 24;
Slongo v. Slongo,
2017 ONCA
    272, 137 O.R. (3d) 654, at paras. 105-106. While not binding, the SSAGs should
    not be lightly departed from:
Slongo,
at para. 105. Any departure
    requires adequate explanation:
McKinnon,
at para. 24. That being said,
    while the SSAGs formula offers a valuable tool in assessing a reasonable amount
    of spousal support, there are complicating factors that must be considered:
Gray
    v. Gray,
2014 ONCA 659, 50 R.F.L. (7th) 257, at para. 45.

[29]

Where, in my view, the appellants position errs
    is in equating the principled guidance offered in the SSAGs
as a whole
with the values generated by the short-hand formulas. Those formulas are
    intended to be used as tools only and, according to the SSAGs themselves,
    cannot be applied automatically in every case.

[30]

Re-partnering in particular is a circumstance that
    the SSAGs suggest, at s. 14.7, requires case-by-case decision-making:

Where the recipient remarries or re-partners
    with someone who has a similar or higher income than the previous spouse,
    eventually  faster or slower, depending upon the formula adopted  spousal
    support would be extinguished. We have been unable to construct a formula with
    sufficient consensus or flexibility to adjust to these situations, despite
    considerable feedback that a formula would be desirable. In this final version,
    we still have to leave the issues surrounding the recipients remarriage or
    re-partnering to individual case-by-case negotiation and decision making.

[31]

Re-partnering is also specifically contemplated
    by the SSAGs as a reason to revisit entitlement to support and consider
    terminating it. On the topic of re-partnering, the SSAGs

state at
    §13.8:

Entitlement may then be revisited for any
    number of reasons  the recipient finding employment, the recipients
    remarriage or re-partnering, the payors retirement or loss of employment, etc.
     and support may be terminated if entitlement has ceased.

[32]

Section 16 the
Spousal Support Advisory
    Guidelines: The Revised Users Guide
(Ottawa: Department of Justice,
    2016), echoes the sentiment in instructing that re-partnering does not mean
    the automatic termination of spousal support, but support is often reduced and
    sometimes even terminated. This depends on whether support is compensatory or
    non-compensatory, as well as the length of the first marriage, the age of the
    recipient, the duration and stability of the new relationship and the standard
    of living in the recipients new household.

[33]

Here, the original support was awarded on both a
    compensatory and needs basis. The trial judges explanation for deviating from
    the SSAGs formula range is clear with respect to both bases of support
    entitlement and reveals no error in principle.

[34]

First, it is clear from the trial judges
    reasons that she viewed the contributions of the appellants new spouse as
    sufficient to meet the appellants needs. The trial judge found that the
    appellant enjoys a standard of living that is comparable to, or better than,
    the standard of living she enjoyed during the marriage. The trial judge viewed
    the appellants new relationship as lengthy and one of permanence. The trial
    judge also rejected the appellants evidence that she was under any obligation
    to repay her new spouse for the financial assistance he provided her during
    their relationship. These factual findings support the trial judges conclusion
    that re-partnering diminished the appellants needs-based entitlement to
    spousal support.

[35]

In this way, the trial judges deviation from
    SSAGs formula ranges on this point was not in error, but rather was consistent
    with the SSAGs overall guidance.

[36]

Second, the trial judges reasons explain her decision
    with respect to the partially compensatory nature of the appellants support
    entitlement, and similarly disclose no error in principle. On this point, the
    trial judge said as follows:

In my view, the time has not yet come when the
    Applicant has been fully compensated for her economic loss and the Respondents
    obligation to pay support to her can end. However, it is appropriate for the
    amount of support and the ranges themselves to be reduced, based on the
    increasing obligation of the Applicants second spouse to contribute to her
    need.

[37]

The trial judge also noted that at the time of
    trial, the respondent had paid the appellant spousal support for about nine
    years. Given the considerable length of the parties marriage, the respondent was
    ordered to continue to pay support until 2026, albeit on a reduced basis. By
    then, the trial judge found that the appellant will be compensated for any
    economic loss associated with the dissolution of the marriage.

[38]

Again, the trial judges approach was consistent
    with the overall guidance in the SSAGs, is owed considerable deference, and I
    see no reason to interfere.

[39]

I would dismiss this ground of appeal.

(2)

The Rule of 65

[40]

The appellant also takes issue with what she
    refers to as the trial judges deviation from the Rule of 65, as set out in
    s. 3.3.3 of the SSAGs  that is, where the length of cohabitation in years plus
    the recipients age at the date of separation equals or exceeds 65, indefinite
    spousal support is appropriate:
Climans v. Latner,
2020 ONCA
    554, 449 D.L.R. (4th) 651, at para. 3.

[41]

Here again, the appellants position fails to
    consider the more nuanced explanations provided in the SSAGs. Section 7.5.3 of
    the SSAGs explains further:

The
without child
support formula
    provides that indefinite (duration not specified) support will be available
    even in cases where the marriage is shorter than 20 years
if the years
    of marriage plus the
age
of the support recipient
at the time of
    separation
equals or exceeds 65.
In a shorthand
    expression, we described this as the rule of 65. [Emphasis in original.]

[42]

The SSAGs make very clear at s. 13.8 that indefinite
    support is not permanent support:

Under the Advisory Guidelines duration of
    spousal support will be indefinite, under both formulas, where the parties have
    been married for 20 years or more, or where the rule of 65 applies. But
    indefinite support, under the Guidelines as under the current law, does not
    necessarily mean that support is permanent or infinite, only that the
    duration has not been specified. We have purposely changed the language in this
    final version to convey that notion; our new terminology is indefinite
    (duration not specified).
Duration may be specified at
    some point in the future and support terminated, if entitlement ceases.
[Emphasis
    added.]

[43]

Moreover, the SSAGs explain at s.7.5.3 that the Rule
    of 65 is, intended to respond to the situation of older spouses who were
    economically dependent during a medium length marriage and
who may have
    difficulty becoming self-sufficient given their age
(emphasis added).

[44]

As already mentioned above, re-partnering is
    highly relevant to what otherwise might be an insurmountable difficulty in
    becoming self-sufficient. Given the trial judges findings that the appellants
    standard of living was now comparable to, or higher than what it was during the
    marriage, I see no error in this aspect of the trial judges reasons either.

[45]

I would dismiss this ground of appeal.

(3)

Accounting for Mr. Burleighs Contributions

[46]

Finally, the appellant alleges that the trial
    judge effectively double counted Mr. Burleighs contributions  first as a source
    of income, and second as benefits paid by Mr. Burleigh  as justification for
    her order outside of the SSAGs formula ranges. I do not read the trial judges
    reasons in the same light. The impugned comments are as follows:

I am satisfied that the Applicant receives a
    net financial benefit from Mr. Burleigh in the amount of at least $3,100 per
    month: half of the $5,500 he contributes to the household expenses and the $350
    alleged debt repayment. Grossed up for tax at 19%, this results in a notional
    income of $44,268 per year. The
SSAG
range for the Applicants income
    of $44,268 and the Respondents income of $193,816 is $4,673 at the low end,
    $5,452 at the mid range, and $6,185 at the high end. The amounts in this range
    contemplate both need-based and compensatory support.

[47]

She then goes on to state that it is
    appropriate for the amount of support and the ranges themselves to be reduced,
    based on the increasing obligation of the Applicants second spouse to
    contribute to her need.

[48]

Again, the SSAGs guidance on the need for
    case-by-case decision-making in the face of re-partnering cited above is
    apposite.

[49]

I would dismiss this ground of appeal as well.

G.

Conclusion on the appeal of the support order

[50]

I would dismiss the appeal.

H.

Cross appeal of costs

[51]

The respondent seeks to cross-appeal the costs
    order, dated April 9, 2020, in the sum of $45,000. This cross-appeal requires
    leave pursuant to s. 133(b) of the
Courts of Justice Act
and r.
    61.03.1(18) of the
Rules of Civil Procedure.
The respondent argues
    that the trial judge erred in the following ways: (a) by effectively
    disregarding the nature, calculations and purpose of the respondents offer to
    settle; (b) by determining that the appellant was the more successful party at
    trial; (c) by failing to take into account each party's behaviour during trial
    and thereby committing an error in principle; and (d) by taking into account the
    outcomes of a pre-trial and mid-trial motion on the costs awarded for the trial,
    in effect double-counting.

[52]

In
Nolan v. Kerry (Canada) Inc.
, 2009
    SCC 39, [2009] 2 S.C.R. 678, at para. 126, Rothstein J. held that costs
    awards are quintessentially discretionary. Discretionary costs decisions
    should only be set aside on appeal if the court below has made an error in
    principle or if the costs award is plainly wrong:
Hamilton v. Open
    Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
    None of the respondents arguments meet this exacting standard. Accordingly,
    leave to appeal the costs order is granted. However, I would dismiss the
    cross-appeal of costs.

I.

Conclusion and Disposition

[53]

I would dismiss the appeal and, while I would
    grant leave to appeal the costs order, I would dismiss the cross-appeal of the
    costs order.

[54]

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.

Released: July 28, 2021 M.T.

M.
    Tulloch J.A.

I
    agree. I.V.B. Nordheimer J.A.

I
    agree. M. Jamal J.A.


