



COURT OF APPEAL FOR ONTARIO

CITATION: Sewbans v. Sewbans, 2020 ONCA 559

DATE: 20200904

DOCKET: C67030

van Rensburg, Pardu and Huscroft JJ.A.

BETWEEN

Fameeda Sewbans

Applicant (Respondent)

and

Sylvan Sewbans

Respondent (Appellant)

Sylvan Sewbans, acting in person

Sukhjinder Bhangu, for the respondent

Heard: September 1, 2020 by videoconference

On appeal from the order of Justice Judy A. Fowler Byrne
    of the Superior Court of Justice, dated May 24, 2019.

REASONS FOR DECISION

[1]

This is an appeal of certain aspects of a final order made after the
    trial of matrimonial proceedings. We dismissed the appeal, with reasons to
    follow. These are our reasons.

[2]

The appellant and the respondent married in 1989. They have two
    children, one of whom was no longer a child of the marriage at the time of
    trial. In August 2014, the parties separated, but continued to live separately
    at the matrimonial home until that propertys sale in February 2015. In April
    2015, the parties signed a separation agreement purporting to deal with support
    obligations and property issues. The separation agreement provided for child
    support obligations, a waiver of spousal support for both parties and the
    requirement that the respondent transfer her interest in an investment property
    to the appellant. The parties continued to cohabit at a rented property until
    November 2015, at which point the respondent moved out with the children.

[3]

At the trial in January 2019 there were five issues: (1) whether the
    separation agreement was enforceable; (2) what retroactive and ongoing child
    support was owed by the appellant to the respondent; (3) whether the appellant
    owed any retroactive and/or ongoing spousal support to the respondent; (4)
    whether an equalization payment was owed by one party to the other; and (5) the
    post-separation adjustments, if any, to be made to the equalization payment.

[4]

After concluding that the separation agreement was not enforceable (a
    finding that was not challenged on appeal), the trial judge ordered that the
    appellant pay the respondent: (i) $47,075 in spousal support arrears; (ii)
    $10,741.60 in child support arrears and $1,798.47 for s. 7 expenses under the
Child
    Support Guidelines
, O. Reg. 391/97; (iii) ongoing child support of $556
    per month for one child; (iv) ongoing spousal support of $311 per month; and
    (v) an equalization payment of $255,819.23, accounting for all post-separation
    adjustments. The application judge ordered that substantially all of the
    equalization payment and spousal and child support arrears be satisfied by
    transferring an investment property from the appellant to the respondent.

[5]

The appellant raised three issues on appeal.

[6]

First, the appellant asserted that the trial judge erred by failing to
    grant his request that the trial be adjourned for three weeks because he had
    consulted with a lawyer who could not be prepared for trial on short notice. He
    submitted that if he had the benefit of counsel either to represent him or to
    give him advice, he would have been better equipped to assemble his evidence
    and to advance his interests at trial.

[7]

This argument must be rejected. The trial judge carefully considered the
    relevant circumstances, including that the appellant had known about the trial
    date for six months, that he was aware that his former counsel would no longer
    be acting for him more than two months earlier, that he had contacted the
    lawyer he wished to retain only the day before the trial was to commence, and
    that, because of the trial list, any adjournment would mean that the trial
    would not be heard for approximately one year. A review of the record discloses
    that the appellant, notwithstanding that he represented himself at trial,
    brought forward appropriate documents, testified, called and cross-examined
    witnesses, and made submissions. The trial judge, in refusing an adjournment,
    took into account the relevant considerations in balancing the competing
    interests and made a decision that was in keeping with the interests of
    justice. As such, there is no basis to interfere: see
Toronto-Dominion Bank
    v. Hylton
, 2010 ONCA 752, 270 O.A.C. 98, at para. 36.

[8]

As his second ground of appeal the appellant submitted that the trial
    judge misapprehended the evidence when she determined child and spousal support.
    The appellant made two arguments here: he asserted that the trial judge relied
    on hearsay to conclude that he had a college education, when in fact he
    attended a retraining course after suffering a workplace injury, and he claimed
    that the trial judge erred in her assessment of the evidence when she refused
    to impute income to the respondent based on her ability to run a home daycare.

[9]

On the first point, the trial judge reasonably concluded on the evidence
    before her that the appellant had a college education. The respondent testified
    that when they married, she was working while the appellant was attending
    college, and the appellant did not challenge this evidence in his own
    testimony. The appellant testified that he had attended the Toronto School of
    Business for retraining, after a workplace accident. In any event, whether the
    appellants return to school for retraining was part of a college program, or
    not, the trial judges conclusion that the respondent was entitled to spousal
    support and her imputation of income to the appellant were fully supported by
    the evidence. The appellants opportunity to pursue further education, while
    the respondent did not, was only one of a number of factors taken into
    consideration by the trial judge in concluding that the respondent was entitled
    to spousal support on both a compensatory and non-compensatory basis. And, in
    imputing income to the appellant, who was not working at the time of the trial,
    the trial judge referred to a number of factors apart from the appellants
    education: his age, health, work and earnings history, as well as his spending
    habits. Whether or not the appellant had a college education, in the sense of
    having earned a college diploma, was not the issue; rather the appellant, until
    2017, had a long track record of gainful employment that was indicative of his
    income-earning capacity, and the trial judge reasonably concluded that, relying
    on his savings, investments, and a disproportionately large share of the
    marital assets, the appellant had not made sufficient efforts to become
    re-employed.

[10]

As
    for the refusal to impute income to the respondent with respect to a home
    daycare, the trial judge carefully reviewed the evidence brought forward by
    both parties on this issue. She concluded that the appellant had failed to
    establish that the respondent could earn more running a home daycare than in her
    employment outside the home. Moreover, the trial judge observed that the house
    in which the respondent had been operating a home daycare at the date of
    separation had been sold, and she was living in rented accommodation after the
    house had been sold, where it was unlikely she would be permitted to operate a
    home daycare. There was no error in the trial judges determination that
    support should be based on the respondents actual income from employment
    (which was $33,600 in 2018), rather than an imputed amount as proposed by the
    appellant.

[11]

Finally,
    the appellant asked that this court order a new trial so that he can put
    forward additional evidence both on the issue of imputing income to the
    respondent, and on the question of the disposition of the proceeds of the
    matrimonial home, which is relevant to equalization. A new trial can be ordered
    when an appeal is allowed and the court is satisfied that some substantial wrong
    or miscarriage of justice has occurred:
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 134.

[12]

We
    are not prepared to order a new trial. All of the issues that had to be
    determined in the parties matrimonial proceedings were addressed during the
    five-day trial, with evidence and argument. As noted, the trial judge made a
    reasonable assessment of the respondents earning capacity based on the
    evidence of the parties and other witnesses. As for the proceeds of the
    matrimonial home, which the appellant retained after its sale, the trial judge
    deducted the amounts the appellant paid for the parties joint debt and their
    daughters student loans, and she noted that the appellant had acknowledged
    keeping the balance and depositing around $113,000 into his RRSP or trading
    account. Her treatment of the matrimonial home proceeds was fully supported by
    the evidence; indeed the appellant did not argue on appeal that the trial judge
    misapprehended or overlooked evidence on this issue. It is too late for the
    appellant, now, to assert that, if given the opportunity, he could bring
    forward more or different evidence respecting the respondents income or his disposition
    of the proceeds of sale of the matrimonial home.

[13]

For
    these reasons the appeal was dismissed. Costs to the respondent fixed at
    $5,000, inclusive of applicable taxes and disbursements.

K. van Rensburg J.A.

G. Pardu J.A.

Grant Huscroft J.A.


