



COURT OF APPEAL FOR ONTARIO

CITATION: Froehlich-Fivey v. Fivey, 2018 ONCA 214

DATE: 20180302

DOCKET: C62623

Juriansz, Miller and Nordheimer JJ.A.

BETWEEN

Carolina Froehlich-Fivey

Applicant (Appellant)

and

Jeffrey Richard Fivey

Respondent

D. Andrew Thomson, for the appellant

David Williams, for the respondent

Heard and released orally: February 28, 2018

On appeal from the judgment of Justice Edward J. Koke of
    the Superior Court of Justice, dated July 22, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from the trial judgment where equalization amounts
    were calculated along with spousal and child support.

[2]

The appellant first sought to adduce fresh evidence consisting of a
    psychiatric report for one of the children on the issue of whether she
    continues to be a dependant.

[3]

Even if we were to accept the fresh evidence, we would not rule on it.
    The appropriate remedy is to seek to vary the judgment under s. 37(2.1) of the
Family
    Law Act
, R.S.O. 1990, c. F.3
which
    expressly allows a court to vary an earlier order if the court is satisfied
    that evidence not available on the previous hearing has become available.

[4]

With respect to the merits of the appeal, the standard of review is a
    stringent one.  As this court said in
Slaughter v. Slaughter
, 2013
    ONCA 432, at para. 6:

The decision of the judge below is entitled to deference on
    appeal and the standard of review is designed to promote finality in family law
    litigation and to recognize the importance of the motion judges appreciation
    of the facts.

It is only where the judges decision exceeds a generous ambit
    within which reasonable disagreement is possible and is plainly wrong then an
    appellate court is entitled interfere.

[5]

In our view, the appellant has failed to meet this test. While the
    appellant attempts to clothe her challenges as errors in law, that attempt does
    not succeed.

[6]

She complains about the imputation of income to her but the trial judge
    gave proper reasons for doing so. She also complains about the valuation of the
    respondents business but that issue was resolved by the trial judge on the
    basis that he preferred the evidence of the respondents expert over that of
    the appellant. Again, the trial judge was entitled to make that choice.

[7]

Boiled down to its essence, the appellant is challenging the factual
    findings that the trial judge made. It is not the role of this court to re-find
    facts. Absent a clear error in principle, this court should not interfere.

[8]

The appeal is dismissed. Costs are awarded to the respondent fixed in the amount of $18,953.55 all-inclusive.

R.G. Juriansz J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


