



COURT OF APPEAL FOR ONTARIO

CITATION: Berman v. Berman, 2017 ONCA 447

DATE: 20170531

DOCKET: M47723 and M47795 (C62911)

Epstein J.A. (In Chambers)

BETWEEN

Yakov Eitan Berman

Appellant

and

Alissia
    Berman

Respondent

Kristy Maurina, for the appellant

Dani Frodis, for the respondent

Heard: May 3, 2017

On appeal from the judgment of Justice L.E. Fryer of the
    Superior Court of Justice, dated June 16, 2016, with reasons reported at 2016
    ONSC 6249.

REASONS FOR
    DECISION

[1]

There were two motions in front of me in this
    family law dispute. In the underlying appeal, the appellant/father seeks to
    vary the trial judges decision in relation to custody and access, equalization
    and child support, as well as costs. Against that background, the father moves
    for an order extending the time to perfect the appeal. At the same time, the respondent/mother
    seeks an order for security for costs for both the appeal and the unsecured costs
    awarded at trial.

[2]

For the reasons that follow, I grant
    the fathers motion and award an extension of time to perfect the appeal. I
    dismiss the mothers motion for security for costs.

Facts

[3]

The parties were married on July 31,
    2011. Their daughter Eliana was born in February 2013. They separated on
    December 20, 2013. The matrimonial home was sold in February 2014, and the
    proceeds placed in trust. In July 2014, Rogers J. ordered that Eliana would
    reside primarily with the mother, but that the father would have parenting time
    every Monday and Wednesday from 4 p.m. to 7 p.m., and every second weekend from
    Friday at 4 p.m. to Sunday at 5 p.m. This schedule remained in place until the
    trial

[4]

The mother is a dental hygienist. She
    left work briefly following the separation, but returned to working full time
    in October of 2014. For many years the father worked selling cars. During the
    marriage, the father left his position at a used car dealership, and decided to
    start a custom kitchen business. This business was not a success, and was wound
    up within a year. The father initially declined to return to work following the
    separation. Around October 2015, the father returned to selling cars, although the
    question of whether he was underemployed was a matter of dispute at trial.

Decision below

[5]

The trial judge first dealt with
    custody. The mother sought sole custody in her favour. The father initially
    sought joint custody, but changed his position to sole custody in his favour
    during the course of the trial. The trial judge held that joint custody would
    not be appropriate, as the parties lacked a significant history of effective
    cooperation. An order for sole custody was necessary to ensure that decisions
    could be made for Eliana in a timely and effective way. Based on the evidence
    she had heard, the trial judge determined that it was in Elianas best
    interests for the mother to have sole custody. The mother had shown herself to
    be, for the most part, child-focussed, and prepared to involve the father in
    the decision-making process.

[6]

The trial judge next turned to
    parenting time. The father sought shared parenting, while the mother proposed that
    Eliana reside in her primary care, with the fathers having weekly access. The
    trial judge noted that while the mother worked regular day-time hours, the
    father often had to work evenings and weekends. Eliana had been in the primary
    care of the mother since birth, and it was important for her to have stability
    and routine. Accordingly, a shared custody regime would not be in Elianas best
    interests at this time. The trial judge ordered Eliana to remain in the primary
    care of the mother, however with weekly overnight time with the father, as well
    as every second weekend.

[7]

The trial judge then dealt with child
    support. The father provided highly inconsistent evidence as to his income, and
    failed to produce timely disclosure, making it impossible to reach a
    determination of his income as required by the
Federal Child Support
    Guidelines
, S.O.R./97-175 (the 
FCSG
). Accordingly, the trial judge
    was required to impute an appropriate income to the father, pursuant to s. 19
    of the
FCSG
. The father took the position that his annual income was
    $40,000, the amount by which he had been calculating his child support
    obligations since separation.

[8]

The trial judge held that this was a
    reasonable income for 2014, as had the father re-entered the car sales industry
    in that year he would have required time to re-build his sales. However, the
    father's position that he was still only capable of earning $40,000 was not
    reasonable. The father had a track record as a successful car salesman, earning
    more than $100,000 in some years. He should have obtained employment in the car
    sales field immediately after separation, rather than delaying. Accordingly,
    the trial judge imputed an income of $75,000 to the father for each year since
    2014. Pursuant to the
FCSG
, the father was ordered to pay $682 in
    monthly child support, and an additional $6,014 in arrears.

[9]

Finally the trial judge turned to
    property equalization. The father claimed a $120,000 interest on the date of
    marriage in the car dealership he worked for at that time. The trial judge
    found that the evidence only supported a $46,000 interest. The trial judge also
    found there to be no evidence to support the father's claim of having $50,000
    in cash at the date of marriage. He claimed to owe significant money to various
    friends at the date of marriage, but did not call these friends to testify. The
    evidence only supported the fathers having $25,000 in debt to his friends at
    the time of marriage. Accordingly, the mother was ordered to make an
    equalization payment of $44,569.26 to the father. The mother sought an unequal
    division of net family property, pursuant to s. 5(6) of the
Family Law Act
,
    R.S.O. 1990, c. F.3. However, these facts did not reach the extremely high bar
    of unconscionability required for such an order.

[10]

In a later costs decision, the trial
    judge awarded the mother costs of $132,000 plus HST. The Family Responsibility
    Office (FRO) was ordered to collect $30,000 plus HST, as an incident of child
    support. This cost award was stayed pending appeal.

Fathers motion

[11]

The trial judgment was released on June
    16, 2016. The father sought an extension of time in which to perfect the
    appeal. The delay was a modest one, and was explained by the fact that the
    issued and entered trial and cost orders had not yet been received from the
    trial court. It is clear that this motion should have gone on consent. In front
    of me, counsel for the mother agreed that there was no principled basis on
    which to oppose the motion. Accordingly, the extension of time is granted.

Mothers motion

[12]

The mother sought security for costs
    for the appeal in the amount of $30,000, as well as security for the trial
    costs in the amount of $30,841.35.

[13]

It is agreed by both parties that a
    significant portion of the $149,100 in costs awarded at trial (after HST) is
    already secured. The amount of $33,900 is enforceable through the FRO as an incident
    of child support. There is $46,443.97 belonging to the father remaining in
    trust from the sale of the matrimonial home. And the equalization payment
    ordered at trial remains outstanding and can be off-set. Accordingly, more than
    70 percent of the costs awarded at trial are secured.

[14]

The courts authority to order security
    for costs flows from r. 61.06 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. The mother relies on subsection (1)(a), which provides that:

(1) In an appeal where it appears that,

(a) there is good reason to believe that the
    appeal is frivolous and vexatious and that the appellant has insufficient
    assets in Ontario to pay the costs of the appeal;

a judge of the appellate court, on motion by the
    respondent, may make such order for security for costs of the proceeding and of
    the appeal as is just.

[15]

To award security for costs under r.
    61.06(1)(a), there must be good reason to believe both that the appeal is
    frivolous and vexatious, and that the appellant has insufficient assets in
    Ontario to pay the costs of the appeal.  However, even if I were to find that
    both requirements are satisfied, I retain the discretion to refuse to order
    security for costs. The overarching principle to be applied is the justness of
    the order sought:
Pickard v. London Police Services Board
, 2010
    ONCA 643, 268 O.A.C. 153 (in Chambers), at paras. 17-18.
The terms frivolous and vexatious were defined in
Pickard
,
    at para. 19. According to Watt J.A., a frivolous appeal is one readily
    recognizable as devoid of merit, as one having little prospect of successA
    vexatious appeal is one taken to annoy or embarrass the opposite party,
    sometimes fuelled by the hope of financial recovery to relieve the respondent's
    aggravation.

[16]

In my view, the father faces a steep uphill battle in this appeal. Especially
    on the equalization and child support grounds, much of what he challenges are
    factual findings or findings of mixed fact and law, which cannot be overturned
    absent palpable and overriding errors by the trial judge. However, I am not
    prepared to say that it appears that there is good reason to believe that the
    entirety of the appeal is frivolous and vexatious.

[17]

In addition, the record does not support a finding that there is good
    reason to believe that the father has insufficient assets in Ontario to pay
    the costs of the appeal.

[18]

The father, in his affidavit, swears that he has the ability to pay the
    costs of the appeal. The record supports this position. The trial judge imputed
    fathers income as being $75,000 a year. As the trial judge noted, at paras.
    105-106, [the father] has a track record as a successful car salesman earning
    in excess of $100,000 per year [the father] is currently employed in this
    field. He is in good health, and there was no evidence to suggest that he could
    not work full time and quickly return to his former level of income. I note
    that at this point in time the father has been back selling cars for several
    years.

[19]

I also note that payment of a percentage of the costs of the appeal can
    be secured through the Family Responsibility Office as an incident of child
    support, as occurred with the costs at trial.

[20]

An order for security for costs on appeal pursuant to r. 61.06(1)(a) is
    not a routine order. Discretion to make such an order exists only where the
    respondent (here, the mother) establishes both of the criteria set out in the
    rule. While this is a close call, I am not satisfied that either part of the
    test has been met. The mothers motion for security for costs is therefore dismissed.

Result

[21]

The fathers motion for an extension of
    time to perfect the appeal is granted. In the light of my conclusion that the
    father should not have been put to the expense of bringing a motion for an
    extension of time, I order the mother to pay the fathers costs of this motion
    in the amount of $1,000 including interest and HST.

[22]

The mothers motion for security for
    costs is dismissed. The mother is ordered to pay the fathers costs of the
    motion in the amount of $2,000 including interest and HST.


