



COURT OF APPEAL FOR ONTARIO

CITATION: Valley v. Hay, 2019 ONCA 770

DATE: 20190930

DOCKET: C66210

Juriansz,
    Benotto and Miller JJ.A.

BETWEEN

Kay
    Valley

Applicant (Respondent on Appeal)

and

Justin
    Hay

Respondent (Appellant)

Caitlin Dale, for the appellant

Allison P. Williams, for the respondent
    on appeal

Heard: September 26, 2019

On appeal from the order of Justice Patrick Monahan of the Superior
    Court of Justice, dated October 31, 2018, with reasons reported at 2018 ONSC
    6521.

REASONS FOR DECISION

[1]

The parties were married in 2000 and have two children born in 2002 and
    2004. They separated in 2014 and acrimonious litigation followed.

[2]

The husband appeals the trial judges determination as to the wifes
    entitlement to compensatory support, the attribution of income to both parties
    for child and spousal support purposes, the set-off of equalization and the
    determination not to award limited term support. The wife had cross-appealed
    the spousal support determination on the basis of fresh evidence but withdrew
    the cross-appeal during submissions.

[3]

We advised counsel that the appeal would be dismissed for reasons to
    follow. These are the reasons.

The Standard of Review

[4]

For over two decades, the standard of review in family law matters has
    been clear. The high level of deference was clearly articulated in
Hickey v. Hickey
, [1999] 2 S.C.R. 518. We
    quote at some length since the principle seems to be ignored:

10      When family law legislation gives
    judges the power to decide on support obligations based on certain objectives,
    values, factors, and criteria, determining whether support will be awarded or
    varied, and if so, the amount of the order, involves the exercise of
    considerable discretion by trial judges. They must balance the objectives and
    factors set out in the Divorce Act or in provincial support statutes with an
    appreciation of the particular facts of the case. It is a difficult but
    important determination, which is critical to the lives of the parties and to
    their children. Because of its fact-based and discretionary nature, trial
    judges must be given considerable deference by appellate courts when such
    decisions are reviewed.



12      There are
    strong reasons for the significant deference that must be given to trial judges
    in relation to support orders. This standard of appellate review recognizes
    that the discretion involved in making a support order is best exercised by the
    judge who has heard the parties directly. It avoids giving parties an incentive
    to appeal judgments and incur added expenses in the hope that the appeal court
    will have a different appreciation of the relevant factors and evidence. This
    approach promotes finality in family law litigation and recognizes the
    importance of the appreciation of the facts by the trial judge.

[5]

This approach has been followed many times by
    this court: see, for example,
Senos v. Karcz
, 2014 ONCA 459, at para.
    36.

[6]

In addition to the high level of deference,
    there is also the objective of proportionality which is emphasized in
Family
    Law Rules
, O. Reg. 114/99. In this case, both issues regarding deference
    and proportionality are engaged.

Compensatory Support

[7]

The trial judge determined that the wife was entitled to spousal support
    on a compensatory basis. He concluded, at para. 98, that she did forgo career
    opportunities during the marriage and that this has significantly impacted her
    ability to support herself. The husband submits that in coming to this
    conclusion, the trial judge was speculating and not drawing inferences based on
    the evidence. We disagree. This conclusion was open to him on the evidence that
    the wife moved to Vancouver, then to New York, then to Toronto to accommodate
    the husbands career. Once back in Toronto, the first child was born, and she
    became the primary caregiver for the children.

Imputation of Income

[8]

For purposes of spousal and child support, the trial judge imputed
    $125,000 to the husband and $38,480 to the wife. The husbands income from 2012
    to 2014 had been approximately $190,000 per year. For the period of 2015 to 2017,
    the trial judge concluded that, because the husband was self-employed, his
    reported income should be adjusted up to $177,000 per year. At the time of
    trial, the husband was actively seeking employment and expected to earn between
    approximately $110,000 and $130,000. The attribution of $125,000 was therefore
    reasonable. The trial judge based the wifes income on the amount she would be
    currently earning at a new job with Toyota. That amount is $38,480. The quantum
    of child and spousal support was based on these numbers.

[9]

The financial disclosure at trial was less than optimum. There was no
    expert evidence called and the trial judge was left to estimate the parties
    income on the basis of the evidence he had.

[10]

The imputation of income for support purposes is a finding of
    fact made by the trial judge: see
Pirner v. Pirner
, [2005] O.J. No. 5093, at para. 20. It is not an exact science and
    this court has repeatedly upheld findings involving a trial judges conclusions
    that fairly reflect parties financial circumstances: see
Mason v. Mason
,
    2016 ONCA 725;
Ludmer v. Ludmer
, 2014 ONCA 827.

[11]

The fact that the parties  self-represented at
    trial  were not precise in their evidence does not prevent the trial judge
    from arriving at a fair determination on the basis of the evidence accepted. That
    is what occurred here.

Retroactive Spousal Support and Equalization

[12]

The
    wife claimed retroactive support from the date of the separation to the date of
    trial.

[13]

The
    trial judge determined that the husband was owed $43,472 for equalization and
    post-separation payments. However, on the basis of the husbands position, this
    amount was set off against the wifes claim of retroactive support. This
    resulted in no order for retroactive support. The husband alleges that the
    trial judge misunderstood his position. He submits that, because there was no
    retroactive support ordered, there should have been no set-off.

[14]

Again,
    we do not agree.

[15]

The
    trial judge stated that he took this into account in [his] determination that
    no retroactive spousal support should be ordered: para. 125. Read in
    conjunction with his determination as to spousal support generally, it was open
    to the trial judge to set off the amount owing to the husband for equalization.

Duration of Spousal Support

[16]

The
    husband submits that the trial judge erred by not awarding limited term spousal
    support. This was a 13 ½ year marriage; the wife was the primary caregiver and
    entitled to support. There was no evidence that her circumstances would change
    at an identifiable time. It was open to the trial judge not to impose a limited
    term on her support.

Disposition

[17]

The
    appeal is dismissed with costs fixed on a partial indemnity scale of $13,000
    all inclusive. The parties acknowledge that these costs may be applied to the
    costs of $15,000 ordered to be paid by the wife to the husband. In the result,
    the husband is owed $2,000 for costs of the trial, accounting for the off-set
    from costs of the appeal.

R.G.
    Juriansz J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


