



COURT OF APPEAL FOR ONTARIO

CITATION: Derbyshire v. Derbyshire, 2017 ONCA 809

DATE: 20171023

DOCKET: C62590

MacPherson, Juriansz and Roberts JJ.A.

BETWEEN

Suzanne Derbyshire

Applicant (Respondent)

and

James Derbyshire

Respondent (Appellant)

Gary S. Joseph and Ryan M. Kniznik, for the appellant

Michael Nash, for the respondent

Heard: October 19, 2017

On appeal from the orders of Justice Silja S. Seppi of
    the Superior Court of Justice, dated July 22, 2016 and October 13, 2016.

REASONS FOR DECISION

[1]

The appellant, James Derbyshire, appeals from the orders of Seppi J. of
    the Superior Court of Justice dated July 22, 2016 (substantive order) and
    October 13, 2016 (costs order).

[2]

The two orders were the result of a nine day family law trial focused on
    the principal issue of spousal support in the context of a 26 year marriage.
    The trial judge concluded that the respondent, Suzanne Derbyshire, was entitled
    to ongoing spousal support of $25,000 per month effective January 1, 2009. The
    trial judge ordered the appellant to pay costs of the trial in the amount of
    $250,000, inclusive of disbursements and HST.

[3]

The appellant appeals these orders on four grounds.

[4]

First, the appellant contends that since the trial judge specifically
    included the appellants potential imminent retirement from his very successful
    business (his income for many years post-separation and post-divorce exceeded
    $1,000,000
per annum
) in her analysis of the spousal support issue,
    she erred in one or two respects  either by not providing for a review of
    spousal support upon the appellants retirement or by not stating explicitly
    that the appellants retirement would constitute a material change in
    circumstance justifying a review of spousal support.

[5]

We do not accept this argument. There is nothing in the trial judges
    language to even suggest that she was foreclosing a subsequent review of
    spousal support if and when the appellant retires. The trial judge said, at
    para. 93, that [t[he periodic support ordered is subject to variation in the
    event of a material change in circumstances. It is obvious that retirement
    from a job that generates an annual income of more than $1,000,000 would
    constitute such an event. The respondent did not at trial, and does not on this
    appeal, suggest otherwise. As expressed in the respondents factum:

20.     In any
    event, Suzanne was on record as acknowledging that James actual retirement
    would be a material change of circumstance  In fact the assurance is given
    again: the retirement of James is a material change of circumstance.

In conclusion, there is not even an issue, let alone
    an error, with respect to the trial judges treatment of the appellants future
    retirement.

[6]

Second, the appellant asserts that the trial judge erred by concluding
    that the respondent has no beneficial interest in the shares in a business
    transferred by Lawrence Deakins to his daughter, the respondent, and her
    husband, the appellant, during their marriage.

[7]

We disagree. The trial judges conclusion on this issue is essentially a
    factual conclusion:

In the case at bar no evidence was produced by the respondent
    to support a finding that the transfers from Mr. Deakins were a gift, either to
    the Respondent and Applicant when they were together, or subsequently to the
    Applicant. The ancillary facts the Respondent raises to challenge the trust,
    such as the tax advantages utilized, or the fact that there was an earlier
    trustee of these shares, do not change the ultimate conclusion of the intention
    at the time of the transfer on the part of Lawrence Deakins.
The transfers
    were never intended by him to be a gift
. The Respondents and Applicants
    conduct throughout the marriage in respect of these assets, and Mr. Deakins
    exclusive use and control of these assets, support no other conclusion.
    [Emphasis added.]

[8]

We can see no basis for interfering with this conclusion. Effectively,
    the appellant is asking this court to re-weigh the evidence that the trial
    judge carefully and thoroughly considered. Much of the appellants argument was
    spent reviewing matters he submitted the trial judge should have considered as
    evidence supporting the transfers were a gift. However, it was for the trial
    judge, applying the correct legal principles, to weigh the various factors.
    Contrary to the appellants submission, we are not persuaded that she placed
    too much weight on the factor of control of the assets in arriving at her
    conclusion that there was no gift.

[9]

The appellants third ground of appeal is a contingent one: he submits
    that if this court accepts his position on the second ground of appeal and
    concludes that the respondent is not holding certain assets in trust for her
    father, then her disposable income is substantially higher and a spousal support
    order of $25,000 per month is too high. Accordingly, spousal support should
    continue in the original amount of $15,000 per month.

[10]

In
    light of our conclusion on the trust issue, the issue posed by the third ground
    of appeal does not arise.

[11]

Fourth,
    the appellant challenges the trial judges costs award in one respect. He
    asserts that the trial judge took only a mathematical approach to the quantum
    of costs and simply added up the billable hours claimed by the respondents
    counsel.

[12]

We
    are not persuaded by this submission. In our view, a review of the trial
    judges costs endorsement shows that she considered all relevant factors, including
    the positions of the parties, and arrived at a figure that seemed reasonable to
    her. We see no basis for interfering with her costs award.

[13]

The
    appeal is dismissed. The respondent is entitled to her costs of the appeal
    fixed at $18,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


