



COURT OF APPEAL FOR ONTARIO

CITATION: Berman v. Berman, 2017 ONCA 905

DATE: 20171123

DOCKET: C62911

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

Yakov Eitan Berman

Applicant

(Appellant in Appeal)

and

Alissia Berman

Respondent

(Respondent in Appeal)

Michael Stangarone and Stephen Kirby, for the appellant

Dani Frodis, for the respondent

Heard and released orally: November 21, 2017

On appeal from the order of Justice L.E. Fryer of the Superior
    Court of Justice, dated October 5, 2016.

REASONS FOR DECISION

[1]

Following an 11-day trial, the trial judge gave comprehensive reasons
    resolving issues of custody, access, support and equalization. The appellant
    raises four issues.

(1)

Did the trial judge err by granting sole custody of the parties child
    to the respondent?

[2]

The appellant submits that the trial judge misapplied the test set out
    in
Kaplanis v. Kaplanis
(2005), 249 D.L.R. (4th) 620 (Ont. C.A.) and
    erred in failing to award joint custody. Alternatively, the appellant seeks an
    order for parallel parenting or an order for sole custody.

[3]

In our view, the trial judge fairly considered the evidence and properly
    reviewed the relevant factors to conclude that it was in the best interests of
    the child that the respondent be granted sole custody. We see no error on the
    part of the trial judge that would permit this court to intervene.

[4]

The trial judge did not misapply or elevate the
Kaplanis
test
    for joint custody. There was evidence to support her finding that the degree of
    cooperation and communication required by
Kaplanis
and other decisions
    of this court to warrant a joint custody order was not present.

[5]

We do not accept the submission that joint custody must be ordered where
    there is some evidence of communication and cooperation. In all cases, it is
    for the trial judge to assess whether the parties ability to cooperate and
    communicate effectively in making parenting decisions warrants a finding that
    joint custody is in the best interests of the child. The trial judges
    assessment of that issue attracts deference in this court. Neither party
    requested parallel parenting. On this record, the trial judge cannot be faulted
    for failing to order joint custody or parallel parenting.

(2)

Did the trial judge err by failing to consider or apply the maximum
    contact principle?

[6]

The parenting schedule ordered by the trial judge took into account
    several factors, including the parties respective work schedules and the
    history of their ability to communicate and cooperate with respect to the
    child.

[7]

The trial judge observed that the respondent was prepared to ensure the
    appellant played an active role in the childs life. She created a schedule
    that, in her words at para. 83, balances out the needs of stability, certainty
    and routine while ensuring that [the child] spends meaningful parenting time
    with her father.

[8]

The order increased rather than decreased the appellants parenting time
    with his child from the interim order. The appellants concern is with the
    frequency of contact. The trial judge was best placed to determine the schedule
    that was in the best interests of this child. There is no basis upon which this
    court could properly interfere with her order.

(3)

Did the trial judge err in her equalization award?

[9]

The appellant submits that the trial judge erred in her date of marriage
    valuation of his interest in Buy Right Auto because of an alleged admission in
    the respondents pleadings.

[10]

The
    position in the pleadings of both parties with respect to valuation was unclear.
    However the trial judges valuation corresponded with that provided by the
    appellant in his sworn financial statements and net family property statements.
    Her valuation was supported by the evidence and we decline to interfere.

[11]

We
    agree with the respondent that the trial judge took into account the proper
    legal test regarding the presumption of resulting trust and the relevant
    evidence in concluding that the respondents parents expected to be repaid a
    loan while the appellants brother-in-law did not. Those were factual findings
    open to the trial judge. It was also open to the trial judge to find that the
    appellant had failed to demonstrate that he came to the marriage with over
    $50,000 in cash.

(4)

Costs

[12]

The
    trial judge awarded the respondent approximately 60% of the full indemnity
    costs she claimed. That award was amply supported by the trial judges
    assessment of the respondents success in the action and the conduct of the
    proceedings, including the respondents offers to settle. Leave to appeal costs
    is granted but the costs appeal is dismissed.

DISPOSITION

[13]

For
    these reasons, the appeal is dismissed.

[14]

Costs
    to the respondent fixed in the amount of $15,000, inclusive of disbursements
    and taxes.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

K. van Rensburg J.A.


