



COURT OF APPEAL FOR ONTARIO

CITATION: Cheng v. Sze, 2021 ONCA 346

DATE: 20210525

DOCKET: C68200

Strathy C.J.O., Feldman and
    Sossin JJ.A.

BETWEEN

Bonnie Ho
    Yee Cheng

Applicant (Respondent)

and

David Chan Sau Sze

Respondent (Appellant)

Roger A. Gosbee, for the appellant

Ken H. Nathens and Denniel Duong, for
    the respondent

Heard: May 17, 2021 by video conference

On appeal from the order of Justice Robert
    Charney of the Superior Court of Justice, dated February 11, 2020.

REASONS FOR DECISION

[1]

This is an appeal from a final order in
    matrimonial proceedings dealing with issues of equalization of net family
    property, child support, and other financial matters. The appellant challenges
    the trial judges findings concerning the date of separation, his assets on the
    date of marriage, the imputation of income for the purpose of child support,
    and the parties share of expenses after separation. The respondent
    cross-appeals the trial judges disposition of s. 7 expenses.

[2]

The parties were married on October 1, 2000. Their
    marital problems began in 2013. There were attempts at reconciliation, but
    evidence at trial showed that there was no reasonable prospect of
    reconciliation by July 3, 2014. The trial judge assigned this as the date of
    separation for the purpose of the valuation date. Pursuant to s. 19 of the
Child
    Support Guidelines
, O. Reg. 391/97, the trial judge imputed a yearly
    income of $75,000 to the appellant and ordered him to pay monthly child support
    payments of $1,139. Further, the trial judge declined to assign value to the
    appellants investment account on the date of marriage because the appellant
    had not provided corroborating records and his testimony was unreliable. Finally,
    the trial judge found that the appellant owed the respondent a $79,796.86
    equalization payment as well as adjustments for post-separation household expenses.

[3]

We note at the outset that the standard of
    review for support decisions is one of significant deference. An appeal court
    should only intervene where there is a material error, a serious
    misapprehension of the evidence, or an error of law. It is not entitled to
    overturn a support order simply because it would have made a different
    decision or balanced the factors differently:
Hickey v. Hickey
, [1999]
    2 S.C.R. 518, at para. 12.

[4]

The deferential standard of review applies with
    particular force in family law cases where the trial judges findings of fact
    are rooted in credibility assessments:
Jonas v. Pacitto
, 2020 ONCA
    727, 49 R.F.L. (8th) 56, at para. 42. In this case, there were significant
    factual disputes at trial and conflicting evidence in relation to most issues.
    The trial judge made credibility findings adverse to the appellant, finding
    that he was generally confused about his financial affairs. His story kept
    changing. He could not explain many of his financial documents. The trial
    judge found that the appellants description of his working hours (which he
    estimated at four to five hours per week) strain credulity.

[5]

The appellant alleges four general errors on
    appeal. The first is with respect to the date of separation. The appellant
    submits that the trial judge erred in selecting a date that was not proposed by
    either party. Instead, the trial judge selected a date identified in a note of
    a marriage counsellor, who observed on July 3, 2014 that the appellant told her
    that the couple has decided not to continue their marital relationship.

[6]

We see no error. The trial judge considered and
    applied the multi-factor test referred to in
Al-Sajee v. Tawfik
, 2019
    ONSC 3857, 27 R.F.L. (8th) 269, at para. 37 for the determination of the date
    of separation. The trial judge was not bound to choose between dates identified
    by one party or the other. He identified a date that was reasonable and
    supported by his assessment of all the evidence, including a contemporaneous
    note made by an independent witness. The appellant has not identified a
    palpable and overriding error in the trial judges assessment of this evidence.

[7]

Second, the appellant submits that the trial
    judge erred in failing to find that he had an asset as of the date of marriage
     namely $200,000 in an investment account  when he also found that the
    appellant had a debt to his mother in the same amount, which was allegedly used
    to buy the investments.

[8]

We do not accept this submission. The trial
    judge accepted the existence of a debt, which was incurred over several years
    and for which there was an evidentiary basis. However, he was not satisfied
    that the appellant had discharged his onus under s. 4(3) of the
Family Law
    Act
, R.S.O. 1990, c. F.3 to establish that an asset existed at the date of
    marriage. Simply put, the trial judge did not accept the appellants evidence
    on this issue. He pointed to the absence of any documentary evidence to corroborate
    the existence or value of the alleged asset and the absence of evidence from
    the financial institution to prove that no records were available. He found
    that the evidence the appellant gave at trial was inconsistent with his sworn
    financial statements. In sum, the onus was on the appellant on this issue and
    the trial judge found that his evidence was neither reliable nor corroborated.
    There is no basis to interfere.

[9]

The appellants third submission is that the
    trial judge erred in imputing an income of $75,000 for the purpose of child
    support. The appellant submits that there was no evidence that he ever earned
    this amount of money.

[10]

The amount of income to be imputed is a matter
    within the trial judges discretion, provided there is a rational and evidentiary
    basis for the amount:
Drygala v. Pauli
(2002), 219 D.L.R. (4th) 319
    (Ont. C.A.), at para. 44. There was evidence that the appellant was capable of
    earning $70 per hour, but that he had only worked four to five hours a week in
    2017 and 2018. The trial judge accepted the $70 per hour figure, but found the
    appellants evidence of his hours incredible. There was also evidence that he
    had earned an income of between $60-70,000 in years prior to 2009, when he
    started his own business. The appellants submission that he had never earned
    $75,000 misses the point  the trial judge found he was capable of earning that
    amount. This conclusion had a basis in the evidence and is entitled to
    deference.

[11]

Finally, the appellant submits the trial judge
    erred in his calculation of the parties share of post-separation expenses,
    although largely based on his assertion that the trial judge erred in
    determining the date of separation. In any event, the trial judges disposition
    of this issue was based on his acceptance of the respondents evidence and his
    rejection of the appellants. The appellant demonstrates no reviewable error.

[12]

In summary, the appellant identified no error of
    law and no palpable and overriding error of fact. He essentially asks us to
    re-assess and reweigh the evidence and to make the findings of fact he now says
    the trial judge ought to have made. This is not our role. The appeal is
    dismissed.

[13]

With respect to the cross-appeal, the trial
    judge found that s. 7 expenses were to be shared equally between the appellant
    and the respondent, but did not provide a breakdown of the expenses. He was not
    required to do so. Paragraph 9 of the order provided that if either party had
    questions about its implementation, a 14B motion could be made to the trial
    judge. Any disagreement on the s. 7 expenses, or the arrears (which the parties
    agree are $4,700), should be dealt with by the trial judge.

[14]

The respondent is entitled to her costs of the
    appeal. We encourage the parties to reach an agreement as to costs, but if they
    cannot agree, they may make submissions in writing. The respondent shall
    deliver her submissions within 15 days of the release of these reasons and the
    appellant shall have 10 days within which to reply. The submissions of each
    party shall be limited to three pages, excluding costs outlines.

G.R.
    Strathy C.J.O.

K.
    Feldman J.A.

L.
    Sossin J.A.


