



COURT OF APPEAL FOR ONTARIO

CITATION: Coad v. Coad, 2017 ONCA 173

DATE: 20170228

DOCKET: C61264

Strathy C.J.O., Laskin and Trotter JJ.A.

BETWEEN

Melanie Laura Coad

Applicant

(Respondent on Appeal)

and

Robert Frank Coad

Respondent

(Appellant)

Brigitte Gratl, for the appellant

James M. Peluch and Yervant Boghossian, for the
    respondent

Heard: February 22, 2017

On appeal from the order of Justice C.N. Herold of the
    Superior Court of Justice, dated October 16, 2015.

ENDORSEMENT

[1]

This appeal arises from a trial that continued over the course of four
    days. At the conclusion of the trial, the trial judge ordered: (1) an equal
    division of net family property; (2) that the wife (respondent) was not
    required to pay child support; and (3) that the husband (appellant) pay spousal
    support of $500 per month, based on an imputed income of $40,000.

Background

[2]

By way of brief background, when they separated in May of 2013, the
    parties had been together for about 18 years. They had two sons, who were 19
    and 17 ½ years old at the time of trial, and who lived with the appellant. At
    the time of trial, the older son was in university. As the trial judge found,
    this son had essentially repudiated his relationship with his mother. The
    younger son, who has been diagnosed with Aspergers Syndrome, and who was also
    estranged from his mother, was still in high school.

[3]

The appellant appeals the three orders made by the trial judge on the
    following grounds: (1) the comments and interventions of the trial judge
    throughout the proceedings gave rise to a reasonable apprehension of bias; (2)
    the trial judge erred in failing to hold that the two boys were children of the
    marriage and therefore in not ordering the wife to pay child support; (3) the
    trial judge erred in imputing income to the appellant and ordering spousal
    support on that basis; and (4) the trial judge erred in failing to make an
    unequal division of net family property. The appellant also applies to adduce
    fresh evidence.

[4]

For the following reasons, we would not give effect to any of the
    grounds of appeal, and we would dismiss the fresh evidence application.

Reasonable Apprehension of Bias

[5]

The appellant is unable to meet the very high threshold to succeed on
    this ground: see
Cojocaru (Guardian ad litem of) v. British Columbia Womens
    Hospital & Health Centre
, 2013 SCC 30, [2013] 2 S.C.R. 357, at para.
    29.

[6]

The trial judge was very active in his conduct of this trial. It is
    clear from his many interventions that he was attempting to get the appellant
    (who was self-represented at the time) to focus on the financial issues that
    were in dispute, and prevent him from pursuing distracting and irrelevant side
    issues. The trial judge made some comments that were perhaps better left unsaid
    or, if said, said in a different way. However, looking at the record as a whole,
    we cannot conclude that there was a reasonable apprehension of bias.

Child Support

[7]

The trial judge denied child support for a number of reasons. First, he
    found that, at the time of trial, the respondents income was not sufficient to
    trigger any child support obligation. He found that, even if the respondents
    income were to increase the following year to the point where she would be required
    to pay a nominal amount, her sons would be 20 and 18.

[8]

Second, with respect to the younger son, the appellant requested that
    the respondent pay 50% of his post-secondary expenses. At the time, there were
    none as he was still in high school.

[9]

Lastly, the trial judge found that the older son had repudiated his
    relationship with his mother and was no longer a child of the marriage. The
    trial judge also found that the younger son, who was to turn 18 within months
    of the trial, appeared to be headed in the same direction in terms of his
    relationship with his mother.

[10]

We see no error in principle or any misapprehension of the evidence in
    the trial judges conclusions that the respondent did not earn sufficient
    income to create a child support obligation in respect of the younger son.
    Moreover, there was insufficient evidence to establish that the older son was a
    child of the marriage.

Spousal Support

[11]

The trial judges award of spousal support was reasonable in the
    circumstances. Although the husband was on ODSP at the time of trial, his
    lifestyle leading up to the trial provided a reasonable basis for the trial
    judge to impute income to him in the amount of $40,000.  The trial judges
    award of spousal support based on that imputed income was reasonable.

Net Family Property

[12]

The only substantial matrimonial asset was the proceeds of the sale of
    the matrimonial home, namely $112,722.27. The trial judge divided the proceeds
    equally between the parties. We can find no basis upon which to interfere with
    the trial judges decision not to order an unequal division of net family
    property. The record does not come close to demonstrating that an equal
    division would be unconscionable within the meaning of s. 5(6) of the
Family
    Law Act
,
R.S.O. 1990, c. F.3.

Fresh Evidence

[13]

The appellant attempts to re-litigate the substantive issues at trial by
    adducing fresh evidence on appeal. We dismiss this application for the
    following reasons. We are not persuaded that the evidence is fresh. We also
    have concerns about whether the bulk of this evidence would have been
    admissible at trial. Moreover, the appellant has failed to satisfy us that, if
    admitted, the fresh evidence would have affected the outcome at trial on any of
    the issues discussed above.

Disposition

[14]

Accordingly, the appeal is dismissed with costs to the respondent in the
    amount of $15,000, inclusive of H.S.T. and disbursements.

G.R. Strathy C.J.O.

John Laskin J.A.

G.T. Trotter J.A.


