



COURT OF APPEAL FOR ONTARIO

CITATION: Plese v. Herjavec, 2020 ONCA 810

DATE: 20201216

DOCKET: C66506

Strathy C.J.O., Brown and
    Huscroft JJ.A.

BETWEEN

Diane
    Plese

Applicant
(
Respondent in Appeal
)

and

Robert
    Herjavec

Respondent
(
Appellant
)

And In
    the Matter of the Robert Herjavec Family Trust

BETWEEN

Robert Herjavec, Trustee

Applicant
(Appellant)

and

Diane Plese, Brendan Alexander Herjavec
    and Skye Taylor Herjavec, Objecting Beneficiaries

Respondents
(Respondents in Appeal)

Bryan R.G. Smith, Cassidy Johnston and
    Harold Niman, for the appellant

Laurie H. Pawlitza and Adam N. Black,
    for the respondent

Heard: October 5, 2020 by video conference

On appeal from the order of Justice Ruth
    E. Mesbur of the Superior Court of Justice, dated December 28, 2018, with
    reasons reported at 2018 ONSC 7749.

Strathy C.J.O.:

A.

Introduction

[1]

The appellant, Robert Herjavec, appeals from a
    spousal support order made in family law proceedings after a 24-year marriage to
    the respondent, Diane Plese.

[2]

After a four-week trial, the trial judge ordered
    the appellant to make an equalization payment of $2,689,558 in lump sum, and a
    spousal support payment of $125,000 per month, to the respondent. The appellant
    was also ordered to pay child support of $14,233 per month, from May to August
    inclusive, for each year that the parties youngest daughter was in university.

[3]

The appellant submits that the spousal support
    order should be set aside or substantially reduced.

[4]

For the reasons that follow, I would dismiss the
    appeal.

B.

Background

[5]

The parties were married in 1990 and separated
    in 2014. They were 56 years old at the date of trial and had three adult
    children.

[6]

In the early years of their marriage, the
    appellant was a self-employed entrepreneur, and the respondent was a full-time optometrist
    who ran her own office. The respondent began to work part-time after she gave
    birth to the parties first child in 1993. The respondent continued to work on a
    part-time basis between her subsequent maternity leaves.

[7]

The appellants business, meanwhile, grew and prospered.
    In or around 2003, the appellant encouraged the respondent to stop working. The
    respondent agreed and left the workforce completely to focus on managing the
    household and taking care of the children. The appellant was happy with this
    arrangement as it permitted him to immerse himself in his diverse business
    activities.

[8]

At trial, both parties described themselves as a
    good team.

[9]

By the time of their separation, the parties had
    accumulated substantial assets and enjoyed an exceptional income. They lived in
    a large home in the Bridle Path area of Toronto. The property was purchased
    for $7 million and was sold, after their separation in 2018, for $17.395
    million. The parties also owned a $2.6 million recreational property in Florida,
    a $5 million cottage in Muskoka, and a ski chalet in Caledon. They sent their
    children to exclusive private schools. They had access to a private jet,
    through the appellants company, which they used for European vacations with
    their children.

[10]

The respondent commenced the current family law
    proceedings approximately seven months later, on March 3, 2015.

C.

The Trial Judges Decision

(1)

Overview

[11]

There were five main issues at trial: breach of
    trust allegations against the appellant in relation to a family trust;
    equalization of net family property; spousal support; child support; and
    retroactive adjustments to spousal support and child support.

[12]

The trial judge found that:

·

The appellant had breached his fiduciary duties
    as the sole trustee of the family trust. However, he had accounted for the
    amounts that he had taken from the trust, and the beneficiaries had received
    the amounts to which they were entitled.

·

The appellants net family property at the valuation
    date was $24,155,510, consisting primarily of his interest in his company, The
    Herjavec Group Inc. (THG). The respondents net family property was
    $18,835,699, consisting primarily of her ownership of the matrimonial home. The
    appellant was ordered to make an equalization payment to the respondent, in the
    amount of $2,689,558, significantly less than the $12 million she had sought.

·

The appellant was required to pay spousal
    support to the respondent, in the amount of $125,000 per month, for an
    indefinite duration.

·

The appellant was required to pay child support
    for the youngest daughter, in the amount of $14,233 per month, from May to
    August inclusive, for each year that she was in university.

·

The parties claims for retroactive adjustments
    were dismissed.

[13]

Since the trial judge retired after the judgment
    was issued, another judge assessed the parties costs. He awarded costs to the
    appellant, in the amount of $450,000 (including $25,000 for the costs hearing).
    He reasoned that the majority of the time taken up at trial related to
    equalization issues, specifically the valuation of the appellants interest in
    THG. As the respondents equalization payment came out to less than 25% of what
    she believed she was entitled to, he concluded that the appellant had been the
    more successful party on this issue and at trial.

(2)

The spousal support order

(a)

Entitlement to spousal support

[14]

In order to decide whether the respondent was
    entitled to spousal support, the trial judge noted that the overarching
    criterion was a determination of what was reasonable, having regard to the
    conditions, means and other circumstances of the parties. She reminded
    herself that she was required to consider the
factors
and
objectives
of a spousal support order, as stipulated
    by s. 15.2 of the
Divorce Act
, R.S.C. 1985, c.3 (2nd Supp.).

(i)

The s. 15.2(4) Factors

[15]

The trial judge began her analysis of
    entitlement by considering the factors set out in s. 15.2(4) of the
Divorce
    Act
, including (a) the length of time that the spouses cohabited; (b) the
    functions performed by each spouse during the cohabitation; and (c) whether
    there were any orders, agreements or arrangements relating to the support of
    either spouse.

[16]

The trial judge made the following findings of
    fact in relation to the s. 15.2(4) factors:

·

The marriage was a lengthy one of nearly three
    decades.

·

The parties worked as a team. According to the
    appellant in one of his self-help books, the respondents income and steady
    employment provided them with a safety net in case one of his projects went
    belly up during his first years as an entrepreneur.

·

The respondents contributions from her own work
    were critical to the appellants financial success, particularly in the early
    years of their marriage.

·

When the respondent stopped working outside the
    home, she lost very steady employment and a financial safety net created from
    her own separate earnings: [T]his is a compensable loss.

·

Over the course of the marriage, the appellant
    became the prime income earner and asset acquirer, making him less available to
    attend to the household and take care of the family. The respondent consequently
    became responsible for raising the children and managing the household.

·

The respondent had been unable to contribute to
    her own support since 2003 and, at the age of 56, she was unlikely to be able
    to return to her previous profession. Absent anything else, she was in need of
    support.

·

In December 2015, Kiteley J. made an order for
    temporary spousal support of $124,115 per month. The appellant has been paying
    that amount since.

·

At the time of the temporary order, the
    appellant asserted that his 2015 income would be $1.7 million. In fact, his
    line 150 income was $4.553 million before the mandated adjustments under the
Federal
    Child Support Guidelines
, SOR/97-175. Using those adjustments, his 2015
    income was $6.242 million. By comparison, the respondent had virtually no
    income of her own.

(ii)

The objectives of a spousal support order

[17]

The trial judge then turned to examine the
    objectives of a spousal support order, as outlined in s. 15.2(6) of the
Divorce
    Act
. The objectives (a) recognize any economic advantages or disadvantages
    to the spouses arising from the marriage or its breakdown; (b) apportion
    between the spouses any financial consequences arising from the care of any child
    of the marriage; (c) relieve any economic hardship of the spouses arising from
    the breakdown of the marriage; and (d) insofar as possible, promote the
    economic self-sufficiency of each spouse within a reasonable period of time.

[18]

In addressing these objectives, the trial judge
    made the following additional findings of fact.

·

The trial judge rejected the appellants
    submission (re-stated in this court) that the respondents capital position, at
    the end of the marriage, sufficiently compensated her for the economic
    disadvantages arising from the marriage. The appellant had a capital base of at
    least $32 million, including the value of THG (which had likely increased since
    valuation day) and a house in California. He also had the capacity to earn an
    income of more than $5.5 million per year. After buying a house and a cottage,
    which the respondent testified she intended to do, she would have $13.5
    million, less than half of the appellants capital base.

·

The trial judge found that the parties capital
    bases did not generate the same level of income. The appellants assets gave
    him the ability to earn more than eight and a half times what the respondent could
    earn from her assets: This disparity can only be corrected through a generous
    spousal support order.

·

The trial judge noted that the respondents
    child care responsibilities resulted initially in reduced earning capacity and
    ultimately in her complete withdrawal from the workforce. The appellant, on the
    other hand, experienced no such reduction or diminution of his ability to earn
    income or acquire assets. On the contrary, both continued to grow.

·

The trial judge appreciated that the assessment
    of economic hardship in the context of this family required an examination of
    the luxurious lifestyle they enjoyed prior to their separation. She accepted
    the respondents evidence that her lifestyle had suffered since the marriage
    breakdown. She had no evidence to suggest that the appellant had experienced a
    similar reduction in his lifestyle. The trial judge concluded that without
    spousal support, Ms. Plese will have suffered economic hardship as a result of
    the end of the marriage.

·

The trial judge did not believe, in light of the
    respondents age and time away from the workforce, that her capital base would sustain
    a level of economic self-sufficiency comparable to what she enjoyed during the
    marriage. The trial judge addressed the reasons for this conclusion in considering
    the appropriate quantum and duration of the spousal support order, discussed
    below.

(iii)

Conclusion on entitlement to spousal support

[19]

Having considered the factors and objectives set
    out in the
Divorce Act
, the trial judge held that the respondent was
    entitled to support.

(b)

Quantum and duration of the spousal support
    order

[20]

The appellants position at trial was that the respondent
    should provide him with an equalization payment of about $3 million; that she
    should reimburse him for an overpayment of spousal support, in the amount of
    $500,000; and that his spousal support obligations should be terminated
    immediately. The trial judge described this position as patently unreasonable.

[21]

Having rejected the appellants position, the
    trial judge considered how she would assess the appropriate quantum and
    duration of the spousal support order. She observed that [n]either need alone
    nor blind application of the
SSAGs
[
Spousal Support Advisory
    Guidelines
] determine the appropriate amount of spousal support, nor its
    duration. The process is much more nuanced than that. In particular, the
    jurisprudence delineated different approaches to the calculation of spousal
    support when the parties were high-income earners. Here, the respondent had an
    annual income of around $5.9 million and the appellant had an annual income of about
    $679,725.

[22]

The trial judge decided to start her calculation
    of spousal support with an application of the
SSAGs
. By taking into
    account the length of the marriage, each partys income, age at separation, and
    the number and ages of their children, the trial judge suggested a range of
    monthly spousal support from a low of $153,144, to a midrange of $178,664, to a
    high of $187,050. The high figure would have provided each of the parties with
    approximately half of the total Net Disposable Income (NDI). She noted that in
    situations involving lengthy marriages, courts will often fashion a spousal
    support order that results in each party having roughly the same NDI.

[23]

The trial judge understood that the
SSAGs
do not necessarily apply if the payor spouse earns more than $350,000 per year.
    She recognized that, in some cases, the courts have conducted a need and
    means analysis to calculate spousal support: what does the recipient spouse
    reasonably need to meet his or her reasonable expenses, having regard to the
    standard of living the parties enjoyed while they were living together?

[24]

The trial judge thus looked at the respondents
    needs in relation to her accustomed standard of living and her evidence that
    she intended to use some of her capital to buy a house and cottage. The trial
    judge calculated the respondents net monthly expenses at about $58,800. The
    net monthly expenses included the maintenance costs for the respondents new
    home and cottage, estimated to be at approximately half the maintenance costs
    of the Bridle Path property and the Florida property. The trial judge found that
    the respondent would need at least $58,800, net of tax, to maintain anything
    close to her former standard of living and that [o]n a needs basis alone, Ms.
    Plese has significant entitlement to spousal support.

[25]

The trial judge briefly acknowledged the
    existence of a compensatory model for the calculation of spousal support
    before she turned to address the appellants arguments on quantum.

[26]

The appellant urged the trial judge to invoke what
    he referred to as the 
Halliwell
principle in determining the
    appropriate amount of spousal support in this case:
Halliwell v. Halliwell
,
    2017 ONCA 349, 138 O.R. (3d) 671. The trial judge dismissed the appellants
    argument, commenting that
Halliwell
requires an individualized
    fact-specific analysis which, in turn, entails a consideration of the effect
    of the equalization payment on spousal support. The trial judge explained that
    she had already dealt with the effect of the equalization payment in evaluating
    the respondents needs and means.

[27]

The trial judge also noted that while the court in
Halliwell
mentioned that the
SSAGs
do not apply automatically
    after the payors gross income reaches $350,000 per year, they simultaneously
    made clear that the $350,000 is not a cap and spousal support can, and often
    will, increase for income above that ceiling.

[28]

The trial judge stated that she had considered
    all the above approaches, in the context of the overarching provisions of the
Divorce
    Act
, when she exercised her discretion to award the respondent spousal
    support. She ultimately found that a spousal support award of $125,000 per
    month would be appropriate in all the circumstances. The amount was
    significantly lower than any of the
SSAGs
scenarios. It gave the
    respondent about 39% of NDI, including child support. When child support ended in
    the near future, the respondent would have a net monthly income of about
    $87,000 and the appellant would have a net monthly income of $173,000. She concluded:
    As I see it, this is a reasonable balancing of the economic consequences of
    the end of the marriage, coupled with reasonable compensation for Ms. Plese,
    over and above simply meeting her monthly needs.

[29]

In calculating the spousal support at $125,000
    per month, the trial judge reviewed the ongoing capital positions of the
    parties. The appellant would retain THG, which she assumed was still worth $32
    million because he did not adduce any evidence to the contrary. The appellant
    also had a home in California, and after making the equalization payment, would
    have $1.2 million remaining from the sale of the Florida property. He would
    therefore have remaining assets of over $33 million, excluding his home. The
    respondent, by comparison, would have $13.25 million in capital, after she
    purchased her house and cottage.

[30]

On the issue of duration, the trial judge
    rejected the appellants position that spousal support should end after two
    years. According to the trial judge, [t]here is nothing on Ms. Pleses horizon
    that would suggest either her need for or entitlement to spousal support will
    change in that time. The trial judge declined to order a termination date,
    noting that the
SSAGs
posit indeterminate duration of spousal support
    in such circumstances. The support would bind the appellants estate and would
    continue to be paid after his death, as a first charge against his estate.

(c)

Other issues with respect to spousal support

[31]

The trial judge ordered that in the event of any
    changes to the applicable tax laws, the amount of support should be changed to
    reflect a monthly net after-tax payment of $58,088.

D.

Parties Submissions

[32]

I summarize the positions of the parties when I
    address each issue on the appeal below.

E.

Issues

[33]

The appellant asserts three grounds of appeal:

1.

The trial judge erred in her assessment of the
    respondents needs and means.

2.

The trial judge erred in her determination of spousal
    support by failing to apply, or incorrectly applying, this courts decision in
Halliwell
,

and the
SSAGs
.

3.

The trial judge erred in her order for indefinite
    spousal support by refusing to stipulate a termination date or review terms.

F.

analysis

(1)

Standard of Review

[34]

The standard of review on all matters relating
    to support is highly deferential. The standard was recently summarized by this
    court in
Ballanger v. Ballanger
, 2020 ONCA 626, at para. 23: an
    appellate court is not entitled to overturn a support order simply because it
    would have made a different decision or balanced the factors differently.
    Appellate courts should not interfere with support orders unless the reasons
    disclose an error in principle, a significant misapprehension of the evidence,
    or the award is clearly wrong:
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
    at para. 11.

[35]

There are good reasons for a deferential
    approach to support orders. As this court stated in
Ballanger
, at
    para. 22:

The discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. The
    deferential standard of review avoids giving parties an incentive to appeal
    judgments to attempt to persuade the appeal court that the result should be
    different. This approach promotes finality in family law litigation and
    recognizes the importance of the appreciation of the facts by the trial judge.

[36]

The trial of this action lasted four weeks. There
    were 18 days of evidence. The trial judge heard from 13 witnesses, including
    the appellant and the respondent, two of their children, a number of experts on
    real estate and business valuation, and a forensic accounting expert concerning
    the appellants income.

[37]

The appellant was successful on three important
    issues: the breach of trust claim, the valuation of THG, and the equalization
    payment. He does not challenge the trial judges findings on any of these. His
    position on spousal support, at least as expressed in counsels factum on this appeal,
    remains as it was at trial. He says that the trial judges order for spousal
    support should be set aside entirely and that the respondent should reimburse
    the amounts paid to her since December 30, 2018.

[38]

As will be apparent, I share the trial judges
    view that this is patently unreasonable.

(2)

The respondents needs and means

[39]

The appellant submits that the trial judge erred:

(a) in
    assessing the respondents needs and means, specifically the calculation of her
    income-earning capital base which excluded the full value of the house and the
    cottage she intended to purchase;

(b) in
    estimating the professional fees that would be incurred in the acquisition of those
    properties;

(c) in
    estimating the respondents future maintenance expenses without an up-to-date
    budget; and

(d) in double
    counting the child care expenses claimed by the respondent, when she was
    receiving child support.

[40]

Although I will address each of these
    submissions, it is important to observe, as the trial judge did, that spousal support
    is driven by both compensatory and non-compensatory, or needs-based,
    considerations:
Miglin v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, at
    para. 201. The appellants argument focuses only on errors in assessing
need
, despite the fact that the respondents strongest
    entitlement to support was
compensatory
: to recognize
    any economic advantages arising from the marriage (
Divorce Act
, s.
    15.2(6)(a)), to compensate her for her partnership role during a marriage of
    nearly 25 years, and to give her a continued share of the fruits of that
    partnership.

[41]

In
Moge v. Moge
, [1992] 3 S.C.R. 813,
    at 870, the Supreme Court of Canada explained how a court should evaluate the compensatory
    grounds for spousal support:

Although the doctrine of spousal support which
    focuses on equitable sharing does not guarantee to either party the standard of
    living enjoyed during the marriage, this standard is far from irrelevant to
    support entitlement (see
Mullin v. Mullin
(1991),
supra
, and
Linton
    v. Linton
,
supra
). Furthermore, great disparities in the standard
    of living that would be experienced by spouses in the absence of support are
    often a revealing indication of the economic disadvantages inherent in the role
    assumed by one party. As marriage should be regarded as a joint endeavour, the
    longer the relationship endures, the closer the economic union, the greater
    will be the presumptive claim to equal standards of living upon its
    dissolution.

[42]

The trial judge was entitled to approach the question
    of the respondents entitlement by referring to the standard of living the
    parties enjoyed during their marriage. The trial judge was also entitled to
    determine that without spousal support, Ms. Plese w[ould] have suffered
    economic hardship as a result of the end of the marriage. The respondents
    contribution to the parties financial security in the early years of the
    marriage enabled the appellant to take business risks that might otherwise not
    have been possible. Coupled with the respondents role as the primary caregiver
    to their three children, the trial judge properly concluded that there was a
    firm basis on which to make a compensatory spousal support award.

(a)

Determining the respondents needs and means

[43]

The appellant submits that in determining the
    respondents needs and means (i.e. the capital base from which she could earn
    income in the future), the trial judge erred by deducting the entire value of
    the house and the cottage the respondent claimed she intended to purchase. The
    appellant makes much of the fact that, in the respondents questioning prior to
    trial, she did not mention her intention to buy a cottage. According to the
    appellant, this oversight casts doubt on the respondents trial evidence that
    she intended to do so. The appellant also submits that the trial judge erred in
    estimating the professional fees and transaction fees for the real estate
    purchases, and the start-up costs of the respondents new home. The appellant
    argues that if these errors had not been made, the respondents capital base
    for investment would have been substantially greater and she would have had
    sufficient income to meet her needs.

[44]

The appellants submissions have no traction in
    this court. They do not come close to the palpable and overriding error standard
    of review applicable to the trial judges findings of fact. The trial judge was
    entitled to accept the respondents evidence that she intended to buy a house
    and a cottage. There are costs associated with their acquisition. The trial
    judge was entitled to reasonably estimate those costs. The appellant has failed
    to demonstrate that her estimate was unreasonable.

[45]

The trial judge was also entitled to conclude
    that the respondent could buy a house and a cottage reasonably commensurate
    with the standard of living she and the appellant had enjoyed, without having to
    allocate some of that capital for investment purposes.

[46]

Where need drives a support award, there is a
    real evidential burden to demonstrate that need. However, the appellants
    emphasis on the assessment of need here overlooks that the true driver of
    support was compensation for the respondents partnership role in the parties
    marriage. The appellant has not established that the trial judge made a
    palpable and overriding error in her determination of the respondents needs
    and means, having regard to the compensatory nature of entitlement.

(b)

Absence of Budget

[47]

Relatedly, the appellant submits the trial judge
    erred in estimating the respondents future maintenance expenses for the home
    and the cottage without a written, up-to-date budget. The trial judge
    acknowledged that she somewhat arbitrarily took half of the maintenance costs
    for the parties Bridle Path house and Florida property to estimate what the
    respondent was likely to spend on maintenance in the future.

[48]

Again, this was entirely within the fact-finding
    responsibility of the trial judge. I am not satisfied that a budget of future
    expenses was necessary and, even if it was, the trial judge was entitled to make
    these findings of fact on the evidence before her, which included a budget for
    the period of July 2017 to July 2018. The trial judge appreciated that budgets
    are inherently unreliable as predictors of future expenses.

(c)

Child care expenses

[49]

The parties agreed that their youngest daughter
    continued to be a child of the marriage and was, therefore, entitled to
    support. She lived away from home while she attended university and lived with
    the respondent May through August, inclusive. The trial judge used the table
    amount of support to order a payment of $14,233 per month for the four months
    that the daughter was living with the respondent.

[50]

The trial judge determined that, in the unique
    circumstances of this case, it would be inappropriate to make a specific award
    for section 7 expenses. The respondents financial statement included the cost
    of the childs post-secondary education, and with the spousal support order
    that had been made, the respondent could easily fund these expenses.

[51]

The appellant submits that the inclusion of child
    care expenses in the respondents budget led to a double-counting because the
    amount became part of both the spousal support order and the child support
    order. Furthermore, the inclusion of the child care expenses as an ongoing cost
    was inappropriate since the parties daughter was already in the third year of
    a four-year program at her university.

[52]

The trial judge anticipated this very issue at
    para. 344 of her reasons, where she noted that child support would soon end:

As I see it, a spousal support award of
    $125,000 per month is appropriate in all the circumstances of this case. The
    amount is significantly lower than any of the
SSAGs
scenarios. It will
    give Ms. Plese about 39% of NDI, including child support. Since child support
    will end soon, I look at Ms. Plese's situation without child support as well.
    In the months she does not receive child support, she will have monthly net
    income of just about $87,000 while Mr. Herjavec will have roughly $173,000 per
    month after tax. As I see it, this is a reasonable balancing of the economic
    consequences of the end of the marriage, coupled with reasonable compensation
    for Ms. Plese, over and above simply meeting her monthly needs.

[53]

In my view, any error made by the trial judge here
    was immaterial. The trial judge was rightfully focused on the big picture.

(3)

The 
Halliwell
principle

[54]

The appellant submits that the trial judge made
    an error in principle when she failed to consider
Halliwell
in calculating
    his income for the purposes of spousal support. He asserts that, in cases where
    a payors income exceeds $350,000,
Halliwell
requires the court to
    calculate the payors income based on the mid-way point between the
SSAGs
cap and the payors actual income. That mid-way point should then be used to
    determine the appropriate range for support. The appellant contends that the
    trial judges order goes beyond the so-called 
Halliwell
range and
    that if she had appropriately assessed the respondents needs and means, she
    would not have awarded spousal support at all.

[55]

The appellant also submits that the trial judge
    failed to account for his debts in the calculation of his capital base.

[56]

I would not accept these submissions. The trial
    judge was alive to the lesson in
Halliwell
. At para. 341 of her
    reasons, she stated that the calculation of spousal support for high-income parties
    must be an individualized fact-specific analysis that considers the effect of
    the equalization payment:
Halliwell
, at para. 107. The trial judge explained
    that she dealt with the effect of the equalization payment when she assessed the
    respondents needs and means, having regard to all the circumstances of the
    case.

[57]

Halliwell
does
    not require the court to impute the payors income at the mid-way point between
    the
SSAGs
cap and the payors actual income. Rather,
Halliwell
,
    at para. 116, emphasizes what the
SSAGs
have always stated: Above the
    $350,000 ceiling, an additional formula range is created: appropriate income inputs
    range anywhere from $350,000
to the full income amount
.
    Entitlement is important to determine a location within that range (emphasis
    added).

[58]

The appellants submission that the support
    award far exceeds the
Halliwell
range is simply inaccurate. The
Halliwell
range includes, at the upper end, the use of the full amount of the payors
    income. The award here is within the appropriate range.

[59]

Dancy v. Mason
,
    2019 ONCA 410, 25 R.F.L. (8th) 93, does not assist the appellant. In that case,
    this court approved the motion judges use of the payors full income (over $600,000)
    as the appropriate input number. This court simply noted that the motion judge
    might have selected an income input between the $350,000
SSAGs
ceiling
    and the payors actual income, but that he was not obliged to do so.

[60]

Ultimately, the error in
Halliwell
was
    the trial judges failure to fully consider the effects of the equalization
    payment, beginning with the question of entitlement. Here, in her analysis of
    entitlement, the trial judge looked at the respondents capital base resulting
    from the equalization payment and the potential investment income. The trial
    judge understood that the ability of the respondents capital base to meet her future
    needs could not be examined in isolation. She attributed some of the respondents
    capital base to the costs of residences, which were not income-producing, and
    the remainder to income-generating vehicles at an appropriate rate of return. She
    also compared the capital base of the respondent to that of the appellant. She
    found that, after the equalization payment, the appellant still had a substantial
    capital base through THG, his income of more than $5.5 million per year, his
    luxurious home in California, and other assets and savings.

[61]

The appellant has identified no error of
    principle in the trial judges approach.

[62]

The appellants submission that the trial judge
    erred by failing to account for his debts ring hollow in the face of the
    absence of evidence of an up-to-date valuation of THG. The trial judge
    explicitly inferred that had it been to his benefit, the appellant would have
    produced a valuation. I agree. If, at some future date, there are material
    changes in the appellants financial circumstances, including the valuation of
    THG, he has his remedies.

(4)

Indefinite Support

[63]

The appellant submits that the trial judge erred
    in awarding indefinite support and in making it binding on the appellants
    estate. He argues that this means that there can be no review of the order.

[64]

The trial judge, at para. 347 of her reasons,
    referred to the spousal support order being for an indeterminate period. Indeterminate
    simply means that no termination date is specified in advance. There is nothing
    in the trial judges order or in the underlying reasons to deprive the
    appellant of his right to seek a review should a material change occur in either
    his or the respondents circumstances.

[65]

I would not give effect to this ground of
    appeal.

G.

disposition

[66]

I would dismiss the appeal in its entirety. As a
    result, there is no need to address the issue of changes to the U.S. tax
    regime.

[67]

The appellant shall pay the respondents costs of
    the fresh evidence motion in the amount of $4,000, and the costs of the appeal
    in the amount of $30,000, both amounts inclusive of disbursements and all
    applicable taxes.

Released: G.R.S.  DEC 16 2020

George R. Strathy C.J.O.

I agree. David Brown J.A.

I agree. Grant Huscroft J.A.


