Zenteno V. Ticknor
This recent judgement of Justice MacPherson, Justice LaForme, and Justice Hackland from the Court of Appeal of Ontario was heard orally and released on November 17, 2011. The main issue on appeal here was the correctness of the trial judge’s order of a lump sum payment for spousal support and a securing of that Order by way of a charge against the Appellant/Husband’s solely owned property.
Briefly, the judicial history of this case is as follows. As a result of the Appellant/Husband failing to fulfill certain undertakings, his pleadings were struck and therefore the matter proceeded on an uncontested basis and as a default judgment hearing. As such, the only witnesses present at the hearing were the Respondent/Wife and her sister.
Following the hearing, the trial judge awarded the Respondent/Wife a lump payment for spousal support in the amount of $193,385.00 which was to be secured by a charge on the property owned by the Appellant/Husband as well a 2002 automobile which was to be transferred to her absolutely, the value of which was to be deducted from the lump sum award, namely $6,615.00. It was this decision which lead to the present Appeal.
When rendering their judgment, the Justices of the Ontario Court of Appeal stated that the case of Davis v. Crawford is binding with regards to the circumstances under which an appellate court will set aside and/or interfere with a trial judge’s decision regarding a support order. Pursuant to that case, appeal courts will not interfere with support orders unless:
- The reasons disclose an error in principle;
- The reasons disclose a significant misapprehension of the evidence; or
- The award is clearly wrong.
The Justice of the Ontario Court of Appeal determined that, pursuant to the rule from Davis v. Crawford, and based on the facts of this case, there was in fact enough evidence upon which a trial judge could order a lump sum payment. More specifically, in this case the trial judge correctly based his award on the following reasons:
- The Appellant/Husband’s abusive behaviour;
- The Appellant/Husband’s intention not to pay spousal support; and
- The Appellant/Husband’s probable non-compliance with a court order.
As such, the appeal was dismissed and the Respondent/Wife was awarded costs fixed at $4,000.00 inclusive of disbursements and HST, and payable to Legal Aid Ontario.