In the recent Ontario Court of Appeal decision of Makeeva v Makeev 2021 ONCA 232, the court was tasked with determining whether the trial judge erred in ordering the Appellant to pay $905.00/month in spousal support indefinitely based on the financial needs of the Respondent, as well as ordering the Appellant to pay $17,419.60 in equalization to the Respondent.
The Appellant argued multiple ground of appeal, of note, she argued that the trial judge erred on the following determinations:
- Failure to order lump sum child support;
- Imputing the respondent’s income at $28,000 per year; and
- Awarding spousal support.
Was a lump sum child support payment appropriate?
The Appellant argued that the court should have made a lump sum child support order because of the Respondent’s consistent failure to pay periodic support on time and contribute to the children’s section 7 expenses. The trial judge did not explain in her reasons why she denied the request, however the court of appeal did not take issue with the trial judge’s order. Typically, lump sum support is appropriate where there is a provable and real risk that periodic payments will not be made. In this case, the Appellant failed to direct the court to any substantial evidence showing the Respondent’s behaviour would indicate a future nonpayment of support.
The imputation of income to the respondent
The Appellant argued that the trial judge erred in imputing the Respondent to an income of $28,000 only. The Appellants position was that the Respondent was intentionally under employed and that his qualifications and previous work history should have led the court to an imputation of income between $50,000 – 60,000.
The Court of Appeal reminded the Appellant that imputation of income is an issue of mixed fact and law. Further, “the trial judge’s determination is anchored in factual findings which are to be afforded deference and are not to be disturbed without showing that the judge committed palpable and overriding errors. On appeal, the appellant can point to no error, let alone a palpable and overriding error”. With this point, the court reminds us that our positions need to be grounded in substantive evidence and we must prove the positions we take in court. It is not acceptable to expect an order based on what one thinks a court “ought to do”. The respondent in this case lived a modest lifestyle. Nothing that he earned or that the Appellant put forward suggested an income greater than what he reported in his sworn financial statements. The Court of Appeal determined that the imputation of income in the amount of $28,000 was reasonable in all of the circumstances.
The award of spousal support from the Appellant to the respondent
As mentioned, the trial judge ordered the Appellant to pay monthly spousal support to the Respondent in the amount of $905.00/ month. The Appellant argued that the trial judge failed to give sufficient consideration to section 15.3(1) of the Divorce Act which directs the court to give priority to the support of children over an order for spousal support. The Appellant argued that if she was forced to pay spousal support, she would not have the ability to meet both her own and the Respondent’s needs. The Appellant also argued that the trial judge erred by shifting the financial burden of the parties breakdown in their marriage on the Appellant entirely. She argued that had the trial judge properly considered the parties’ financial circumstances as a result of the separation, the division of assets, and respective earning capacities, she would not have made an order for spousal support.
The court determined that there was no error made by the trial judge and that the “trial judge correctly found that the respondent was entitled to compensatory support resulting from his having forgone paid work and career opportunities in order to care for the children while the appellant was pursuing her nursing degrees. The record also shows a substantial disparity in the income of both parties. The respondent is 62 years old and earning close to minimum wage. The appellant is 38 years old with a prosperous career ahead of her. Further, the court of appeal found that based on the respondent’s imputed income of $28,000 and the appellant’s income of $92,000 shows a significant inequality. As this was a 15-year marriage with two children the court of appeal found that the trial judge’s decision to award spousal support based on the mid-range of the spousal support advisory guidelines for an indefinite duration was reasonable and entitled to deference.
Ultimately, the appeal was dismissed. This case teaches us a valuable lesson. If you have a position, you have to provide the court with evidence to support same. Simply putting forward a stance based on what one feels is the “right outcome” based on their view of the circumstances is not persuasive and not in accordance with law. Further, the court of appeal will give deference to the decisions of the lower court absent any clear evidence to suggest an error.
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