Fielding v. Fielding, (2015) 343 O.A.C. 172 (CA)

• Judge: Feldman, Lauwers and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 28, 2015
• Jurisdiction: Ontario
• Citations: (2015), 343 O.A.C. 172 (CA);2015 ONCA 901

Fielding v. Fielding (2015), 343 O.A.C. 172 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.034

Victoria Fielding (applicant/appellant) v. John Craig Fielding (respondent/respondent)

(C57610; C58803; 2015 ONCA 901)

Indexed As: Fielding v. Fielding

Ontario Court of Appeal

Feldman, Lauwers and Benotto, JJ.A.

December 18, 2015.

Summary:

The parties, both physicians, were married and lived together for 17 years until their separation in 2010. There were two trials in the high-conflict litigation: one for custody of the three children (eldest, 19 years old; twins, 17) and the other for the financial issues. The wife appealed both decisions, including their respective costs awards. The two appeals were heard together.

The Ontario Court of Appeal dismissed both appeals, with costs payable to the husband in the amount of $50,000.

Family Law - Topic 637

Husband and wife - Marital property - Constructive trusts - [See Family Law - Topic 875 ].

Family Law - Topic 867

Husband and wife - Marital property - Distribution orders - Interest on awards (incl. prejudgment interest) - [See second Family Law - Topic 868.3 ].

Family Law - Topic 868.3

Husband and wife - Marital property - Distribution orders - Equalization payments - The financial issues at trial included a calculation of each party's net family property (NFP), i.e., the increase in a spouse's net worth during cohabitation - At the time of marriage, the husband owned a home that became the matrimonial home - The trial judge concluded that the $415,000 mortgage on the home at the date of marriage related directly to its acquisition or significant improvement - As such, pursuant to s. 4(1) of the Family Law Act, the mortgage was not included in the calculation of the husband's NFP - This reduced the equalization payment to the wife by $207,500 - The Ontario Court of Appeal rejected the wife's submission that the mortgage should have been included in the husband's NFP - The decision by the trial judge was a clear application of the statutory framework to a finding of fact based on the evidence at trial - "The Family Law Act ... s. 5(1), provides that a spouse's NFP is to be equalized on divorce. ... The matrimonial home, however, receives exceptional treatment. A spouse is not permitted to deduct the value of a matrimonial home owned at the date of marriage. Further, under s. 4(1) of the Family Law Act, if a debt or liability is related 'directly to the acquisition or significant improvement of a matrimonial home', it is not included in the calculation of the NFP." - See paragraphs 29 to 36.

Family Law - Topic 868.3

Husband and wife - Marital property - Distribution orders - Equalization payments - The parties, both physicians, were married and lived together for 17 years until their separation in 2010 - The trial judge ordered an equal division of net family property, resulting in an equalization payment to the wife of $1,384,704.50 - The trial judge exercised her discretion to decline to order prejudgment interest (PJI) on the equalization payment, noting that the wife had use of the matrimonial home from the period of separation - The wife paid no occupation rent - Meanwhile, the husband did not have the use of the asset or the income from its value - The Ontario Court of Appeal rejected the wife's submission that PJI should have been added to the equalization payment - In Burgess v. Burgess (1995), the Court had confirmed that PJI was discretionary and "may not be awarded where 'the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial [and] the asset generates no income'." - See paragraphs 42 and 43.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - Section 5(6) of Ontario's Family Law Act set out the circumstances under which a variation in the presumptive equal sharing of net family property (NFP) could occur - The wife based her request for an unequal division of the NFP on the fact that the value of the matrimonial home increased as a result of her contributions - She also asserted that she was entitled to a constructive or resulting trust in the matrimonial home - The trial judge found that any potential unjust enrichment had been adequately compensated by the equalization calculation: the wife was able to shelter her premarital assets; she sold her home shortly after the marriage and her contributions to the matrimonial home came from those funds as well as from other premarital assets which she was able to deduct from her NFP - The trial judge further concluded that the threshold for finding unconscionability was exceptionally high and had not been met on the facts - The Ontario Court of Appeal held that there was no misapprehension of the evidence on the part of the trial judge - Nor did the wife meet any of the eight enumerated criteria set out in s. 5(6) of the Family Law Act - See paragraphs 37 to 41.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - The trial judge found that the husband was entitled to costs, but went on to reduce them because of the husband's delayed financial disclosure - The amount of the reduction was $25,750, leaving an order for costs payable in the amount of $210, 015.50 - The Ontario Court of Appeal stated that "The most basic obligation in family law is the duty to disclose financial information. This requirement should be automatic. It is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled." - See paragraph 64.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - The wife appealed the costs awarded to the husband in the amount of $210,015.50, following a 10-day trial of financial issues that included spousal support - She submitted that the amount of the reduction in costs ($25,750) was not enough having regard to the trial judge's finding that the husband's financial disclosure had been difficult and lacking - The Ontario Court of Appeal found that the trial judge made no reversible error - The trial judge was justified in reducing the costs - While she could have reduced the costs even more, "her choice of quantum did not constitute a material error, a serious misapprehension of the evidence or an error in law" - The trial judge referred to rule 24 of the Family Law Rules - She considered the husband's failure to provide timely disclosure and balanced that unreasonable behaviour against the wife's unreasonably high offer requests and unwillingness to accept the settlement conference judge's recommendation, which the husband was willing to accept - See paragraphs 70 to 73.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - The wife appealed the costs awarded to the husband in the amount of $210,015.50, following a 10-day trial of financial issues - She submitted that the husband's settlement offer should not have been considered because it was served immediately before trial - The Ontario Court of Appeal stated that the submission missed two important points - First, Family Law Rule 18(16) "emphasizes both the discretionary nature of a costs award and the court's ability to consider all offers, whenever they are made. The trial judge reviewed four of the wife's offers to settle (only one of which remained open at the time of trial) and the husband's five offers. Second, the wife's submission ignores the context in which the last offer was made. ... [T]he settlement conference judge made a recommendation that the husband accepted. This offer was open at the date of trial. It could not have been made earlier because the settlement conference was held immediately before trial - as contemplated by the ongoing nature of judicial case management. The wife did not accept the settlement conference judge's recommendation. ... The result after a 10-day trial mirrored the recommendation by the judge and the offer by the husband. Just as disclosure is an integral part of a family law case, so too is the need for parties to take reasonable positions or suffer the risk of costs." - See paragraphs 74 to 82.

Family Law - Topic 967

Husband and wife - Actions between husband and wife - Practice - Interest on awards - [See second Family Law - Topic 868.3 ].

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - [See first Family Law - Topic 966 ].

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - [See Family Law - Topic 1912 ].

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents (incl. alienation) - [See Family Law - Topic 1912 ].

Family Law - Topic 1912

Custody and access - Appeals - Grounds - The trial judge concluded that this was a case of mixed parental alienation and denied the mother's request for sole custody of the three children of the marriage - The trial judge ordered that the father have sole custody of the two children who lived with him, and the mother have custody of the child who lived with her - On appeal, the mother sought to re-litigate the findings of the trial judge in accepting the jointly chosen assessor's recommendations - The Ontario Court of Appeal held that the trial judge was entitled to accept the assessor's opinion - The trial judge addressed the criticisms of his report and testimony, and made findings of fact based on the evidence - Even more importantly, time had overtaken the custody issue so that the appeal was moot - The eldest child was now 19 - The twins were 17 - "Their actions have given voice to their wishes and demonstrate their capacity for self-determination. Custody legislation and jurisprudence concerns children, not young adults. This matter should not have been the subject of an appeal. That the appeal was brought, replete with extensive fresh evidence, sadly verifies the trial judge's observations that the children were but the ostensible issue." - In light of the trial judge's factual findings, and the discretionary nature of costs, the Court denied leave to appeal the $345,000 in costs awarded against the mother - See paragraphs 4 to 19.

Family Law - Topic 2147

Custody and access - Evidence - Report of family investigator, counsellor, etc. - [See Family Law - Topic 1912 ].

Family Law - Topic 2189

Custody and access - Practice - Costs - [See Family Law - Topic 1912 ].

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2329 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - The parties, both physicians, were married and lived together for 17 years until their separation in 2010 - The wife, a urologist, withdrew from practice in 2007 as a result of vision problems - She received annual tax-free disability benefits of about $114,000 (increasing at 7% per year) - Along with her investments, she earned about $220,000 annually - The husband's annual income from his plastic surgery practice was $850,000 - The trial judge ordered unlimited term spousal support to the wife of $10,000 per month, not indexed, plus a lump sum retroactive payment of $124,208 (reduced by 35% from $175,500 to reflect its tax-free nature) - She declined to adjust the payments annually for cost of living because the husband's income had no automatic indexation - The wife received almost $16,500 per month after tax from her income and child support payments - On appeal, the wife submitted that: the amount was too low (there should be an equalization of the spouse's net disposable income (NDI)); the payments should have been indexed to the cost of living; and the tax deduction for the retroactive spousal support should not have been made - The Ontario Court of Appeal upheld the award - "Equalization of income (or NDI) has never been the basis upon which spousal support is determined in Canada. Moreover, the wife's income, including support, investment income and disability payments, is more than enough to support her reasonable needs. The decision regarding indexation is reasonable and fell within the trial judge's discretion. ... Unlike periodic spousal support payments, a lump sum payment is not taxable to the recipient, nor is it deductible to the payor." - See paragraphs 44 to 54.

Family Law - Topic 2416

Maintenance of spouses and children - Practice - Costs - [See second Family Law - Topic 966 ].

Family Law - Topic 2445

Maintenance of spouses and children - Evidence - Financial disclosure - [See first Family Law - Topic 966 ].

Family Law - Topic 2483

Maintenance of spouses and children - Awards - Lump sum payments - [See Family Law - Topic 2329 ].

Cases Noticed:

Serra v. Serra (2009), 246 O.A.C. 37; 93 O.R.(3d) 161; 2009 ONCA 105, refd to. [para. 38].

Burgess v. Burgess (1995), 82 O.A.C. 380; 24 O.R.(3d) 547 (C.A.), refd to. [para. 43].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 67].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 68].

Sun Indalex Finance, LLC v. United Steelworkers - see Indalex Ltd. et al., Re.

Indalex Ltd. et al., Re, [2013] 1 S.C.R. 271; 439 N.R. 235; 301 O.A.C. 1; 2013 SCC 6, refd to. [para. 68].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 69].

Statutes Noticed:

Courts of Justice Act Regulations (Ont.), Family Law Rules, Reg. 114/99, rule 18(16) [para. 76]; rule 24 [para. 66].

Family Law Act, R.S.O. 1990, c. F-3, sect. 4(1) [para. 30]; sect. 5(1) [para. 29]; sect. 5(6) [para. 37].

Family Law Rules - see Courts of Justice Act Regulations (Ont.).

Counsel:

Gary S. Joseph and Elissa H. Gamus, for the appellant;

Ilana Zylberman Dembo and Michael Zalev, for the respondent.

These appeals were heard on October 28, 2015, before Feldman, Lauwers and Benotto, JJ.A., of the Ontario Court of Appeal. In reasons written by Benotto, J.A., the Court delivered the following judgment, released on December 18, 2015.