In the July 2023 decision Jasiobedzki v. Jasiobedzka, [2023] O.J. No. 3044, the husband sought to appeal two spousal support orders made after a trial to the Ontario Court of Appeal.

The husband raised numerous grounds of appeal. The two grounds that are perhaps the most interesting are: 1) Did the trial judge err by not imputing income to the wife?; and 2) Should the fresh evidence proposed by the husband be received? (para. 5). The Court of Appeal dismissed the husband’s appeal and awarded costs on the appeal to the wife in the amount of $10,000 (para. 23).

It was the husband’s position on appeal that the trial judge erred by failing to impute income to the wife at the trial. The Court of Appeal disagreed with the husband. The Court of Appeal saw no error in the trial judge’s decision in determining that income should not be imputed to the wife, which I would agree with.

When reviewing the trial decision, the husband sought to impute income to the wife in the amount of $9,516 because the wife could have been receiving her Canada Pension Plan and Old Age Security and chose not to (para. 25). At the trial, the wife testified that she was provided evidence from a financial planner that it was financially beneficial to her to delay the receipt of that income to a future date.

It is worth noting that this evidence was not challenged by the husband at the trial. The husband also did not provide or rely on any authority at the trial that the wife was obligated to claim the Canada Pension Plan and Old Age Security now (paras. 42 and 43).

The wife provided evidence as to why she did not wish to claim the Canada Pension Plan and Old Age Security at this stage. The reasons were legitimate, independent and accepted by the trial judge. The wife was not simply declining to claim the Canada Pension Plan and Old Age Security in an attempt to increase the husband’s monthly spousal support payments; her approach was rational and logical in the circumstances.

Secondly, the amount of income that the husband sought to impute to the wife at trial was minimal, and therefore the impact (if imputed to the wife) on the husband’s monthly spousal support payments would have also been minimal. Third, and rightly commented on by the Court of Appeal, the wife choosing to delay receiving the Canada Pension Plan and Old Age Security is advantageous to the husband, as when she does receive the payments, the amount of Canada Pension Plan and Old Age Security that she receives will be elevated because of the delay. That would then decrease the amount of the husband’s monthly spousal support payments at a more rapid rate (para. 13).

While it was acknowledged by the Court of the Appeal that these were judgment calls made by the trial judge, they were the correct judgment calls, and it seems as though the husband failed to se that they were in fact advantageous to him.

At the appeal, the husband sought to introduce fresh evidence. The Court of Appeal examined the proposed fresh evidence and determined that none of the proposed evidence would have affected the decisions arrived at and therefore was inadmissible for failing to meet the requisite legal test (para. 21).

The Court of Appeal’s decision comments on one piece of fresh evidence which the husband sought to introduce; being that the wife paid $5,000 from a joint account towards legal fees during a “grace period” (para. 22). This type of evidence presented by the husband would not have changed the decision of the trial judge and the outcome of the trial. The wife utilizing $5,000 from a joint bank account for the payment of counsel (likely to defend against the husband’s appeal) is not material to the verdict reached at the trial.

Michael Stangarone is a partner and Aria MacEachern is an associate at MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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