Ontario Court of Appeal upholds credibility assessments in spousal support case

A man challenging a child support and spousal support order failed to raise jurisprudential issues or identify specific legal errors on the trial judge’s part, the Ontario Court of Appeal has ruled.

Kahsai v. Hagos, 2022 ONCA 576 involved a family law dispute. The parties began their relationship in 1978 in Eritrea, where their oldest child was born in 1980. They immigrated to Canada as a family and settled in Ottawa in 1984.

The parties separated in 1985 and divorced in 1987. Their oldest child primarily resided with her mother but had access to her father. The parties resumed cohabitation in 1990 and had two more children, born in 1993 and 1995. The respondent mother moved out of the family home to Toronto in 2013.

The father appealed a family law order requiring him to pay child support and spousal support. He argued that the trial judge unfairly managed the trial, favoured the respondent, misapprehended the evidence, and improperly analyzed the issues of credibility, spousal support, child support, unjust enrichment, joint family venture, and the need for a restraining order.

According to the appellate court, the trial judge misapprehended no issues, comprehensively addressed each issue, released clear reasons, fairly managed the trial, showed patience with the parties and their counsel, allowed the trial to stretch beyond the estimated schedule, and made modest but balanced and reasonable efforts to corral counsel.

Evidence-based credibility assessments

The judge made clear, balanced, and evidence-based credibility assessments, the appellate court held. She addressed limitations in the respondent’s evidence and determined that the appellant was not credible, especially in relation to two aspects of his evidence.

First, the judge took issue with the appellant’s inconsistent evidence relating to the nature of his relationship with the respondent.

The appellant’s argument that they “had never been in a committed relationship either before 1985 or after 1990” contradicted the evidence that they had a child in 1980, immigrated to Canada as a family in 1984, resumed cohabitation and family life from 1990 to 2013, and had two more children during this time. His pleadings and affidavit admitted that he and the respondent had been married.

Second, the judge found it difficult to see a full picture of the appellant’s finances. She reasonably found that his income level and his assets were higher than he claimed, that he was trying to avoid fulfilling his support obligation, and that imputing to him an annual income of no less than $100,000 was justified.

The appellant challenged the trial judge’s calculation of the lump-sum payment in lieu of spousal support on a monthly base of around $1,800 instead of the interim amount of $1,000 that another judge fixed in 2019. The appellate court accepted that the trial judge considered the following factors to determine the spousal support’s range and duration:

• a compensatory approach to spousal support
• the length of the parties’ relationship
• the parties’ ages
• the respondent’s role during the relationship
• the economic consequences flowing from the relationship, which were overwhelmingly in the appellant’s favour.