Before deciding how to approach an appeal, would-be appellants must first discern whether the appeal should be brought at all. The breath-taking brevity with which the Ontario Court of Appeal disposed of the Appellant’s claims in Mullings v. Robertson, 2019 ONCA 979 is a cautionary tale for prospective family law appellants.
The standard issues which are adjudicated in family law trials are notoriously difficult to appeal. Judicial application of the legal tests for custody and access (best interests of the children) and spousal support (an equitable sharing of the economic consequences of the relationship and its breakdown) is highly discretionary, family law judges typically weigh numerous factors in arriving at their decisions and the Court of Appeal will not re-apportion the weight which a trial judge gave to each fact unless the trial judge made a palpable and over-riding error.
Appeals of family law trials must therefore by approached with caution, as the Court of Appeal tends to give short shrift to appellants who simply disagree with trial judges who have exercised their discretion.
The range of the issues which the Court of Appeal swiftly dismissed in Mullings is telling.
The Appellant alleged that the trial judge made factual errors in: establishing the separation date, calculating joint family expenditures, and evaluating his contribution to his daughter’s education expenses. He also claimed that the judge had erred in:
- his denial of the Appellant’s claim to spousal support;
- his finding that there was no joint family venture;
- his decision to order the Appellant to pay retroactive child support and make payments under the Child Support Guidelines; and
- his failure to allow the Appellant’s unjust enrichment claim.
The court summarized its rejection of these grounds of appeal by simply affirming that the trial judge was entitled to come to the findings he did on the evidence before him. By failing to demonstrate a palpable and over-riding error, the Appellant was not entitled to contest the trial judge’s findings.
The Appellant might have thought that he would have better luck appealing the trial judge’s decision to refuse to set-off occupation rent from the maintenance expenses which he was ordered to pay to the Respondent. However, the court was not inclined to analyze the prevailing law of occupation rent. It held that the trial judge’s refusal to set-off occupation rent was a “discretionary determination”, based on factual findings which he was entitled to make.
The court even declined to decide on the one issue of law which the Appellant raised. The Appellant claimed that the trial judge had erred by applying the Limitations Act, 2002, S.O. 2003, c.24, Sch B (with its two-year limitation period) instead of the Real Property Limitations Act R.S.O 1990 c. L. 15, (which provides for a 10 year limitation period in section 23(1)) and barring the Appellant’s claim for damages arising from the Respondent’s refusal to participate in the purchase of a property. The court refused to even decide the issue because the trial judge had concluded that the Appellant’s damages had not been caused by the Respondent’s refusal and there was therefore no need to decide on which Limitations Act to apply. In this instance, deference to the trial judge’s fact-finding prerogative trumped even a clear issue of law.
Mullings highlights the difficulty appellants face when appealing family law decisions at the Court of Appeal. Family law is, largely, fact-based; true errors of law, or clear instances of a trial judge having made a palpable and overriding error, are rare. Appellants need to carefully examine the trial decision to see if there are any such errors. Small disagreements with the trial judge’s findings of fact do not add up to a successful appeal.
The Respondent in Mullings v Robertson was awarded costs of $29,800, inclusive of HST and disbursements. This was an expensive lesson for the Appellant, but one which other aspiring family law appellants can learn at a lower cost.
