) ) CATHERINE MERCER Appellant – v. –, 2016 ONSC 7951

CITATION : Mercer v. Mercer, 2017 ONSC 977 DIVISIONAL COURT FILE NO.: 330/16 DATE: 20170130 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, THORBURN and RICCHETTI JJ. BETWEEN: ) ) CATHERINE MERCER Appellant – and – GARRY MERCER Respondent ) ) ) ) ) ) ) ) ) David Zeldin , for the Appellant Nizam Hashmi , for the Respondent ) HEARD at Toronto: December 16, 2016 RICCHETTI J. THE APPEAL [ 1 ] This appeal arises after a three day trial in May 2016 before Justice Gilmore of the Superior Court of Justice. Judgment was issued on June 3, 2016.

Reasons for Judgment were released on June 6, 2016. [ 2 ] The appellant, Mr. Mercer, appeals those portions of the judgment of Justice Gilmore requiring him to pay retroactive and ongoing spousal support to the respondent, Mrs. Mercer. [ 3 ] At the conclusion of the appeal, this court dismissed the appeal with reasons to follow. These are those reasons. JURISDICTION OF THE COURT [ 4 ] Appeals from final orders in family law matters lie to the Divisional Court if the monetary limits in s. 19(1.2) of the Courts of Justice Act , R.S.O. 1990, c. C.43 are met.

There is no dispute that this appeal falls within the jurisdiction of this court. STANDARD OF REVIEW [ 5 ] Mr. Mercer submits that this Court is permitted to intervene where a trial judge makes a material factual error, misapprehends the evidence or errs in law in determining an issue related to spousal support. [ 6 ] The applicable standard of review was recently set out in Berger v. Berger , 2016 ONCA 884 the Court of Appeal dealt with the standard of review in appeals of support orders: [43] With respect to the review of support orders, in Mason v.

Mason , 2016 ONCA 725 , at para. 110 , this court held that a deferential approach to support awards was appropriate due to their fact-based and discretionary nature: Because of the fact-based and discretionary nature of support awards, a trial judge's order for spousal support is entitled to significant deference on appeal. This deferential approach to support awards promotes finality in family law litigation and also recognizes the importance of the trial judge's role in seeing and hearing the parties and other witnesses testify.

An appeal court is not entitled to overturn a spousal support order simply because it would have balanced the relevant factors differently or arrived at a different decision:

Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, at paras. 10-12. [44] Nonetheless, this court recognized in Mason, at para. 111, that an appeal court must intervene in a support award where: “the trialjudge’s reasons disclose an error in principle, a significant misapprehension of the evidence or if the award is clearly wrong: Hickey, atpara. 11.” [45] This reflects the approach to the standard of review for findings of fact as set out in Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R.235.

In that case, the Supreme Court held at para. 10 that findings of fact should be reversed where it can be established that the findingis a “palpable and overriding” error. In H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56, Fish J. clarified thatthe “palpable and overriding” error test is met if the findings are “clearly wrong” or can “properly be characterized as ‘unreasonable’ or‘unsupported by the evidence’.” THE FACTS The Marriage [7] After 22 years of marriage, the parties separated on July 11, 2013. The parties had a “traditional marriage.” Mr.

Mercer wasthe primary breadwinner while Mrs. Mercer was primarily responsible for caring for their children. The parties are both 56 years old. [8] The parties have three children, only the youngest of whom, Arthur, was still a dependent at the time of trial. Arthur liveswith Mr. Mercer. Arthur has autism spectrum disorder and ADHD and receives ODSP. Mr. Mercer’s Income [9] Mr. Mercer worked at CIBC for 24 years as a business analyst until his position was eliminated effective June 27, 2014. Hisseverance, paid in the form of salary, continued until September 2015. Mr.

Mercer’s income was $95,221 in 2013; $97, 295 in in 2014;and $194,137 in 2015. His 2015 income included $101,112 in RRSP withdrawals and $27,997 in rental income. [10] At the time of the trial, Mr. Mercer was employed seasonally and part-time (four hours per day) as a school bus driver,earning $473.60 per month. Mr. Mercer was also receiving income of $1,660 per month from his CIBC pension. Mr. Mercer also owns arental building. His April 2016 financial statement indicated a rental income of $2,500 per month and his 2015 income tax returnindicated an annual rental income $29,997 without any specified deduction(

s) for associated rental expenses. [11] Mr. Mercer testified that he had been unable to find any employment at which he could earn anywhere near his previousincome. He agreed that “his most prolific attempts at a job search were in September and October 2015.” Mrs. Mercer’s Ability to Work [12] Mrs. Mercer testified that she has not worked since 2007 and was not able to work at the time of trial. She had had a heartattack in 2007 and three more between 2007 and the time of trial. She was diagnosed with a major depressive disorder in 2015 and anumber of other medical issues.

She was also involved in two automobile accidents in the last several years. [13] The trial evidence included three letters from Mrs. Mercer’s doctors describing Mrs. Mercer's inability or limited ability towork at the present time. TRIAL JUDGE’S DETERMINATION ON SUPPORT ISSUES [14] The trial judge made the following determinations with respect to spousal support:

(1) Mrs. Mercer was clearly entitled to spousal support given the 22-year marriage and that she had not worked at all since2007, even without the complication of her medical issues;

(2) Mrs. Mercer’s claim for spousal support from October to December 2015 was the subject of a consent order suspendingspousal support during this period of time. Therefore, it was inappropriate to order retroactive spousal support for this period of time;

(3) Mr. Mercer was to pay Mrs. Mercer a lump sum of $4,500 for retroactive support for the period of October to December2014, which was the period of time Mrs. Mercer was living outside of the home and Mr. Mercer was not paying support;

(4) Given all the circumstances, including Mr. Mercer’s responsibilities for Arthur, the court imputed employment income of$30,000 per annum to Mr. Mercer. Going forward, support would be adjusted based on the parties’ income tax information;

(5) Mr. Mercer’s income from his pension ($19,920 per annum) was to be included as income for support purposes;

(6) Given Mr. Mercer’s “thin and contradictory” evidence regarding the expenses associated with his rental property, 50% of thegross rental income of $8,400 per annum was to be included in Mr. Mercer's income; and

(7) As a result, Mr. Mercer’s total income for spousal support purposes was $58,320 per annum. The SSAG spousal supportrange was $1,604 per month at the low end, $1,871 at the mid-range and $2,138 at the high end. Given all the circumstances, includingMr. Mercer’s responsibilities related to Arthur and the fact that Mrs. Mercer has no means to pay child support to Mr. Mercer, the court

awarded spousal support to Mrs. Mercer at $1,700 per month, being close to the SSAG mid-range. THE ISSUES ON APPEAL [ 15 ] Mr. Mercer raises the following issues on appeal:

(1) The trial judge erred in calculating Mr. Mercer’s income for spousal support purposes by: (

i) including Mr. Mercer’s rental income; (ii) including Mr. Mercer’s pension income; and (iii) imputing income to Mr. Mercer in the amount of $30,000 per annum.

(2) The trial judge erred in determining the amount of prospective spousal support by: (

i) Failing to consider the need for financial self-sufficiency of Mrs. Mercer; and (ii) Failing to consider the lack of the disclosure by Mrs. Mercer.

(3) The trial judge failed to account for certain expenses when determining the amount of retroactive spousal support ordered. MR. MERCER’S INCOME [ 16 ] Mr. Mercer submits that any spousal support order should be calculated based on his actual income of approximately $5,682 per annum. [ 17 ] As set out above, the trial judge calculated Mr. Mercer’s income for spousal support purposes as follows: (

a) Rental net income of $8,400 per year; plus (

b) Pension income of $19,920 per year ($1,660 per month X 12); plus (

c) Imputed income of $30,000. Rental Income [ 18 ] Mr. Mercer testified that the rental income was completely off-set by expenses associated with the rental building. Mr. Mercer submits that the trial judge erred in failing to accept his evidence regarding expenses associated with the rental property. [ 19 ] Mr. Mercer’s net rental income is purely a factual determination by the trial judge. At paras. 48 and 49 of the judgment, the trial judge set out the evidence before the court: [48] The April 8, 2016 financial statement also indicates rental income of $2,500 per month. Mr.

Mercer owns a small rental building in Windsor, Ontario which he bought post separation with funds from his inheritance. He testified that this income is completely offset by the expenses related to the operation of the rental building he owns in Windsor, Ontario. Exhibit 18 was a breakdown of those expenses prepared by Mr. Mercer which showed total annual expenses of $27,271.83 for 2015. He did not offer any corroboration for these amounts but insisted that all of the relevant documentation had been given to Mrs. Mercer’s lawyer by his former lawyer. [49] Mr.

Mercer was cross-examined about the rental income indicated in 2015 income tax return. It indicates rental income of $29,997 which Mr. Mercer testified was a gross amount. He told the court he gave his accountant all of the back-up documentation for the expenses but the income tax information provided to the court did not appear to account for any deductions for expenses. As such, Mrs. Mercer submits that rental income of $30,000 (as per the April 8, 2016 financial statement) should be included in Mr. Mercer’s income for support purposes. Mr.

Mercer argues that it would be completely inequitable to use the income number without accounting for expenses. It is a 100 year old building and the tenants do not pay their own utilities. There are four apartments which rent out for $700 each. Only two are currently rented as the other units need repairs. [ 20 ] At paragraph 72 the trial judge concluded: With respect to Mr. Mercer’s rental income, I accept that it is simply not possible to operate such a property without an associated expense. The evidence I have about such expenses is thin and contradictory.

What I do accept is that the building currently has 2 tenants (the third tenant is moving out in June). That would generate an income of $16,800 per year at $700 per unit. If expenses of 50 percent are allowed (which is far less than claimed by Mr. Mercer) that would leave an income of $8,400 per year. This is not unreasonable for 2016 based on Mr. Mercer’s own evidence and the contradictory evidence related to his 2015 income tax return. [ 21 ] The trial judge reduced the gross rental income as one tenant was scheduled to move out. Considering the lack of documentation by Mr.

Mercer to substantiate the alleged rental expenses and the fact he had claimed a much higher rental income in the prior year of $27,997 without declaring any rental expenses, the trial judge concluded that 50% of the rental income was a reasonable amount for rental expenses. Using this approach, the trial judge concluded Mr. Mercer’s annual income should include $8,400 rental income.

[22] We find no error in the approach taken by the trial judge in arriving at this determination for Mr. Mercer's net rental income. Pension Income [23] Mr. Mercer submits that the trial judge erred in including his pension as income because: (

a) This amounts to inappropriate "double dipping"; and (

b) Mrs. Mercer had signed a Pension Waiver Form in September 2015 waiving her entitlement to Mr. Mercer’s pensionincome; and Double Dipping [24] Mrs. Mercer submits that the Supreme Court’s decision in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 does notprohibit the double recovery complained of. The trial judge relied on Meiklejohn v. Meiklejohn, (ON CA), 150O.A.C. 149, 19 R.F.L. (5th) 167 (C.A.), and determined that the inclusion of Mr. Mercer’s pension income was reasonable andappropriate in this case, despite the equalization of Mr. Mercer’s pension, because of: (

a) Mrs. Mercer’s claim for support was based on needs rather than compensation; (

b) Mrs. Mercer’s poor health; (

c) Mrs. Mercer’s limited ability to earn income; and (

d) Mrs. Mercer had received only a modest amount from the equalization of the parties’ net family property. [25] The trial judge carefully considered the evidence at trial and concluded: [69] As for the double dipping issue, this is one of those cases in which double dipping is inevitable no matter how unpalatable that maybe to Mr. Mercer. As per Meiklejohn v. Meiklejohn, Mrs. Mercer is not in a position to generate income from her assets. Indeed, she hasnone.

Even if she invested the equalization payment she receives in this case, it will generate only a small amount of interest. [70] This is a case where the economic hardship which arose from the marriage breakdown persists. Consideration must also be givento need in this case. Mrs. Mercer is not living extravagantly. Whatever allegations Mr. Mercer made at trial about her spending habits orindeed an ill-advised purchase of speakers well beyond her means, Mrs. Mercer is now faced with the cold hard reality of living incircumstances that are far less comfortable than when she was married. [71] Mrs.

Mercer is not able to work at this time. That could change. And indeed, she may be motivated to do some work as it will bedifficult for her to live on the spousal support alone. However, this case falls into the exceptions set out in Boston v. Boston and the lineof cases which followed where an already equalized pension must be used an income source given the circumstances of the case. [26] It is clear that the trial judge, applying the correct legal principles, found that, in the circumstances of this case, it wasreasonable, appropriate and necessary to include Mr.

Mercer’s pension income despite the prior equalization of Mr. Mercer's pension. [27] In essence, Mr. Mercer seeks to have this court re-assess the facts considered by the trial and come to a different conclusion. We see no error in principle or palpable and overriding error of fact. We conclude there is no merit to this submission. Pension Waiver Form [28] Mr. Mercer submits that, upon the equalization of Mr. Mercer's pension, Mrs. Mercer waived any claim for spousal supportfrom Mr. Mercer's pension income. [29] We do not give effect to this submission for a number of reasons:

a) This issue was not argued at the trial by Mr. Mercer;

b) This issue was not set out in the Notice of Appeal; and

c) We do not read Justice Moore's order of September 2, 2015 as a waiver of spousal support from Mr. Mercer's pension income(September 2, 2015 Order). The essence of the September 2, 2015 Order was to memorialize the agreement attached as Exhibit A intoan order. The said agreement is entitled "Agreement of spouse or common-law partner to Pension Benefit Reduction on Death ofMember or Former Member". A plain reading of the said agreement appears to permit Mr. Mercer to receive a larger monthly pensionpayout because Mrs. Mercer waived any death benefit payable to her.

The said agreement does not purport to waive Mrs. Mercer's claimfor spousal support from Mr. Mercer's pension income. As a result, we do not accept this submission. Imputed Income [30] Mr. Mercer submits that the trial judge erred in imputing income to him by failing to consider:

(1) That although Mr. Mercer is paid for four hours of work per day at his current job, he actually works almost eight hours perday;

(2) That Mr. Mercer is unable to work a full-time job because of his ongoing parental responsibilities to Arthur; and

(3) The lack of evidence at trial that Mr. Mercer was intentionally underemployed. [31] In Drygala v. Pauli (2002), (ON CA), 61 O.R. (3d) 711 (C.A.), the Court of Appeal indicated thatimputation of income in such situations should be approached in a three-stage analysis, with the first two stages addressing whetherincome should be imputed, and the third stage addressing, if necessary, appropriate quantification of imputed income: i. First, the court should determine whether or not the spouse in question is intentionally under-employed or unemployed.

In thiscontext, “intentionally” means a voluntary act; i.e., where the parent chooses not to work, or to earn less than he or she is capable ofearning. Existence of such an intention does not require a finding of bad faith, or a specific intent to evade or secure child support. Aparent is intentionally under-employed within the meaning of s.19(1)(

a) of the Guidelines if he or she earns less than he or she is capableof earning, having regard to all the circumstances. He or she is intentionally unemployed, within the meaning of s.19(1)(

a) of theGuidelines, when he or she chooses not to work when capable of earning an income. ii. Second, if the court finds intentional under-employment or unemployment, in the sense required, the court must then determinewhether that was and/or is required by virtue of the parent’s reasonable educational needs, the needs of a child, or reasonable healthneeds. iii.

Third, if the answer to the first stage question is “yes”, and the answer to the second stage question is “no”, the court normallymoves on to determination of the income that should be imputed in the circumstances. [32] At paras. 56 and 57, the Court of Appeal in Drygala stated that the onus is on the party requesting imputation of income toestablish an evidentiary basis for it and the determination to impute income is always discretionary based on the circumstances of eachcase. [33] Contrary to the submissions of Mr. Mercer, the trial judge did consider the factors raised by him on this appeal: [13] Mr.

Mercer currently works as a bus driver for four hours a day. He earns $13 an hour. His April 8, 2016 financial statementindicates he earns $473.60 a month for this job. The job will obviously end for the summer shortly… [66] With respect to ongoing issues, I start first with whether income should be imputed to Mr. Mercer. The main question to be asked iswhether Mr. Mercer is deliberately underemployed or simply the victim of unfortunate circumstances. While both and Mrs.

Mercer havebeen very affected by the separation and the litigation, it is now almost three years since the date of separation. [67] While I am sympathetic to Mr. Mercer’s dilemma in trying to re-insert himself into the job market, his job as a bus driver does seemfar below his skill and experience level. A further factor that cannot be ignored in this case is the time, effort and expense of raising achild with diagnosed difficulties as a single parent. Mr. Mercer took on the bus driver job and is contemplating a job as a buildingsuperintendent so he can be there for his son.

While Arthur is now 18 he is still a dependent. [68] Even though Mrs. Mercer does not have the ability to pay child support, the matter does not end there. I find that someconsideration must be given to Mr. Mercer’s obligations with respect to Arthur in determining an appropriate level of imputed income. Inthe circumstances I do not believe that $30,000 a year is too low. Indeed it is far more than he is actually making. However, since theparties will be required to exchange income tax returns each year, support can be adjusted once Mr. Mercer has more steady andpermanent employment. [34] The submission that Mr.

Mercer actually works 8 hours per day when driving a school bus would suggest that he is capable ofdevoting a greater amount of time to employment more suited to his skill and experience level. [35] The trial judge dealt with each of the factors raised by Mr. Mercer on this issue. Clearly the trial judge found that Mr. Mercerwas underemployed and, taking into account his parental responsibilities to Arthur, imputed a modest level of income notwithstandingMr. Mercer's previous employment income. [36] Contrary to the submissions of Mr. Mercer, we do not find that the imputed income to Mr.

Mercer was either arbitrary orintended to punish him. The trial judge carefully balanced the relevant factors including Mr. Mercer’s skills, experience, andresponsibilities for Arthur’s care. [37] We see no error in principle or palpable and overriding error of fact in the trial judge’s determination to impute $30,000income to Mr. Mercer. Conclusion On Mr. Mercer’s Income [38] We are satisfied that the trial judge made no error when she determined that Mr. Mercer’s income for spousal supportpurposes was $58,320. MRS. MERCER’S INCOME [39] Mr.

Mercer submits that the trial judge erred by failing to consider that Mrs. Mercer should become self-sufficient. In supportof this submission, Mr. Mercer alleged that Mrs. Mercer:

1. does not suffer from any health conditions which would prevent her from working; 2. to the extent Mrs. Mercer does suffer from any medical conditions, she bears the responsibility for this as she regularly consumes alcohol; 3. Mrs. Mercer has skills in a variety of areas and has failed to show a sincere effort to obtain paid employment; 4. Mrs. Mercer also failed to disclose documents that were required for the trial judge to determine a fair amount of spousal support. Inability to Work/Self Sufficiency [ 40 ] Mrs.

Mercer submits the there was ample evidence in the record demonstrating her inability to work, and the trial judge did not make a palpable and overriding error in respect of this issue. [ 41 ] The evidence disclosed that Mrs. Mercer had suffered 4 heart attacks, suffered from fibromyalgia, had undergone 8 angioplasty procedures (including the placement of 3 stents), had thyroid issues, suffered from depression (including one suicide attempt) and other medical issues. Based on this evidence the trial judge concluded: [58] Mrs. Mercer had her first heart attack in 2007 and three more since.

She has had eight angioplasties and three stents. She described her condition as a diastolic left ventricle failure… [77] Mrs. Mercer is not able to work at this time. That could change. [ 42 ] This was purely a factual determination by the trial judge. We see no palpable and overriding error of fact. Lack of Disclosure [ 43 ] Mr. Mercer submits that Mrs. Mercer failed to disclose financial and medical documents which were necessary for the calculation of her income or spousal support. Medical Documentation [ 44 ] With respect to the medical documentation, Mr. Mercer submits that Mrs.

Mercer should have produced other medical documents “to prove her disability and inability to work”. [ 45 ] At paras. 59 – 61 of the Reasons for Judgment, the trial judge found that Mrs. Mercer has not worked since 2007; Mrs. Mercer suffers from a number of medical illnesses and has been involved in two motor vehicle accidents; and the evidence of three medical letters, each of which stated that Mrs. Mercer was not capable of employment at this time. [ 46 ] There was a clear evidentiary record to support the trial judge’s determination that Mrs. Mercer was not fit for employment at this time.

The trial judge made no palpable and overriding error of fact. We find no error on this issue. The Alleged UK Pension [ 47 ] Mr. Mercer alleged that Mrs. Mercer had a pension in the United Kingdom which she failed to disclose. [ 48 ] The trial judge was alive to this issue and concluded that there was insufficient evidence to find that Mrs. Mercer had a pension or the quantum of that pension. [39] Mr. Mercer insists that Mrs. Mercer has a pension in the United Kingdom from when she worked there as a nurse for seven years between 1978 and 1985.

He was bitter about the fact that, despite multiple requests that she do so, Mrs. Mercer had failed to request or obtain a pension statement. Mrs. Mercer relied on Exhibit A, a website page for the Canadian Alliance of British Pensioners. She testified that as of April 6, 2016, British pensioners would need at least ten years of National Insurance contributions in order to qualify for a pension. She only has seven years of contributions. She also relied on Exhibit C which purported to demonstrate, by the inputting of certain information, that Mrs.

Mercer did not qualify for any state pension and even if she did she would not be eligible for it until 2027. [40] Mr. Mercer appeared certain that Mrs. Mercer would qualify for the pension. Unfortunately, there was no reliable way to establish if she did or what the amount would be. [41] I find that Mrs. Mercer was not as cooperative as perhaps she could have been in providing information about the pension as her case had to be re-opened based on documents she “found” on the internet after two days of trial.

Be that as it may, I find that is simply insufficient documentation and evidence on which to make any finding on this issue. [ 49 ] Given the evidentiary record, any finding regarding the alleged United Kingdom pension would have been speculation on the part of the trial judge. [ 50 ] We find no error to the trial judge’s determination that there was insufficient evidence regarding the alleged United Kingdom pension. Conclusion on Mrs. Mercer’s Income

[ 51 ] The trial judge’s determination that Mrs. Mercer was not employable and has no income at this time was purely a factual determination. There was ample evidence to support the trial judge's findings regarding Mrs. Mercer's income. [ 52 ] We find that there was no error in principle or palpable and overriding error of fact. THE Quantum OF PROSPECTIVE SPOUSAL SUPPORT [ 53 ] The two primary issues raised by Mr.

Mercer regarding the quantum of prospective spousal support is that the trial judge failed to consider that the spousal support ordered would result in financial or "undue" hardship to him and failed to consider Mr. Mercer's parental obligations to Arthur. Undue Hardship [ 54 ] Mr. Mercer's counsel conceded on the appeal that Mrs. Mercer's entitlement to spousal support was not an issue. [ 55 ] Mr.

Mercer submits that the level of spousal support ordered by the trial judge would result in undue hardship because of his parental responsibilities for Arthur. [ 56 ] We do not give effect to this submission for a number of reasons: (

a) Undue hardship was not raised by Mr. Mercer in his Answer; and (

b) Even if this court was prepared to consider this issue at this time, the onus is on Mr. Mercer to establish “undue hardship” and he has failed to do so. Making bald assertions that the spousal support ordered would result in "undue hardship" is not sufficient absent an evidentiary record. [ 57 ] We see no merit to Mr. Mercer’s submission on this issue. The Impact of Mr. Mercer’s Parental Obligation to support Arthur [ 58 ] The trial judge considered Arthur’s ODSP monthly payment of $1,100 per month; and Mrs. Mercer’s inability to pay child support; and Mr.

Mercer's parental responsibilities for Arthur in determining the appropriate level of spousal support: [75] Mrs. Mercer’s counsel urges the court to order support in the high range given the length of the marriage, the roles taken on in the marriage, Mr. Mercer’s income earning capacity, Mrs. Mercer’s lack of employability and the economic hardship faced by Mrs. Mercer as a result of the marriage breakdown. [76] These are all very important factors but fail to account for the responsibilities taken on by Mr. Mercer in caring for Arthur. Although Arthur is in receipt of ODSP, he is autistic and needs support. Mr.

Mercer has taken all of that on and those responsibilities must be accounted for in some manner. As such, an award of support close to the mid-range is more appropriate. [ 59 ] Contrary to the submission, we find that the trial judge properly and fairly considered Mr. Mercer's parental obligations to Arthur. Conclusion on Level of Prospective Support [ 60 ] We are satisfied that the trial judge’s determination as to the quantum of prospective support for Mrs.

Mercer was the exercise of her discretion applying the correct principles and considering the applicable factors in the case. [ 61 ] We see no basis to interfere with the trial judge’s decision on the quantum of prospective spousal support. RETROACTIVE SPOUSAL SUPPORT [ 62 ] Mr. Mercer submits that the trial judge erred in awarding retroactive spousal support by failing to take into account that (

i) he paid Mrs. Mercer’s medical, dental bills and credit card bills following the separation; and (ii) Mrs. Mercer withdrew $10,000 from the parties’ joint line of credit in November 2013. [ 63 ] Mr. Mercer’s claim for paying Mrs. Mercer’s bills post separation were before the trial judge. Upon considering the financial circumstances and obligations of the respective parties, the trial judge determined: [36] (

b) Personal expenses of Mrs. Mercer owed to Mr. Mercer. The reasons for disallowing this credit are similar to those expressed above. I should add as well that virtually no evidence was provided by Mr. Mercer as to how he came up with this large number. He simply asked the court to accept it without any real corroboration. It is of significance that Mrs. Mercer was still living in the home for the period of July 2013 to September 2014. Mr. Mercer denied her claims that he was withholding food and necessities from her. He testified that he was continuing to provide for the family throughout that period.

Since he did not pay spousal support for that period, he cannot then claim a credit for paying Mrs. Mercer’s living expenses. … [ 64 ] The trial judge’s decision to deny Mr. Mercer's claim for a credit for post separation payments for various bills for Mrs. Mercer was a factual determination and the exercise of the trial judge’s discretion. Mr. Mercer’s position appears to be nothing more

than an invitation to this court to reconsider the same issues and arrive at a different conclusion. [ 65 ] Mr. Mercer’s submission with respect to the $10,000 from the joint line of credit was the subject of agreement at trial. The trial judge stated: [28] As for the joint line of credit paid out from the sale proceeds, Mr. Mercer’s original position is that $10,000 of the line of credit taken out by Mrs. Mercer must be her sole responsibility.

However, he conceded that the joint line of credit paid from the joint sale proceeds should not be subject to further division in these circumstances. [ 66 ] As a result, this court is not prepared to review the party's agreement regarding the $10,000 credit claim. Conclusion on Retroactive Spousal Support [ 67 ] We find no error by the trial judge. CONCLUSION [ 68 ] The appeal is dismissed. [ 69 ] For the reasons endorsed on the Appeal Record, costs are ordered in the amount of $4,000 in favour of Mrs. Mercer. ___________________________ RICCHETTI J. I agree ___________________________ SACHS J.

I agree ___________________________ THORBURN J. Date of Release: January 30, 2017 CITATION : Mercer v. Mercer, 2016 ONSC 7951 DIVISIONAL COURT FILE NO.: 330/16 DATE: 20170130 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, THORBURN and RICCHETTI JJ. BETWEEN:

CATHERINE MERCER Appellant – and – GARRY MERCER Respondent REASONS FOR JUDGMENT RICCHETTI J. Date of Release: January 30, 2017