This recent decision from the Superior Court of Justice provides guidance for lawyers and future courts with respect to the determination of income when a payor’s income fluctuates. This case suggests that although many courts have chosen to average income to determine income for support purposes, material evidence which substantiates current income may be grounds to forego such averaging. This case provides a useful guide with regards to the jurisprudence in respect of income averaging.
On December 23, 2011, the Ontario Court of Appeal released a judgment regarding an appeal by Mr. Stergios in which he challenged the trial judge’s factual and credibility findings relating to Ms. Kim.
More specifically, Mr. Stergios argued that the trial judge should’ve made adverse credibility findings against Ms. Kim arising from the following matters:
- Her late disclosure of her immigration file;
- Her pre-separation income;
- The particulars in her various financial statements; and
- Her evidence concerning the parties’ separation and her availability to further her education in Canada.
The Ontario Court of Appeal dismissed his appeal, stating the trial judge carefully considered the challenges and rejected same because Ms. Kim had adequately explained any deficiencies, whereas Mr. Stergios provided the court with inconsistent and seriously understated and untruthful evidence. The Court of Appeal stated that the trial judge was in the position to assess the credibility of the parties and as such there was no basis to interfere with his credibility findings. Moreover, the Court of Appeal offered the following additional reasons for their decision.
The trial judge had given Mr. Stergios ample time and opportunity to obtain evidence and refute Ms. Kim’s claims concerning her immigration position. More specifically, the trial judge adjourned the trial in the spring of 2008 until October 2008 so that Mr. Stergios could retain an immigration expert. However, when the trial resumed, Mr. Stergios had failed to do so and as a result, the only immigration expert called at trial was Ms. Kim’s immigration lawyer whose evidence went unchallenged for nine (9) days during the trial. Her immigration lawyer offered evidence regarding Ms. Kim’s immigration application and her prospects of successfully achieving status in Canada.
EMPLOYMENT PROSPECTS IN SOUTH KOREA AND CANADA
During the trial, Ms. Kim gave evidence concerning her employment prospects in both South Korea and Canada from a cultural perspective. Mr. Stergios drew issue with this on appeal because he said the specifics relating to same, as well as her ability to be self-sufficient, were not pleaded in her Answer despite being central to this litigation.
Although he drew issue on appeal, he did not object to this evidence at trial and the court of appeal stated that had he done so, then the trial judge would have turned his attention to any necessary amendment and potentially granted an adjournment to permit Mr. Stergios to address the matter. As such, it was too late for him to raise this issue for the first time on appeal.
The bulk of Ms. Kim’s evidence related to the fact that if she were to return to South Korea, she would face adverse consequences as South Korean females from failed interracial marriages are treated poorly according to culture and tradition. More specifically, she would suffer reduced career opportunities in South Korea.
Mr. Stergios did not successfully challenge her evidence and during the marriage, he even made threats to end their relationship if she did not comply with his demands, and reminded her that if he did, she would be “nothing” in South Korea. Therefore, it was evident that he was aware of the cultural importance of Ms. Kim avoiding divorce.
Therefore, the court of appeal determined that there was ample evidence for the trial judge to conclude that Ms. Kim would be unable to reach her career potential in South Korea and did not interfere with his decision.
ENTITLEMENT TO SUPPORT
The evidence presented to the trial judge illustrated that throughout their relationship, Ms. Kim and her family supported Mr. Stergios and allowed him to reach his career potential and that Mr. Stergios undertook to do the same for Ms. Kim once she was successfully sponsored to live in Canada.
NON-APPLICATION OF SPOUSAL SUPPORT GUIDELINES
The trial judge also explained that the peculiar circumstances of this case took the support award outside of the Spousal Support Advisory Guidelines and that those circumstances included the severe economic disadvantage and hardship endured by Ms. Kim as well as to contractual and compensatory aspects of the support ordered. As such, Ms. Kim was entitled to compensatory, non-compensatory and contractual spousal support and the court of appeal did not interfere with said decision.
Therefore, as previously mentioned, the appeal was dismissed and the court declined to address Mr. Stergios’s appeal of the trial costs, which were dependent on his success in this appeal. In addition, the costs of the appeal, in the amount of $9,800.00, inclusive of all applicable taxes, were made payable by Mr. Stergios to Ms. Kim.