“The appellant submits the trial judge erred in awarding any spousal support to the respondent because she erroneously applied the criteria under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) for determining eligibility to spousal support when she should have considered the factors under the Family Law Act. She also says the trial judge’s reasons are inadequate to explain the amount and duration of the support ordered, especially given the respondent’s failure to provide an evidentiary basis for his support claim.
This court in Ballanger v. Ballanger, 2020 ONCA 626, at paras. 22-23, recently and compendiously reiterated the well-established deferential appellate standard of review and its rationale in relation to support orders:
The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.
An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 11-12.
There is no dispute that in determining the respondent’s entitlement to spousal support, the trial judge explicitly referenced only the statutory criteria set out in s. 15.2(6) of the Divorce Act, which has no application to common law spouses, rather than the factors mandated for her analysis under ss. 33(8) and (9) of the Family Law Act. While this was an error, the question is whether this error is so material that it wholly undermines the trial judge’s decision.
In our view, it does not. There is significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self‑sufficiency within a reasonable period of time figures prominently in both statutes. Giving the trial judge’s reasons the generous reading they require, it is clear that she considered all the relevant factors in determining whether spousal support was warranted, including the respondent’s lack of contributions and work efforts, his mental health issues, his diminished resources, the appellant’s income, the parties’ lifestyle during their relationship, the parties’ ages, and the length of their relationship.”