- DATE: 20020703 DOCKET: C32053
COURT OF APPEAL FOR ONTARIO
RE:
PATRICIA BUTLER (Plaintiff/Appellant) –and– MALCOLM KRONBY and McMILLAN BINCH (Defendants/Respondents)
BEFORE:
ROSENBERG, SHARPE and CRONK JJ.A.
COUNSEL:
David Harris, for the appellant
A. Burke Doran, Q.C. and E. Llana Nakonechny, for the respondents
HEARD:
June 18, 2002
On appeal from the judgment of Justice Hugh R. McLean dated April 15, 1999.
E N D O R S E M E N T
[1] The grounds of appeal raised in this case concern factual findings made by the trial judge. The appellant contends that various findings of fact were “perverse” in that there was no evidentiary basis for them, they were inconsistent with other findings or they were made in the face of other evidence not referred to by the trial judge. In our view, the evidence supports the material findings of fact and the appellant has not shown that the trial judge misapprehended or ignored the relevant evidence on these points. Accordingly, the appeal is dismissed.
[2] At trial, the appellant made two allegations of negligence against the individual respondent, her former solicitor in a family law matter. The only allegation pursued on this appeal concerns the instructions to the respondent with respect to the motion that resulted in the non-depletion order of January 19, 1989. The appellant contends that the respondent was negligent in consenting to the order, thereby depriving her of the opportunity to put forward her “plan” for the matrimonial home. That plan would have been to sell the home, purchase a smaller house and pay the balance of the proceeds into an income account. The appellant and her child would have lived off the income while the smaller house and the balance of the account could have been subject to non-depletion orders to protect the husband’s interest pending disposition of the litigation. As a result of the individual respondent’s alleged negligence, the appellant contends that she was deprived of the opportunity to sell the matrimonial home when the real estate market was at its peak in the fall of 1989.
[3] There are many problems with this theory. We consider the following to be the most important and dispositive of the appeal:
The trial judge found, as he was entitled to do, that the respondents did not consent to the non-depletion order. The trial judge in making this finding was not required to refer in his reasons to every piece of evidence potentially bearing on the issue.
Even if the order was made on consent, by its terms the order could be varied. Had the appellant wanted to sell the home at some point prior to resolution of the litigation, she could have applied to the court for a variation. There is simply no doubt that any court presented with a reasonably concrete plan would have permitted the sale, especially in light of the marriage contract.
Even if there had been no non-depletion order, the appellant could not sell the matrimonial home at will; by law, she still required the consent of her husband or a court order.
It was open to the trial judge to accept, as he clearly did, the evidence from the defence experts that the non-depletion order would have been made, even if opposed by the respondent. We do not accept the strained interpretation that the appellant sought to place upon the trial judge’s reasons. It is clear to us that the trial judge did accept the evidence of the defence experts over those called by the appellant.
The appellant’s evidence that she did not take steps to sell the home in the fall of 1989 because the individual respondent told her that all of the proceeds would have to be paid into court, is not credible. We do not agree with the appellant that the trial judge accepted her evidence on this point. He recited it in his reasons, but his other findings concerning the appellant’s dealings with the home show that he did not accept this part of the appellant’s testimony.
The evidence, including the documentary evidence, establishes that the respondents explained the effect of the non-depletion order to the appellant.
The trial judge was entitled to find, as he did, that the appellant did not desire to sell the home in the buoyant real estate market in the fall of 1989. As indicated, her explanation for not doing so is not credible. The trial judge accepted a more reasonable explanation for her conduct in the fall of 1989: she was still in the process of making renovations to increase the value of the home.
[4] Thus, the individual respondent did not act contrary to the appellant’s instructions and, in any event, the appellant did not lose the opportunity to sell the matrimonial home, had she wanted to do so, in 1989. The appellant therefore did not establish that the respondents were negligent and, in any event, did not establish that any negligence caused her any damages.
[5] Accordingly, the appeal is dismissed with costs. At the hearing of the appeal, counsel for the respondents provided a draft bill of costs. The appellant will have 7 days to provide written submissions concerning that bill of costs and the respondents will have 5 further days within which to provide their written reply submissions, if any.
Signed: “M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”