Klerides v. Klerides 2002 OCA mini 298

DATE: 20020530 DOCKET: C36781

COURT OF APPEAL FOR ONTARIO

RE:

SAVVAS KLERIDES (Petitioner (Appellant)) – and – EUDOKIA KLERIDES (Respondent (Respondent))

BEFORE:

WEILER, GOUDGE AND SIMMONS JJ.A.

COUNSEL:

Gary S. Joseph

For the appellant

Robert R. Berman

For the respondent

HEARD:

May 8, 2002

On appeal from the judgment of Justice Victor Paisley dated November 28, 2000.

E N D O R S E M E N T

1[1] The appellant husband raises two grounds of appeal from the judgment dated November 28, 2000:

i. the trial judge erred in failing to deduct disposition costs from the value of the Cyprus properties in calculating the appellant’s net family property; and

ii. the trial judge erred in requiring that the appellant pay child and spousal support backdated to the date of separation based on an imputed income of $50,000 per year.

2[2] We reject the appellant’s submissions relating to disposition costs. The parties signed a consent on November 22, 2000 resolving, among other things, the value of the matrimonial home to be included in the wife’s net family property and the value of the Cyprus properties to be included in the husband’s net family property. The consent reserved to the trial judge “the husband’s claim that he is entitled to deduct ‘capital gains’ from the value of the Cyprus properties”.

3[3] In finding that “there is no reason … to deduct capital gains increases from the value of the Cyprus properties according to Canadian law”, the trial judge obviously concluded that the issue reserved to him was one identified by the husband’s appraiser, i.e. the deductibility of inflationary increases in the value of the Cyprus properties calculated in accordance with “the official rate given by the appropriate [Cyprus] government department” for the period from 1983 to 1997. Based on our review of the consent and the record at trial, we agree that that was the issue reserved to the trial judge and with the conclusion that he reached. Finally, given that the parties reserved only one category of deductions for trial, namely the claim to deduct capital gains, we see no error in the trial judge’s decision not to deduct disposition costs.

4[4] As for the issues of child and spousal support, we see no error in the trial judge’s decision to impute an income of $50,000 per year to the appellant and to order retroactive support. The appellant acknowledged in his closing submissions that he had generated income in the range of $50,000 per year when he was healthy and able to work. In light of the appellant’s failure to make full financial disclosure and the absence of medical evidence confirming that he was disabled from working, the trial judge was justified in finding that the appellant was either deliberately unemployed or hiding income. In our view, however, the retroactive support should commence on the date the Answer and Counterpetition was issued. Assuming, without deciding, that there is jurisdiction to award support pre-dating the commencement of proceedings, the trial judge did not identify special circumstances that would justify such an award in this case.

5[5] The appeal is accordingly allowed in part by varying the arrears of child and spousal support payable by the appellant to the respondent from $33,600 to $29,400 in the case of child support and from $48,000 to $42,000 in the case of spousal support. The balance of the appeal is dismissed with costs to the respondent on a partial indemnity scale fixed at $9,000 inclusive of the costs of the extension motion, G.S.T. and disbursements.