Greenglass v. Greenglass, 2010 ONCA 675

CITATION: Greenglass v. Greenglass, 2010 ONCA 675

DATE: 20101019

DOCKET: C50904

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Armstrong and Epstein JJ.A.

BETWEEN

Marcy Greenglass

Petitioner (Respondent)

and

Melvin Greenglass

Respondent (Appellant)

Judith M. Nicoll, for the appellant

Gary Joseph and Geoffrey Wells, for the respondent

Heard: May 4, 2010

On appeal from the judgment of Justice Beth A. Allen of the Superior Court of Justice dated July 16, 2009, with reasons reported at (2009), 2009 39995 (ON SC), 74 R.F.L. (6th) 320.

Epstein J.A.:

OVERVIEW

[1] Marcy and Melvin Greenglass were married in 1971 and separated in 2001. They have two adult daughters, both in their 30s.

[2] The Greenglasses enjoyed a comfortable lifestyle. Ms. Greenglass taught school, albeit part-time, while the children were young. Mr. Greenglass, a chartered accountant, was a successful property manager for Brad-Jay Investments Limited and Village Investments.

[3] In 1999, the Greenglasses’ lives changed drastically when Mr. Greenglass was fired over allegations of wrongdoing. As a result, Ms. Greenglass returned to work as a teacher, having retired a year earlier at the age of 52. She continued to work until February 2007.

[4] Litigation between Mr. Greenglass and his employers ensued (the “Brad-Jay litigation”). The Brad-Jay claim against Mr. Greenglass was for $4.8 million. He counterclaimed for $4 million. There was a cross-claim against another party for $400,000 for wrongful dismissal and $4.25 million in other damages, and another cross-claim for $3.25 million in damages. At trial, all claims were dismissed; Brad-Jay appealed the main claim, but Mr. Greenglass chose not to appeal.

[5] The litigation was hard-fought. In the end, Mr. Greenglass was successful – at trial, in the Court of Appeal, and in resisting the application for leave to appeal to the Supreme Court. By the time the proceedings ended in 2007, Mr. Greenglass had paid legal fees of close to $1 million. He recovered some of these fees in cost awards in his favour. His net fees totalled $564,640.

[6] Over the course of the Brad-Jay litigation, Mr. Greenglass received two offers to settle, first for $2.5 million, and later for $1.5 million. Both offers assumed, in effect, Mr. Greenglass’s guilt with respect to the missing funds. It was generally acknowledged that the first of these offers would have wiped out, in substantial part, the family’s assets. It was the opinion of Karen Knudsen, Mr. Greenglass’s lawyer in the Brad-Jay litigation, that the case would not settle unless Mr. Greenglass essentially gave the plaintiffs everything they were asking for.

[7] In the divorce proceedings, Ms. Greenglass sought, among other things, child support for their youngest child, retroactive and ongoing spousal support, and an unequal division of net family property. Mr. Greenglass, in his counter-petition, claimed, in addition to other relief, an order for an equalization payment to his wife in the amount of $766,307.94.

[8] On October 9, 2003, Hamilton J. ordered Mr. Greenglass to advance to Ms. Greenglass $60,000 per year from June 2002 through October 2007 by way of monthly payments of $5,000. These payments that Mr. Greenglass made to Ms. Greenglass ceased when the Brad-Jay litigation ended, in accordance with Hamilton J.’s order. By that time, Mr. Greenglass had paid approximately $363,000 to Ms. Greenglass.

[9] Following a lengthy trial, the trial judge ordered an equalization payment to Ms. Greenglass in the amount of $1,031,323.74, reduced by a credit to Mr. Greenglass of $363,000, leaving a total owing by him to Ms. Greenglass of $668,323.74. These amounts were calculated on the basis of the following analysis. The trial judge found that on the date of valuation, Ms. Greenglass held total assets of $795,706.41 and total debts and liabilities of $15,276.11, and Mr. Greenglass held total assets of $3,129,230.71 and total debts and liabilities of $286,152.93. The net family property was found to be $780,430.30 for Ms. Greenglass and $2,843,077.78 for Mr. Greenglass.

[10] The trial judge also awarded retroactive spousal support of $126,900 to July 2009, ongoing monthly spousal support in the amount of $1,416.67 from August 1, 2009, reviewable at reasonable intervals, and ordered the execution of documents relating to the transfer of a timeshare and of an insurance policy. She also ordered Mr. Greenglass to pay costs in the amount of $67,500.

[11] While Mr. Greenglass challenges virtually every aspect of the judgment, in terms of financial impact, the main issue in this appeal is the trial judge’s treatment of the future contingent legal costs associated with the Brad-Jay litigation in the calculation of his net family property (“NFP”).

[12] In my view, the trial judge erred in several respects having to do with division of assets and spousal support, many of which Ms. Greenglass’s counsel fairly concedes, and I would allow the appeal in respect to those issues. With respect to the remaining issues, I would not interfere with the discretion exercised by the trial judge and would dismiss the appeal.

ISSUES

[13] The issues where error is conceded are as follows:

1. The trial judge’s calculation of retroactive support and application of credits toward such support.

2. Making a lump sum payment of retroactive support based on gross income and using the Spousal Support Advisory Guidelines, when the form of the order does not provide Mr. Greenglass with tax deductibility for those payments.

[14] The issues in dispute are:

1. Whether the trial judge erred in not allowing Mr. Greenglass to amend his pleadings to seek an unequal division of net family property.

2. Whether the trial judge erred in her determination of the equalization of net family property, primarily by rejecting Mr. Greenglass’s deduction for future costs of the Brad-Jay litigation.

3. Whether the trial judge erred in various respects in her award to Ms. Greenglass for ongoing spousal support and the nature and import of the conceded errors in the trial judge’s calculation of retroactive spousal support.

4. Whether the trial judge erred in her determination of spousal support by failing to take into account Mr. Greenglass’s voluntary contributions towards the support of the parties’ adult children, including the maintenance of a life insurance policy that names the children as beneficiaries.

5. Whether the trial judge erred in finding that Ms. Greenglass consented to the deduction of accounting fees in the amount of $35,000.93 incurred by Mr. Greenglass in connection with a post-separation accounting report prepared in defence of the Brad-Jay litigation.

6. Whether the trial judge erred in awarding Ms. Greenglass her trial costs including one half of the costs of her accountant who testified on her behalf at trial.

ANALYSIS

1. Did the trial judge err in not allowing Mr. Greenglass to amend his pleadings to seek an unequal division of net family property?

[15] The trial judge first dealt with Mr. Greenglass’s motion, brought at the opening and again at the end of trial, to amend his pleading to claim an unequal division of family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3.

[16] The trial judge dismissed the motion on the basis of her finding that the amendment would delay the trial, causing prejudice to Ms. Greenglass that could not be compensated for in costs. The trial judge held that since the proceeding had already been prolonged by the Brad-Jay litigation, further delay would cause hardship to Ms. Greenglass. She did not have the same resources to weather prolonged financial insecurity. The trial judge further noted that Mr. Greenglass had been aware of the mounting legal costs for years and had made no attempt to amend his pleading in a timely fashion.

[17] Rule 11(3) of the Family Law Rules, O. Reg. 114/99, provides that allowing an amendment of this nature is mandatory absent prejudice or disadvantage to another party that could not be cured by costs or an adjournment.

[18] While rule 11(3) and related jurisprudence, such as Stefureak v. Chambers, 2005 16633 (ON S.C.), upon which Mr. Greenglass relies, clearly signal that parties should rarely be denied the opportunity to make their case, the decision to deny Mr. Greenglass leave to amend was within the discretion of the trial judge. Here, the divorce proceedings were undeniably protracted. Mr. Greenglass had ample opportunity throughout the proceedings to seek an amendment to advance his claim for an unequal division of assets. For reasons not apparent on the record, he chose not to do so. An adjournment would clearly prejudice Ms. Greenglass.

[19] The trial judge identified the relevant factors and exercised her discretion based on proper principles. I would not interfere with the exercise of that discretion and would therefore dismiss the appeal on this issue.

2. Did the trial judge err in her equalization of Net Family Property? In particular, did she err in rejecting Mr. Greenglass’s deduction for future costs of the Brad-Jay litigation?

[20] Because of its effect on other matters raised on appeal, I will deal with this issue first.

[21] In his November 25, 2008 Net Family Property Statement, Mr. Greenglass claimed a deduction of $564,840. This number represented the total legal fees he spent on the Brad-Jay litigation minus the $308,314 costs award and the $82,249 in fees paid before separation. The judge below allowed for a deduction of only $6,033, representing the balance of legal costs that were actually owing as of the date of separation.

[22] The trial judge disallowed Mr. Greenglass’s deduction for the post- separation legal costs mainly on the basis that Mr. Greenglass failed to establish that there was “a reasonable basis to have foreseen the fees would amount to $1 million.” The trial judge expressed concern that Mr. Greenglass had used hindsight to provide the value for the fees that, in his submission, were foreseeable as of the date of separation. Further, she was bothered by the fact that allowing the deduction calls into question the extent to which other contingencies associated with the litigation, such as the potential value of Mr. Greenglass’s counterclaim and cross claim, should be taken into account. The trial judge also noted that a number of Mr. Greenglass’s payments of legal fees were treated as a business expense and written off for tax purposes.

[23] While these are legitimate considerations, in my view the trial judge erred in implicitly concluding that no future legal costs were foreseeable. The litigation arose out of actions taken during the marriage and the claim had crystallized before the date of separation. Ms. Knudsen had provided evidence upon which to ground an assessment of future legal costs. In these circumstances, Mr. Greenglass is entitled to a deduction in his NFP of the court’s estimation of the legal expenses that were reasonably foreseeable.

[24] An examination of the applicable law supports this conclusion.

[25] By operation of s. 5 of the Family Law Act, the parties to the marriage share equally in any increase in the value of family property between marriage and the date of separation. Section 5 provides as follows:

5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

[26] In the jurisprudence that has developed under this section, the difficulty in valuing assets and liabilities, particularly contingent liabilities, is often noted. What is clear, however, is that contingent liabilities are to be taken into account as long as they are reasonably foreseeable. See Leslie v. Leslie (1987), 1987 8321 (ON SC), 9 R.F.L. (3d) 82 (Ont. H.C.); Nicol v. Nicol (1989), 1989 8825 (ON SC), 21 R.F.L. (3d) 236 (Ont. H.C.); Crutchfield v. Crutchfield (1987), 1987 8303 (ON SC), 10 R.F.L. (3d) 247 (Ont. H.C.); and Drysdale v. Drysdale (1994), 1994 7453 (ON SC), 9 R.F.L. (4th) 20 (Ont. U.F.C.J.).

[27] In determining the present value of a contingent liability, courts have looked at what was reasonably foreseeable on the valuation date: Johnston v. Johnston, [1998] O.J. No. 5495 (Gen. Div.), at para. 59, aff’d on other grounds 2000 14718 (ON C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 234. In Drysdale, at paras. 14-17, Beckett J. noted that where courts have found no or a very low risk that a guarantee would be called at the valuation date, the value of the contingent liability has been determined to be nil. However, in Drysdale it was found that there was a real possibility that the guarantee would be called upon, though the amount could not be predicted with any certainty. Finding it unrealistic to value the liability at either zero or the full amount of $200,000, Beckett J. valued the liability at 50 percent of the amount in question: see also Salamon v. Salamon, [1997] O.J. No. 852 (S.C.J.). This approach was approved by this Court in Cade v. Rotstein (2002), 2004 24269 (ON CA), 181 O.A.C. 226 (C.A.).

[28] I appreciate that in respect of Mr. Greenglass’s claimed deduction for future legal costs, foreseeability was a particularly difficult issue. As the trial judge properly noted, as of the date of separation there was much uncertainty surrounding the Brad-Jay litigation, including the likelihood of victory in the various claims (main, counter and cross), the likelihood of an appeal, the length of trial and any appeal, any cost awards, the possibility of a settlement, and the amount of lawyers’ time spent on the various aspects of the case.

[29] However, in my view, the fact that the assessment of the amount of future costs is difficult does not mean that no future costs are foreseeable. While it is true that many aspects of the future course of the Brad-Jay litigation and its associated costs were uncertain, one thing was certain as of the date of separation – Mr. Greenglass was going to incur additional legal costs.

[30] On this record, there was evidence sufficient to assess a reasonably fair amount of reasonably foreseeable future legal costs. I refer to Ms. Knudsen’s evidence. She testified that at the date of separation, she believed it was going to be a long, expensive and difficult fight: she did not expect the matter to settle and was certain that, no matter what was decided at trial, it would be appealed. The trial judge noted that there was evidence to the effect that the projected litigation costs would be several hundreds of thousands of dollars.

[31] In my view, taking into consideration the contingencies noted above, the court must do its best to make an assessment of the reasonably foreseeable amount of net unrecoverable legal costs. In this case, in my view, the evidence supports an assessment of $300,000.

[32] I would therefore allow the appeal on this issue and allow Mr. Greenglass an additional deduction from his NFP of $300,000 to the deduction of $6,033 allowed by the trial judge in the decision below.

3. Did the trial judge err in her spousal support award in:

(a) awarding spousal support prior to determining the equalization of net family property?

(b) her calculations of retroactive spousal support and in the application of credits toward such support and in awarding retroactive spousal support for eight years without taking tax into consideration?

(c) ordering spousal support in the amount of $1,416.67 per month commencing August 1, 2009, reviewable at reasonable intervals, without specifying the terms and timing of any reviews?

[33] Ms. Greenglass sought compensatory and retroactive spousal support as well as ongoing periodic support payments. Ms. Greenglass argued that she was in need of support and that Mr. Greenglass was able to pay. She further submitted that she had been disadvantaged by the marriage and its breakdown and is therefore entitled to spousal support and should not have to rely on her investments, which are modest relative to those of Mr. Greenglass.

[34] At the time of trial, Mr. Greenglass lived with a woman companion in a home owned by her where he paid approximately $1000 per month toward expenses. Mr. Greenglass’s most current tax return demonstrated income from all sources in the amount of approximately $55,000. This amount was comprised of employment income of about $12,000, business income of around $1,300, and C.P.P. payments of approximately $7,300, with the remaining $34,400 derived from dividends and other investment income. The trial judge found that Mr. Greenglass was not intentionally under-employed, nor was he under-utilizing his assets. Therefore she did not impute any additional income to him.

[35] Ms. Greenglass resided alone in a two-bedroom house that she rented. At the time of trial, Ms. Greenglass was no longer working and her income from all sources averaged about $12,000 annually. This amount came from C.P.P. and pension payments of approximately $9,100 and investment income of about $3,900.

[36] The trial judge did not accept that Ms. Greenglass’s dependency was self-imposed; she left work in 2007 to attend to problems overwhelming her life at the time, including pressures of the matrimonial and Brad-Jay litigation.

[37] Mr. Greenglass argued that he should not have to pay spousal support on the basis that there was little difference between his financial position and that of Ms. Greenglass. The trial judge did not agree. She found the disparity between their respective financial resources to be significant and, in large part, the result of the circumstances of their marriage.

[38] The trial judge started with Ms. Greenglass’s claim for retroactive spousal support and awarded Ms. Greenglass retroactive support from June 1, 2002, the date ordered by Hamilton J., to July 31, 2009, in the amount of $126,900. She recognized that orders for retroactive support should not routinely be made, but held that this was a proper case for such an award. Unfortunately, the trial judge provided no reasons for this conclusion.

[39] The trial judge also found this to be an appropriate case for an award of periodic support based on Ms. Greenglass’s need and Mr. Greenglass’s ability to pay. She found no reason to depart from the Spousal Support Advisory Guidelines (“SSAG”), and fixed the amount of support at $1416.67 per month starting August 1, 2009, “onwards for an indefinite period which amount can be reviewed.”

(a) Did the trial judge err in awarding spousal support prior to determining the equalization of net family property?

[40] The first substantive issue the trial judge dealt with in her reasons was that of spousal support. It was only after making her determination with respect to spousal support that she turned her mind to the division of assets.

[41] Section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support. This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun (2006), 2006 SCC 25, 34 R.F.L. (6th) 1 (S.C.C.) at para. 29.

[42] In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550 at para. 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”

[43] Here, the trial judge erred in the same way. Mr. Joseph, counsel for Ms. Greeenglass, quite properly concedes the error but describes it as a matter of form over substance. He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.

[44] As will be seen, in the circumstances of this case, Mr. Joseph is correct. That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.

(b) Did the trial judge err in her calculations of retroactive spousal support and in the application of credits toward such support and in awarding retroactive spousal support for eight years without taking tax into consideration?

[45] The parties agree that the trial judge erred in her calculations of spousal support, but not on the manner in which the errors should be corrected.

[46] First, the errors include inaccuracies in the trial judge’s chart of incomes and calculations for the retroactive component of spousal support. She also failed to apply a credit of $17,619 in accordance with the order of Hamilton J. of October 9, 2003, that provided that” [f]rom June 2002 to May 2003, [Mr. Greenglass] has paid to [Ms. Greenglass] or has made third party payments on her behalf for the aggregate sum of $17,619, which sum shall be a credit as against any spousal support ordered after June 1, 2002.”

[47] Based on these errors, the total amount for retroactive support should be $101,808 rather than $126,900. This amount corrects for any computational errors, as well as the failure to apply the $17,619 credit as ordered by Hamilton J.

[48] The parties agree that the trial judge erred in her failure to take the tax consequences of spousal support into consideration. This is a support obligation for a specified period for which there was no pre-existing obligation. In order for the support obligation for the years from 2002-2007 to attract income tax, as they should, I would order that the support payments for the years 2002-2007 be subject to the provisions of ss. 56(1)(b) and 60(b) of the Income Tax Act, R.S.C. 1985, c. 1 (5thSupp.).

(c) Did the trial judge err in ordering spousal support in the amount of $1416.67 per month commencing August 1, 2009, reviewable at reasonable intervals, without specifying the terms and timing of any reviews?

[49] In addition to arguing that this amount must be re-evaluated once the division of assets has been adjusted to take into account the reasonably foreseeable legal fees associated with the Brad-Jay litigation, Mr. Greenglass submits that it is unclear how the trial judge reached the total of $1416.67 per month. He argues that this amount is outside the upper range of the scale. Further, the amount does not take into account the relative capital situation of the parties after equalization. Moreover, he says that the review provision is not sufficiently precise; a date of review must be fixed, along with parameters.

[50] I have indicated that I would adjust the division of assets. The on-going spousal support order must be re-considered to take into account the parties’ re-calculated asset position and the financial impact of any other adjustments made by virtue of this decision.

[51] Of necessity, this adjustment will be calculated at the conclusion of these reasons.

4. Did the trial judge err in failing to take into account, in her determination of spousal support, Mr. Greenglass’s contributions toward the support of the parties’ adult children?

[52] Neither parent has a legal obligation to support either child. As such, whatever voluntary payments either parent makes to their daughters is not relevant to the court’s determination of any financial issue between them.

[53] Furthermore, I would vary the order below to delete para. 6, requiring Mr. Greenglass to name the adult children as beneficiaries of a life insurance policy and take sole responsibility for the payment of the insurance premiums. As I have said, neither party has a legal obligation to provide child support. Mr. Greenglass has indicated he plans to continue to make the premium payments and to contribute to his younger daughter’s living expenses. He is to be commended for that but, in law, cannot be held legally bound to do so.

5. Did the trial judge err in finding that Ms. Greenglass consented to the deduction of accounting fees in the amount of $35,000.93 incurred by Mr. Greenglass post-separation in connection with an accounting report prepared in defence of the Brad-Jay litigation ?

[54] The trial judge allowed Mr. Greenglass to deduct $35,000.93 for accounting fees paid in 2004 to an accountant for a forensic report in connection with the Brad-Jay litigation.

[55] This deduction raises no issue for this court. Mr. Greenglass merely points to the difference in the trial judge’s having allowed him to deduct the Brad-Jay litigation accounting fees and not legal fees as further support for his argument that the trial judge erred in not allowing him any deduction for post-separation date legal fees.

CONCLUSION

[56] As a result of the conclusions reached in respect of the various issues raised on appeal, the division of assets must be re-calculated and then support varied, if appropriate, to reflect the altered financial positions of the parties.

[57] The $300,000 adjustment to Mr. Greenglass’s deductions in his NFP results in an equalization payment to be made by Mr. Greenglass to Ms. Greenglass of $881,323.74 ($1,031,323.74 minus half of $300,000). This amount must then be adjusted to reflect the credit to Mr. Greenglass for the court-ordered and voluntary payments he made to Ms. Greenglass in the amount of $363,000. This yields a net payment to be made by Mr. Greenglass to Ms. Greenglass of $518,323.74 ($881,323.74 minus $363,000).

[58] The market value of Ms. Greenglass’s portfolio as of November 23, 2008 was $429,484.55. With the addition of the payment of $518,323.74 and the remaining portion of the proceeds from the matrimonial home ($253,260), the approximate total value of Ms. Greenglass’s assets is $1,201,068.29.

[59] The market value of Mr. Greenglass’s portfolio as of November 12, 2008 was $1,942,208.77. Subtracting the payment to be made to Ms. Greenglass ($518,323.74) and adding his proceeds from the matrimonial home ($603,260), Mr. Greenglass’s assets total approximately $2,027,145.03.

[60] The trial judge determined that it was inappropriate to impute income to Mr. Greenglass based on a higher rate of return than he had actually received on his investments. She relied on Mr. Greenglass’s financial statement instead, which in November 2008 suggested a rate of return on his investments of 1.8 percent. Mr. Greenglass submits that when calculating Ms. Greenglass’s return on her investments, this court should apply a rate of return of 3 percent. The same rate of return should be applied to both parties. I would apply a rate of 2 percent as a reasonable rate a prudent investor might be able to earn at the relevant time, in order to determine the income that should be imputed to the Greenglasses from their respective investments.

[61] Applying this rate of return, Ms. Greenglass could expect to achieve an income of $24,021.37 on her investment, while Mr. Greenglass could expect to earn $40,542.90.

[62] In addition to income from her investments, Ms. Greenglass’s other sources of income were limited, at the time of trial, to $228 per month from her pension and $528 per month from C.P.P. which, taken together with her imputed potential investment income, yield a total yearly income of $33,093.37. At the time of the trial, Mr. Greenglass was earning employment income of $12,000 per year, plus $1,200 per year in bonuses. He also receives a pension of $503 per month and $615 per month from C.P.P. Therefore, his total income, together with that imputed from investments, is $67,158.90.

[63] Since the other adjustments made to reflect errors in the trial judgment have no material impact on the parties’ means, I now turn to the issue of spousal support.

[64] The parties are apparently content to rely on the SSAG for the purpose of assisting the court in the determination of spousal support. The suggested range in these circumstances is 37.5 percent to 50 percent of the difference between the parties’ gross incomes. I agree with the trial judge that in the circumstances of this case spousal support should be awarded at the higher end of this range. As the trial judge found, this was a long-term marriage and Ms. Greenglass’s career was affected by the responsibilities she assumed at home raising the two children.

[65] Applying this percentage results in a monthly payment of $1419.40. The SSAG state that support payments should be capped at the amount that would result in the equalization of the parties’ net disposable income. In the circumstances of this case, where most of the parties’ income is imputed investment income, it is not possible to definitively determine the parties’ net disposable income. However, despite this uncertainty, I would adjust the monthly payments so as to account for the net income cap suggested in the SAGG. Therefore, while necessarily something of an estimated figure, I would order Mr. Greenglass to pay Ms. Greenglass monthly support in the amount of $1400.

[66] It is somewhat ironic that the support calculation results in almost the same amount as that which was ordered by the trial judge. However, the recalculation of the division of assets and the use of the same projected rate of return for both parties on their investments, affect the income calculation in relation to both Mr. and Mrs. Greenglass. My ultimate conclusion that Ms. Greenglass is entitled to $1,400 per month in spousal support is the amount that I have determined to be appropriate after making the various adjustments required to correct the trial judge’s errors.

[67] I did not, as suggested by Mr. Greenglass, include either the costs award below or the lump sum retroactive spousal support payment in my calculation of Ms. Greenglass’s assets. In my opinion, it is not appropriate to include these payments in the calculation of the parties’ means. The costs award should not be considered as part of Ms. Greenglass’s asset portfolio available to generate income. The award is to assist her in paying the costs she has incurred in the litigation and is calculated when all other issues have been determined. It makes no sense to include it in the calculation of NFP. Similarly, an amount owing pursuant to a retroactive support payment is not appropriately considered part of the NFP calculation since it is not property owned by the spouse at the valuation date.

[68] Obviously, Mr. Greenglass is entitled to a credit for the difference in the amount of support paid under the trial judge’s order and the amount provided for herein. I would leave it to counsel to calculate this credit.

[69] As previously indicated, the support payments for the years 2002-2007 are subject to the provisions of ss. 56(1)(b) and 60(b) of the Income Tax Act.

[70] With respect to the review order, while both parties agree that the wording should be corrected, in the circumstances of this case I do not think a review order is warranted. There is nothing on the horizon that suggests that a review will be necessary. See Leskun v. Leskun (2006), 2006 SCC 25, 34 R.F.L. (6th) 1 (S.C.C.) and Choquette v. Choquette (1998), 1998 5760 (ON CA), 39 R.F.L. (4th) 384 (Ont. C.A.). However, pursuant to s. 17(4.1) of the Divorce Act, the parties may bring an application for review if there is a material change in circumstances.

6. Trial costs including Ms. Greenglass’s accounting fees

[71] As noted above, Mr. Greenglass seeks leave to appeal costs and, if leave is granted, seeks an order that each party bear their own trail costs in the face of divided success on this matter and further specifically argues that, in any event, he should not have been held responsible for any of Ms. Greenglass’s accountant’s fees, given the trial judge did not accept the accountant’s evidence.

[72] The trial judge, in her endorsement as to costs, dealt primarily with Mr. Greenglass’s position that success at trial was divided. After careful analysis, the trial judge concluded that it was not. In my view, the results of this appeal would change that: the parties are now in the position of having achieved divided success.

[73] As a consequence, I would give Mr. Greenglass leave to appeal the costs of the trial and replace the trial judge’s costs award of July 16, 2009, with an order that there be no costs of the trial.

DISPOSITION

[74] For these reasons, I would allow the appeal, in part, as follows:

1. I would set aside the order that Mr. Greenglass pay Ms. Greenglass the amount of $668,323.74 as an equalization payment and replace it with the amount of $518,323.74.

2. I would set aside the order that Mr. Greenglass pay Ms. Greenglass the amount of $126,900 for retroactive spousal support and replace it with an order that he pay the amount of $101,808.

3. I would set aside the order that Mr. Greenglass pay Ms. Greenglass ongoing spousal support in the amount of $1,416.67 and replace it with the amount of $1,400.00. I would delete any reference to the order being reviewable at reasonable intervals.

4. I would delete para. 6 of the order.

[75] I would dismiss all other aspects of the appeal.

[76] Since, success before this court was divided, I would make no order as to the costs of the appeal.

RELEASED:

“GE” “Gloria Epstein J.A.”

“OCT 19 2010” “I agree Winkler C.J.O.”

“I agree Robert P. Armstrong J.A.”