ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, GRAY, RAMSAY JJ.
B E T W E E N:
SUSAN ELIZABETH WOOD
C. BAKER for the Applicant (Appellant)
Applicant (Appellant)
- and -
JOHN JEFFERY WOOD
SELF REPRESENTED
Respondent
Heard at Newmarket: March 8, 2011
ENDORSEMENT
RAMSAY J.
1The appellant seeks a new trial based on the cumulative effect of alleged errors that may be summarized as follows:
(i) The judge failed to mark as an exhibit the actuary’s report that she used to determine the value of the respondent’s pension;
(ii) The judge denied the appellant natural justice by failing to fulfil her obligation to assist a self-represented litigant, in particular, by omitting to inquire whether she wanted to cross-examine the author of the actuarial report;
(iii) The judge made errors with respect to the equalization payment and the splitting of the respondent’s pension, she ignored the question of whether income should be imputed to the respondent, and she failed to make provision for the event of a reduction in pension occasioned by the respondent returning to work;
(iv) The judge failed to deal with the appellant’s request for a divorce.
2The actuary’s report does not appear to have been marked as an exhibit, but it is clear from the record that the judge had it, and so did both parties. The omission to assign it an exhibit number is, at best, a technical defect. It caused no prejudice to either party. The judge did not err in using it.
3Both parties were self-represented. Both had had lawyers on the file previously and both had attended a number of pre-trial conferences. At the outset of the trial, the judge explained the procedure to both parties. She then let them present the case in an orderly fashion without interference. Both parties had a full opportunity to present evidence and make submissions. The judge made a few unremarkable evidentiary rulings and some comments that clarified what had been said.
4Mr. Baker, for the appellant, provided us with the notes of the judge who conducted one of the conferences. The respondent, in the form, indicated his intention to file the actuary’s report. The parties indicated that it could be received without calling the actuary. The respondent also listed the actuary as a possible witness, and undertook to make him available to the appellant without the necessity of her obtaining a summons. It does not appear that the appellant ever sought to cross-examine the actuary. The appellant testified that she was also told at this conference that she could hire another actuary if she wished.
5The judge fulfilled the obligation of a trial judge to self-represented litigants that this court wrote about in Ciciarella v. Ciciarella, 2009 34958. She ensured that the parties could present their cases to the best of their abilities. No error of law was made.
6The appellant complains about a number of alleged factual errors in fixing the amounts of support, equalization payments and pension splitting. She also complains about a number of discretionary decisions the judge made with respect to these same items.
7The case presented to the trial judge by the appellant was this:
(i) I am not likely to survive my husband, so my share of the pension should not be reduced to take into account survivor benefits that might be payable to me.
(ii) I am, however, likely to survive his 65th birthday, at which point his pension will be reduced by the amount he receives in CPP benefits, which I will not get until I am 65 and my husband is 72.
(iii) After 29 years of marriage I am entitled to, and in need of support, and I should not have a lower standard of living than my husband.
(iv) My husband has undervalued his motor vehicle.
8After reserving her decision, the judge released written reasons. She ordered equalization based on the evidence, resolving the issue of the value of the husband’s motor vehicle in favour of the appellant. The judge also ordered retroactive and future spousal support, followed by pension splitting based on the value of the pension that was earned during the marriage. In doing so she made no palpable and overriding error of fact or unreasonable exercise of discretion. There is nothing unreasonable in her decision not to impute additional income to a school teacher who retires at the age of 57. It might be observed that the judge did not impute income to the appellant, who worked only part time at the age of 50.
9Finally, in the application the appellant asked for a divorce, but at the trial she did not mention it, nor did she call sufficient evidence to justify it. The judge treated the trial as a trial on the issues of support and equalization, and she was right to do so. There is nothing to stop the appellant from proceeding with the application for a divorce. No doubt it could be done on consent or unopposed without the necessity of appearing in court.
10In view of all this, the appeal is dismissed.
JENNINGS, J.
GRAY, J.
RAMSAY, J.
Released: March 8, 2011
CITATION: WOOD v. WOOD, 2011 ONSC 1575
COURT FILE NO.: DC10000130-00
DATE: 20110308
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, GRAY, RAMSAY JJ.
BETWEEN:
SUSAN ELIZABETH WOOD
Applicant (Appellant)
- and -
JOHN JEFFERY WOOD
Respondent
REASONS FOR JUDGMENT
Released: March 8, 2011