COURT OF APPEAL FOR ONTARIO
DATE: 20000920
DOCKET: C31154
RE: CHERYL LEE LEAVOY (Petitioner/Respondent in Appeal) –and– DANIEL NELSON LEAVOY (Respondent/Appellant)
BEFORE: LASKIN, GOUDGE and FELDMAN JJ.A.
COUNSEL: Peter D. Eberlie, for the appellant
Dawn Melville, for the respondent
HEARD: September 13, 2000
On appeal from the judgment of The Honourable Mr. Justice John H. Brockenshire dated November 18, 1998.
E N D O R S E M E N T
[1] The parties agree that the equalization payment ordered by the trial judge should be adjusted downward to the sum of $64,493.25. The appellant argued four issues on this appeal.
- Sick leave credits
[2] The amount of credits was agreed. The evidence of Ms. Webster showed that the credits had a value on the date of separation. The appellant led no evidence to support discounting this value for contingencies. Accordingly, it was open to the trial judge to include the full amount on the appellant’s N.F.P. calculation. Thus, this ground of appeal fails.
- Retirement age for pension calculation
[3] In the light of the evidence of Kim Russell and the fact the appellant could receive his full pension at age 56.9, it was open to the trial judge to fix 56.9 as the age of retirement. This ground of appeal, therefore, also fails.
- Paragraph 16 of the judgment
[4] In our view, the trial judge had authority to include paragraph 16 on the consent of the parties. We do not view this paragraph as an order converting a property order. Instead, we view this paragraph as a support order, which commences on default in the equalization payment. In our view, this was what the trial judge and the parties intended. The amount of support was agreed to by the parties. Thus we do not give effect to this ground of appeal.
- Costs
[5] We did not call on the respondent on this issue. The scale of costs reflected the application of rule 49. The fixing of the costs the day after the trial was not objected to by the appellant. Moreover, the appellant has not shown us that the amount fixed by the trial judge was unreasonable.
[6] Accordingly, subject to the variation in the equalization payment, the appeal is dismissed with costs fixed in the agreed on amount of $6,000.
Signed: “John Laskin J.A.”
“K. Feldman J.A.”
“S.T. Goudge J.A.”