DATE: 20001128

DOCKET: C31816

COURT OF APPEAL FOR ONTARIO

RE: SHIRLEY ANN YACKOBECK (Respondent/Appellant by Cross-Appeal) and FRANKLIN DELMER HARTWIG, DELMER HARTWIG, DAVID HARTWIG, DEAN HARTWIG, PENNY HARTWIG and BARBARA DALEY (Appellant/Respondent by Cross-Appeal)

BEFORE: MC MURTRY C.J.O., BORINS and FELDMAN JJ.A.

COUNSEL: H.J. Stewart Lavigueur

For the appellant Franklin Delmer Hartwig

Christopher B. Kelly

For the respondent Shirley Ann Yackobeck

HEARD: August 17, 2000

On appeal from the judgment of Justice Douglas Rutherford, without a jury, dated February 26, 1999.

E N D O R S E M E N T

[1] After a trial of 4 or 5 days, Rutherford J. awarded the plaintiff:

(1) $34,350.00 for unjust enrichment;

(2) Support of $1,200.00 a month;

(3) Arrears of $4,000.00 for interim support;

(4) Secured the payment of these amounts by a charge on 600 acres of farmland owned by the defendants; and

(5) Cots of $20,000.00 to be secured by the above charge.

[2] The parties, who were unmarried, had lived together for 15 years on the defendant’s farm before they separated. The defendant/appellant did not take issue with the approach taken by the trial judge, conceding that the plaintiff was entitled to restitution based on unjust enrichment and to support. However, he appealed the quantum of these awards and submitted that the unjust enrichment award should be reduced to $17,700.00 and that support should be reduced to $200.00 a month. No appeal was taken in respect to the arrears of interim support and costs. The defendant also appealed the charging order, asking that it be varied to secure only the payment of the unjust enrichment award and costs.

[3] At the time we heard the appeal, the defendant had made the following payments:

(1) Unjust enrichment $ 25,000.00

(2) Support 2,200.00

(3) Support arrears 4,000.00

(4) Costs 1,800.00

$ 33,000.00

He owed support of $19,400.00.

[4] The focus of the defendant’s submissions related to the support order of $1,200.00 a month. The defendant’s position was that his income of about $8,000.00 a year did not justify this amount.

[5] In his reasons for judgment, the trial judge referred to the defendant’s declared income from 1992 to 1997. His lowest income was $4,411.77 in 1994, and his highest income was $12,329.47 in 1995. The trial judge concluded, based on the parties’ lifestyle, modest as it was, that the defendant must have under-reported his income. He also thought the fact the defendant had allowed his properties and business “to sink to a very low state has something to do with the trial of this matter”. As for the plaintiff, he found that given her lack of capacity to work and the fact that she was on welfare, that she required financial support.

[6] The trial judge provided little analysis of how he arrived at the amount of $1,200.00 for spousal support. His reasons are stated as follows:

Mr. Hartwig has farm property and town property which has been and remains a means of producing income as well as being significant capital value.

Earlier the judge appeared to have made a finding that in 1996 this property was worth $260,000.00. The trial judge concluded:

As I have said, I have real difficulty knowing just how much income the property can actually generate if reasonably put to production. It seems it could produce in accordance with what was needed in the past but as an income generator, has been allowed to run down.

In my view, in light of his assets, his demonstrated past capacity to generate income and his legal obligation to his former common-law spouse who is in need of support, Mr. Hartwig should be required to pay her $1,200 per month in support.

[7] In our view, the trial judge did the best he could in calculating the net worth of the defendant on the basis of the evidence the parties presented and in arriving at the $1,200.00 a month award for spousal support. His reasons are entitled to deference. Moreover, we are in no better position than the trial judge to determine the amount of support. The defendant can always apply to vary the amount of the support.

[8] As for the other two issues – damages for unjust enrichment in the amount of $34,350.00 and the variation of the charging order – we can see no reason to interfere with the decision of the trial judge.

[9] We would therefore dismiss the appeal with costs.

R.R. McMurtry C.J.O.

S. Borns J.A.

K.N. Feldman J.A.