DATE: 20000225

DOCKET: C30747

C30748

C30746

COURT OF APPEAL FOR ONTARIO

RE: HAROLD HICKSON (Plaintiff) v. THE ONTARIO MILK

MARKETING BOARD and ELIZABETH HICKSON (Defendants)

AND RE: ELIZABETH HICKSON (Plaintiff by Counterclaim/Respondent)

v. HAROLD HICKSON and ROY HOLMES HICKSON

(Defendants by Counterclaim /Appellants)

BEFORE: FINLAYSON, LABROSSE and GOUDGE JJ.A.

COUNSEL: Wallace A. W. Scott, Q.C.

for the appellants

Susan Peel,

for the respondent

HEARD: February 21, 2000

On appeal from the decision of Mr. Justice Samuel H. Murphy dated

March 30, 1998

E N D O R S E M E N T

[1] The appellants appeal two judgments of Murphy J.

[2] Action No. 3430/94 (C30746), the main action by Harold

Dickson (the "husband") against the Ontario Milk Marketing Board

and Elizabeth Hickson (the "wife"), was settled prior to trial.

On her counterclaim, the wife was awarded judgment for $18,500

together with pre-judgment interest against Roy Hickson, her

father-in-law, and $7,700 together with pre-judgment interest

against her husband.

[3] In action No. 71203/96 (C30748), the wife was granted

judgment for $91,863.43 against the husband, representing the

equalization payment between them.

[4] The trial judge ordered that these amounts be paid out of

monies paid into court from the sale of the milk quota.

[5] In the first action, the amount of $18,500 was advanced by

the wife on the belief that the partnership plans between the

husband, the wife, and Roy Hickson would go through. The trial

judge drew the inference that it served to reduce the mortgage on

Roy Hickson's property. The basis on which this payment was made

and the resulting benefit to Roy Hickson, together with the

manner in which the farm account was used, constituted a proper

basis for the repayment by Roy Hickson to the wife.

[6] As to the amount of $7,700, the evidence supports the

finding that loans were made and would be repaid with interest.

We see no error.

[7] With respect to the second action, there is a proper basis

in the evidence to support the trial judge's valuation of assets

and the equalization payment. The husband now claims an unequal

division of assets. The husband did not claim for an unequal

division of assets in his pleadings. Moreover, at trial the

husband did not dispute the equalization of net family assets.

This argument did not surface until after the parties had closed

their case. We see no basis for allowing this late argument.

[8] Finally, it was entirely proper for the trial judge to order

that the judgments be paid out of the monies paid into court.

[9] Accordingly, the appeals are dismissed with costs.

(signed) "G. D. Finlayson J.A."

(signed) "J. M. Labrosse J.A."

(signed) "S. T. Goudge J.A."