DATE: 20010323

DOCKET: C33619

COURT OF APPEAL FOR ONTARIO

ABELLA, CHARRON and SHARPE JJ.A.

BETWEEN:

D. Smith,

JOSEPHINE MILLA

for the appellant

Petitioner

(Respondent)

• and -

Anthony T. Keller,

for the respondent

GEORGE MILLA (also known as

GEORG MILLA

Respondent

Heard: March 19, 2001

(Appellant)

Released orally: March 19, 2001

On appeal from the judgment of Justice Patricia H. Wallace dated November 5, 1999

BY THE COURT:

[1] The appellant, George Milla, appeals from a judgment rendered at the conclusion of a four-day trial in a matrimonial action on several grounds.

[2] In his main ground of appeal, Mr. Milla seeks a new trial on the basis that his trial counsel was incompetent in failing to marshal relevant and necessary evidence, and in failing to comply with the rules of the court governing the introduction of expert evidence. In support of this contention, counsel for Mr. Milla (who was not counsel at trial) relies solely on the transcript at trial. She notes a number of comments directed at trial counsel by the trial judge during the course of the trial, and submits that these comments demonstrate that trial counsel’s conduct fell below the reasonable standard expected of counsel in such a case. She also notes the frequent references made by the trial judge to the lack of evidence in the reasons for judgment.

[3] In our view, the difficulty with this argument lies in the fact that no evidence was presented to assist this court in determining whether the lack of evidence at trial may be attributable to counsel or to Mr. Milla’s failure to divulge information about his affairs. It is particularly noteworthy that the trial judge, after commenting generally on the lack of evidence at the commencement of her reasons, stated as follows:

I do not know if there was a lack of communication between [Mr. Milla] and his counsel. I do not know the basis for the shortcomings in the evidence that I received, but I would go so far as to say that [Mr. Milla] has come to the court appearing to be significantly less than forthright, and, indeed, he has appeared to try to actively frustrate the court’s task of arriving at an accurate equalization.

The trial judge also made a number of specific adverse findings on the appellant’s credibility in her reasons for judgment.

[4] In the absence of evidence from the appellant on this issue, this court is in no better position to determine why there was a lack of evidence and, consequently, has no basis to intervene. We would therefore not give effect to this ground of appeal.

[5] We see no merit to the other grounds of appeal and, consequently, the appeal is dismissed with costs.

[6] The respondent, Mrs. Milla, brings a cross-appeal arguing that the trial judge erred in making deductions for notional costs, particularly deductions for tax liability, in the absence of evidence to show that such costs would be incurred.

[7] Given the general paucity of evidence presented by Mr. Milla at trial and the adverse inferences already drawn by the trial judge against him in this regard, we are of the view that it was not unreasonable, on this basis of the record, for the trial judge to consider the probability of tax liability and to take this into account in her calculation of the net family property. We are not prepared to intervene.

[8] Consequently, the cross-appeal is also dismissed with costs.

[9] The costs of the appeal shall include the costs of an earlier motion that resulted in a consent order signed by Laskin J.A. unless the terms of the consent provided otherwise.

(signed) “R. S. Abella J.A.”

(signed) “Louise Charron J.A.”

(signed) “Robert J. Sharpe J.A.”