DATE: 20010418

DOCKET:C32888

COURT OF APPEAL FOR ONTARIO

RE: JOHN FORD BOLT (Petitioner (Appellant)) and MARIE ANNETTE BOLT (Respondent (Respondent))

BEFORE: CHARRON, ROSENBERG AND GOUDGE JJ.A.

COUNSEL: Gary L. Petker For the appellant

Avra Rosen and Dana Cohen For the respondent

HEARD: April 3 and 4, 2001

On appeal from the judgment of Justice Donald J. Taliano dated August 25, 1999.

E N D O R S E M E N T

Released Orally April 4, 2001

[1] In our view, it was open to the trial judge on this record to conclude that the respondent lacked the necessary capacity to sign the separation agreement on July 30, 1990. Equally, it was open to the trial judge to conclude, for the reasons he gave, that the terms of the agreement were unconscionable and that it was signed by the respondent under duress. We would therefore not interfere with the order setting aside the agreement.

[2] Nor would we interfere with his findings concerning net family property. Neither of the principal attacks mounted by the appellant have merit in our view. There was evidence to sustain the value given to the contingent liability of the Aberdeen guarantee and the value attributed to the matrimonial home.

[3] The appeal must therefore be dismissed.

[4] As to the cross-appeal, we are not prepared to interfere with the trial judge’s discretion in denying pre-judgment interest. There was a substantial lapse of time in bringing this matter to trial.

[5] However, as to costs, there was no basis for the trial judge’s finding that a costs order would denude the appellant of his remaining assets. The respondent did recover judgment in excess of her offer. We would therefore set aside the order as to costs and award the respondent her costs below but, in the circumstances, on a party and party basis only.

[6] In the result, the appeal is dismissed with costs and the cross-appeal is allowed in part with costs.

“Louise Charron J.A.” “M. Rosenberg J.A.” “S.T. Goudge J.A.”