DATE: 20020708 DOCKET: C36110
COURT OF APPEAL FOR ONTARIO
RE:
CHRISTINE MARY TAYLOR (Petitioner/Respondent) –and– MICHAEL DOUGLAS TAYLOR (Respondent/Appellant)
BEFORE:
McMURTRY C.J.O., CATZMAN and MacPHERSON JJ.A.
COUNSEL:
Harold Niman, for the respondent/appellant
Anthony T. Keller, for the petitioner/respondent
HEARD:
July 4, 2002
RELEASED ORALLY:
July 4, 2002
On appeal from the judgment of Justice Alan C.R. Whitten dated March 7, 2001.
E N D O R S E M E N T
- [1] We did not call upon Mr. Keller to respond to Mr. Niman’s submissions respecting the valuation date chosen by the trial judge and the quantification of the equalization payment flowing from the choice of that date. In our view, it was open to the trial judge to select the valuation date he did. With respect to the values that flowed from that choice, the trial judge said, at para. 44 of his reasons:
The “estimates of value” of Mr. Taylor’s interests in Tri-Pac prepared by Michael Johnston postulates a value as of April 30th, 1996 and September 30th, 1994. Is this report without value given the V day of November 15th, 1995? The report is still of value in assisting the court in its determination given that the value or health of a business is not so finely-tuned to a particular day. As it was, in this particular matter, that would have been impossible to do given the refusal on the part of Michael Taylor to allow access to the general ledger. The value of, or health of Tri‑Pac is a constant within a short time frame and in my opinion, the time frame between the V day and the corporate year end in 1996 is of such a duration, that an opinion would have validity throughout.
We find no error in the trial judge’s reasoning on this subject.
[2] We did call upon Mr. Keller to respond to two of Mr. Niman’s submissions. The first related to the award of prejudgment interest and the suggested “double counting” that it created. The second related to the ten percent premium on fees awarded to the respondent over and above her costs on a solicitor and her own client basis.
[3] We are satisfied that the trial judge made no palpable and overriding error in awarding prejudgment interest as he did on the equalization payment having regard to all of the circumstances of this case and, in particular, to his finding that it was obvious at an early stage that a substantial equalization payment would have to be made by the husband to the wife. Nor are we of the view that the order for such prejudgment interest constituted a duplication of his separate award of arrears of spousal support.
[4] We agree, however, that the trial judge did err in awarding the ten percent premium. No authority was cited for such an order in a family law context and, in a case where the trial judge had already awarded very substantial legal costs that were intended to indemnify the respondent fully, there was no justification for awarding a further premium.
[5] The order for the ten percent premium is set aside. The appeal is in all other respects dismissed.
[6] With respect to the cross-appeal, on consent, paragraph 6 of the judgment will be replaced by a paragraph that reads:
- This court orders and adjudges that child support aforesaid shall be payable from and including June 9, 1999 based upon the total income of the petitioner, excluding the support that she actually receives from the respondent as spousal support.
- [7] The respondent has had substantial success on the appeal and is entitled to payment of her costs of the appeal forthwith, including the costs of the motion before Justice Simmons, which were reserved to this panel. We fix these costs, including a modest amount in respect of the cross-appeal, in the total sum of $22,500.00, inclusive of disbursements and G.S.T.
Signed: “R.R. McMurtry C.J.O.”
“M.A. Catzman J.A.”
“J.C. MacPherson J.A.”