Court of Appeal for Ontario

Zabranski v. Zabranski

Date: 2002-01-16

Counsel: P.M. Callaghan, for Petitioner/Respondent Robert N. Kostyniuk, for Respondent/Appellant

Docket: CA C34847

Endorsement

Per curiam:

[1] This is an appeal from the judgment of Walters J. in a matrimonial dispute. The husband attacks her disposition of the issues relating to spousal support, division of chattels, division of family property, life insurance for the child of the parties and costs.

[2] The trial judge recognized that she had miscalculated the proper amount of child support payable by the husband. By way of Addendum to Judgment, she reduced the amount of child support from $1625 to $1020 per month. The husband argues that he should get credit for this correction back to the time of the interim order that had been made on consent in January 1998.

[3] It is implicit in the trial judge's reasons that she found that the husband's pre-trial support obligations to his wife and child should be fixed at 4500 per month, the amount the husband had in past paid. When the trial judge determined that she had misinterpreted the child support guidelines, she amended her judgment to reflect the proper amount of support called for by the guidelines. At the same time she increased the wife's support by the same amount that she had reduced the child support thereby leaving the husband's overall obligation unchanged at $4500 per month.

[4] We see no basis upon which to interfere with the trial judge's finding that $4500 per month represented the husband's support obligation owed to the wife and child prior to trial. Her adjustment of the respective amounts attributable to child and spousal support has no effect on that finding.

[5] On the issue of the division of net family property, the husband submits that because of the length of the marriage, the trial judge should have ordered an unequal division. This matter was fully argued at trial. The trial judge did not find that equalizing the net family property would be unconscionable. We also see no proper basis for such a finding on the facts of this case.

[6] With respect to the issue of the chattels, the trial judge held that the evidence given by both parties was completely inadequate to establish ownership or value. Consequently, she ordered that if the parties could not agree on a division, the chattels were to be sold and the monies divided equally. It is undisputed that certain chattels belonged to a third party and the trial judge was in error in ordering that all chattels be sold. Unless the parties can agree on what chattels belong to the third party, we order that there be a reference pursuant to Rule 54 to a registrar of the Superior Court or to a referee agreed upon by the parties to determine this issue. The remaining chattels are to be disposed of in accordance with the order of the trial judge.

[7] The husband submits that the life insurance policy for the child should be held jointly in his name and in the name of the wife. The husband did not seek this relief at trial nor is it requested in his Notice of Appeal. In any event, the wife is the custodial parent of the child and on this record we see no reason to vary the order made that the policy name the wife as beneficiary in trust for the child.

[8] The issue relating to the costs of the trial was abandoned during the hearing of the appeal.

[9] The judgment of Walters J. dated April 13, 2000, is to varied as stated above with respect to the chattels. In all other respect, the appeal is dismissed with costs.

Appeal allowed in part.