DATE: 20030618

DOCKET: C39251

COURT OF APPEAL FOR ONTARIO

RE: JULIA ANN JOANNE RIVERS-ESHKIBOK (Applicant/Respondent in Appeal) – and – HENRY E. ESHKIBOK (Respondent/Appellant)

BEFORE: O’CONNOR A.C.J.O, MORDEN and SHARPE JJ.A.

COUNSEL: T. Frederick Baxter for the respondent/appellant Eric McCooeye for the applicant/respondent in appeal

HEARD: June 16, 2003

RELEASED ORALLY: June 16, 2003

On appeal from the judgment of Mr. Justice Ray Stortini of the Superior Court of Justice dated November 18, 2002.

E N D O R S E M E N T

[1] We do not think that the trial judge erred in his application of section 2(8) of the Family Law Act. There was evidence reasonably supporting his finding of facts and we cannot say that he exercised his discretion wrongly.

[2] With respect to spousal support, while it may be that the trial judge’s award was somewhat generous, we are not persuaded that the award reflects any misapprehension of the evidence or error in principle.

[3] With respect to the equalization payment, having regard to the length of the marriage, the fact that the wife made no contribution to the acquisition, preservation, maintenance or improvement to the matrimonial home, it was open to the trial judge to apply section 5(6) of the Family Law Act and include in the husband’s net family property the growth in value of the matrimonial home during the marriage. Further, on the evidence, it was open to the trial judge to conclude that the increase in value was $11,100.

[1] With respect to the Algoma Steel shares, given the nature of the shares, the manner of their acquisition, and the restrictions on their disposition, it was open to the trial judge to order disposition in specie.

[2] Accordingly, the appeal and the cross-appeal are both dismissed. [Costs submissions.] There will be no order respecting costs.

“D. O’Connor A.C.J.O.”

“J.W. Morden J.A.”

“Robert J. Sharpe J.A.”