DATE: 20040629

DOCKET: C40203

COURT OF APPEAL FOR ONTARIO

RE: ANNE MARILYN McHUGH (Petitioner/Respondent) – and – GARY JOHN McHUGH (Respondent/Appellant)

BEFORE: ARMSTRONG, BLAIR and JURIANSZ JJ.A.

COUNSEL: Gary McHugh, the appellant in person Jeanie DeMarco, for the respondent

HEARD: June 25, 2004

RELEASED ORALLY: June 25, 2004

On appeal from the judgment of Justice Nancy L. Backhouse of the Superior Court of Justice, sitting without a jury, dated June 16, 2003.

E N D O R S E M E N T

[1] Mr. Gary John McHugh, the appellant husband, appeals from the judgment of Backhouse J. of the Superior Court of Justice in which she found that the parties separated on August 15, 2000. Mr. McHugh asserts that the separation was, in fact, on June 6, 1996. The separation date is important for the calculation of the net family property and the amount of the equalization payment owed by the appellant to his wife. There was evidence before the trial judge upon which she could conclude that the separation date was August 15, 2000.

[2] The appellant argues that his truck and trailer were acquired with funds derived from compensation arrears for an injury suffered prior to his marriage and, therefore, he was not obliged to account for their value as part of his net family property. The trial judge rejected this argument because the appellant provided no supporting documentation.

[3] While the appellant argued that the matrimonial home was originally purchased with an inheritance from his grandmother, at the time of separation, it was jointly owned by Mr. and Mrs. McHugh. Mrs. McHugh is entitled to have the property sold; Mr. McHugh had been resisting its sale. The matrimonial home was Mr. and Mrs. McHugh’s only significant asset and the only practical way of effecting the equalization of their property was to have it sold and the proceeds distributed. In our opinion, the trial judge was justified in making the order she did.

[4] In regard to the value of the Nortel shares, they were properly treated by the trial judge. Unfortunately the harshness of the result flows from the volatility of the market.

[5] In regard to these conclusions of the trial judge, we are obliged to defer to her findings of fact. The appeal is therefore dismissed. Counsel for the respondent Mrs. McHugh has advised that she does not intend to press her cross-appeal in the event that Mr. McHugh’s appeal is dismissed. The cross-appeal is therefore dismissed.

[6] Costs are fixed at $5,000 on a partial indemnity basis inclusive of disbursements and G.S.T. payable by the appellant to the respondent.

[7] The amount of $40,946.19 plus appropriate interest, if any, presently held by Shaw McLellan and Ironside representing the balance of the proceeds from the sale of the matrimonial home shall be paid out to the respondent.

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”