DATE: 20040419
DOCKET: C39806
COURT OF APPEAL FOR ONTARIO
RE: MARILYN ELIZABETH LUFTSPRING (Respondent)
–and– LAWRENCE DAVID LUFTSPRING (Appellant)
AND RE: MARGARET NORMAN (Plaintiff) –and– LAWRENCE D. LUFTSPRING (Defendant) –and– MARILYN LUFTSPRING (Third Party)
BEFORE: CATZMAN, GOUDGE and SHARPE JJ.A.
COUNSEL: Grant W. Gold for the appellant
Harold R. Berry, Q.C. for the respondent
HEARD: April 7, 2004
RELEASED ORALLY: April 7, 2004
On appeal from the judgment of Justice Nancy L. Backhouse of the Superior Court of Justice, sitting without a jury, dated March 6, 2003.
E N D O R S E M E N T
[1] At the opening of the appeal, counsel for the appellant abandoned the argument with respect to the notional tax on the sale of the Biovail stock.
[2] With respect to the camp and day care expenses, it was open on the evidence for the trial judge to find, as she did, that the appellant did not discuss those expenses with the respondent and did not intend to do so. In light of that finding, we see no error in the trial judge’s conclusion that the respondent should not have to bear a portion of those expenses.
[3] With respect to the tax shelter, the trial judge found that the appellant had not proven on a balance of probabilities that his liability under the tax shelters exceeded their asset value. Given that there was evidence that the shelters may yield profits greater than the promissory notes, that the shelters were yielding some interest and must therefore have had some asset value, that some tax write-off value remained post-separation, that there is some time value of money and that the tax position of the appellant some five years after the valuation date could affect this issue, we find that the conclusion she reached was entirely open to her on this record.
[4] With respect to the payment of the December 2000 income tax instalment, it roughly corresponded to the portion of the year following the valuation date and the trial judge properly excluded it as a debt owing on the valuation date.
[5] With respect to the mortgage overpayments, the amounts claimed were all paid following the valuation date, they were not pleaded and, as the trial judge found, there is no legal basis on which to order their reimbursement.
[6] With respect to the costs awarded to the respondent, this was a matter within the discretion of the trial judge. She gave reasons for making the award she did, and those reasons reflect no palpable and overriding error so as to warrant appellate intervention.
[7] Accordingly, the appeal is dismissed with costs.
[8] Having regard to the fact that we called on counsel for the respondent with respect to only one issue, and to the respondent’s offer to settle this appeal (of which we were advised by counsel and which we have taken into account, although not in the Rule 49 sense), we fix the respondent’s costs in the sum of $13,479.20, inclusive of disbursements and G.S.T.
Signed: “M.A. Catzman J.A.”
“S.T. Goudge J.A.”
“Robert J. Sharpe J.A.”