DATE: 20041129
DOCKET: C40738, M31918
COURT OF APPEAL FOR ONTARIO
RE:
ANTONIO SANTO MANCUSO (Applicant) (Appellant) (Responding Party) – and – JEAN ELAINE MANCUSO (Respondent) (Moving Party)
BEFORE:
LASKIN, MacPHERSON and LANG JJ.A.
COUNSEL:
Larissa Fedak
for the appellant/ responding party
D. Gordon F. Morton (Q.C)
for the respondent/moving party
HEARD & RELEASED ORALLY:
November 22, 2004
On appeal from the order of Justice T. David Marshall of the Superior Court of Justice dated September 12, 2003.
E N D O R S E M E N T
[1] The appellant Mr. Mancuso appeals the equalization payment, spousal support, weekly access and costs components of Marshall J.’s order.
1. Equalization payment
[2] On the equalization payment we were not persuaded that we should interfere with the trial judge’s discretion. Although the marriage lasted slightly less than five years, implicitly if not explicitly, the trial judge concluded that bringing the matrimonial home into the family property was not unconscionable. Regrettably, the trial judge did not quantify the equalization payment and, despite the request of counsel, refused to entertain a motion to do so. In order to save the parties further expense we urged counsel to resolve the dispute over the amount. Fortunately, both counsel agreed to do so by splitting the amount that they are apart, $8,000. We therefore order an equalization payment of $64,000 ($89,000 less a credit of $25,000 for the amount already paid), which shall be deemed to take effect from the date of the trial judge’s order. We add this caveat, also agreed to by the parties: should Mr. Mancuso be required to sell the matrimonial home to make the equalization payment, he shall be entitled to deduct the reasonable costs of disposition.
2. Spousal Support
[3] On spousal support, both parties agree that the trial judge’s order shall be $500 per month for the three-year period October 1, 2003 to and including the payment for September 1, 2006.
3. Access
[4] The appellant sought to vary his access to accord with the interim order of Czutrin J. In ordering access every other weekend and twice during the week the trial judge considered appropriate and followed the recommendation of the jointly appointed assessor. We thus see no error in the trial judge’s order.
4. Costs
[5] Mr. Morton fairly concedes that the trial judge’s actual costs order is inconsistent with his order for partial indemnity costs before the offer, and substantial indemnity costs after the offer. We think a fair figure for Mrs. Mancuso’s trial costs is $32,000 inclusive of disbursements and GST and we vary the trial judge’s costs order to this amount.
5. The Motion
[6] Finally, we deal with Mrs. Mancuso’s motion to dismiss or adjourn the appeal on the ground that Mr. Mancuso has not paid the child or spousal support ordered by the trial judge. We do not need to deal with this motion because the parties have agreed to resolve the support issues as follows:
- Mr. Mancuso will immediately deliver to Mrs. Mancuso or her counsel a) the certified cheque Ms. Fedak is now holding in the amount of $16,460; b) a certified cheque for a further $1,330.
Once delivered, this amount of $17,790 shall represent full payment of child and spousal support for the period October 1, 2003 to and including the payment of November 1, 2004.
- A SDO shall issue for the following support payments commencing December 1, 2004:
a) child support: $830 per month
b) spousal support: $500 per month, to and including the payment for September 1, 2006.
6. Costs of the Appeal
[7] The respondent is entitled to her costs of the appeal, which we fix at $10,000, inclusive of disbursements and GST.
“John Laskin J.A.”
“J.C. MacPherson J.A.”
“Susan Lang J.A.”