DATE: 20040726

DOCKET: C40900

COURT OF APPEAL FOR ONTARIO

RE: DONNA JACQUELINE BIRMINGHAM (Applicant/ Respondent in Appeal) – and – NICHOLAS FRANK FERGUSON (Respondent/Appellant)

BEFORE: CATZMAN, GILLESE and LANG JJ.A.

COUNSEL: Malte von Anrep, Q.C. for the appellant

James D. Higginson for the respondent

HEARD: July 21, 2004

RELEASED ORALLY: July 21, 2004

On appeal from the judgment of Justice George Czutrin of the Superior Court of Justice dated July 17, 2003.

E N D O R S E M E N T

[1] The appeal challenges the trial judge’s decision with respect to retroactive spousal support, division of property, and costs. The wife, now 59 years of age, and the husband, now 57, co-habited for 18 years. During their co-habitation – which the parties accepted as a relationship “equivalent to marriage” – the wife, due to an injury, lost her nursing career, but received worker’s compensation and, for a brief time, operated a retail store. The husband, with the wife’s help, obtained a law degree and now practises as a tax lawyer.

[2] Most of the grounds of appeal challenged the trial judge’s factual findings. Those findings were, however, amply supported by the evidence that the trial judge accepted.

[3] With respect to the retroactive support, the judge had jurisdiction to make the order that he did and was not fettered by the quantum of the earlier interim award.

[4] With respect to the husband’s request that spousal support be reviewed when he reaches age 60, the husband is entitled to a review of this issue if, and when, the circumstances so merit.

[5] With respect to the allocation of property, the trial judge carefully and thoroughly canvassed the contributions of each party to the acquisition of their assets and the nature of their relationship. He determined that there was an economic interdependence and properly applied the principles of unjust enrichment.

[6] In quantifying the appropriate amount of the property claim, the trial judge employed the “value survived” approach: the amount by which the parties’ properties had increased in value. On the facts of this case, the pooling of the parties’ efforts and their economic interdependence, the trial judge was entitled to prefer the value survived approach in arriving at the property allocation. With one exception, we are satisfied that the values the trial judge ascribed to the assets were amply supported by the evidence.

[7] With respect to that one exception, counsel for the wife conceded that the trial judge did not take into account the husband’s liabilities and contingent liabilities of $21,038. Accordingly, the husband is entitled to a further credit of $10,519.

[8] In the result, the payment to be made by the husband to the wife is reduced from $58,214 to $47,695. The appeal is otherwise dismissed.

[9] The respondent is entitled to her costs of the appeal, fixed in the sum of $5,000, inclusive of disbursements and G.S.T.

Signed: “M.A. Catzman J.A.”

“E.E. Gillese J.A.”

“Susan E. Lang J.A.”