DATE: 20050221
DOCKET: C41804
COURT OF APPEAL FOR ONTARIO
FELDMAN, SIMMONS and GILLESE JJ.A.
B E T W E E N :
TRYNTJE GERHARD BREMER
Mari-Anne Saunders for the appellant
Applicant (Respondent)
- and -
STEVEN BREMER
Kathryn Junger for the respondent
Respondent (Appellant)
Heard: February 1, 2005
On appeal from the judgment of Justice N. S. Borkovich of the Superior Court of Justice dated April 5, 2004.
BY THE COURT:
[1] The appellant asks this court to vary the judgment of Borkovich J. dated April 5, 2004 (the "Judgment") in respect of six matters. The respondent sought the direction of the court in relation to two additional matters. All eight matters are dealt with below.
Pension Valuation Date
[2] The trial judge attributed a value to the appellant's pension based on the assumption that the appellant would retire at age 60. Both the appellant and the respondent gave evidence that, at the time of separation, the appellant expressed an intention to retire at the earliest possible age. Since both parties gave this evidence, there is no merit in the appellant's contention that the trial judge's decision to accept the appellant's evidence concerning this one issue was unreasonable. Accordingly, we see no basis on which to interfere with the trial judge's determination of the value to be attributed to the appellant's pension.
Ownership of Assets and Allocation of Related Debts
[3] As the trial judge expressly noted in his reasons for judgment, the appellant did not claim a reverse constructive trust in respect of the Triple Win investments in his pleadings. In any event, there was ample evidence capable of supporting the trial judge's finding that the appellant owned the Triple Win investments at the date of separation and therefore there is no legal justification for requiring the respondent to share in the decline in the value of those investments post-separation.
[4] The appellant also argues that the trial judge attributed ownership of the Triple Win investments to him but failed to give him credit for the debts associated with their purchase. We have reviewed the record and are satisfied that the appellant was given appropriate credit for the debts associated with those investments.
Spousal Support
[5] We begin by noting that the respondent was clearly entitled to spousal support. The parties had a long-term traditional marriage in which the appellant was the primary income earner and the respondent had primary responsibility for childcare and running of the family home. Although the respondent worked outside the home during the latter part of the marriage, the record amply supports the trial judge's findings that the respondent was economically disadvantaged as a result of the role that she played during the marriage.
[6] The appellant argues that the trial judge made a palpable and overriding error in finding that the appellant's income was at least $77,267 per year and that, in any event, the appropriate level of support was in the range of $1200 per month, rather than $1700 per month as ordered by the trial judge. We reject the appellant's submissions.
[7] The agreed statement of fact confirmed that the appellant's income was at least $76,000 per year; moreover, a recent payslip filed at trial supports the trial judge's specific finding concerning the appellant's income. Based on the length of the marriage and the parties' circumstances, the support awarded is not outside the range of what is reasonable. The appellant has not demonstrated any error that would justify this court interfering with the discretionary order made by the trial judge: Hickey v. Hickey, [1999] S.C.R. 518
Retroactive Spousal Support
[8] The trial judge ordered retroactive spousal support in the amount of $30,000 but failed to advert to the considerations governing an award of retroactive spousal support and failed to explain the basis on which he calculated the award that he made.
[9] The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor's ability to pay; ii) the underlying basis for the ongoing support obligation; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceeding and any explanation for the delay; and viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued: see Horner v. Horner, [2004] O.J. No. 4268 (C.A.); Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 (C.A.) and Price v. Price, [2002] O.J. No. 2386 (C.A.).
[10] As already stated, the reasons of the trial judge do not refer to any of these considerations. In fairness to the trial judge, it does not appear that trial counsel for either party brought the relevant principles to his attention.
[11] As the requisite findings of fact have not been made and in light of the record, this court is not able to make the necessary determinations to fairly decide this matter. Thus, it is remitted to the trial judge for determination.
Value ascribed to the matrimonial home
[12] The respondent provided the appellant with a "valuation" of the family home that she intended to rely upon at trial, well in advance of trial. The appellant did not object to the respondent filing her valuation as evidence, made no request to cross-examine the author of the valuation and did not adduce proper evidence at trial of some other value that should be attributed to the matrimonial home. The fact that the appellant did not object to the appellant's valuation did not justify his request to file his own valuation without appropriate notice. Further, the appellant did not request an adjournment of the trial. We see no basis upon which to interfere with the trial judge's findings in regard to the value of the matrimonial home.
Time In Which To Make The Equalization Payment And The Non-Depletion Order
[13] The appellant's request for additional time in which to make the equalization payment and the respondent's request for an ongoing non-depletion order as against the appellant are inter-related and so are dealt with together.
[14] At the conclusion of the trial and prior to releasing his reasons for judgment in this matter, the trial judge made an order requiring that the appellant and the respondent not deplete their assets or increase their debts and directing that the order remain in effect for 30 days after judgment was granted. Subsequently, in his reasons for judgment released on April 5, 2004, in addition to directing that the matrimonial home be transferred to the respondent and that the respondent assume responsibility for payment of the mortgage, the trial judge made the following orders:
The [Appellant] shall pay to the [Respondent] an equalization of net family property in the sum of $101,743.24. The investments in the name of the [Appellant] with Manulife Financial shall be vested, or alternatively, transferred into the name of the [Respondent] in order to satisfy this payment and the [Appellant] shall pay any tax consequences associated with this transfer. Any remaining equalization monies owing to be paid by the [Appellant] within 30 days.
The [Appellant] shall be solely responsible for the investment loan with Manulife Financial in the amount of $100,000.
[15] On May 14, 2004, a mutual non-depletion order was made on consent of both parties, which provided, "this Order shall be in effect until further agreement by the Parties or further Order of any Court".
[16] It appears that the trial judge expected that the equalization payment would be substantially, if not entirely, satisfied through the transfer of the Manulife investments and that the appellant would be separately responsible for the outstanding Manulife loan. Accordingly, it was unnecessary that there be a permanent ongoing non-depletion order and no hardship was occasioned by directing that the balance of the equalization payment be paid within 30 days.
[17] On appeal, although no fresh evidence was introduced concerning the specific terms of the Manulife investments, the parties agree that the investments cannot be transferred unless the related indebtedness is paid. Moreover, the mutual non-depletion order that the respondent asks us to amend was not designed as a permanent order; it is framed as a "Temporary Order" and was obtained in the face of this appeal.
[18] In the circumstances, paragraphs 7 and 8 of the trial judge's order and the issue of the terms of any ongoing non-depletion order must be revisited. If the parties are unable to agree on appropriate terms for completing the transfer of the Manulife assets, payment of the associated debts, and payment of the equalization payment (including the terms of any non-depletion order), the parties should return to the trial judge and lead the necessary evidence that will permit an appropriate order to be crafted.
Costs Below
[19] The respondent says that once an appeal was taken in this matter, the parties took no steps to deal with costs below. She asks that this court set timelines for making submissions on costs. In our view, that matter is more properly dealt with by the trial judge and we direct the parties to return to the trial judge for such a determination.
DISPOSITION
[20] For the reasons given, we would allow the appeal in part by setting aside paragraph 3 of the Divorce Order dated April 5, 2004 and directing a trial of the issue of retroactive support. In addition, we would order that if the parties are unable to agree within 30 days on appropriate terms for completing the transfer of the Manulife assets, payment of the associated debts, and payment of the equalization payment (including the terms of any non-depletion order), paragraphs 7 and 8 of the Divorce Order dated April 5, 2004 are set aside and the foregoing issues are remitted to the trial judge for determination. We would dismiss the balance of the appeal.
[21] Success on the appeal is divided but, as the respondent succeeded on most issues, we would award costs of the appeal to the respondent on a partial indemnity scale fixed in the amount of $4500 inclusive of disbursements and applicable G.S.T.
RELEASED: February 21, 2005 ("KNF")
"K. Feldman J.A."
"Janet Simmons J.A."
"E. E. Gillese J.A."