DATE: 20050117

DOCKET: C41588

COURT OF APPEAL FOR ONTARIO

RE:

ARTHUR WILLIAM GOELDNER (Petitioner/Respondent) – and – MARIA GOELDNER (Respondent/Appellant)

BEFORE:

WEILER, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Michael J. Polisuk

for the appellant

Norma Walton

for the respondent

HEARD & RELEASED ORALLY:

January 13, 2005

On appeal from judgments of Justice John F. McCartney of the Superior Court of Justice dated February 24, 2004 and April 30, 2004.

E N D O R S E M E N T

[1] The appellant wife appeals from the judgment of McCartney J. and submits that the trial judge erred in three respects: 1) he ordered the appellant to pay the respondent $27,128 for occupation rent and post-separation matrimonial home expenses; 2) he dismissed the appellant’s claim for spousal support; and 3) he awarded the respondent an excessive amount on costs at trial, namely $47,106.

[2] With respect to the first issue, namely, the award of occupation rent, the appellant submits that the trial judge did not take into account the fact that the husband was not paying spousal support for the period that he awarded occupation rent.

[3] It is apparent that the trial judge concluded that the wife’s conduct contributed to a delay in selling the matrimonial home. In those circumstances, even taking into account the husband’s support obligation, the trial judge’s award of occupation rent for approximately one-half the period the wife had exclusive possession of the matrimonial home was one that was open to him to make.

[4] The trial judge properly considered the relevant factors respecting occupation rent as set forth in Griffiths v. Zambosco, 2001 24097 (ON CA), [2001] 54 O.R. (3d) 397 at para 49 in determining whether the respondent was entitled to payment for occupation rent. Contrary to the appellant’s submission that the trial judge did not take into account the fact the claim for occupation rent was not made until after the house was sold, the trial judge specifically considered the timing of the respondent’s claim for occupation rent. We would dismiss this ground of appeal.

[5] We turn now to the claim for spousal support. At the end of the relationship, and excluding the appellant’s inheritance, the appellant had about $27,000 in assets and the respondent had debts of about $45,000. The trial judge adjusted the overpayment for household expenses made by the respondent and, as well, awarded occupation rent to the respondent. Following the adjustments made by the trial judge, the respondent was left with about $15,000 indebtedness and the appellant would have been at approximately zero.

[6] The gross income of the respondent for 2002 was $144,000, and for 2003 it was $120,000. In contrast, the appellant’s income for 2002 was $19,223, plus $10,750 support to the end of August, for a total of $29,973, and in 2003, was about $45,000. Based on the appellant’s income during this period of time, her expenses exceeded her income by approximately $700 a month.

[7] The trial judge found that “there was initial economic hardship visited on the wife for which a modest amount of compensation should be paid.” He stated he did not approve of the appellant’s conduct, presumably, in not disclosing that she had received an inheritance of about $128,000. The trial judge considered whether to order the appellant to repay the $10,750 support she had received in 2002, and, although he decided not to do so, he declined to award the appellant any support.

[8] With respect, the trial judge erred. The wife was not obliged to deplete her capital by using her inheritance to support herself.

[9] The respondent also submits that the financial statements filed by the appellant were misleading and that the appellant did not need support because she was managing and even saving on the income she earned. Eventually however, the appellant did make proper financial disclosure and there is no dispute about the amount that she earned.

[10] For these reasons, as well as the fact that the argument made by the respondent does not give effect to the lifestyle of the parties during this moderately lengthy relationship, for the balance of the 2002 year and all of 2003 we would order spousal support in the amount of $700 a month for 16 months for a total of $11,200.

[11] In relation to the future, the trial judge found that the appellant is “well on her way to self-sufficiency, if she is not already there.” At the time of trial the appellant was not working as she had lost her job shortly beforehand. The appellant had tried to pass the exams that would allow her to work as a chartered accountant and had failed on two occasions. She was going to try again. She also advised the court that she would be able to earn about $50,000 a year. While the appellant may have been well on her way to self-sufficiency, it was apparent that at the time of trial she had not yet attained that. The trial judge ought to have awarded support to the appellant on an ongoing basis for a short period of time to give her time to find other employment and he erred in not doing so. Thus, we would order that support of $2000 a month be paid for a period of six months for a total of $12,000. We would otherwise dismiss the claim for support.

[12] Having regard to our conclusions above, we must now deal with the costs awarded at trial. The appellant’s conduct during the proceedings was regrettable. On one occasion she called the police to thwart the respondent when it was completely unwarranted. In relation to the conduct of the trial, the appellant repeatedly failed to make proper disclosure and made no attempt to settle the proceedings. As a result, her conduct substantially increased the cost of the proceedings and delayed their completion. The respondent, by contrast, made efforts to resolve the outstanding issues and made full disclosure. Accordingly, even taking into consideration our award here, the principle of proportionality, the settlement offers and the fact that the equalization of the parties’ property was settled on a without costs basis, we are of the opinion that the appellant should pay to the respondent $20,000 all inclusive with respect to the costs at trial. In addition, the wife is also entitled to prejudgment interest on the amounts awarded to her in accordance with the Courts of Justice Act.

[13] In view of the divided success on this appeal, we are of the opinion that the parties should bear their own costs and we make no order as to costs.

“K. M. Weiler J.A.”

”M. J. Moldaver J.A.”

“Janet M. Simmons J.A.”