Court of Appeal for Ontario

Date: 2006-04-18

Docket: C43727

Re: Louis Ming Kee Ng (Applicant (Appellant)) – and – Mely Yuen Fun Yam (Respondent (Respondent in Appeal))

Before: Rosenberg, Goudge and Feldman JJ.A.

Counsel: Eric Freedman, for the appellant William Murray, Agent for Sameul Eng & Associates, for the respondent

Heard & Released Orally: April 6, 2006

On appeal from the judgment of Justice Victor Paisley of the Superior Court of Justice dated May 27, 2005.

ENDORSEMENT

[1] While ordinarily the spouse not in possession is entitled to be compensated only for the use and occupation by the other spouse of her half-interest in the house, we are satisfied that the approach adopted by Paisley J. was fair having regard to the particular circumstances in this case. While he gave the wife credit for 100% of the occupation rent (except when the daughter was living in the home), he gave the husband 100% credit for the taxes and insurance paid and 100% of the amount paid by the husband against the principal owing on the mortgage subsequent to separation. If the trial judge adopted the position now sought by the appellant, the other credits would also have to be adjusted in favour of the wife.

[2] Further, in fixing the amount of occupation rent payable, the trial judge was entitled to take into account the husband’s conduct, including his failure to properly maintain the house, his deliberate delay in selling the house, despite having been put on notice soon after the separation that the wife would be seeking occupation rent and that she wanted the house, the parties only significant asset, sold as soon as possible.

[3] We would not admit the fresh evidence. This evidence could have been introduced at trial. The issue of occupation rent and therefore credits for other costs to carry the house were live issues at trial. Had the evidence been introduced at trial, the respondent could well have conducted her case differently.

[4] The respondent fairly concedes that there has been a calculation error and that the appellant should only be required to pay $41,516.20 to the respondent. The judgment of Paisley J. is varied accordingly. This change does not affect the costs award at trial since the judgment still exceeds the wife’s offer taking into account the appropriate treatment of the loan from the wife’s mother.

[5] Accordingly, in all other respects the appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $5,000 inclusive of disbursements and G.S.T.

Signed: "M. Rosenberg J.A." "S.T. Goudge J.A." "K. Feldman J.A."