Gervasio v. Gervasio, 2007 ONCA 780

CITATION: Gervasio v. Gervasio, 2007 ONCA 780

DATE: 20071114

DOCKET: C33163

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and EPSTEIN JJ.A.

BETWEEN:

VALERIE GERVASIO

Appellant (Respondent by Cross-appeal)

and

BRUNO GERVASIO

Respondent (Appellant by Cross-appeal)

Robert Kostyniuk Q.C., for the appellant (respondent by cross-appeal)

Morris A. Singer, for the respondent (appellant by cross-appeal)

Heard and released orally: November 6, 2007

On appeal from the judgment of Justice A. Donald MacKenzie of the Superior Court of Justice dated October 8, 1999.

ENDORSEMENT

[1] On this appeal and cross appeal, the parties challenge various aspects of the trial judge’s equalization payment, including certain of his findings regarding proper inclusions and deductions in that calculation.

[2] On the appeal, the appellant wife asserts that the trial judge erred in his use of the sum of $42,000 as the value of her RRSPs as at the date of separation. We agree. Although there was no evidence before the trial judge establishing the actual value of the wife’s RRSPs on the date of separation (April 8, 1994), there was clear evidence that as at March 31, 1994 and December 1994 respectively, dates close in time to the valuation date, their value was approximately $38,200 on a pre-tax basis. There was no evidential support for the trial judge’s figure of $42,000, although this was the valuation figure urged by the respondent’s counsel in his submissions at trial. In these circumstances, the best evidence of the value of the appellant’s RRSPs as at the valuation date was $38,200. Accordingly, this amount should be included in the appellant’s net family property statement for the purpose of equalization.

[3] The second issue on the appeal concerns the value of the husband’s pension. The trial judge valued the husband’s pension on the basis that the parties had agreed to a certain figure. This was an error. The value to be attributed to the husband’s pension was a hotly contested matter. In light of that error, it falls to this court to determine the value of the husband’s pension as at the valuation date.

[4] The best evidence before the trial judge of the value of the husband’s pension was the payout in 1998 when the husband’s employment was terminated. At that time, the husband was given approximately $137,735 as the cash surrender value for his full pension entitlement. The parties are agreed that seventy per cent of the pension accrued during the marriage and that the pro rata approach under Best v. Best, 1999 700 (SCC), [1999] 2 S.C.R. 868 applies. Thus, seventy per cent of the sum of $137,735 is the figure that should be included in the husband’s net family property statement for the purpose of equalization.

[5] In respect of the cross-appeal, the appellant submits as a threshold issue that the cross-appeal should not be entertained by this court because the respondent is allegedly in arrears in his child support payments for the one remaining dependant child of the parties. We decline to give effect to this argument in this case.

[6] It appears that the matter of the alleged arrears is an ongoing dispute. Moreover, the appellant’s materials before this court on this issue were filed as fresh evidence only within the last several days, permitting little time for response by the respondent. If arrears in child support are owed by the respondent, they should, of course, be paid forthwith. However, on this record, we cannot be satisfied of the quantum and nature of such arrears or of the respondent’s history of payments.

[7] On the merits of the cross-appeal, the respondent asserts that the trial judge erred by failing to afford him a deduction in the sum of $29,000 for his pre-marriage equity in the parties’ first home, by allowing only a fifty per cent, rather than a one hundred per cent, deduction for his VISA and CIBC credit card bills on the date of separation, and by including as a deduction the aggregate amount of $2,000 awarded to the respondent in two separate costs awards in this proceeding.

[8] The appellant conceded the costs and credit card issues and did not vigorously contest the remaining issue regarding the respondent’s claim for a deduction on account of his equity in the parties’ first home.

[9] We are satisfied that the trial judge erred in respect of each of these items and that the relief sought by the respondent on the cross-appeal concerning these issues should be granted. In respect of the respondent’s claim for a deduction on account of his equity position in the parties’ first home, we rely, in particular, on the decision of this court in Nahatchewitz v. Nahatchewitz, 1999 787 (ON CA), [1999] O.J. No. 3154.

[10] In the result, the appeal and cross-appeal are allowed in accordance with these reasons. As success has been divided before this court, we make no award of costs in respect of these proceedings, as agreed by counsel. In light of the appellant’s degree of success at trial given this decision, she is entitled to recover part of her trial costs, which we fix in the total sum of $15,000, inclusive of disbursements and GST.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Epstein J.A.”