Court File and Parties

CITATION: Katz v. Nimelman, 2009 ONCA 445

DATE: 20090528

DOCKET: C48136 & C48531

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Juriansz JJ.A.

BETWEEN

Lynne Cheryl Katz

Appellant (Applicant)

and

Menachem Nimelman

Respondent

Lynne Cheryl Katz in person

Monty Goren, for the respondent

Heard & released orally: May 22, 2009

On appeal from the judgment of Justice Eva Frank of the Superior Court of Justice dated November 27, 2007.

ENDORSEMENT

[1] The appellant brings two appeals in this matrimonial proceeding. In the first appeal, she submits that the trial judge erred in ordering equalization and more specifically, by extending the time for such a claim pursuant to s. 2(a) of the Family Law Act.

[2] The trial judge carefully reviewed all of the relevant evidence pertaining to this issue, including the evidence as to whether the respondent had effectively abandoned the equalization claim. The trial judge gave careful, detailed and comprehensive reasons for her decision that the claim had not been abandoned and that the criteria specified by s. 2(a) for extension of the time had been met.

[3] This was a factual and discretionary decision supported by the evidence which attracts substantial deference in this court. We see no error that would justify us in interfering with the trial judge’s decision with respect to equalization.

[4] With respect to the issue of support, we do not agree with the appellant that the trial judge failed to consider her disability. As we read her detailed reasons, the trial judge assessed the claim on the basis that the appellant was disabled but that in view of the assets she held, she had failed to demonstrate need. Again, this was a decision involving findings of fact and the exercise of discretion and the trial judge’s findings were supported by the evidence. It has been repeatedly held that substantial deference is to be accorded to trial judges in this area. We see no error that would justify appellate interference.

[5] Accordingly, the appeals are dismissed with costs to the respondent fixed at $7,000 inclusive of GST and disbursements.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“R.G. Juriansz J.A.”