COURT OF APPEAL FOR ONTARIO

CITATION: Stetco v. Stetco, 2014 ONCA 370

DATE: 20140508

DOCKET: C57254

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Calina Stetco

Applicant (Respondent)

and

Gheorge Stetco

Respondent (Appellant)

Michael Stangarone and Serena Lein, for the appellant

Calina Stetco, acting in person

Heard: May 1, 2014

On appeal from the orders of Justice Bonnie L. Croll of the Superior Court of Justice, dated May 29, 2013, with reasons reported at 2013 ONSC 3103, and March 11, 2014.

ENDORSEMENT

[1] The parties separated after 32 years of marriage. The issues for trial were property-related. The husband appeals the trial judge’s order of an unequal division of net family property based on the husband’s drawings from a line of credit and her treatment of the wife’s claim for occupation rent.

[2] On appeal, the husband submits the trial judge erred in awarding an unequal division of NFP. He points out that the legal threshold for a finding of unconscionability to support an unequal division is extremely high. The husband submits that in finding unconscionability, the trial judge placed too much emphasis on the husband’s abusive conduct during the course of the marriage, which he submits was not related to the line of credit. He submits that, rather than finding unconscionability and ordering an unequal division, the trial judge should have ordered equalization and then made a post-separation adjustment to take into account the carrying costs of the matrimonial home, the occupation rent due to the wife, and the husband’s withdrawals from the line of credit.

[3] We do not agree that the trial judge’s finding of abusive conduct was unrelated to her finding of unconscionability. It was an important part of her reasoning that the husband forced the wife to sign the joint line of credit using the same violence and threats of violence that he had inflicted on her earlier in the relationship. We would not give effect to this argument.

[4] The husband submits that the trial judge erred in the way she dealt with occupation rent. First, the husband argues that occupation rent for the 21 months he resided in the matrimonial home should not have been awarded because the wife did not claim it until two months before trial. The trial judged noted that while the wife’s original application did not formally seek occupation rent, it did raise the issues of the husband living in the house, receiving rental income, sitting on her equity and refusing to give the wife her share. We are not persuaded there is a basis to interfere with the trial judge’s conclusion that, on a balancing of the relevant factors, occupation rent was fair in the circumstances.

[5] The husband also attacks the quantum of occupation rent awarded. The trial judge set off the wife’s entitlement to occupation rent against her responsibility for one half of the mortgage and expenses that the husband paid to maintain the home. The husband submits that this resulted in the wife being credited with 100% of the market rent while making her responsible for only 50% of the carrying costs of the matrimonial home. The difficulty with this argument is that the husband led no evidence of what market rent for the home would have been. There was some evidence to support the conclusion that $1000 per month was reasonable occupation rent. We are not persuaded the motion judge made any reversible error in the way she dealt with occupation rent on the record before her.

[6] The husband alleges there are errors in the calculations of the trial judge. For example, the trial judge relied on the husband’s testimony that an amount of money was transferred into his TFSA post separation. On appeal, counsel submits that scrutiny of the TFSA statement shows that in fact the amount was transferred out of the TFSA. These alleged errors make a little difference to the overall result. The husband had the opportunity at trial to put forward his case based on the financial documents in the record. The standard of review is designed to promote finality in family law litigation and to recognize the importance of the appreciation of the facts by the trial judge. It is only where the trial judge's decision is plainly wrong that an appellate court is entitled to interfere. We are not persuaded that arguments about minor calculation errors meet this stringent standard of review.

[7] The husband also advanced, but did not strenuously press an argument that the trial judge erred by allowing the wife to amend her pleading at trial to claim an unequal division of property. The trial judge found that both parties had expected the claim to be an issue at trial. It had been identified as a live issue for trial at the Trial Management Conference and in the opening statement of the husband’s counsel. The trial judge found the claim had been left out of the wife’s application by oversight. When the amendment was allowed, the husband did not request an adjournment. We agree with the trial judge’s observation (made in her costs decision at para. 19) that the husband’s alleged “surprise” at the amendment was “purely strategic and patently insincere”.

[8] Finally, the husband also attacks the trial judge’s disposition of costs. He submits that the trial judge made calculation errors in concluding that the result at trial exceeded the wife’s offers to settle. Regardless of whether that is the case, we would not interfere. Clearly, a higher award of costs was warranted in this case based on the trial judge’s application of Rule 24(11)(b) of the Family Law Rules, O. Reg. 114/99to the unreasonableness of the husband’s behavior in the case. He had included in his pleading a spurious claim for spousal support “simply as a tactic to unnecessarily complicate the issues” and “to create additional anxiety for [the wife]” (para. 16). He made irrelevant Requests to Admit about matters from the parties’ time in Romania 30 years earlier. He breached a consent order made in a case conference that he would “not pledge any further credit against the home equity line of credit” (para. 18). His objection to the amendment of the wife’s pleading at trial was “purely strategic and patently insincere”. The trial judge instructed herself, at para. 22, that “costs decisions must be informed by the principle of proportionality”. The award she made was reasonable in the circumstances of the case.

[9] The appeals of the trial judge’s orders on the merits and on costs are dismissed. The wife’s costs are fixed in the amount of $2,000 all inclusive.

“R.G. Juriansz J.A.”

“M. Tulloch J.A.”

“G.R. Strathy J.A.”