COURT OF APPEAL FOR ONTARIO

CITATION: Baiu v. Baiu, 2015 ONCA 288

DATE: 20150424

DOCKET: C58340

Doherty, Pepall and van Rensburg JJ.A.

BETWEEN

Angela Baiu

Applicant (Respondent in Appeal)

and

Lucian Baiu

Respondent (Appellant in Appeal)

Lucian Baiu, appearing in-person

P. Rodriguez-McNeill, for the applicant (respondent in appeal)

Heard: April 21, 2015

On appeal from the order of Justice Gilmore of the Superior Court of Justice, dated January 13, 2014.

APPEAL BOOK ENDORSEMENT

[1] Most of the appellant’s arguments (e.g. relating to custody, the other terms relating to his parenting time with the children and the term concerning the children’s passports) concern factual determinations made by the trial judge. The trial judge thoroughly reviewed the evidence and made detailed findings that are supported in the evidence. We must defer to those findings absent a clear error on a material matter. We see no such error.

[2] We did call on the respondent on two issues. The first arises out of the trial judge’s support order. She awarded spousal support in the amount of $1 per year even though the respondent had not requested any support at trial. It would appear that the trial judge made the order to leave open the possibility of a support application in the future. In light of Tierney-Hynes v. Hynes (2005), 2005 CanLII 35770 (ON CA), 75 O.R. (3d) 737 (C.A.), the order made by the trial judge was unnecessary. In our view, it should not have been made in the absence of any request for support at trial.

[3] Paragraph 30 of the trial order should be set aside.

[4] The second issue concerns the trial judge’s treatment of the shareholder loan as part of her equalization analysis (see paras. 113-21). She held that the loan made by the appellant to his company was “property” for the purpose of s. 4(1) of the Family Law Act. We agree. She determined that repayment was contingent on several factors which affected the “value” of the property for equalization purposes. The trial judge fixed the “value” at 50% of the face value of the loan. In doing so, she considered factors relevant to the likelihood of repayment. She did not, in our view, misapprehend the evidence or consider irrelevant factors. This ground of appeal fails.

[5] The appeal is allowed to the extent that para. 30 of the trial order is deleted.

[6] Costs to the respondent in the amount of $8,000, inclusive of relevant taxes and disbursements.