COURT OF APPEAL FOR ONTARIO

CITATION: Gomez v. McHale, 2016 ONCA 318

DATE: 2016-05-02

DOCKET: C61434

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Lilybeth Gomez

Applicant (Appellant)

and

Brian Michael McHale

Respondent (Respondent)

Elliot Birnboim, for the appellant

Colin Still, for the respondent

Heard: April 25, 2016

On appeal from the judgment of Justice J. Bryan Shaughnessy of the Superior Court of Justice, dated December 3, 2015.

ENDORSEMENT

[1] The appellant Lilybeth Gomez appeals from the Order of Shaughnessy J. of the Superior Court of Justice dated December 3, 2015 granting her an equalization payment of $60,000.

[2] The order under appeal arose from motions for summary judgment brought by both parties. The appellant wife sought a judgment for equalization of the net family property ($268,000) or, alternatively, for four-fifths of that amount ($214,000). The respondent husband Brian McHale sought a judgment dismissing the plaintiff’s clam for an equal or unequal division of net family property.

[3] The parties began dating in July 2007. The appellant moved into the respondent’s home, which is the sole property in issue on the claim for division of family property, in September 2009. The parties married in June 2013. They separated in February 2014. The appellant contends that the entire 2007-2014 period needs to be considered as the period of cohabitation. However, as the motion judge recorded, “counsel for the [appellant] invited this court to ignore [the 2007-2009] period … and simply to rely on the dates of cohabitation not in dispute”, i.e. 2009-2014. We proceed on this basis.

[4] Because the parties cohabited for less than five years, s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) is central to the equalization issue:

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to…

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years….

[5] The appellant appeals the motion judge’s decision on three grounds.

[6] First, the appellant contends that the motion judge failed to consider the parameters of the motions before him as defined by the parties’ Notices of Motion, thereby offending the audi alterem partem rule. Specifically, the appellant asserts that the only options for the motion judge were: (1) grant the appellant an equal distribution of net family property ($268,000); (2) grant the appellant an unequal four-fourths distribution of net family property ($214,000); or (3) grant partial judgment in some amount to the appellant and direct the balance to proceed to trial.

[7] We reject this submission. Put bluntly, this is not the way motions for summary judgment, especially duelling motions, work. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject them, referring the question of quantum on to a trial.

[8] Second, the appellant asserts that the motion judge erred by granting judgment on a final basis rather than a partial basis to enable the issues to be heard fully on the merits.

[9] In our view, this submission is merely a reformulation of the first issue. The response is, again, that the appellant brought a motion for summary judgment. The motion judge heard and determined it. He was not limited to choosing only one of the appellant’s alternative positions.

[10] Third, the appellant submits that the motion judge granted an unequal division of family property on an arbitrary basis in two respects.

[11] The appellant contends that the motion judge erred by not following a mathematical formula for calculating the unequal division of net family property. Section 5(6)(e) of the FLA applies when cohabitation is less than five years. In several cases, courts have looked at the actual period of cohabitation (e.g. 48 months) and then fixed an unequal division of net family property using that period as a percentage of the five year statutory period, i.e. 48/60 = 80 per cent): see, for example, Sarcino v. Sarcino, [1999] O.J. No. 902 (Ont. Gen. Div.) and Kucera v. Kucera (2005), 2005 12854 (ON SC), 16 R.F.L. (6th) 250 (Ont. Sup. Ct.).

[12] We do not accept this submission. Although a mathematical formula may be of assistance in some cases, we do not think that the motion judge erred by not applying it in this case. He did what s. 5(6) of the FLA requires. He looked carefully at the backgrounds of both parties, determined that an equal division would be “unconscionable”, and fixed what he regarded as a reasonable figure. We see no error in the motion judge’s approach.

[13] Finally, the appellant points to an error in the motion judge’s statement about the appellant’s alternative submission about an unequal division: “The applicant/wife submits that this court … should … award the wife 40% of the presumptive amount [$268,566.61]. This calculates to be $107,426.64 payable by the husband to the wife.” The appellant asserts, and the respondent concedes, that the appellant’s position was that she should receive 80 per cent of the presumptive amount, i.e. $214,853.28. The appellant further contends that the motion judge probably used $107,426.64 as the base against which he decided to reduce the distribution to the appellant to $60,000. Accordingly, if he had stated the appellant’s position correctly, $214,853.28, it follows that he would have awarded her $120,000, not $60,000.

[14] In our view, this submission is speculative. There is no language in the trial judge’s reasons between his statement about the appellant’s position and his ultimate conclusion about quantum to suggest that he linked these numbers in a formulaic way. On the contrary, his analysis in the reasons between these two passages is anchored in a consideration of various factors about the parties’ contributions and tells heavily in favour of the respondent:

I am not persuaded that the mathematical formula proposed by the applicant/wife is appropriate in the circumstances of this case. The home is the most significant asset and it was brought into the marriage by the husband. The husband made significant improvements to the home, including during the period of cohabitation and the marriage. The wife made no contribution to the maintenance or improvements to the home. She did contribute to the purchase of groceries and she attended to the needs of her daughter.

In our view, this catalogue of factors supports the final amount of equalization at $60,000.

[15] The appeal is dismissed. The respondent is entitled to his costs of the appeal fixed at $9,900, inclusive of disbursements and HST.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”