Court of Appeal for Ontario

Date: 20220504 Docket: C69387

Judges: Gillese, Harvison Young and Coroza JJ.A.

Between:

Lynda Mary Van Delst (Hronowsky) Applicant (Respondent)

And:

Thomas John Hronowsky Respondent (Appellant)

Counsel:

Thomas John Hronowsky, acting in person Katherine Shadbolt and David Migicovsky, for the respondent

Heard: April 13, 2022

On appeal from the order of Justice Tracy Engelking of the Superior Court of Justice, dated March 29, 2021, with reasons reported at 2021 ONSC 2353 and 2021 ONSC 6560, and the order of Justice Julianne A. Parfett of the Superior Court of Justice, dated April 30, 2021.

Reasons for Decision

Overview

[1] In 2017, the respondent wife brought an application against the appellant husband in the Superior Court of Justice seeking a divorce, child and spousal support orders, and the equalization of net family property. The parties were able to resolve all issues except for equalization of their net family properties. The matter went to trial in January of 2019. The most significant controversy at trial was the valuation of the parties’ pensions for equalization purposes.

[2] The trial judge concluded that the appellant’s pension should be valued based on a normal age of retirement of 60, while the respondent’s pension should be valued based on a reasonable age of retirement of 65. In the result she found that the value of the respondent’s pension was $447,465 while the value of the appellant’s pension was $1,129,294. Ultimately, the trial judge held that the respondent was entitled to an equalization payment of $563,560.23, and pre-judgment interest. [1]

[3] The appellant appealed to this court, asserting several errors in the trial judge’s approach. This court allowed the appeal in part, concluding that the value of both parties’ pensions should have been based on a normal age of retirement of 60 for both parties. Consequently, the court remitted the matter to the trial judge to determine the correct family law value of the respondent’s pension, to adjust the equalization payment accordingly, and to adjust the original costs order if necessary. [2]

[4] After a three-day trial, the trial judge concluded that the value of the respondent’s pension was $486,249. As a result, the trial judge made the following order dated March 29, 2021 (the “Order”), which is reproduced below: [3]

1. Within 15 days of March 29, 2021, the Respondent shall pay to the Applicant the outstanding balance on his equalization payment owed of $348,538.69, as well as $13,063.04 in post-judgment interest;
2. Within 15 days of March 29, 2021, the Respondent shall also pay to the Applicant her costs of the January 2019 trial in this matter, in the amount of $32,732.32, in accordance with Justice Engelking Order dated August 16, 2019, as well as $1,058.21 in post-judgment interest;
3. If the Respondent fails to pay to the Applicant the total sum of $395,392.26, pursuant to Section 9 (1) (d) of the Family Law Act, that sum shall be transferred to the Applicant from the Respondent’s Scotia Securities Inc. non-registered investment account ending in 404 and/or his Scotia Securities Inc. Tax-Free Savings Account ending in 266, or some combination thereof, by no later than May 1, 2021;
4. If the Respondent’s Scotia Securities Inc. non-registered investment account ending in 404 and/or his Scotia Securities Inc. Tax-Free Savings account ending in 266 are no longer available, the sum of $395,392.26, or the maximum transferrable amount, if less than $395,392.26, shall be transferred by way of a rollover from the Respondent s Public Service Superannuation Pension to a retirement vehicle chosen by the Applicant grossed up for tax at a rate of 21%, for a total amount owed to Ms. Van Delst for the equalization payment and costs of the January, 2019 trial of $478,424.63, no later than May 1, 2021. Any balance remaining if the maximum transferrable amount is less than $395,392.26 shall be paid in cash no later than May 1, 2021;
5. If a further Order with more specific particulars is required from the Court to effect either of the remedies referred to in paragraphs 3 or 4 above, the Applicant may bring a 14B Motion without notice for same; and
6. The remainder of Justice Engelking’s Final Order dated April 24, 2019 remains valid and of full force and effect.

[5] The appellant now appeals the Order. He also seeks leave to appeal the trial judge’s costs award, in which she granted costs to the respondent on a full recovery basis.

[6] The appellant also appeals from a dismissed motion to stay the Order pending appeal. He brought this motion because he was concerned that his bank would forward the monies owed notwithstanding the pending appeal. The motion judge noted that the appellant “was advised well in advance of this hearing that his motion was unnecessary” because the Order was automatically stayed pending appeal (with the exception of the child support order). Nonetheless, the appellant persisted, and the motion judge dismissed his request, noting that the “[h]earing took place because it was unclear precisely what [he] was seeking.”

Adjournment Request

[7] Eight days prior to the hearing of this appeal, the appellant requested a 60-day adjournment. In accordance with the standard procedure at this court, he was advised that, due to the proximity to the scheduled hearing for the appeal, he would have to make his adjournment request to the panel on the hearing date but, in any event, he had to be prepared to proceed that day. At the oral hearing of the appeal, the appellant renewed his adjournment request. He submitted that it would be unjust and unfair to force him to continue. After hearing from the appellant, we found it unnecessary to call on the respondent. We dismissed his request because the matters that he sought to raise through further submissions were outside the scope of the appeal.

[8] Since the hearing of the appeal, the appellant has sent the court an email indicating that he would “deliver further written submissions”. We wish to make it clear that the adjournment request was denied and that no further submissions will be entertained. As explained above, the appellant’s proposed submissions were outside the scope of the appeal.

Analysis

[9] The appellant raises several grounds of appeal.

[10] First, the appellant argues that the trial judge erred in her determination of the family law value of the respondent’s pension. We disagree. The trial judge considered the evidence of experts who were called by the parties. Significantly, both experts arrived at valuations that were just shy of $1,000 apart, before tax. The appellant has not pointed to any error in the trial judge’s assessment.

[11] As the trial judge noted, this court remitted the matter for her reconsideration on a narrow basis: to recalculate the family law value of the respondent’s pension based on her retiring at age 60, not age 65. The trial judge’s reasons directly address the appellant’s concerns as accepted by this court on the first appeal. The arguments now advanced by the appellant seek to revisit what happened during the first trial and the determinations made by this court in that first appeal. Those arguments do not disclose a basis for appellate intervention.

[12] Second, the appellant contends that the trial judge erred in making an unjust and inoperable payment order in the Order. We reject this submission. The respondent brought a motion before the trial judge seeking an order for security or enforcement. The trial judge applied a remedy under s. 9 of the Family Law Act, R.S.O. 1990, c. F.3, ordering that the amount of the equalization payment, together with costs, be paid in cash within 15 days. Then, the trial judge allowed for a period of enforcement for a cash payment if the appellant defaulted. Finally, and only in the event that the respondent could not enforce her rights after a reasonable period of time, the trial judge ordered security for payment, including a remedy that provided a cash equivalent to avoid ongoing litigation.

[13] In our view, it was open to the trial judge to craft such an order under s. 9 of the Family Law Act: the appellant had not complied with previous orders of the court to provide proof of his annual income and sign a direction/authorization in a form acceptable to the bank; had not settled outstanding costs orders; and had delayed the resolution of this matter by disputing garnishment proceedings initiated by the respondent in order to satisfy those outstanding costs orders. The trial judge noted that the respondent commenced litigation in 2017 and had been waiting almost four years for it to conclude. We dismiss this ground of appeal.

[14] Third, the appellant argues that the trial judge erred in deviating from the direction of this court, rendering the trial unfair. There is no merit to this submission. The trial judge made clear that the scope of the matter before her had been narrowly circumscribed by this court’s decision and all that remained was a recalculation of the equalization payment based on a normal retirement date of age 60 for both parties. On our review of the trial proceedings, there is no basis for concluding that the trial judge did not follow the direction of this court or that the appellant was not afforded a fair hearing.

[15] Fourth, the appellant seeks leave to appeal the costs order of the trial judge. The trial judge identified three considerations in her costs award. First, the experts’ valuations of the pension were within $1,000 of each other, yet the appellant persisted in a full trial being held. Second, the respondent made three offers to settle (two different offers, one of which was then offered a second time, totalling three). All of them were more favourable than or as favourable as the trial judge’s final decision. Third, in considering the original trial and costs award, the first appeal to this court and associated costs award, and the further trial before her, the trial judge determined that the respondent was predominantly successful. In light of all of this, the trial judge awarded costs on a full recovery basis: $30,392, inclusive of HST and disbursements.

[16] The appellant submits that the trial judge erred in using offers to settle as a means of awarding costs for both trials. We see no merit to this submission, and no basis for disturbing the trial judge’s discretionary costs order.

[17] Finally, the appellant states in his notice of appeal (as amended) that he is appealing the motion judge’s order refusing to stay the order pending appeal. The appellant’s motion before the motion judge was unnecessary because the Order was automatically stayed pending appeal. Significantly, the motion judge informed the appellant of this fact, yet he persisted in requiring a full hearing to be held. The appeal from that decision is also dismissed.

The Respondent’s Additional Requests

[18] For her part, the respondent requests that we make two amendments to the Order. In doing so, she asks that we exercise our powers under s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43: “Unless otherwise provided, a court to which an appeal is taken may, (a) make any order or decision that ought to or could have been made by the court or tribunal appealed from; (b) order a new trial; (c) make any other order or decision that is considered just.”

[19] First, the respondent requests that we broaden the enforcement provision of the final order beyond the two accounts in the appellant’s name. We decline to grant this relief. In the Order, the trial judge directed the respondent to bring a Form 14B motion without notice if any further order is required to effect any of the remedies that had been ordered. The respondent should seek her requested relief before the trial judge, who is best positioned to resolve such matters.

[20] Second, the respondent requests that we extend the May 1, 2021 deadline by which time the appellant’s equalization payment must be made from his named bank accounts (para. 3 of the Order), after which the provision in para. 4 of the Order will take effect, and at which time the equalization payment will be satisfied by way of a rollover from the appellant’s pension account, grossed up at a 21% tax rate. The respondent argues that extending the deadline would provide a period of time to seek enforcement of the Order for a cash payment from the appellant’s named accounts, without having the pension rollover immediately take effect (since it is now well past the May 1, 2021 deadline). The respondent asks that we amend the Order to allow her to commence enforcement within 60 days from the date of release of this judgment.

[21] We accept that we should exercise our power under s. 134 of the Courts of Justice Act and amend the Order, which is now dated through no fault of the respondent. The appellant delayed approving the Order, served an urgent motion seeking a stay of the Order, and served a notice of appeal automatically staying the Order. In our view, there is no prejudice to the appellant in making this amendment. A period of 60 days commencing from the release of these reasons to pursue enforcement of the trial judge’s order is reasonable.

Disposition

[22] For these reasons, we dismiss the appeal and refuse leave to appeal the costs award.

[23] We amend the Order (as amended by the trial judge on March 22, 2022) by deleting the references to the date of May 1, 2021 in paras. 3 and 4 of the Order and substituting a period of 60 days from the date of release of these reasons for the respondent to commence enforcement proceedings. The respondent is entitled to her costs of the appeal fixed at $25,000, inclusive of disbursements and applicable taxes.

“E.E. Gillese J.A.”

“Harvison Young J.A.”

“S. Coroza J.A.”

[1] Van Delst v. Hronowsky, 2019 ONSC 2569, 23 R.F.L. (8th) 306.

[2] Van Delst v. Hronowsky, 2020 ONCA 329, 447 D.L.R. (4th) 702; Van Delst v. Hronowsky, 2020 ONCA 402.

[3] The Order was amended on March 22, 2022 to clarify the amount owing pursuant to para. 4.