Court and Parties

Court of Appeal for Ontario Date: 2022-06-16 Docket: C69697

Before: Brown, Roberts and Paciocco JJ.A.

Between: Caterina Talotta also known as Cathy Talotta, Applicant (Respondent)

And: Domenic Talotta, Respondent (Appellant)

Counsel: Annamaria Perruccio and Vince Di Vito, for the appellant Lisa Kadoory, for the respondent

Heard: June 14, 2022

On appeal from the order of Justice George MacPherson of the Superior Court of Justice, dated June 21, 2021.

Reasons for Decision

[1] Caterina and Domenic Talotta separated on September 8, 1995, after 16 years of marriage. They entered into a separation agreement on April 29, 1997, that required Ms. Talotta to “receive one-half of the husband’s Metro Toronto News and Ontario Newspapers (also known as Metro Toronto News Company) pension valued from the date of marriage up to the date of separation on September 8, 1995, in the amount of $10,372.59 upon the execution of this agreement, and payment to the wife shall be the date of the husband’s retirement or separation from Metro Toronto News and Ontario Newspapers”.

[2] Pursuant to the separation agreement, Mr. Talotta was also required to provide Ms. Talotta with an actuarial valuation of his pension. In breach of his obligations under the separation agreement, he did not do so.

[3] Mr. Talotta retired on July 1, 2018. He did not pay Ms. Talotta her share of his pension benefits earned during their marriage and refused to cooperate with the transfer. In response to the inquiries of Ms. Talotta’s lawyer, he refused to provide any information about his pension. He evaded service of Ms. Talotta’s application for payment of her share of his pension, requiring her to obtain an order for substituted service. Although eventually served, Mr. Talotta did not respond to the application. On January 19, 2021, Ms. Talotta obtained an order allowing the application to proceed by way of an uncontested trial in writing.

[4] At trial, Ms. Talotta put forward uncontested expert actuarial valuation evidence that the amount of $10,372.59 stated in the separation agreement represented only half of Mr. Talotta’s contributions with interest to a defined-benefit pension plan as of December 31, 1995. In accordance with the valuation principles applicable to pensions on marriage breakdowns in Ontario, it was not the correct value to use as the value of Mr. Talotta’s pension benefits, reflecting neither the time value of money nor the value of the pension benefits earned during the marriage, which exceeded his contributions. The entire value of the pension had to be actuarially determined and include employer contributions.

[5] Ms. Talotta’s expert offered two possible approaches: one to address only the time-value of money and add interest to the amount owing specified in the separation agreement, and the other to address the value of a defined-benefit pension that exceeded contributions alone by providing Ms. Talotta with her proportionate share of the current value of the pension. The trial judge accepted the second approach. He ordered that Mr. Talotta roll over from his pension the amount of $76,966. He also awarded full indemnity costs in the amount of $11,000, for a total of $87,966.

[6] Mr. Talotta appeals. He submits that the trial judge erred in his interpretation of the plain language of the parties’ separation agreement and effectively rewrote the agreement by awarding the current value of the respondent’s share of his pension instead of the stated $10,372.59 amount. In support of his position, he has purported to file an affidavit setting out his version of events, without bringing a motion to seek leave to file fresh evidence.

[7] At the conclusion of Mr. Talotta’s submissions, we dismissed the appeal with reasons to follow. These are those reasons.

[8] We are not persuaded that the trial judge made any error. The trial judge’s interpretation of the separation agreement was open to him and is entitled to deference on appellate review, excepting an extricable error of law or palpable or overriding error, which are absent here: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 53; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

[9] The trial judge did not rewrite the parties’ agreement. He interpreted the separation agreement in accordance with the equalization entitlements under the Family Law Act, R.S.O. 1990, c. F.3. That is, he accepted Ms. Talotta’s entitlement to a pro-rata share of the actual present value of Mr. Talotta’s pension benefit accumulated during the marriage in the amount of $76,966.

[10] The trial judge’s interpretation is reasonable and entitled to deference. He was required to look at the provisions of the separation agreement as a whole and interpret the parties’ agreement in a way that made the most sense in keeping with their objective intentions as reflected in their agreement: Sattva, at paras. 47-48. The interpretation that makes the most sense is that the parties’ objective intention was for Ms. Talotta to receive her entitlement to half of the value of the portion of the pension attributable to the period of the marriage. The agreement specifically says she is to “receive one-half of the husband’s Metro Toronto News and Ontario Newspapers (also known as Metro Toronto News Company) pension valued from the date of marriage up to the date of separation”, and not simply half of Mr. Talotta’s contributions [Emphasis added.]

[11] Other provisions in the agreement support the trial judge’s emphasis on the language of one-half of the pension valued from the date of marriage up to the date of separation rather than the figure of $10,372.59. These provisions include the deferred payment of Ms. Talotta’s share of the pension until Mr. Talotta’s retirement and the requirement that Mr. Talotta provide an actuarial valuation of his pension. Those provisions would have been unnecessary if the parties’ intent was that Ms. Talotta receive only the amount of $10,372.59, irrespective of the actual value of the pension attributable to the period of marriage.

[12] The trial judge’s determination of Ms. Talotta’s proportionate share of the current value of Mr. Talotta’s pension was also reasonably anchored in uncontested expert evidence. As the uncontested expert evidence demonstrated, the figure of $10,372.59 referred to in the separation agreement did not reflect the true valuation of Mr. Talotta’s pension accumulation during the marriage – a valuation he was required but failed to provide. The trial judge was entitled to accept the evidence of Ms. Talotta’s expert. There is no basis for appellate intervention.

[13] Finally, we do not accept Mr. Talotta’s proffered affidavit evidence. Given the history of these proceedings, including Mr. Talotta’s conduct and previous court orders, it amounts to an abuse of process. As the trial judge noted in his reasons for ordering full indemnity costs, Mr. Talotta’s conduct was unreasonable: he tried to avoid his obligations under the separation agreement, including providing the requisite actuarial valuation disclosure, he chose not to participate in the proceedings and went so far as to avoid service, and he put Ms. Talotta to unnecessary expense. Having failed to respond to Ms. Talotta’s application, resulting in an uncontested trial, Mr. Talotta cannot now try to re-litigate the case. In any event, we are not persuaded that his new evidence would have made any difference to the outcome.

[14] For these reasons, we dismiss the appeal. In our view, this appeal was devoid of merit. Ms. Talotta should not have been put to the expense of responding to it. She is entitled to costs from Mr. Talotta, payable forthwith, in the amount of $15,000, inclusive of disbursements and applicable taxes. The amount of $15,000 shall be added to the $87,966 amount ordered by the trial judge to be rolled over forthwith to Ms. Talotta’s RRSP from Mr. Talotta’s pension.

“David Brown J.A.” “L.B. Roberts J.A.” “David M. Paciocco J.A.”