Court File and Parties

Court of Appeal for Ontario Date: 20240703 Docket: COA-23-CV-0877

Roberts, Miller and Gomery JJ.A.

Between: Maria Da Conceicao Afonso De Brito Martins Applicant (Respondent)

And: Jose Maria Dias Martins and Antonio Mario Martins Respondents (Appellants)

Counsel: Jeff Rechtshaffen and Keith Davis, for the appellants Geoffrey J. Carpenter and Meagan MacArthur, for the respondent

Heard and released orally: June 28, 2024

On appeal from the order of Justice Erika Chozik of the Superior Court of Justice, dated July 6, 2023.

Reasons for Decision

[1] The appellants, the husband, Jose Martins, and his brother, Mario Martins, challenge the trial judge’s equalization payment to the respondent wife, Maria Martins. They say the trial judge incorrectly weighed the relevant factors under s. 10.1(4) of the Family Law Act, R.S.O. 1990, c. F.3, in considering whether to order the immediate transfer of a lump sum out of the husband’s pension plan and that the equalization payment ordered was unfair. They also argue that the calculation of prejudgment interest was incorrect and should only run 30 days after respondent’s counsel discovered the respondent’s waiver of pension survivor benefits and asserted a claim for an equalization payment based on the inclusion of the husband’s pension in the parties’ net family property.

[2] We see no reversible error. The trial judge made her decision in the context of a high conflict dispute. She determined that the respondent had signed the waiver of any survivor benefits under the husband’s pension under duress and without understanding that she would receive nothing from the pension if the husband died. As conceded, the trial judge held that the respondent was entitled to indefinite spousal support. She found that the husband, his brother, and other family members had colluded and lied to and misled the court, and that the husband and his brother had acted in bad faith. She concluded that she could not believe or rely on anything they said. Importantly, she found that the husband had fraudulently conveyed the former matrimonial home to his brother in order to defeat the respondent’s equalization claim.

[3] The trial judge carefully and evenly reviewed all the relevant factors and evidence, including the parties’ respective financial resources and circumstances. We do not agree that the trial judge erred in taking into account the possibility that the husband could die before the respondent. She determined in the circumstances of this case, including the respondent’s uninformed waiver of survivor benefits, the respondent’s indefinite entitlement to spousal support, and the husband’s lack of income to continue to pay spousal support, that equalizing the pension and ordering the husband to pay half of it to the respondent as spousal support on a monthly basis, as the appellants argued, would not be fair because it would result in an unfair, uneven distribution of the net family income and assets. She concluded that the equalization payment ordered was fair to both parties. She declined to impute income to the husband and to order further payment of spousal support. We see no error here.

[4] As for the prejudgment interest, the trial judge made no error in ordering prejudgment interest to run from the date of separation. This was the respondent’s position at trial, as indicated in the draft order submitted to the trial judge during closing submissions. The appellants had the opportunity to address it and did not raise the argument they are now asserting on appeal.

[5] There is no basis to intervene.

Conclusion

[6] The appeal is therefore dismissed.

[7] The respondent is entitled to her costs in the agreed upon all inclusive amount of $20,000.

"L.B. Roberts J.A." "B.W. Miller J.A." "S. Gomery J.A."