Berta v. Berta

Ontario Reports

Ontario Superior Court of Justice,

Harper J.

August 20, 2014

122 O.R. (3d) 124 | 2014 ONSC 3919

Case Summary

Family law — Support — Spousal support — Wife supporting husband during early years of 27-year marriage — Wife receiving significant benefits from jointly owned company during marriage and receiving payments of more than $2 million for her shares in company after separation — Wife also accumulating substantial assets of her own — Wife not entitled to compensatory support — Consideration of husband's income from company for purposes of spousal support not resulting in double recovery for wife on basis that wife was paid for her half-interest in company — Wife choosing not to maximize her income from her assets after separation — Wife awarded needs-based support of $5,380 per month.

The parties separated after 27 years of marriage. At the time of separation in 2010, the wife was 71 years old and the husband was 64. Before marrying the husband and for the early years of the marriage, the wife was employed in a senior management position. After taking early retirement, she started her own consulting business. She supported the husband while he built up a company, ACCE, the shares of which were jointly owned by the parties. When ACCE started to flourish, the parties' lifestyle became quite lavish. After the separation, the wife secretly withdrew a considerable amount of money from ACCE despite being aware that the company was overextended. The husband agreed to purchase the wife's shares in ACCE in 2012 and continued to operate the company. The matrimonial home was sold and each party received one-half of the proceeds. In an action under the Divorce Act, R.S.C. 1985, c. 3 and the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), issues were unresolved with respect to division of property, determination of the equalization payment and entitlement to and quantum of spousal support.

Held, the action should be allowed.

Neither party was entitled to notional costs of disposition of the shares of ACCE. The wife was not entitled to an exclusion of $70,960 for jewellery given to her by the husband during the marriage. Section 4(2) of the FLA provides for an exclusion of the value of property acquired as a gift from a third party, and does not apply to a gift between spouses. The wife owed the husband an equalization payment of $61,530.12.

Consideration of the husband's income from ACCE for the purposes of spousal support would not result in double recovery for the wife. However, the wife was not maximizing her income from her assets. That fact, and the fact that she did not disclose certain assets and income that she had placed in a numbered company with her daughter, could be taken into account when determining support issues. Although the wife made a significant contribution to the husband's career potential by paying for all of the living expenses during the time that the husband was getting ACCE off the ground, she received significant benefits from the company during the marriage. After separation, she received more than $2 million for her shares of ACCE. She had also accumulated substantial assets of her own. She had been fully compensated for her early years of contribution and was not entitled to compensatory support. The husband was now 68 years old and suffered from a number of medical disorders, including three forms of cancer. His annual income was $644,172. The wife's annual income was $484,356. The wife was granted spousal support in the amount of $5,380 per month.

Cases referred to

Boston v. Boston, [2001] 2 S.C.R. 413, [2001] S.C.J. No. 45, 2001 SCC 43, 201 D.L.R. (4th) 1, 271 N.R. 248, J.E. 2001-1389, 149 O.A.C. 50, 28 C.C.P.B. 17, 17 R.F.L. (5th) 4, REJB 2001-25002, 106 A.C.W.S. (3d) 498; Bracklow v. Bracklow, [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, 1999 715 (SCC), 169 D.L.R. (4th) 577, 236 N.R. 79, [1999] 8 W.W.R. 740, J.E. 99-703, REJB 1999-11414, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, 44 R.F.L. (4th) 1, 86 A.C.W.S. (3d) 1109; Carmen Alfano Family Trust (Trustee of) v. Piersanti, [2012] O.J. No. 2042, 2012 ONCA 297, 291 O.A.C. 62; Chutter v. Chutter, [2008] B.C.J. No. 2398, 2008 BCCA 507, [2009] 3 W.W.R. 246, 60 R.F.L. (6th) 263, 86 B.C.L.R. (4th) 233, 263 B.C.A.C. 109, 301 D.L.R. (4th) 297, 172 A.C.W.S. (3d) 1002; Fisher v. Fisher (2008), 88 O.R. (3d) 241, [2008] O.J. No. 38, 2008 ONCA 11, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, 163 A.C.W.S. (3d) 432; Korkola v. Korkola, [2009] O.J. No. 343, 2009 2487, 174 A.C.W.S. (3d) 208 (S.C.J.); Leskun v. Leskun, [2006] 1 S.C.R. 920, [2006] S.C.J. No. 25, 2006 SCC 25, 268 D.L.R. (4th) 577, 349 N.R. 158, J.E. 2006-1279, 226 B.C.A.C. 1, 62 B.C.L.R. (4th) 197, 34 R.F.L. (6th) 1, EYB 2006-106795, 148 A.C.W.S. (3d) 275; Marinangeli v. Marinangeli (2003), 2003 27673 (ON CA), 66 O.R. (3d) 40, [2003] O.J. No. 2819, 228 D.L.R. (4th) 376, 174 O.A.C. 76, 38 R.F.L. (5th) 307, 123 A.C.W.S. (3d) 902 (C.A.); Miglin v. Miglin, [2003] 1 S.C.R. 303, [2003] S.C.J. No. 21, 2003 SCC 24, 224 D.L.R. (4th) 193, 302 N.R. 201, J.E. 2003-790, 171 O.A.C. 201, 34 R.F.L. (5th) 255, REJB 2003-40012; Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, J.E. 93-111, 81 Man. R. (2d) 161, [1993] R.D.F. 168, 43 R.F.L. (3d) 345, EYB 1992-67141, 37 A.C.W.S. (3d) 527; Poirier v. Poirier, 2005 38106 (ON SC), [2005] O.J. No. 4471, 19 R.F.L. (6th) 197, 143 A.C.W.S. (3d) 134 (S.C.J.); R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, 254 O.A.C. 9, 246 C.C.C. (3d) 301, 68 C.R. (6th) 201, 2009 CarswellOnt 5008; Ward v. Ward (2012), 111 O.R. (3d) 81, [2012] O.J. No. 3033, 2012 ONCA 462, 293 O.A.C. 63, 99 C.C.P.B. 1, 352 D.L.R. (4th) 201, 26 R.F.L. (7th) 358, 217 A.C.W.S. (3d) 395; Zavarella v. Zavarella (2013), 117 O.R. (3d) 641, [2013] O.J. No. 5435, 2013 ONCA 720, 313 O.A.C. 137, 369 D.L.R. (4th) 247, 40 R.F.L. (7th) 352, 235 A.C.W.S. (3d) 443

Statutes referred to

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am.], s. 15.2(4), (6)

Family Law Act, R.S.O. 1990, c. F.3 [as am.], ss. 4(2), 5(6)

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99, Rule 2 [as am.]

ACTION under the Divorce Act and the Family Law Act.

Douglas Quirt, for applicant.

Peter M. Callahan, for respondent.

HARPER J.: —

Issues

[1] This is an action commenced under the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3. The following issues have been left unresolved:

(i) Division of Certain Property;

(ii) Determination of Equalization Payment;

(iii) Entitlement and Quantum of Spousal Support;

(iv) Divorce; and

(v) Prejudgment interest.

Background

[2] Delia Joan Berta ("Joan") is 75 years old and Raymond Louis Berta ("Ray") is 68 years old.

[3] Joan and Ray were married on December 31, 1982. This is the second marriage for both parties. They each have two adult children from their previous marriages. They also each have grandchildren. They have been married to each other for 27 years.

[4] At the outset of the trial, Joan and Ray agreed that their date of separation was March 26, 2010. That was the date that Joan sent Ray an e-mail stating that she no longer wanted to continue to be married to him. From that point on, they stopped all marriage counselling and have not cohabited as husband and wife since that date. At the time of separation, Joan was 71 (presently 75) and Ray was 64 (presently 68).

Joan's background

[5] Prior to marrying Ray, Joan lived in the City of Hamilton. She had a senior position in management at the Steel Company of Canada (now U.S. Steel but referred to herein as "STELCO"). She was the international sales manager, and at that time, she was the only woman in senior management at that company.

Ray's background

[6] Although Ray was born in Canada, he became an American citizen after his family had moved to Buffalo in 1951 when he was approximately six years old. He joined the military and spent some time in or about 1968 to 1969 in the war in Vietnam. After the war, his college education was funded to some degree as a veteran. Ray obtained various degrees in chemical technology. He described himself as a "lab rat". Ray went on to obtain his B.Sc. and M.B.A. He worked in various large companies in the field of clinical research and when he started dating Joan in 1981, he had been working in Atlanta, Georgia. He was let go from that employment in January 1983. This termination occurred about one year after Joan and Ray were married.

Employment in the early years of marriage

[7] When Ray was let go from his employment in 1983, Joan continued in her senior management position at STELCO. Ray could not live in Canada at this time as he did not have his landed immigrant status. He had a residence at the home of his parents in Buffalo. However, he spent much of his time at Joan's house in Stoney Creek.

[8] Ray agreed that Joan supported the both of them during the early years of their marriage. His only income, at that time, was his unemployment insurance. Joan even paid for Ray's child support for his children of his first marriage during this period. At the end of 1983 and the beginning of 1984, Ray got his landed immigrant status and could now work in Canada. In 1985, he found employment as the clinical director of a company called Med Check which did clinical research and sensory evaluations for large food companies. He worked in that position for approximately 18 months and rose to the position of clinical director for the Canadian Company. In or about 1986, Canadian Company sold its business and Ray decided to start his own business in the same field he had been working in.

[The remainder of the decision continues verbatim in the original structure and wording.]