COURT FILE NO.: FC-15-2157-0001 DATE: 20220420

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

David Michael Farmer Applicant (Respondent in Appeal) – and – Janet Maureen Farmer Respondent (Appellant)

Counsel: Robert Snell, for the Applicant (Respondent in Appeal) Kristy A. Maurina and Stephen Kirby, for the Respondent (Appellant)

HEARD: December 1, 2021 RELEASED: April 20, 2022

Justice ALEX FINLAYSON

Part I: Nature of This Supplementary Judgment and Overview

[1] The parties litigated the issues arising out of their marriage and its breakdown in a five-day family arbitration held in November and December, 2018. After the conclusion of the hearing, the arbitrator released three awards on February 12, 2019, March 3, 2019 and July 28, 2019 (the “First Award dated February 12, 2019”, the “Clarification/Explanation Award dated March 3, 2019”, and the “Costs Award dated July 28, 2019”). The awards cumulatively addressed their property issues, lump sum spousal support, and costs of the arbitration.

[2] The Appellant wife launched a broad appeal of all three awards. The appeal was argued on May 27 and 28, 2021. I released a Judgment on September 3, 2021: see Farmer v. Farmer, 2021 ONSC 5913 (the “Judgment dated September 3, 2021”). I addressed most of the appeal in the Judgment dated September 3, 2021, but I flagged certain issues about spousal support and invited additional submissions. As the parties had also agreed to defer argument of the wife’s appeal about the costs of the arbitration until after the release of the main judgment, submissions on that remained outstanding too, as did the question of costs of this appeal. This is my Supplementary Judgment about the outstanding issues.

[3] In the First Award dated February 12, 2019, the arbitrator made a number of property awards. Among them, the arbitrator determined that the wife owed the husband an equalization payment of $174,813.25. He did so after first ruling on numerous other property issues, some of which impacted one or the other’s net family property, and thus the equalization payment.

[4] By way of correspondence from counsel sent to the arbitrator soon after the release of the First Award dated February 12, 2019, both sides took issue with the award. They each asserted that the arbitrator failed to deal with certain exclusions from their net family properties. They each sought his and her own corrections to the award. The arbitrator declined to change the award either way in the Clarification/Explanation Award dated March 3, 2019 that he subsequently released.

[5] The wife’s appeal taken to this Court asserted that the arbitrator erred in his treatment of the exclusions, among others. The husband did not launch a cross-appeal. He argued before this Court that the arbitrator did not err at all, and that the wife’s appeal should be dismissed in its entirety.

[6] In the Judgment dated September 3, 2021, I determined that the arbitrator erred in his calculation of the wife’s net family property, by failing to award her a sizeable exclusion of $783,740.32 that she had in investments at the date of separation. I set aside the arbitrator’s award that the wife owed the husband an equalization payment of $174,813.25 and substituted it with an order that the husband actually owed the wife an equalization payment of $217,055.91 instead. I dismissed the balance of the wife’s appeal on the property issues.

[7] In the First Award dated February 12, 2019, the arbitrator determined that the husband owed the wife lump sum spousal support of $227,185.00. The wife appealed spousal support on various grounds, asking this Court to order a greater lump sum or periodic support in the alternative. I determined that the arbitrator did not err in principle respecting his award for lump sum spousal support. However, I did identify two calculation issues, and I have not yet ruled on an argument raised by the wife that the arbitrator erred in his finding about the wife’s asset base on which he imputed investment income to her.

[8] First, the arbitrator had to determine the parties’ incomes to calculate the lump sum. The arbitrator chose to impute investment income of 3% to both parties, calculated on the assets he said they would each have left to invest after they paid and/or received the amounts set out in his various property awards. The arbitrator found that the wife would have $1,500,000.00 to invest, and the husband would have $750,000.00 to invest.

[9] When the appeal was argued in May, 2021, the wife asserted that the arbitrator erred in his finding about her asset base would be. She argued that he failed in the First Award dated February 12, 2019 to tally up and net out who owed who what. She argued that she really only would have $1,200,000.00 to invest when all is said and done, not $1,500,000.00 as the arbitrator found.

[10] Second, to calculate the amount of the lump sum, the arbitrator used the incomes he determined, decided what the periodic support would have been, commenced it from the date of separation, and selected a duration. Using those variables, the arbitrator calculated the lump sum equivalent of the periodic amount, and tax adjusted it. The duration that the arbitrator selected was based on the husband’s anticipated future date of retirement.

[11] The husband had argued for a retirement at age 65. At both the arbitration and then again when this appeal was argued in May of 2021, the wife argued for age 70. The arbitrator found that it would be reasonable for the husband to expect to retire at age 65.5. The Court did not disturb these findings, nor any of the principles on which the arbitrator’s calculation was based.

[12] Unfortunately, when it came to actually inputting the variables that he found should apply into DivorceMate, the arbitrator inserted a different duration. He ended up awarding a lump sum based on a retirement age of 66.5 in effect. Counsel had not averred to this in argument in May, 2021. The Court discovered it when reviewing the record while under reserve before releasing the Judgment dated September 3, 2021. In this Supplementary Judgment, I refer to this issue as the “retirement age/duration issue”.

[13] Third, this Court has now changed the equalization payment in the Judgment dated September 3, 2021. As such, the parties’ asset bases are significantly different from what the arbitrator found regardless of whether he erred respecting the first issue above.

[14] The Court questioned the parties about the first and third issues during the argument of the appeal in May, 2021. I then also raised questions about all of these issues in the Judgment dated September 3, 2021 after having discovered the retirement age/duration issue. At ¶ 323 of the Judgment dated September 3, 2021, I found that it was not an error, in and of itself, for the arbitrator not to have tallied up and netted out all of the various awards. However, at ¶ 324-325, I commented that the wife’s counsel failed to provide the Court with references to the evidence in the record to show that the asset base was really only $1,200,000.00 as the wife had claimed. The wife had also not provided a revised support calculation to show what the lump sum amount should have been, if she truly only had $1,200,000.00 to invest. At ¶ 326, I pointed out that even if the wife’s counsel was correct, and the wife only had $1,200,000.00 to begin with, she would now have more money to invest as a result of this Court’s Judgment dated September 3, 2021 setting aside the award that she would have to pay an equalization payment to the husband, and ordering one in her favour instead. I also pointed out that the husband would now have less to invest as a consequence. And now, the Court had discovered the retirement age/duration issue.

[15] For the reasons set out at ¶ 322-328 of the Judgment dated September 3, 2021 as a whole, I invited the parties to make further submissions about these matters if they wanted to. I told them I would require specific submissions about the assets available to each of them to earn investment income and fresh DivorceMate calculations. I also told them that if the resolution of the issues identified above would result in a reduction of the lump sum to the wife, I required submissions about the significance of a lack of a cross-appeal from the husband. I told them I required case law: see ¶ 328 of the Judgment dated September 3, 2021.

[16] The parties did choose to make further submissions, both in writing and orally. I heard their further oral submissions on December 1, 2021, along with their arguments about costs.

Part II: The Parties’ Positions

[17] During the argument in May, 2021, the wife had sought an order for a greater lump sum. Now that the Court has ruled that the arbitrator did not err respecting his selection of a retirement at age 65.5 and declined to increase the lump sum on that basis, the wife says that the amount of the lump sum should not change. The wife’s success in having the equalization payment reversed results in her having more property and the husband having less, triggering consequential changes to their investment incomes. That lowers the amount of the lump sum that the arbitrator calculated. So too does the retirement age/duration issue, if this Court finds that was an error that should be corrected.

[18] Despite that, the wife’s specific arguments that there should be no change to the lump sum are:

(a) She says the husband does not have a cross-appeal before the Court, and leave should not be given to him to pursue a reduction to the amount of the lump sum; (b) She says the subject matter of the additional submissions are “new issues” being raised on appeal for the first time; (c) She says these “new issues” were raised by the Court, not the husband; (d) She says the husband’s counsel did not notify the wife’s counsel that he was pursuing arguments about spousal support until just before the December 1, 2021 hearing, even though the Court invited submissions several months ago in the Judgment dated September 3, 2021; (e) She says the husband delivered his written submissions late; (f) She says the husband did not provide case law contrary to what this Court required in the Judgment dated September 3, 2021; (g) She says that in addition to not having a cross-appeal before the Court, the husband did not even formally ask for leave to claim relief in a Notice of Motion; (h) She says that she has not received any post-judgment interest on the amounts owing to her under the arbitrator’s awards (the awards have yet to be incorporated into an Order as a result of her appeal). When post-judgment interest is taken into account, she will end up with the same amount anyways; (i) She says that the husband ought to have returned the retirement age/duration issue to the arbitrator pursuant to section 44(1) of the Arbitration Act, 1991, but he did not do that. It is not appropriate for him to raise it on this appeal now; and (j) She also says the discrepancies in the award about the retirement age/duration issue do not even amount to errors to be corrected.

[19] The husband’s position is that the lump sum should be recalculated to reflect the true state of affairs, especially now that the Court has altered the arbitrator’s award for an equalization payment in the wife’s favour. He argues that he did not need to file a cross-appeal to achieve this; the need for a recalculation on this basis arises squarely out of the wife’s own appeal, and her success on the equalization payment.

[20] The husband disagrees with the wife’s submission, that the arbitrator’s finding that she would have had $1,500,000.00 to invest in the first place was wrong. The husband would therefore just have the Court do a simple adjustment to the lump sum, to adjust for the change to equalization payment ordered by this Court.

[21] In regards to the retirement age/duration issue, the husband disagrees with the wife that this is not an error. Although he did not raise it before, he says the arbitrator did err. He acknowledged that this error is different, in that it does not flow from the order made in the Judgment dated September 3, 2021 adjusting the equalization payment. He also acknowledges that it also could have been discovered by him earlier (or the wife’s lawyer for that matter), but it was not.

[22] Nevertheless, he still says that his failure to have a cross-appeal before the Court is not fatal to claiming relief about the retirement age/duration issue at this stage of the case. He argues that once this Court embarks upon fixing the lump sum on the other basis, it should fix all aspects of the math, fully and properly. The husband argues that it would create an injustice, if the Court, having stumbled upon a different error in the process of fixing the former, were then to ignore it.

[23] The arbitrator’s Costs Award dated July 28, 2019 requires the wife to pay the husband $67,500.00. That result is based on the arbitrator’s assessment of the parties’ success at the arbitration and his findings about reasonableness or unreasonableness. The wife’s initial position on costs of the arbitration at this appeal was that the arbitrator’s award should be set aside, and an order for costs of the arbitration in the same amount should instead be made in her favour. By the end of argument on December 1, 2021, the wife instructed her counsel to change her position. The wife claimed costs of the arbitration of $215,000.00, which was the amount her former counsel had originally asked the arbitrator to award in her favour. The initial argument for $67,500.00 was recast into an alternative position on this appeal. In the further alternative, counsel said there should be no costs of the arbitration, based on divided success.

[24] The husband argues that the Court’s Judgment dated September 3, 2021 does not impact the arbitrator’s determination on costs. He says that the husband was still successful in the arbitration and points to findings that the arbitrator made that the wife was unreasonable. The husband argues that the Costs Award dated July 28, 2019 should stand.

[25] Finally, the wife claims costs of the appeal of $25,000.00. Her counsel’s Bill is higher, but she only asked for this reduced amount to acknowledge some divided success on the appeal. The husband’s response is that there should be no costs of the appeal.

[26] This Supplementary Judgment should be read along-side the Judgment dated September 3, 2021 for the full context. Furthermore, additional arguments have now been made that engage questions about the standard of review and the sufficiency of the arbitrator’s reasons. In the Judgment dated September 3, 2021, I set out the applicable legal principles about the standards of review and sufficiency of reasons, which I adopt.

Part III: Issues and Analysis Respecting the Lump Sum

A. The Husband’s Failure to Serve and File a Notice of Cross-Appeal

[27] The wife says that the husband’s failure to serve and file a cross-motion precludes him from claiming any relief now on this appeal.

[28] The wife’s appeal was taken to this Court pursuant to section 45(6) of the Arbitration Act, 1991, S.O. 1991 c.17 as amended. The Family Law Rules apply in appeals to this Court from family arbitration awards: see rule 1(2)(e).

[29] Rule 38(9) provides that if the respondent in an appeal also wants to appeal the same order, then rule 38 applies, with any necessary changes, to that appeal, and the two appeals are to be heard together. Rule 38(10) provides that a notice of appeal shall state the order sought on the appeal and the legal grounds for the appeal. Rule 38(11) states that at the hearing no other grounds other than the ones stated in the notice of appeal may be argued unless the court gives permission.

[30] The Rules of Civil Procedure apply in appeals to the Divisional Court and to the Ontario Court of Appeal: see rule 38(1) of the Family Law Rules. Nevertheless, the wife relies on Rule 61.07 of the Rules of Civil Procedure by analogy under rule 1(7) of the Family Law Rules. She says the Family Law Rules omit the more specific wording of rule 61.07(1)(b), “and as there is nothing within the Rules or the case law to suggest that this was a deliberate distinction, this would be an appropriate case to apply the Rules of Civil Procedure by analogy”. I do agree that rule 67.01(1)(b) contains more specific wording on the requirement to file a cross-appeal than do the appeal rules in the Family Law Rules. While I do not agree necessarily that the Family Law Rules are inadequate and resort to the Rules of Civil Procedure is appropriate to dispose of the outstanding issues, I will still consider her arguments on the assumption that the Rules of Civil Procedure may be applied.

[31] Rule 67.01(1)(b) of the Rules of Civil Procedure provides that if a respondent intends to seek, if the appeal is allowed in whole or in part, other relief or a different disposition than the order appealed from, he must serve a notice of cross-appeal stating the relief sought and the grounds of appeal. Rule 61.07(3) provides that if the respondent does not do so, no cross-appeal may be heard except with leave of the court hearing the appeal. Rules 61.08(2) and (3) further provide that no grounds may be relied on and no relief may be sought other than what is set out in a notice of appeal, cross-appeal or supplementary notice, without leave of the court. And at ¶ 9 of Chang v. Liu, 2019 ONSC 6711 on which the wife also relies, the Divisional Court declined to allow the Respondent, who had raised “additional issues” in his Factum, from seeking different relief than that ordered by a motions judge, based on the failure to file a cross-appeal and unfairness to the appellant.

[32] But by contrast, in Da Costa v. Da Costa, the husband appealed a trial judgment that awarded the wife an equalization payment. He challenged the trial judge’s order for an equalization payment because one of his assets that formed part of his net family property was contingent. He did not actually have, and may never have access to the asset, to satisfy the equalization payment ordered.

[33] The Ontario Court of Appeal upheld the trial judge’s decision for the equalization payment but nevertheless recognized some unfairness to the husband, based on the contingent nature of the particular underlying asset. The Court considered the husband’s argument for relief respecting the payment of the equalization payment under section 9(1)(d) of the Family Law Act, in the absence of a claim for that relief in a notice. It did so even though the issue had not even been raised in the Court below, either. In deciding to grant leave to the husband, the Court took into account the absence of prejudice to the wife from the argument being advanced.

[34] The decision in Chang v. Liu does not address the precise circumstances that this Court now confronts. The Divisional Court mentioned that the issues raised in the Factum were “additional issues”. It is not clear from the decision whether the additional issues were new ones (within the meaning of the term, discussed further below), or whether as in this case before me, they were related issues that arose out of the subject matter already before the Court on appeal. The decision also does not indicate when the respondent’s Factum was delivered. But in appeals governed by the Rules of Civil Procedure, an appellant would normally have the right to file a factum to address any additional issues raised in a cross-appeal. See for example rule 61.12(6)(b) of the Rules of Civil Procedure. Perhaps the timing of the notice in the Factum deprived the appellant of an opportunity to respond. I also do not know whether there was an adequate record before the Divisional Court to deal with the “additional issues”, or whether they were raised in the Court of first instance.

[35] By contrast in Da Costa v. Da Costa, the alternative relief claimed by the husband was related to the main appeal. That is also the case before me. The record needed for the argument existed. That is also the case before me. And this Court gave both sides a fair opportunity to file written submissions and to make oral arguments about the outstanding issues.

[36] Now it is true that when this appeal was initially argued before me in May of 2021, the husband took the position that the arbitrator did not err on any issues at all, as was his right. The husband could have anticipated that some or all of the wife’s property appeals would succeed and that might impact the lump sum calculation. Perhaps that ought to have been put into a cross-appeal.

[37] But by the same token, the wife launched so many challenges to the property awards. The potential outcomes were numerous. The husband would have had to anticipate any number of different permutations to the lump sum depending on the outcome respecting property, while not knowing what success, if any, the wife would have respecting her property appeals. This Court might have also set aside the lump spousal support award in principle, in which case a different calculation may have been required.

[38] I accept the husband’s argument that because the arbitrator’s property and spousal support awards are intertwined, and because the wife appealed both property and spousal support, that both sides are entitled to make submissions on any corresponding mathematical corrections to lump sum spousal support once the Court found an error on a property issue. This flows from the Court’s Judgment of September 3, 2021 itself and the wife’s own appeal.

[39] The retirement/duration issue is somewhat different. But I also still agree with the husband, that if this Court finds that spousal support should be mathematically corrected as a result of the change to the equalization payment, then it should be done properly and the Court should not ignore another calculation issue that it discovered in the process of hearing and deciding this appeal, especially after the parties were notified of the issue and given an opportunity to make submissions.

B. Whether Leave Should Be Granted to the Husband to Claim Relief in the Absence of a Cross-Appeal

[40] Related to the first argument, even in the absence of a cross-appeal, I would grant the husband leave to claim relief. In Chang v. Liu, the Divisional Court cited unfairness to the appellant from the late notice in the factum in denying the relief. In Da Costa v. Da Costa, the Court focused both on unfairness to the appellant husband, from denying him the ability to seek relief, and also on the absence of prejudice to the respondent wife, in deciding to hear the argument on its merits. In deciding whether to grant leave, I find that the Court should focus both on unfairness and prejudice, to both parties. Unfairness and prejudice are related concepts.

[41] Although the way that she characterized it is not entirely accurate, the wife’s arguments as to why relief should not be granted to the husband stem in part from her characterization that it was the Court that raised issues with the parties. She also says she would suffer prejudice, she says that the husband didn’t even file a Notice of Motion for leave, let alone a cross-appeal, and she points to the fact that the husband failed to file case law. I address these arguments next.

C. Whether This Court, Sitting As An Appellate Court, Had The Right To Ask Questions of Counsel

[42] At pp. 126-127, J. Sopinka, M. Gelowitz and W.D. Ranking, “Sopinka and Gelowitz on the Conduct of an Appeal”, 4th ed., LexisNexis Canada Inc., 2018, the authors write that a judgment from which an appeal is taken is vulnerable to attack on all factual and legal grounds upon which the appellate court has jurisdiction. However, there are some limitations to the principle. One is that an appellate court should not generally address a point that was not pleaded, or argued in the proceeding below, unless all relevant evidence is on the record: see Block Bros. Realty Ltd. v. Boese; see also Da Costa v. Da Costa.

[43] But this Court’s questions to the parties did not raise issues for the first time on appeal in the sense described by the authors above. The questions that formed the subject matter of the further submissions on December 1, 2021 pertained to the calculation of income for lump sum spousal support, the duration that was used in the calculation, and the impact of the change to the equalization payment on the calculation. These issues were fully litigated in the proceeding before the arbitrator. This is not a case where some other argument could have been made before the arbitrator, or some other evidence could have been tendered.

[44] Moreover, the Court is entitled to ask questions on an appeal. That does not necessarily amount to raising “new issues”. See R. v. Mian, 2014 SCC 54 ¶ 28, 36. The Supreme Court explained the difference between a “new issue” and a question that just arises in the normal course during argument of an appeal at ¶ 29-35 of R. v. Mian as follows:

(a) An issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds as framed by the parties; (b) Generally, new issues are legally and factually distinct from the grounds of appeal and cannot reasonably be said to stem from the issues as framed by them; (c) An appellate court may raise questions that touch upon a broad range of issues, which may be components of the grounds of appeal, or may go outside those grounds to understand the context, statutory backgrounds and larger implications. Those are not new issues; (d) Nor are issues that are rooted in or are components of an existing issue. An appellate court may draw counsel’s attention to issues that must be addressed in order to properly analyze issues raised by the parties; and (e) Issues that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy, or the standard of review, are also not new issues and parties should not even require notice to address them.

[45] Here, the wife squarely appealed the equalization payment and the calculation lump sum support. More specifically, at paragraph 2 of the Amended Amended Notice of Appeal, the wife claimed a higher lump sum based on a different income than that which the arbitrator found. At paragraph 30 of the Amended Amended Notice of Appeal, the wife alleged that the arbitrator erred in determining the income that she would be able to generate on the assets available to her.

[46] The wife’s own grounds of appeal specifically put in issue the determination of income and connected that to the property awards, as did the arbitrator in the arbitral awards. Not only did what she would have to invest depend on the property awards, but so too did what the husband would have to invest. Thus, the wife did not just appeal the determination of her own income disconnected from these other matters. By challenging the property awards (and succeeding in one respect), the wife squarely put the consequential impact on the husband’s asset base and the determination of his income on that basis into issue, too. The questions that the Court asked about these issues were necessary to analyze properly the wife’s grounds of appeal.

[47] And the Court did not even raise the issue about the impact of its order for the equalization payment on the lump sum for the first time in its Judgment dated September 3, 2021; it actually asked the question of counsel during oral argument of the appeal in May, 2021. These were obvious questions that arose out of the nature and breadth of the wife’s appeal. The wife even agreed that the calculation would have to be redone, and submitted that either the Court could do the calculations, or counsel could do so based on any findings made.

[48] Now at the point of the submissions in May, 2021, it is true that the wife was arguing that the arbitrator erred in his selection of the retirement date, that he ought to have selected a retirement age of 70, and that the arbitrator’s award was too light. The wife’s submissions that the lump sum would have to be recalculated were made in that context of a request for a greater lump sum. But because the wife has now succeeded only in overturning one of several property awards, and she did not succeed in increasing the lump sum based on her argument for a later retirement age for the husband at age 70, the recalculation of the lump sum, if it is done, would result in a reduction because she will have more investment income from her increased asset base, and the husband will correspondingly have less investment income. So now, the wife has recast her earlier position. She says the lump sum should no longer change. The wife does not get to have it both ways.

[49] I would make somewhat similar findings even when it comes to the retirement age/duration issue. Although the Court did not discover the 65.5 versus 66.5 retirement age discrepancy until it was under reserve, I repeat again that the wife had already squarely put the arbitrator’s selection of the retirement age and thus duration and the amount of the lump sum in issue. At paragraph 29 of the Amended Amended Notice of Appeal, the wife alleged that the arbitrator erred in calculating the lump sum, based on the assumption that support would terminate when the husband reached age 65. Having determined, as it did in the Judgment dated September 3, 2021, that the arbitrator’s finding of a retirement age of 65.5 stands, it is open to the Court when recalculating the lump sum on the other basis to ensure that the arbitrator’s and this Court’s intention is given effect.

D. Whether This Court, Sitting As An Appellate Court, Had The Discretion To Raise New Issues

[50] Even if the Court’s Judgment dated September 3, 2021 raised “new issues” (which I do not find), an appellate court is not prohibited from raising “new issues” either, although the discretion to do so is more constrained.

[51] According to the test articulated by the Supreme Court in R. v. Mian, had the Court’s questions been “new issues”, I would have found “good reason to believe” that the result would realistically have differed had the error not been made, and this risk of injustice warranted this Court’s intervention. See R. v. Mian ¶ 44-45. Moreover, this Court followed the process set out in R. v. Mian. It gave the parties notice, provided the parties with enough information to allow them to respond, consulted with the parties about scheduling and about the process to receive additional submissions, and set a process for those submissions to be heard: see ¶ 53-59 of R. v. Mian; see also ¶ 322-328 of the Judgment dated September 3, 2021.

[52] Again, the Court was being asked by the wife to rectify numerous alleged errors of law and fact. Just as it would be wrong to let any of the arbitrator’s errors made against the wife’s interests stand, so too would it be wrong, in the process of fixing the errors, to turn around and make calculation errors against the husband.

[53] Finally, I do recognize that both sides have counsel. In specific regards to the retirement age/duration issue, the parties’ lawyers both understood that the arbitrator had selected a retirement age of 65.5 for the husband. However, the husband’s counsel did not realize that the arbitrator’s use of a duration of eight years in his DivorceMate calculation took the husband to age 66.5 until the Court noticed the discrepancy and pointed it out. Perhaps it could be said that the husband’s counsel ought to have noticed the discrepancy and raised it earlier.

[54] But neither did the wife’s counsel notice the issue. To the contrary, at several points during her submissions in May, 2021, the wife’s counsel talked about age 65. She argued that the arbitrator erred in selecting age 65 when she advocated for a later retirement age. Paragraphs 36 and 71 of the wife’s main Factum for the appeal state this, too. So does paragraph 29 of the Amended Amended Notice of Appeal. I have no doubt, that the wife’s counsel would not knowingly have prepared those earlier appeal materials and made those earlier submissions in that fashion, had she known of the discrepancy.

[55] This retirement age/duration issue is a tedious detail, but one that is impactful on the end result. The Court only discovered the issue when scrutinizing the record in light of the wife’s grounds of appeal on spousal support, in particular her argument for a later retirement age. The fact that neither counsel noticed it is an unusual circumstance that militates in favour of allowing the husband to claim relief, even though both sides were represented. Neither side should be allowed to take advantage of a discrepancy like this, if the Court finds that it departs from the arbitrator’s manifest intention that the Court upheld on appeal.

E. Prejudice/Unfairness

[56] I find no prejudice to either side by allowing the husband to claim relief without a cross-appeal, and/or as a result of the Court asking questions about these matters, either.

[57] In addition to the reasons already expressed, both sides were given very generous amounts of time to make submissions. This appeal was argued over two different days in May, 2021. Far more time was allocated than what counsel estimated they needed for argument. The Court then gave the parties the opportunity to file additional written submissions and additional time for argument on December 1, 2021.

[58] When this matter returned before me on December 1, 2021, the wife’s counsel complained that the husband’s counsel only told her the day before that he intended to claim relief and he delivered his written material just on the cusp of argument. This ought not have happened.

[59] This ought not have happened because when I released the Judgment dated September 3, 2021, I set a date in October for the parties to appear before the Court to sort out scheduling issues and for me to make provision for the filing of any further material for the additional submissions: see ¶ 337(d) and (e) of the Judgment dated September 3, 2021; see also the Endorsement dated October 21, 2021. However, counsel subsequently asked through the judicial assistant to extend the deadline for filing their additional material. They agreed to extend the time right up until the cusp of the December 1, 2021 hearing. They did that on consent. They both filed their written material through the judicial assistant just a day or two before the argument on December 1, 2021.

[60] If counsel was going to complain about late notice, then she ought not to have agreed to the further extension. By the same token, the husband’s counsel could have easily informed the wife’s counsel of the position earlier, even if the material had not yet been served and filed. Regardless, these changes to the timetable previously agreed to did not prejudice the wife’s counsel’s ability to be completely prepared. The wife’s counsel was unable to explain in any way how she would have prepared differently had the husband confirmed earlier that he would be making arguments about spousal support. She completely anticipated what the husband would argue, and had already prepared for that in her supplementary written materials. She also declined the Court’s offer of an adjournment. The wife’s counsel’s complaint may go to costs, but it is not an example of prejudice to the wife.

F. The Husband’s Failure to File a Notice of Motion for Leave to Claim Relief in the Absence of A Cross-Appeal

[61] The wife further says that the husband should not be given leave because he failed to serve and file a formal Notice of Motion for that. The purpose of a Notice of Motion is to give the other side notice and a fair opportunity to respond. Although he did not specify it in a formal Notice of Motion, the husband did put his position about the spousal support issues in writing, in his further submissions, albeit very late in the day.

[62] In many cases what the husband did would have been more problematic. While it would have been better practice to serve a Notice of Motion earlier, in this case the wife’s argument is one of form over substance. Importantly as I have just said, the wife’s counsel had a fair opportunity to be prepared and she was prepared despite the failure to serve a Notice of Motion.

G. The Husband’s Failure to Bring the Retirement Date/Duration Issue Back to the Arbitrator

[63] Section 44(1) of the Arbitration Act, 1991 provides that an arbitral tribunal may, on its own initiative within thirty days after making an award or at a party’s request made within thirty days after receiving the award, (a) correct typographical errors, errors of calculation and similar errors in the award; or (b) amend the award so as to correct an injustice caused by an oversight on the part of the arbitral tribunal. The scope of the section captures all of the circumstances in which an award fails to give effect to the tribunal’s expressed intention. See 1210558 Ontario Inc. v. 1464255 Ontario Ltd., 2011 ONSC 5810 ¶ 40. Correcting a mathematical error falls within the ambit of this section.

[64] The wife points to the fact that that the husband could have but did not bring the retirement age/duration issue back to the arbitrator under section 44(1). The wife argued that the husband was required to exhaust the statutory remedies available to him before raising the issue on appeal. She also argued that the procedure by which one must seek a correction could include a choice to return to the arbitrator, or to claim relief on appeal. Regardless, the wife said that the Court should not give him any relief either way.

[65] I decline to give effect to these arguments either, in the circumstances of this case.

[66] There is a dearth of case law that considers the interrelation between the rights under section 44(1) and the right to appeal. I have found only three cases of any potential relevance that mention the use of or the failure to use section 44(1), in the context of a subsequent court application or appeal.

[67] In Myers v. Vickar, 2012 ONSC 5004, Mesbur J. noted that the respondent asked an arbitrator to correct certain matters relying on section 44(1). While the arbitrator corrected some typographical errors, he declined to revisit the substance of the decision. The respondent then appealed. See ¶ 46, 47. Mesbur J.’s decision merely describes these steps taken prior to appealing; she did not say that returning to the arbitrator is a mandatory first step.

[68] In Freedman v. Freedman Holdings Inc., 2020 ONSC 2692, Kane J. considered a number of claims and cross-claims arising out of an arbitration. The case before Kane J. involved a request to set aside an award under section 46 of the Arbitration Act, not an appeal under section 45. Fairness arguments under section 19 were also raised.

[69] The argument that the applicant ought to have returned to the arbitrator on certain points was considered in relation to his claim that he had been treated unfairly by the arbitrator under section 19 of the Arbitration Act, 1991. At ¶ 188-191, the Court noted that the arbitrator had given the applicant an opportunity to address the matter before him under section 44(1), but the applicant chose not to avail himself of it. The Court found that undermined his section 19 argument. However, Kane J. did not specifically deny the application based on the failure to return to the arbitrator.

[70] In Thompson v. Thiessen, the applicant moved for summary judgment in accordance with the terms of an arbitration award. The respondent resisted part of the motion, taking issue with only one paragraph that would have regulated how future arbitrations in the case would proceed. He claimed that the arbitrator’s reasons stated that the parties had agreed to the inclusion of this particular term, but in reality he did not agree. He also argued the term was fundamentally unfair.

[71] Mackinnon J. held that the proper procedure was to request a correction under section 44 rather than attacking the term in argument on the summary judgment motion. If the arbitrator then responded that the inclusion of the term was not an error, the respondent could then challenge the term in court.

[72] However, in that case, the parties had chosen to arbitrate without a record being kept by the arbitrator. They also expressly waived rights of appeal. The Court found that it would have been dangerous to weigh in on the issue in the circumstances. See ¶ 1-5.

[73] In the result, these decisions do not really assist in the decision I must make. None of these decisions conclusively prohibit a person from ever seeking relief in court without first claiming a remedy before the arbitrator under section 44(1). None of these decisions are factually on point either. This case before me is not one where the arbitrator offered the husband an opportunity to return but he chose not to. Nor is this a case wherein the record before the arbitrator is non-existent and the parties waived appeal rights.

[74] That said, there appears to be some additional guidance in the case law that interprets the comparable rules of practice. There are “mistake” rules in the Family Law Rules and the Rules of Civil Procedure. Rule 25(19)(b) of the Family Law Rules provides that the court may, on motion, change an order that contains a mistake. Rule 59.06(1) of the Rules of Civil Procedure provides that an order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. Like section 44(1), these rules are not designed to address mistakes that are errors in law, which properly form the subject matter of an appeal: see Abitbol v. Abitbol, 2017 ONSC 571 ¶ 24-30; see also Gray v. Rizzi, 2011 ONCA 436 ¶ 5.

[75] I have considered five additional cases interpreting these rules, or related subrules.

[76] In Alaychec v. Alaychec, 2021 ONSC 1251 (Div. Ct.), the Divisional Court adjourned a motion for leave to appeal finding the motion was premature, because a separate motion to correct an order under rule 25(19)(b) had also been brought, but had not yet been argued. However, the decision does not specifically say that the appellate court is never without jurisdiction under the circumstances.

[77] Perhaps by contrast, Ketelaars v. Ketelaars, 2011 ONCA 349 concerned an appeal of an order made following an uncontested trial. The appellant had not appealed an earlier order striking out a statement of defence for failure to comply with various disclosure obligations either. The Ontario Court of Appeal quashed the appeal, because the appellant had not first moved before the Superior Court to set aside. [^1] At ¶ 5 the Court held that the appellant had to exhaust his remedies in the court of first instance before taking an appeal.

[78] But then in Holman v. Holman, 2015 ONCA 552, the Ontario Court of Appeal relaxed that stance somewhat. After first saying that a request to correct a mistake ought to have been made in the Court below, the Court entertained the argument anyway because the appeal was otherwise properly before it, and there was no objection to it addressing the issue.

[79] And sometimes it will not be appropriate for the initial court to amend its reasons when asked, for example, where there is an appeal already pending. In Hamilton-Wentworth District School Board v. Fair, 2015 ONSC 220 (Div.Ct.) ¶ 7 the Court said just that, holding that it would be unseemly if the Court corrected clerical errors when there was a pending appeal. The Court left it to the Ontario Court of Appeal to determine whether such errors were made and what the consequences would be.

[80] Finally, the Ontario Court of Appeal also left open the door for some discretion in Gray v. Gray, 2017 ONCA 100. That case also involved a request to set aside an order as opposed to correcting one. At ¶ 33, the Court held that the proper route was to bring a motion in the court of first instance. In so doing, the Court wrote, “[w]hile this court retains jurisdiction to hear any appeal of a final order, rule 25(19) provides a more effective way to correct orders within its ambit”.

[81] The more recent cases from the Ontario Court of Appeal say there is some discretion, perhaps a narrow discretion, in the appellate court to entertain a request on appeal even where there was another option in the court below. By analogy, I would extend that interpretation to arbitrations and to the operation of section 44(1). While I conclude that where section 44(1) is an available remedy one should normally seek relief before the arbitrator before taking an appeal, I find that there is still discretion in the appellate court to entertain the request. In deciding whether to exercise discretion in this case, I take into account:

(a) the policy rationale behind holding the parties who have agreed to an alternative dispute resolution process like a family arbitration to that process; (b) the reasons for failing to pursue the remedy under section 44(1), such as because the error was not discovered before the expiry of the timeline in the section; [^2] (c) the reasons for not discovering the error; (d) the positions of the parties; (e) any prejudice to parties; (f) whether there is already an appeal pending; (g) whether the matter sought to be corrected otherwise forms part of the larger subject matter of the appeal or is interrelated with it; and (h) whether the matter sought to be corrected may also be dually characterized as an error that properly forms part of the subject matter of the appeal.

H. The Husband’s Failure to Provide Case Law for The December 1, 2021 Hearing

[82] The wife’s counsel also argued that the husband’s counsel failed to file case law contrary to the Court’s direction in the Judgment dated September 3, 2021. There is very little merit to this argument, once again because the wife did not suffer any prejudice here either.

[83] Yes, the Court requested case law in its Judgment dated September 3, 2021, and no, the husband’s counsel did not provide any. But the husband did not make any legal arguments that did not arise naturally out of what he had put in his supplementary written material, or which went beyond addressing what the wife anticipated and addressed in her own submissions.

[84] Nor for that matter did the wife provide case law on every point that she argued. She did not provide any law about the test for leave to claim relief in the absence of a cross-appeal. She did not provide law about the Court’s authority to ask questions during an appeal, even though that formed part of her objection. She did not provide any law (in advance) respecting her argument that the husband ought to have returned to the arbitrator to seek a correction of the retirement/duration calculation issue under section 44(1) either. Co-counsel provided some citations for cases decided under rule 25(19) during argument on December 1, 2021, but only in response to questions from the Court.

[85] The Court asked for case law in its Judgment dated September 3, 2021 because it anticipated requiring some assistance on the outstanding issues. Unfortunately, this Court is not always given law and that happened in this case. It would be preferable if that were otherwise, especially when very specific legal arguments are being pursued. But the Court is also presumed to know the law.

I. Conclusions About the Wife’s Various Arguments/Objections

[86] The wife’s submissions on all of these points were overly formulaic and technical. This Court finds that it should not, having allowed part of the wife’s appeal of the property awards, which is very much intertwined with the lump sum spousal support award that she also appealed, then perpetuate a calculation error that flows from the overturning of the property award. This Court finds that it should also not refuse to consider whether the retirement age/duration issue is an error to be fixed.

[87] The Court reaches these conclusions, particularly after employing a process for further submissions that was fair to both sides, and which did not prejudice either side in any way.

[88] In rejecting the wife’s specific argument that the husband should not be given relief because he did not return to the retirement age/duration issue to the arbitrator, such an argument may very well have merit in other cases. But not here.

[89] On the one hand, courts encourage parties to attempt to resolve issues cooperatively and using a resolution method that is most appropriate to their family: see Petersoo v. Petersoo, 2019 ONCA 624 ¶ 35. In this case, the parties chose arbitration. That militates in favour of holding the parties to their remedies under the Arbitration Act, 1991 before seeking relief in this Court.

[90] However, as I have already said, the retirement age/duration issue was a minute detail that was not easily noticeable. It was only discovered well after the 30 day time period in section 44(1) passed. This appeal was properly brought before this Court and the issue is subsumed within the wife’s own ground of appeal on the retirement issue.

[91] I have already dealt with notions of prejudice. The absence of prejudice to the wife militates in favour of the Court exercising its discretion to consider the retirement age/duration issue on appeal.

[92] Finally, the point at which a potential calculation error also amounts to a misapprehension of the evidence that is properly part of an appeal can become blurred. Without deciding the retirement age/duration issue on this basis, the retirement age/duration issue might also be said to be the arbitrator misapprehending the evidence. It could be argued that the arbitrator misapprehended the number of years to which the husband would reach age 65.5 and retire. An error based on a misapprehension of the evidence is properly corrected by an appellate court.

J. Analysis Respecting Whether the Wife Even Had An Asset Base of $1,500,000.00 To Begin With

[93] The wife’s initial challenge in May, 2021 to the arbitrator’s finding that she didn’t even have $1,500,000.00 to begin with was in support of her request for a greater lump sum. By the time of the December 1, 2021 hearing, the Court had rejected her request for a greater lump sum in the Judgment dated September 3, 2021. Now, the wife abandoned this argument, at least directly. But in reality she still was challenging the finding indirectly.

[94] The wife now argues that even if it were appropriate to reduce the lump sum as a result of the new equalization payment and the corresponding changes to the parties’ asset bases, the amount of the lump sum should still not change. That is because according to her, she only had $1,200,000.00 to invest in the first place, not $1,500,000.00. The wife says that even after this Court’s order changing the equalization payment, she will end up having an asset base back in the neighbourhood of $1,500,000.00.

[95] And while the husband’s asset base would correspondingly decrease thereby reducing his investment income and consequently the lump sum, the husband has not actually paid the lump sum yet nor have the parties implemented the property awards. The wife says the husband owes her post-judgment interest on the lump sum spousal support award. She says that outstanding post-judgment interest to which she is entitled offsets any reduction to the lump sum that might otherwise be calculated on the revised numbers.

[96] At first blush, the arbitrator’s reasons are sparse as to the basis upon which he found that the wife would have an asset base of $1,500,000.00. Without explaining why, at ¶ 338 of the First Award dated February 12, 2019 the arbitrator concluded that once the wife pays the equalization payment, buys out the husband’s interest in the matrimonial home and the numbered company that holds the beach lots, her liquid assets for investment would be approximately $1,500,000.00.

[97] The wife says it appears that the arbitrator used her assets on the date of separation to arrive at this $1,500,000.00 figure, not her assets at the date of the arbitration. She points the Court to the arbitrator’s net family property statement that is attached as a schedule to the First Award dated February 19, 2021. She says that he failed to appreciate that her assets decreased since separation, in part because she was not receiving spousal support and she had to deplete capital.

[98] The wife is correct in submitting that is what the arbitrator did. This can be seen on the net family property statement that the arbitrator prepared as part of the First Award dated February 12, 2019. The amounts that the wife had at the date of separation in bank accounts and savings on Part C of that net family property statement add up to $2,332,069.66. After deducting the equalization payment that he determined the wife owed of $174,813.25, the amount for the wife to purchase the husband’s interest in the matrimonial home of $416,250.00, [^3] and the amount for the wife to purchase the shares of the numbered company of $150,000.00, [^4] the wife had $1,591,006.41. When her RRSPs of $71,585.00 and $11,850.52 are removed (as the arbitrator said he intended to use “liquid assets”), the number drops to $1,507, 570.89 ie. approximately $1,500,000.00.

[99] However, the wife also had certain debts at the date of separation that the arbitrator deducted on the net family property statement. These included the wife’s share of the joint line of credit of $33,918.00 attached to the matrimonial home that he said she would have to pay, her personal line of credit debt of $4,540.88 and the balance owing on her Visa of $4,192.91. Had those been taken into account, the $1,500,000.00 number would have been less.

[100] The parties agree that the arbitrator failed to deduct the $55,000.00 amount that the wife had to pay the husband for his share of the $110,000.00 cheque that she retained. He also appears to have omitted the that the husband owed the wife $6,762.34 for post-separation adjustments: see ¶ 289 of the First Award dated February 12, 2019. [^5]

[101] When these further adjustments are factored into the equation, all of which are based on the arbitrator’s findings and conclusions, the value of her liquid assets at the date of separation drops to $1,416,681.44.

[102] Therefore, I agree with the wife that the arbitrator used the date of separation values. I also find that even using those date of separation numbers, she did not have $1,500,000.00. The arbitrator calculations were off by almost $85,000.00 at the date of separation. Assuming for a moment that it was correct to use the date of separation numbers to impute investment income, he misapprehended the evidence about what she would have left to invest.

[103] The larger issue raised by the wife is that the arbitrator ought to have used the values as at the date of the arbitration. I considered the merits of this argument in light of the fact that the ultimate lump sum that the arbitrator calculated was intended to compensate the wife for past periods back to the date of separation, and for periods of time into the future. Since the arbitrator determined the parties’ incomes for just one year, but explained why he would use that income determination to more globally to calculate the lump sum over several years (rather than doing a yearly income determination for the parties - see ¶ 362 of the First Award dated February 12, 2019), I considered whether using her asset base at the time of the separation was an option available to him to determine the incomes.

[104] However, in the end I do find an error here. I do so based on what the arbitrator himself said he intended to do. At ¶ 338 of the First Award dated February 12, 2019 the arbitrator wrote about the wife’s current financial situation, after the payment of the various awards at the arbitration. The arbitrator then said he would take a consistent approach for the husband and the award in that respect is similarly worded: see the wording ¶ 345 of the First Award dated February 12, 2019. In other words, he was writing about their current assets available for investment. All of the other components of his income determination were based on the present, too.

[105] Having chosen to approach the determination of their incomes in this way, it was incumbent on the arbitrator to then use all of the current numbers to accorded with the very methodology that he selected.

K. What Were the Wife’s Liquid Assets At the Date of the Arbitration, Adjusted for the Arbitrator’s Awards?

[106] The wife’s financial statement sworn November 16, 2018 was Exhibit 11 at the arbitration. Her liquid assets at that time were $2,130,537.72. The wife still owed $33,914.29 on the joint line of credit. By the time of the arbitration, she had other line of credit and VISA debts of $16,291.53 and $17,389.29. Deducting those, the number drops to $2,062,942.61.

[107] When the other payments that she owed to the husband per the award of $174,813.25 for the equalization payment, $416,250.00 for the matrimonial home, $150,000.00 for the numbered company and half of the cheque or $55,000.00 are deducted, but the post-separation adjustments of $6,762.34 are added back, the number becomes $1,341,236.81.

[108] That is still not $1,200,000.00 as the wife submitted during the appeal.

[109] The wife’s submission that she only had $1,200,000.00 stems from the fact that she would have the Court allow her a deduction of $120,000.00 for cottage repairs. But the arbitrator did not make an allowance for this, impliedly if not expressly: see ¶ 292-297 of the First Award dated February 12, 2019. I have already disposed of the wife’s property appeal in the Judgment dated September 3, 2021. There is no basis for the wife to essentially reargue the cottage repairs issue now, just because the asset base comes up in the lump sum spousal support calculation.

[110] I find the wife’s asset base was $1,341,236.81 after making allowances for the payments required by the arbitrator’s awards. I do not take into account the alleged debt of $120,000.00 for cottage repairs.

L. What Were The Husband’s Liquid Assets At the Date of the Arbitration, After Adjustment For The Payments In The Award

[111] Neither side argued that the arbitrator erred in determining the husband would have $750,000.00 to invest after payment of the property awards. As such, I am not disturbing the $750,000.00 amount as a starting point except in one instance. Both counsel agreed that the arbitrator did not take into account the fact that his award required the wife to pay $55,000.00 to the husband. As I have already found, the arbitrator did not adjust for the joint line of credit or the post-separation adjustments either. As I have made these adjustments to the wife’s asset base, they must also be made to the husband’s asset base too for there to be consistent treatment. Therefore, I find that the husband’s assets for investment were actually $764,323.37 (ie. $750,000.00 + $55,000.00 for the cheque, less his share of the joint line of $33,914.29 and less $6,762.34 that he owed for post-separation adjustments).

M. The Change to the Equalization Payment As A Result of the Judgment dated September 3, 2021

[112] The final adjustment to be made flows from the order for the equalization payment in the Judgment dated September 3, 2021. The wife will no longer pay to the husband an equalization payment of $174,813.25. She will instead receive an equalization payment from him of $217,055.91. This is a $391,869.16 swing in her favour. As such, her assets available to invest become $1,733,105.97 (ie. $1,341,236.81 + $391,869.16). Conversely the husband’s asset base decreases by a corresponding amount of $391,869.16, to $372,454.21 (ie. $764,323.37 - $391,869.16).

N. The Recalculation of the Parties’ Investment Income

[113] Using these figures and the 3% selected by the arbitrator, the wife’s income from investment increases from $45,000.00 as the arbitrator determined at ¶ 338 of the First Award dated February 12, 2019, to $51,993.18. The husband’s decreases from $22,500.00 as the arbitrator determined at ¶ 345 of the First Award dated February 12, 2019 to $11,173.63.

O. Conclusions Respecting the Retirement Age/Duration Issue

[114] That leaves the retirement age/duration issue before recalculating the lump sum. When the appeal was argued in May, 2021, the wife repeatedly said in oral submissions and in her documentary material that the arbitrator selected a retirement age of 65. By the time this matter returned before the Court on December 1, 2021, the wife now argued that the arbitrator did not err in calculating the lump sum based on eight years, to an age of 66.5.

[115] I find the arbitrator made a calculation error by inputting the wrong duration into DivorceMate. The arbitrator’s decision was based on a particular retirement age, not on any particular duration. The arbitrator intended the number of years from the date of separation to be a function of the retirement age for the husband that he determined. The reasons, read in the context of the evidentiary record and the submissions as a whole, reveal that the arbitrator’s finding of a retirement age of 65.5 was intended to drive the result.

[116] For example, at ¶ 351 of the First Award dated February 12, 2019, the arbitrator noted that the husband argued he intended to retire at age 65. At ¶ 352, the arbitrator noted that the wife argued for a retirement age of approximately 70. At ¶ 354, the arbitrator found that it would not be unreasonable for the husband to expect to retire at “around the age of 65”. In fact, at ¶ 355, he found that both parties should be able to retire at around the husband being age 65. He then went on to say that “doing the calculation for the purposes of determining a lump sum based on a support duration of eight years from the date of separation which would make David 65.5 years of age and Janet two years younger is reasonable”. This statement contained a miscalculation of the number of years to get to that point. At ¶ 361(c) of the First Award dated February 12, 2019, the arbitrator repeated the husband’s evidence about retiring at age 65. For some reason, he then referred to the anticipated date of retirement was “seven to eight years from the date of separation.” He did not pay sufficient attention to detail when talking about the number of years.

[117] For the numerous reasons expressed in the Judgment dated September 3, 2021, the Court already found the arbitrator did not err on the applicable standard of review respecting the principles he applied to determine the lump sum including the selection of the retirement age. However, that does not mean that mathematical errors should not now be corrected to give effect to his intention.

P. The Quantum of the Lump Sum Before Crediting the Husband for the Interim Support He Paid

[118] The arbitrator otherwise based the lump sum on the high end of the range of the Spousal Support Advisory Guidelines. He used the periodic sum of $5,270.00 per month to then calculate the lump sum: see ¶ 362 of the First Award dated February 12, 2019 and the arbitrator’s DivorceMate calculation. For the numerous reasons expressed in the Judgment dated September 3, 2021, the Court already found the arbitrator did not err in principle respecting this aspect of lump sum spousal support. Therefore, using the exact same approach but adjusting the incomes to accurately reflect the parties’ investment incomes, the monthly number drops from $5,270.00 to $4,704.00 per month.

[119] The arbitrator used the mid-point of the after-tax costs and benefits of this support on DivorceMate to calculate the lump sum. He applied a discount rate of 0.75% to the lump sum: [^6] see also ¶ 362 of the First Award dated February 12, 2019 and the arbitrator’s DivorceMate calculation. Once more, as the Court did not find this approach to be erroneous, I will the same methodology.

[120] Using all of these inputs (other than the new investment incomes and changing the duration to 7 years), the lump sum becomes $213,888.00. See the DivorceMate Calculation Attached as Schedule “A” to this Supplementary Judgment.

Q. The Arbitrator’s Credits for the Interim Support the Husband Paid

[121] The arbitrator gave the husband a credit of $47,277.00 for amounts previously paid. See ¶ 304, 305 357, 358, 361(d) and 362 of the First Award dated February 12, 2019. See also ¶ 300 and 301 of the Judgment dated September 3, 2021. That is because the husband had previously paid some periodic support in the amount of $4,500.00 for a number of months, pursuant to an interim separation agreement and then an interim award.

[122] The arbitrator used Divorcemate to calculate the net amount of the husband’s past payments and therefore the credit. Since the lump sum is paid net of tax, the arbitrator calculated the after-tax benefit of the $4,500.00 payments to the wife to be $2,781.00 monthly. As a result of the changes to the income numbers, the new net benefit to the wife drops by just under $100.00 per month, to $2,692.00: see again Schedule “A” to this Supplementary Judgment.

[123] The arbitrator found that as the husband had made 17 periodic payments to the wife, the credit is $47,277.00 (ie. $2,781.00 x 17 = $47,277.00). Regrettably, the arbitrator miscounted the number of months of interim payments, too. Based on his findings, the husband only made 16 periodic payments to the wife, not 17.

[124] I did not notice this additional discrepancy while initially under reserve or when I prepared the Judgment dated September 3, 2021. Once again, it was not brought to my attention on December 1, 2021 either. I only discovered this additional counting error while under reserve for the second time, when I embarked upon preparing the new calculations and recalculating the credits.

[125] I already found there was no error in principle in the arbitrator’s approach to this aspect of the calculation. But this additional calculation error is of the very same ilk as the calculation error pertaining to the retirement age/duration issue. I am not inclined to repeat the entire process of giving more notice to the parties about this and inviting more submissions. It is also relatively de minimus. I will just fix the error. The credit will be for 16 months, not 17.

[126] Therefore, there should be a downward adjustment to the credit to be applied. This operates in the wife’s favour. The new credit will instead be $43,072.00 (ie. $2,688 x 16 months).

R. The Quantum of the Lump Sum

[127] After applying the adjusted credit to the recalculated lump sum, the end result is $170,816.00.

S. The Wife’s Post-Judgment Interest Argument

[128] Although the wife argued against any adjustment to the lump sum in part because she has not been paid post-judgment interest, at the outset of submissions on December 1, 2021, both counsel agreed that post-judgment interest should be paid from the dates of the awards and both asked the Court to alter the standard post-judgment interest clause that normally goes into an order. They also asked me to do so because in the Judgment dated September 3, 2021 I otherwise ordered the parties to file a draft Order incorporating all the awards so that this case could be finalized quickly upon the release of this Judgment.

[129] The parties’ request that I adjust the usual post-judgment interest clause is on consent. There is jurisdiction to make such an order pursuant to sections 129(1) and 130 of the Courts of Justice Act, or section 57 of the Arbitration Act, 1991.

[130] I had a discussion with counsel during submissions about the appropriate language to use in the Order, to which counsel agreed. Counsel submitted that interest should run from the dates of the various awards. However, I now note that the arbitrator’s property awards were intended to have immediate effect, whereas he gave the husband 60 days to pay the lump sum spousal support award. I will make that further amendment to the language to take that 60-day period into account.

[131] Therefore, having now addressed post-judgment interest on consent, there is no merit to wife’s argument that she did not receive post-judgment interest and that the lump sum should not be recalculated on this basis. She will in fact receive what she is entitled to by way of post-judgment interest. She will also owe post-judgment interest to the husband on the amounts that are due to him from her.

[132] That leaves the issues about costs of the arbitration and costs of the appeal.

Part IV: Issues and Analysis About Costs

A. Whether Leave to Appeal Costs of the Arbitration Is Required

[133] In their arbitration agreement, the parties conferred upon the arbitrator the power to determine costs. Section 54 of the Arbitration Act, 1991 also empowers the arbitrator to award costs.

[134] Where an appeal is only as to costs that are in the discretion of the court that made the order, leave to appeal is required: see section 133(b) of the Courts of Justice Act. Section 133(b) also applies to an appeal taken from a family arbitration award. Leave will only be granted in obvious cases where the discretion to award costs was exercised based on a wrong principle, a misapprehension of significant facts, or in a non-judicial fashion. A clear error of law in assessing costs may be sufficient to meet the test. See Flowers v. Eickmeier, 2017 ONSC 3376 ¶ 14, 16.

[135] However, at ¶ 4 of St. Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9, the Ontario Court of Appeal held that costs generally follow the event where the appellants were successful on the appeal and thus on the lower court matter. It held that where the substantive disposition is different from that of the decision under appeal, leave to appeal costs is not necessary: see also Climans v. Latner, 2020 ONCA 554 ¶ 83-85.

[136] I agree with the wife that leave is not required in this case. I do not agree that just because the wife enjoyed some success on this appeal that she is entitled to costs of the arbitration. There is discretion to order otherwise in appropriate cases: see Hunt v. TD Securities Inc. ¶ 188. The wife did not enjoy complete success on this appeal. Most of the arbitrator’s awards are still standing. An assessment of the merits of the wife’s appeal of costs of the arbitration must be undertaken: see Climans v. Latner ¶ 85.

B. The Parties’ Positions to the Arbitrator About Costs of the Arbitration

[137] In their written costs submissions to the arbitrator, both sides claimed to be the successful party and both sides accused the other of unreasonable behaviour. The parties’ respective allegations that the other behaved unreasonably were based on behaviour that each said the other had engaged in, in the litigation, and on the other’s Offer to Settle.

[138] It not disputed that neither party achieved a result that as favourable or more favourable than his and her Offer to Settle before the arbitrator. The costs consequences of rule 18(14) of the Family Law Rules do not apply. Yet both sides still asked the arbitrator to assess success with reference to the Offers. In the wife’s case, she separately asked the arbitrator to assess success by comparing the result awarded to the positions.

[139] Unfortunately, the submissions generally blended the two concepts of success and reasonableness, an approach the arbitrator then adopted in his analysis. In argument on December 1, 2021, the husband’s counsel now agrees that success should be assessed with reference to the positions, although he did not concede that the arbitrator did not do that.

C. Applicable Legal Principles Concerning Costs

[140] In the Costs Award dated July 28, 2019, the arbitrator did cite the applicable costs rules and a number of costs decisions dealing with various issues like entitlement, success, Offers to Settle, reasonableness and the quantification of costs. To consider whether he erred though, it is necessary as a starting point to set out the purposes and framework of Rule 24 of the Family Law Rules, which governs costs.

[141] The exercise of discretion to order costs in family law is guided by Rule 24 of the Family Law Rules. It is well established that modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly. See Mattina v. Mattina, 2018 ONCA 867 ¶ 10.

[142] A very important factor in the determination of costs is success. Rule 24(1) provides a presumption that a successful party is entitled to costs.

[143] If success is divided, the Court may apportion costs under rule 24(6).

D. The Correct Approach to the Assessment of Success under Rules 24(1) or 24(6)

[144] The assessment of success is contextual, which the arbitrator recognized: see ¶ 43 of the Costs Award dated July, 28, 2019. As the arbitrator also recognized, the determination of whether success was truly divided does not simply involve adding up the number of issues and running a mathematic tally of which party won more of them: see Thompson v. Drummond, 2018 ONSC 4762 ¶ 12.

[145] Divided success does not necessarily mean equal success. Having some success on some issues may or may not be enough to impact costs. Most family cases involve multiple issues. Not all issues are equally important, equally time-consuming or equally expensive to determine. The assessment involves a comparative exercise. See Jackson v. Mayerle, 2016 ONSC 1556 ¶ 66.

[146] However, the arbitrator used the parties Offers to measure the parties’ successes. At ¶ 31 of the Costs Award dated July 28, 2021, the arbitrator found that “offers to settle are a useful yardstick and success does not simply mean that a party has managed to obtain an order for some relief”. See also see ¶ 32 and 40.

[147] Now at ¶ 7-11 of Lawson v. Lawson, the Court did find that Offers may be used in the assessment of success. The Court held that simply because an order is made on an issue that appears to be in favor of a party is not tantamount to success; to determine success one must take into account how that order compares to any settlement offers made.

[148] But that approach has been distinguished subsequently.

[149] Beginning at ¶ 59 of Spadacini-Kelava v. Kelava, 2021 ONSC 2490, Kurz J. distinguished Lawson v. Lawson, as well as another decision, Osmar v. Osmar, both of which used Offers to assess success (see also De Santis v. Hood, 2021 ONSC 5946, another decision of Kurz J. on this point). In both of his cases, Kurz J. observed that the Courts in Jackson v. Mayerle and Thompson v. Drummond considered Offers to Settle separately from the assessment of success. Kurz J. then cited the decision of McGee J. in Lazare v. Heitner, 2018 ONSC 4861, wherein she held that the assessment of success should be made with reference to what was sought in the litigation, not the Offers. McGee J. did so to give effect to the purposes of a costs award. Kurz J. looked at the structure of the Rule 24 itself. He found McGee J.’s approach to be more in keeping with the structure of the rule.

[150] At ¶ 69 of Spadacini-Kelava v. Kelava, Kurz J. found that offers are imported into Rule 24 only in regard to reasonableness and/or proportionality, not success. He also observed that sometimes litigants do not even make offers. While an Offer may signal reasonable or unreasonable behaviour, the requirement to make an offer is not mandatory. See ¶ 71.

[151] In his legal analysis in the Costs Award dated July 28, 2019, the arbitrator mentioned both Thompson v. Drummond and Osmar v. Osmar for different purposes. He relied on Thompson v. Drummond for its extensive statements of the law of costs, and later for the principle stated therein that the assessment of success is contextual. He relied on the ratio of Osmar v. Osmar respecting the use of Offers to measure success. He did not aver to, or reconcile the different approaches in these two cases though, as to how they used Offers in the assessment of success.

[152] I agree with, adopt and will follow Kurz J.’s analysis respecting the assessment of success. I find that Offers are to be used for other purposes, but not success. I therefore find that the arbitrator erred in principle, in his approach to the assessment of success. His assessment of success was also blended together with findings of reasonableness and unreasonableness.

E. Findings Respecting Success

[153] Indeed, in the Costs Award dated July 28, 2019, the arbitrator actually embarked on an analysis of both success and reasonableness together at ¶ 48-63. That part of his decision has a heading entitled “Decision on Success and Reasonableness”. While the arbitrator discussed the positions taken in general when assessing reasonableness or unreasonableness, there is very little if any comparison of the positions taken to the outcome when discussing success; as I said, he made the assessment via a comparison to the Offers.

[154] At ¶ 40 and 63 of the Costs Award dated July 28, 2019, the arbitrator found that there was divided success at best, but ultimately the husband was the overall successful party. However, a comparison of the positions taken at the arbitration to the result awarded, and now modified by this Court’s Judgment dated September 3, 2021 (which increases the wife’s success and reduces the husbands) reveals otherwise.

[155] In particular:

(a) The wife succeeded in resisting the husband’s claim that the cottage was a matrimonial home and therefore in excluding its value from her net family property; (b) She succeeded in resisting the husband’s claim for a trust interest in the cottage, and therefore in retaining sole ownership of it; (c) Now as a result of this appeal, she succeeded in obtaining a significant exclusion from her net family property pertaining to certain investments that she held at the date of separation; (d) She therefore succeeded in obtaining an equalization payment as a result; (e) She succeeded in her claim that the husband must pay her some post-separation adjustments, although not all of the amounts claimed. Where she lacked success in this area however, she achieved success in the lump sum. The lump sum included a retroactive component in part because of the wife’s post-separation claims; (f) She succeeded in resisting some, but not all of the amounts of income that the husband sought to impute to her; (g) She succeeded in resisting the argument that the parties’ adult daughter ought to have been paying rent to her and that ought to form part of her income; and (h) She succeeded in obtaining the lump sum, calculated at the high end of the SSAGs, and which included retroactive support (although not the full amount claimed because of the outcome on the retirement date (ie. again the arbitrator selected 65.5 and not 70)).

[156] By contrast, the wife lacked success in the following areas:

(a) She failed in her claim for sole ownership of the shares in the numbered company that holds the beach lots; (b) She failed in her claim respecting ownership of the $110,000.00 cheque; (c) She failed in her claim for an unequal division of net family property; (d) She failed in her claim to buy out the husband from the matrimonial home using a date of separation value as opposed to a date of arbitration value; (e) She failed in her claim that notional disposition costs would be deducted; (f) She failed in her claim that the husband should be entirely responsible for the joint line of credit secured against title to the home; (g) She failed in her claim that the husband owned property in Florida and that income should be imputed to him on this basis; (h) She failed in her claim that the husband had an undisclosed RRSP; and (i) She failed in her claim for adjustments for repairs to the cottage.

[157] The husband had corresponding successes and losses on these issues.

[158] The arbitrator found that the property issues consumed most of the time at the hearing. Not only are the number of successes and losses roughly equal, but looking at the extent to which the parties enjoyed success on the time-consuming property issues contextually as I am required to do, I am left with the conclusion that this was more of a case of divided success than the arbitrator found.

[159] As listed above, there was the wife’s claim for exclusions. That required a tedious and detailed tracing exercise, and now in the result of this appeal, the wife has been completely successful. Related to that, there was also the calculation of the equalization payment. There were the issues about whether the cottage was a matrimonial home and about whether the husband had a trust claim over it. The wife was successful respecting these four significant items.

[160] By contrast, also significant and time consuming were the wife’s various claims to sole ownership of the $110,000.00 cheque and the beach lots. Those claims required much evidence and then submissions about hearsay. She also pursued an unsuccessful claim that the husband owned property in Florida, which the arbitrator pointed out was devoid of merit. She pursued a claim to use the date of separation value for the matrimonial home. Related to that and several of her other positions on the property issues, the wife spent some time pursuing her claim for an unequal division of net family property. The husband enjoyed successes here.

[161] But the arbitration did not just involve property. Although the arbitrator was disinclined to credit either side with success on the lump sum for various reasons, he ultimately concluded that success was divided here: see ¶ 49 and 62 of the Costs Award dated July 28, 2019. I too would have found this, but differently by comparing the positions taken to the result. [^7]

[162] Still, it is inaccurate to say that time was not taken up to determine spousal support. There were a number of questions in issue before the arbitrator about the determination of the parties’ incomes and the retirement age. I will have more to say about spousal support below, when it comes to the assessment of reasonableness or unreasonableness.

[163] In the end, I disagree that one person was more successful than the other, overall. When comparing the positions taken to the result, I would find this substantially to be a case of divided success. That is especially so when the result of the appeal is taken into account. It alters the assessment of success at the arbitration.

F. Reasonableness or Unreasonableness

[164] One’s entitlement to costs is subject to modification based on behaviour, according to rules 24(4), (5) and (8). The wife sought a finding from the arbitrator pursuant to rule 24(8) the husband behaved in bad faith. The arbitrator did not find this. Nor was a bad faith argument pursued on appeal. However, arguments about reasonableness or unreasonableness were pursued, both before the arbitrator and in this Court.

[165] Rule 24(4) says that despite rule 24(1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. Rule 24(5) directs the Court in deciding whether a party has behaved reasonably or unreasonably to examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle, the reasonableness of any offer the party made, and any offer the party withdrew or failed to accept.

[166] The arbitrator made a number of findings about the wife’s behaviour. He found she was “convinced of the righteousness of her position”, that “her behaviour throughout the arbitration hearing clearly demonstrated she was unwilling or incapable of accepting any advice from her counsel that did not support her beliefs”, and that she behaved badly during the hearing that delayed the proceeding: see ¶ 52-58 of the Costs Award dated July 28, 2019. Other than perhaps the arbitrator’s finding that the wife’s behaviour demonstrated she was unwilling or incapable of accepting legal advice (since the legal advice she received would have been the domain of solicitor-client privilege, something the arbitrator would not be privy to), the arbitrator was entitled to make these findings. He was particularly entitled to make findings about the wife’s conduct at the arbitration, something which he observed firsthand. However, in addition to assessing success using the Offers to Settle, the arbitrator also went on to make findings about reasonableness and unreasonableness based on the Offers and his weighing of the Offers was imbalanced and problematic.

[167] At ¶ 15 of Beaver v. Hill, 2018 ONCA 840, the Ontario Court of Appeal found that the motions judge erred by giving undue weight to the fact that one side had made an Offer to Settle that did not really contain a compromise, compared to the other side’s failure to make an Offer. The Court held that the presence or absence of Offers can be properly taken into account in fixing costs, but judges should be cautious about relying too heavily on an Offer to increase or decrease the quantum, when the specific rule about Offers (ie. Rule 18) is not engaged. The Court held that offers are only one of the factors to be considered: see ¶ 15-16. If Offers are to be taken into account, they must be weighed properly.

[168] The arbitrator used the wife’s Offer in part to conclude she behaved unreasonably: see ¶ 61 of the Costs Award dated July 28, 2019. More specifically, the arbitrator found:

(a) The husband’s Offer to Settle, although not severable, was “short and simple”: see ¶ 33; (b) The wife’s Offer to Settle was more “comprehensive and complicated”, but severable: see ¶34; (c) “When it comes to reasonableness”, the husband’s Offer was very close to the eventual result whereas the wife’s was “significantly out of step with the final award”; (d) In light of the Offers, the wife’s position was unreasonable on the property issues, whereas the husband’s terms were very close: see ¶61; (e) Based on the terms in the Offers respecting spousal support, both sides were reasonably within a potential range of an appropriate lump sum compared to the eventual award and neither side can be said to be successful given that only the quantum was in dispute, and not entitlement or the form of the award: see ¶62.

[169] At the same time, the arbitrator made almost no similar adverse findings flowing from the husband’s Offer. But the husband’s Offer was problematic on its face.

[170] The husband’s Offer was not particularly reasonable and nowhere in the award does the arbitrator acknowledge this. The fact that it was simpler did not make it reasonable. The wife was correct when she said to the arbitrator in her written costs submissions that she could not have accepted the husband’s Offer. Even if the number he proposed was appropriate, the wife could not have accepted it because it merely stated that the wife would pay the husband $750,000.00 (on account of property). The offer contained no terms for the transfer of the matrimonial home nor the shares in the corporation that held the beach lots, nor did it address the tax consequences of the latter, nor did it address the joint line of credit. And it tied this unspecified payment to not very generous periodic support terms (discussed below).

[171] In regards to the arbitrator’s finding that the husband’s Offer on the property issues was “very close” to the result, that finding is not supportable on the record before the Court. Even if that was so at that time of the arbitration, that is no longer the case as a result of this Court’s Judgment dated September 3, 2021 for the equalization payment.

[172] The wife is not paying the husband anywhere near $750,000.00 on account of property as the husband had offered. To the contrary, the net result of the various property awards, now adjusted by this Court’s Order for an equalization payment, is that the wife is only paying the husband $410,959.00. She is also getting real estate in return. And the husband must separately pay his share of the joint line of credit in the amount of $33,914.29 to discharge half of the line of credit.

[173] As the arbitrator found, the wife’s Offer to Settle respecting property was not particularly reasonable either. In addition to retaining the matrimonial home and the numbered company, she required the husband to assume the entire line of credit, she wanted an equalization payment of $527,707.00, she wanted lump sum spousal support of $356,000.00 and $75,000.00 in costs as well, for a total package of $958,707, in addition to the real estate. She did not come close in the result. But her offer at least had detail in it, such as the transfer terms for the various property transactions and she at least made it clear what exactly would have been resolved.

[174] The arbitrator’s view of the terms of the Offers respecting spousal support is inconsistent with what the Offers said. Neither party’s Offer about spousal support was particularly reasonable. However, the husband’s had another problem; as I have said it was non-severable Offer and tied to the property term. And he only offered periodic spousal support in the amount of $2,400.00 per month for a period of two years and two months. He did not even offer support up to age 65 as he then advocated for at the arbitration. His Offer said nothing about retroactivity. The periodic equivalent of the lump sum that the arbitrator awarded, now adjusted by this Court, was over two times as much for more than three times longer in duration. Even if the wife had been inclined to accept the Offer on property despite its other deficiencies, that would have required her to accept far less spousal support than she achieved.

[175] In conclusion, it cannot be said that either party was unreasonable in failing to accept the other’s offer. But in terms of whether they were each unreasonable in making the Offers that they made, neither Offer represented much of a compromise. Neither’s Offer incentivized entering into a settlement to avoid the hearing. The arbitrator was very critical of the wife, whereas there is almost no corresponding criticism of the husband in this regard.

G. Conclusions Respecting the Costs of the Arbitration

[176] In conclusion, the arbitrator did not apply the costs principles to assess success correctly. The assessment of success should have been based on their positions. When the outcome of this appeal is taken into account, success was divided.

[177] The arbitrator was entitled to make most of the findings that he did about the wife’s behaviour. In relation to the Offers though, he placed undue weight on the wife’s Offer to find another way in which she behaved unreasonably. He failed to draw any similar adverse conclusions about the husband’s Offer even though it was differently problematic. The question that now presents before this Court is what amount if anything should be ordered?

[178] There is no principled basis for the wife to be awarded the full amount of the costs that she claimed before the arbitrator. The proper assessment of her success and the arbitrator’s conduct-based findings of unreasonableness do not support this. There is not even a principled basis for a reversal of the $67,500.00 that the arbitrator awarded the husband, such that she would now be the recipient of the $67,500.00.

[179] But I also do not really see a principled basis on which the husband should retain the $67,500.00 that the arbitrator awarded either based on divided success and a consideration of his own behaviour, having regard to his Offer and rules 24(4) and 24(5).

[180] I find the most appropriate outcome is that there be no costs of the arbitration. The Court’s assessment of divided success should drive the result here. The Cost Award dated July 28, 2019 shall therefore be set aside.

H. Costs of the Appeal

[181] The wife’s total Bill of Costs for this appeal is $55,186.38, but she seeks costs of $25,000.00 discounted to reflect her partial success on this appeal. The husband says there should be no costs of the appeal.

[182] There is no question that the wife enjoyed some significant success on this appeal, which I have just articulated. In particular, the wife’s claim to reverse the arbitrator’s denial of the exclusion was time consuming and tedious in argument of the appeal. It consumed a great deal of the first day of argument in May, 2021. The wife’s counsel did an excellent job at making this argument and explaining the tedious evidentiary record in a very user-friendly way. She was faced with the difficult challenge of overturning a finding of fact and she met it.

[183] However, as I said at the outset of this Supplementary Judgment, the wife launched a very broad appeal. She challenged most of the awards for which she did not enjoy success in the arbitration. Moreover, in the Judgment dated September 3, 2019, the Court also suggested that the parties resolve the outstanding support calculation issues and costs. Rather than settling it, the wife chose to argue at the December 1, 2021 hearing that the lump sum should not even be recalculated as a result of the Court’s order for an equalization payment, contrary to the position she took during argument in May, 2021.

[184] The wife also lacked success in resisting the retirement age/duration issue during the argument on December 1, 2021. But on the other hand, the husband advised counsel late as to his position. And while I entertained the argument, the issue could have still been returned to the arbitrator had it been noticed on time. This is relevant to costs.

[185] See Mason v. Mason, 2016 ONCA 725 ¶ 207-208 for authority on all of the points in the previous two paragraphs.

[186] The wife’s counsel discounted her Bill of Costs for the appeal to $25,000.00 for her lack of success on appeal. That was a little more than 50% of the total Bill. The wife did not include time for preparing for and the attendance at the hearing on December 1, 2021 either, but she was not successful. Regardless, the discount that the wife did propose is not an adequate reflection of the extent to which success was divided on appeal.

[187] At ¶ 3-4 of the Judgment dated September 3, 2021, I summarized that the wife advanced approximately eight different areas of appeal, although argument centered around four of the claims. The wife only enjoyed success respecting one of the four. While that one claim reflects some significant success, the other three areas were not insignificant. Then there is the December 1, 2021 hearing.

[188] I find that the husband’s position that there should be no costs of the appeal to be appropriate.

Part V: Order

[189] I make the following orders:

(a) The arbitrator’s award of lump sum support in the February 12, 2019 award is set aside and substituted with an award for lump sum spousal support of $170,816.00; (b) The draft Order being released with this Supplementary Judgment shall issue; (c) Counsel shall submit a support deduction order and a support deduction order information form unless they are going to arrange for the husband to pay the lump sum when the other property transactions are effected; (d) If counsel see any issues with the Order or the DivorceMate Calculation attached as Schedule “A” to this Supplementary Judgment, I may also be contacted for a brief attendance to deal with the issue. The purpose of any attendance is not to re-argue any issues on the merits, but only to address if I have made a calculation error or an inputting error in the DivorceMate calculation, or if I have made a drafting error respecting the post-judgment interest clauses in the Order; (e) The Costs Award dated June 28, 2019 is set aside; (f) There shall be no costs of the arbitration; (g) There shall be no costs of the appeal; (h) Post-judgment interest at the prescribed rate shall accrue on the amounts that each party owes the other for property or lump sum spousal support, but commencing on the date that the payments were due in the arbitrator’s award dated February 12, 2019, and not the date of this Supplementary Judgment. Those dates are more particularly set out in the Order; and (i) I anticipate that both parties’ experienced counsel will be able now to complete the implementation of the awards. The arbitrator seized himself of any issues in connection with implementing the awards but quite some time has passed since he did that. If this Court can be of any further assistance to the parties respecting to the implementation of the awards (subject of course to any issues about its jurisdiction to do so), I may be contacted by 14B Motion.

[190] I wish to thank counsel for their assistance with this appeal.

Justice Alex Finlayson

Released: April 20, 2022

COURT FILE NO.: FC-15-2157-0001 DATE: 20220420

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

David Michael Farmer Applicant (Respondent in Appeal) – and – Janet Maureen Farmer Respondent (Appellant)

REASONS FOR SUPPLEMENTARY JUDGMENT

Justice Alex Finlayson

Released: April 20, 2022

Footnotes

[^1]: Although this decision involved setting aside an order rather than correcting one, I mention this case because both motions to set aside and motions to correct an order are governed by these rules, albeit by separate subparagraphs. [^2]: A remedy under section 44(1) must be sought within 30 days and there is no jurisdiction to extend the timeline. [^3]: Both counsel also agreed this was the number in the draft Order filed for the hearing on December 1, 2021. [^4]: See the previous footnote. [^5]: See the previous footnote. [^6]: The reason for this discount rate was not explained, but no arguments were made about this discount rate being inappropriate, either when the appeal was first argued in May, 2021, or on December 1, 2021. [^7]: The arbitrator referred to both the positions taken on spousal support and the Offers to make his finding.