Berta v. Berta (2015), 343 O.A.C. 237 (CA)
MLB headnote and full text
Temp. Cite: [2015] O.A.C. TBEd. DE.044
Delia Joan Berta (appellant) v. Raymond Louis Berta (respondent)
(C59380; 2015 ONCA 918)
Indexed As: Berta v. Berta
Ontario Court of Appeal
Cronk, Lauwers and van Rensburg, JJ.A.
December 23, 2015.
Summary:
Spouses separated in 2010 after almost 27 years’ marriage. The wife sought, inter alia, spousal support and an equalization of property. The trial judge ordered the wife to pay an equalization payment of $101,223.13 to the husband and ordered the husband to pay indefinite spousal support of $5,380 per month to the wife. The husband was awarded full indemnity costs of $460,179.57. The wife appealed the equalization payment, the quantum of spousal support and the costs award.
The Ontario Court of Appeal allowed the appeal in part. The court remitted the question of the proper quantum of the wife’s income for purposes of spousal support. The equalization payment was affirmed. The matter of costs was remitted to the trial judge for reconsideration based on the relative success of the parties, their conduct at trial, and other relevant considerations under the Rules of Court.
Courts – Topic 583
Judges – Duties – Re reasons for decisions – [See first
Family Law – Topic 4021.4
].
Family Law – Topic 880.47
Husband and wife – Marital property – Distribution orders – Particular property – Company shares, stock options, etc. – A significant portion of the net family property of separated spouses was their respective shareholdings in a company – In ordering the wife to make an equalization payment to the husband, the trial judge assigned a nil value to disposition costs respecting the wife’s shares – As of valuation day, the only evidence before the trial judge was that the disposition costs of both spouses would be equal, so a sale of the shares would have no effect on the equalization payment – The only evidence of sale was an intended joint sale of all of the shares to a third party, which sale fell through – The husband purchased the wife’s shares two years after valuation day – There was no evidence as to disposition costs for shares sold on valuation day – The wife argued that the trial judge erred in failing to reduce her equalization payment by the disposition costs of the shares – The Ontario Court of Appeal dismissed this ground of appeal – The trial judge’s appreciation of the evidence respecting the wife’s disposition costs and the weight to be attached to that evidence was entitled to considerable deference – The court stated that “the trial judge was entitled to conclude that the only reliable evidence before him was that, if the parties’ ACCE shares were sold, they would both incur similar Share Disposition Costs, thus creating no imbalance in their respective NFPs” – See paragraphs 66 to 82.
Family Law – Topic 888
Husband and wife – Marital property – Considerations in making distribution orders – Valuation (incl. time for) – [See
Family Law – Topic 880.47
].
Family Law – Topic 966
Husband and wife – Actions between husband and wife – Practice – Costs – Litigation between spouses focussed primarily on spousal support and the equalization payment – The husband was awarded full indemnity costs on the basis that his unaccepted settlement offer was more favourable to the wife than the outcome at trial and the wife’s conduct in the proceeding, including unproven allegations of fraud by the husband – The wife appealed – The Ontario Court of Appeal allowed the appeal and remitted the matter for redetermination – Full indemnity costs were available for unaccepted settlement offers (Family Law Rules, rule 18(14)) – However, given the wife’s award of indefinite spousal support, the husband’s settlement offer was not more favourable than the result at trial – Rule 18(14) did not apply – Further, the trial judge overstated the husband’s success at trial, as the wife prevailed on the issue of indefinite spousal support – The trial judge’s findings of unacceptable conduct during the litigation and unproven allegations of fraud were supported by the evidentiary record – These factors “strongly support an award of costs to the Husband on a full recovery basis” – Given the errors, and an inability to determine the weight attached by the trial judge to the costs consequences of the settlement offer, the appropriate remedy was to remit the matter for reconsideration – See paragraphs 87 to 105.
Family Law – Topic 4021.4
Divorce – Corollary relief – Maintenance awards – Considerations – Ability to pay (incl. potential to earn income and calculation of income) – A trial judge imputed income to the wife in calculating the quantum of spousal support payable by the husband – The wife argued that the trial judge’s reasons failed to reveal the basis and justification for imputing income – The Ontario Court of Appeal agreed that the trial judge’s calculation of the wife’s income was unsustainable – Income was imputed because the wife failed to use significant available assets to maximize her income and return on capital – The trial judge merely said that “I find [the Wife’s] income to be as follows: $484,356, which includes pension income and investment income” – There was nothing in the trial judge’s reasons that revealed his methodology or any formula used to impute income – The $484,356 amount remained both entirely unexplained and without any apparent justification based on the reasons and the evidentiary record – This constituted reversible error – The trial judge’s reasons precluded meaningful appellate review – The matter of the wife’s income for spousal support purposes was remitted to the trial judge for proper determination – See paragraphs 20 to 43.
Family Law – Topic 4021.4
Divorce – Corollary relief – Maintenance awards – Considerations – Ability to pay (incl. potential to earn income and calculation of income) – The Ontario Court of Appeal stated that the spouse seeking the imputation of income “bore the onus at trial to establish an evidentiary foundation for the imputation of income” – See paragraph 63.
Family Law – Topic 4175
Divorce – Practice – Costs – General (incl. considerations) – [See
Family Law – Topic 966
].
Family Law – Topic 4189
Divorce – Practice – Costs – Settlement offers – [See
Family Law – Topic 966
].
Cases Noticed:
Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 22].
Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 38].
Homsi v. Zaya (2009), 248 O.A.C. 168; 65 R.F.L.(6th) 17; 2009 ONCA 322, refd to. [para. 63].
Nielsen v. Nielsen (2007), 249 B.C.A.C. 117; 414 W.A.C. 117; 47 R.F.L.(6th) 26; 2007 BCCA 604, refd to. [para. 63].
C.L.E. v. B.M.R. (2010), 487 A.R. 289; 495 W.A.C. 289; 86 R.F.L.(6th) 26; 2010 ABCA 187, refd to. [para. 63].
Zavarella v. Zavarella (2013), 313 O.A.C. 137; 117 O.R.(3d) 641; 2013 ONCA 720, refd to. [para. 74].
Ottawa Community Housing Corp. v. Foustanellas et al. (2015), 332 O.A.C. 354; 2015 ONCA 276, refd to. [para. 82].
Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 88].
C.A.M. v. D.M. (2003), 176 O.A.C. 201; 67 O.R.(3d) 181 (C.A.), refd to. [para. 89].
Biant v. Sagoo, [2001] O.T.C. 695; 20 R.F.L.(5th) 284 (Sup. Ct.), refd to. [para. 92].
Ruffudeen-Coutts v. Coutts, [2012] O.A.C. Uned. 227; 15 R.F.L.(7th) 35; 2012 ONCA 263, refd to. [para. 93].
Sordi v. Sordi (2011), 283 O.A.C. 287; 13 R.F.L.(7th) 197; 2011 ONCA 665, refd to. [para. 93].
Counsel:
Douglas A. Quirt, for the appellant;
Peter M. Callahan, for the respondent.
This appeal was heard on September 1, 2015, before Cronk, Lauwers and van Rensburg, JJ.A., of the Ontario Court of Appeal.
On December 23, 2015, Cronk, J.A., released the following judgment for the Court of Appeal.
