Huisman v. Huisman (1996), 30 O.R. (3d) 155 (C.A.)

  • Document:
  • Date: 2018

Re Huisman and Huisman

[Indexed as: Huisman v. Huisman]

30 O.R. (3d) 155

[1996] O.J. No. 2128 No. C20050

Court of Appeal for Ontario,

McMurtry C.J.O., Catzman and Weiler JJ.A.

June 7, 1996*

 

* Released June 14, 1996

 

Family law — Property — Equalization of net family property

— Division of property ordered under Family Law Reform Act in 1984 — Parties reconciling but separating again for last time in 1992 — Husband’s pension not part of 1984 property division

— Trial judge erring in evaluating husband’s pension from date of marriage to 1992 — Section 70(1)(a) of Family Law Act constituting bar to claim for equalization of property with respect to period prior to 1984 judgment — Equalization payment to be calculated by reference to increase in value of spouses’ property from resumption of cohabitation to final separation — Family Law Reform Act, R.S.O. 1980, c. 152

— Family Law Act, R.S.O. 1990, c. F.3, s. 70(1)(a).

Family law — Support — Spousal support — Trial judge erring in failing to consider economic advantages as well as disadvantages to wife as result of marital relationship — Non- time-limited support award varied on appeal to award limited in time to six years.

The parties separated in 1982 and a division of their property was ordered under the Family Law Reform Act in 1984. They subsequently reconciled, but separated for the last time in 1992. The trial judge held that the husband’s pension had not been dealt with in the 1984 judgment and that the provisions of the Family Law Act applied. She accepted the valuation of the pension from the date of the marriage to 1992, excluding the two years during which the parties were separated. She found that the husband could be expected to retire at the earliest date on which a full, unreduced pension would be available to him. She also awarded spousal support to the wife in the sum of $600 per month, without time limitation. The husband appealed.

 

Held, the appeal should be allowed.

 

Section 70(1)(a) of the Family Law Act is a bar to a claim for an equalization of property with respect to the period prior to the 1984 judgment. The equalization payment should be calculated by reference to the increase in value of the respective property of the spouses from the time they resumed cohabitation until their final separation.

While it may be practical in many cases, in valuating a pension, to accept the mid-point between the earliest and the latest retirement date on which an unreduced pension would be payable, this should not be elevated to the level of a legal presumption. The retirement date is a fact which the court must find on the balance of probabilities on the basis of the evidence before it. The trial judge’s finding in this case was supported by the evidence before her.

In making the support award, the trial judge erred in failing to consider the total economic advantages, as well as the disadvantages, to the wife as a result of the marital relationship. She ought to have placed some temporal limitation on the husband’s obligation to pay spousal support. The spousal support should continue for a period of six years from the date of the judgment at trial.

 

Cases referred to

 

Bascello v. Bascello (1995), 26 O.R. (3d) 342 (Gen. Div.); Rickett v. Rickett (1990), 72 O.R. (2d) 321, 25 R.F.L. (3d) 188, 67 D.L.R. (4th) 103 (H.C.J.)

 

Statutes referred to

 

Family Law Act, R.S.O. 1990, c. F.3, s. 70(1)(a) Family Law Reform Act, R.S.O. 1980, c. 152

 

APPEAL from a judgment of Wallace J. (1994), 8 R.F.L. (4th) 145 (Gen. Div.), in matrimonial proceedings.

 

Derek A. Schmuck, for appellant.

J.B. Eakins and M. Shelley, for respondent.

 

BY THE COURT (orally): — The appellant appeals from the decision of Wallace J. of the Ontario Unified Family Court, reported at (1994), 8 R.F.L. (4th) 145. Of the several grounds of appeal advanced, we called upon counsel for the respondent to reply to two main issues. They are: (1) whether the trial judge erred in equalizing the net family property of the spouses, including the husband’s pension, notwithstanding s. 70(1)(a) of the Family Law Act, R.S.O. 1990, c. F.3; and (2) whether the trial judge erred in the spousal support order she made.

 

(1)The impact of s. 70(1)(a) of the Family Law Act on the equalization claim

 

The parties were married in 1974 and separated in November 1982. In December 1982, the wife brought a petition for divorce and asserted a claim for division of property under the Family Law Reform Act, R.S.O. 1980, c. 152. In July 1984, Scott J. gave judgment dividing the property. The parties reconciled following the decision and the petition for divorce did not proceed. The parties separated again, for the last time, in 1992. The trial judge fixed the valuation date at October 1992. She held that the husband’s pension had not been part of the previous property division; nor was it subject to division under the Family Law Reform Act. She therefore held that the judgment of Scott J. did not deal with the pension and that the provisions of the Family Law Act applied. The trial judge accepted the valuation of the husband’s pension from the date of the marriage in 1974, to 1992, excluding the two years during which the parties were separated. She also found that the husband could be expected to retire at the earliest date on which a full, unreduced pension would be available to him. She accepted an actuarial report that put the value of the pension on that date at $43,400. Section 70(1)(a) of the Family Law Act provides: 70(1) Sections 5 to 8 apply unless, (a)  an application under section 4 of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980 was adjudicated or settled before the 4th day of June, 1985.

In our view, this section is a bar to a claim for an equalization of property with respect to the period prior to the judgment of Scott J., and the reconciliation and resumption of cohabitation by the parties subsequent to the judgment of Scott J. did not amount to an agreement to rescind that judgment. In this respect, we disagree with the result in Rickett v. Rickett (1990), 72 O.R. (2d) 321, 25 R.F.L. (3d) 188 (H.C.J.). In our opinion, s. 70(1)(a) was intended to ensure finality with respect to an adjudication before June 4, 1985. It does not apply to an adjudication with respect to the rights of parties arising after that date. As a result, the equalization payment should be calculated by reference to the increase in value of the respective property of the spouses from the time they resumed cohabitation until their subsequent separation.

The major asset subject to equalization in the present case was the husband’s pension. In ascertaining the appropriate value with respect to the husband’s pension, his counsel submitted that in the absence of independent evidence the court should accept the mid-point between the earliest and the latest retirement date on which an unreduced pension would be payable: see Bascello v. Bascello (1995), 26 O.R. (3d) 342 (Gen. Div.) at p. 393. While this may be a practical result in many cases, it should not be elevated to the status of a legal presumption. The retirement date is a fact which the court must find on the balance of probabilities on the basis of the evidence before it. In the present case, the trial judge made that finding of fact, which was supported by the evidence before her, and we would not interfere with that finding.

On the basis of the actuarial report, which we find to have been accepted by both parties at trial, we therefore ascribe the value of $22,100 to the husband’s pension.

Counsel for the husband submitted that this amount should be reduced, taking into consideration the contingency that the husband might not live or continue to be employed or be capable of employment until his earliest date of retirement on full pension. This submission fails to consider that there might be positive offsetting contingencies. No evidence was led at trial with respect to contingencies and, in the circumstances, we would not give effect to this submission.

 

(2)  Spousal support

 

The trial judge awarded spousal support in the sum of $600 per month, without time limitation.

We are satisfied that, having regard to the evidence, there was no error in the amount of spousal support awarded. However, we think that the trial judge erred in failing to consider the total economic advantages, as well as the disadvantages, to the wife as a result of the marital relationship and that, in the circumstances, she ought to have placed some temporal limitation on the husband’s obligation to pay spousal support. Having regard to the ages of the parties, the fact that the wife has worked continuously, full-time and part-time, throughout most of their married life, and the fact that her ability to provide for her own retirement has been compromised somewhat by her contribution of her pension to the matrimonial home, we consider that the spousal support should continue for a period of six years from the date of the judgment at trial.

We trust that, with the foregoing guidance, the parties will be able to resolve the other outstanding issues between them, failing which the court will entertain their submissions in writing on such subjects as they are unable to resolve.

The appeal is allowed and the judgment below is varied in accordance with this endorsement. Having regard to the divided success, we feel that no costs should be payable by or to either party, including any costs reserved to this court.

 

Appeal allowed.