Caratun v. Caratun *
10 O.R. (3d) 385
[1992] O.J. No. 1982
Action No. 642/87
Court of Appeal for Ontario,
Robins, McKinlay and Catzman JJ.A.
September 25, 1992
* An application for leave to appeal from the following judgment to the Supreme Court of Canada was dismissed with costs May 21, 1993 (L’Heureux-Dub, Sopinka and Gonthier JJ.). S.C.C. File No. 23310. S.C.C. Bulletin, 1993, p. 1083.
Family law — Property — Meaning of “property” — Professional licence not constituting property within meaning of s. 4 of Family Law Act, 1986 — Family Law Act, 1986, S.O. 1986, c. 4, s. 4(1).
Family law — Support — Spousal support — Husband marrying wife to obtain permission to leave Romania and to emigrate to Canada to practise dentistry — Wife giving up career in Israel to come to Canada with husband and supporting him while he studied dentistry — Husband asking for divorce two days after obtaining licence to practise dentistry — Wife entitled to compensatory support award under s. 11(1) of Divorce Act in amount of $30,000 — Divorce Act, R.S.C. 1970, c. D-8, s. 11(1).
The husband appealed an order requiring him to pay $30,000 to the wife to reimburse her for her contribution toward the obtaining of the husband’s dental licence. The wife cross- appealed for a revaluation of the family assets.
The parties met in Romania. The wife moved to Israel before the marriage and obtained employment as a draftsperson. After the parties married, the husband joined the wife in Israel but shortly afterwards he went to a refugee camp in Greece so that he could claim refugee status for the purpose of emigrating to a western country. The wife left a tenured position at an Israeli university to join the husband in the camp, where she became pregnant.
The parties emigrated to Canada, where the wife worked on an assembly line and as a hairdresser while the husband studied dentistry. Two days after qualifying to practise dentistry, the husband informed the wife that he wanted a divorce.
The trial judge found that the husband married the wife for the purpose of obtaining permission to leave Romania and emigrate to North America to practise dentistry. She held that the husband’s dental licence was “property” within the meaning of that word as defined in s. 4(1) of the Family Law Act, 1986 (F.L.A.). However, she did not include the value of the licence in the husband’s net family property, but rather, decided that the licence would be held by the husband subject to a constructive trust in favour of the wife in the amount of $30,000, representing the value of the wife’s contribution to the acquisition of the licence.
Held, the appeal and the cross-appeal should be dismissed.
A professional licence does not constitute property within the meaning of s. 4 of the F.L.A. One of the traditional indicia of property is its inherent transferability. Rights or things which are inherently non-transferable, such as the right to practise a profession, do not constitute property in any traditional sense.
Without the personal future efforts of the licensee, a licence will produce nothing. The definition of property is in the F.L.A. for the purpose of determining the value of the property to be included in arriving at “net family property” to be equalized under s. 5. That definition cannot be interpreted to include work to be performed by either spouse in the future.
Furthermore, the valuation of a right to practise a profession would be unfairly speculative in the matrimonial context. Such contingencies as inclination, probability of success, length of physical and mental capability to perform the duties of the profession, and competition within the profession render a fair valuation of the licence unusually difficult. There is a further potential inequity in the fact that, while support orders may be varied if circumstances change, no amendment of an equalization payment is possible regardless of changed circumstances.
Given a finding that the licence constituted property, the trial judge had no discretion as to whether or not to include its value in net family property under s. 5(1) of the F.L.A.
If a licence constituted “property”, there was no reason why, in a proper case, that property could not be subject to a constructive trust. However, since a licence does not constitute property, there is nothing to which the constructive trust could attach.
The partnership theory of marriage espoused by the F.L.A. and any ordinary sense of fairness, required that some form of compensation be afforded the wife for her substantial contribution toward the career aspirations of the husband. The only provisions of the F.L.A. which were available to provide compensation in a situation such as this were the support provisions. While there were some problems with that solution, they were not insurmountable in a case where no alternative solution was available. However, in this case, the applicable legislation was the corollary relief provisions of s. 11(1) of the Divorce Act. A compensatory support order under that section was appropriate in this case. The trial judge took all the relevant factors into consideration in arriving at the amount of $30,000, which she awarded in a lump sum, and there was no reason to disturb that decision.
Cases referred to
Becker v. Pettkus, [1980] 2 S.C.R. 834, 117 D.L.R. (3d) 257, 8 E.T.R. 143, 34 N.R. 384, 19 R.F.L. (2d) 165; Brinkos v. Brinkos (1989), 69 O.R. (2d) 225, 60 D.L.R. (4th) 556, 34 E.T.R. 55, 33 O.A.C. 295, 20 R.F.L. (3d) 445, 69 O.R. (2d) 798 (supp. reasons) (C.A.); Jackh v. Jackh (1980), 22 B.C.L.R. 182, 113 D.L.R. (3d) 267, 18 R.F.L. (2d) 310, [1981] 1 W.W.R. 481, (1981), 124 D.L.R. (3d) 179, 22 R.F.L. (2d) 455 (supp. reasons) (S.C.); Linton v. Linton (1988), 64 O.R. (2d) 18, 49 D.L.R. (4th) 278, 29 E.T.R. 14, 11 R.F.L. (3d) 444 (H.C.J.), affd (1990), 1 O.R. (3d) 1, 75 D.L.R. (4th) 637, 41 E.T.R. 85 n, 42 O.A.C. 328, 30 R.F.L. (3d) 1 (C.A.); Piters v. Piters (1980), 20 B.C.L.R. 393, 3 Fam. L. Rev. 123, 19 R.F.L. (2d) 217, [1981] 1 W.W.R. 285 (S.C.); Rathwell v. Rathwell, [1978] 2 S.C.R. 436, 83 D.L.R. (3d) 289, 1 E.T.R. 307, 1 R.F.L. (2d) 1, [1978] 2 W.W.R. 101; Underhill v. Underhill (1983), 45 B.C.L.R. 244, 34 R.F.L. (2d) 419, [1983] 5 W.W.R. 481 (C.A.)
Statutes referred to
Divorce Act, R.S.C. 1970, c. D-8, s. 11(1) (now R.S.C. 1985, c. 3 (2nd Supp.), s. 15(2), (3)) Family Law Act, 1986, S.O. 1986, c. 4, ss. 4(1) “property” [am. 1986, c. 35, s. 1(1)], 5(1), (6) (now R.S.O. 1990, c. F.3)
Rules and regulations referred to
Rules of Civil Procedure, O. Reg. 560/84
Authorities referred to
Jowitt’s Dictionary of English Law, 2nd ed. (1977), p. 1447
APPEAL and CROSS-APPEAL from a judgment of the Ontario High Court of Justice (1987), 61 O.R. (2d) 359, 28 E.T.R. 59, 43
D.L.R. (4th) 398, 9 R.F.L. (3d) 337, in favour of the petitioner in matrimonial proceedings.
John R.R. Jennings, Q.C., and Sheila C. MacKinnon, for Victor Caratun, respondent (appellant).
Ronald D. Manes and Sandy J. Morris, for Victoria Henrietta Caratun, petitioner (respondent).
The judgment of the court was delivered by
MCKINLAY J.A.:–This is an appeal in a matrimonial matter brought by the husband, Victor Caratun, respondent at trial, in an action commenced by his wife, asking that the court set aside awards made in favour of his wife, respondent on appeal, of: lump sum spousal maintenance of $15,000; child support in the amount of $500 per month commencing November 30, 1986 and continuing as long as the respondent wife has access to the child of the marriage; and payment of an amount of $30,000 to reimburse her for her contribution toward the obtaining of the appellant’s dental licence. The respondent, Victoria Caratun, cross-appeals for a revaluation of the family assets.
The parties, both citizens of Romania at the time, met there in December of 1972 while the appellant was completing his internship in medicine. In June of 1973, the respondent moved from Romania to Israel with her family, where she obtained employment as a draftsperson. She earned the sum of ;bp1,800 Israeli per month in 1977.
The appellant had completed high school, attended technical school for a year, and then attended medical school from which he ultimately graduated. To become a dentist in Romania, it was first necessary to be qualified as a medical doctor and then proceed to study dentistry. The appellant practised dentistry in Romania from 1973 to 1977.
From June 1973 to November 1976 the respondent travelled from Israel to Romania every six months to visit the appellant. The appellant and respondent petitioned the appropriate authorities on several occasions for permission to marry, as was then required by Romanian law. On six separate occasions their petitions were denied. The respondent kept up an untiring lobby for the purpose of obtaining the necessary permission, which ended in success in August of 1976. The parties were married in Bucharest on November 17, 1976, and two weeks later the respondent returned to her home in Israel. Four months later, having received permission to emigrate from Romania, the appellant joined the respondent in Israel under her sponsorship.
Within three months of the appellant’s arrival in Israel in May of 1977, he unilaterally decided to leave that country. Had the appellant become a citizen of Israel, it would have been impossible for him to claim refugee status for the purpose of immigrating to a western country. He learned that the only likely way of immigrating to the west was to become a voluntary intern in a refugee camp for an unspecified period of time. In August of 1977 the appellant left Israel for Greece without the respondent. The respondent remained in Israel for approximately one month, during which time she settled her financial affairs. She then resigned a tenured position which she held at the University of the Negev, and joined the appellant in Greece. She became pregnant a few months later. The parties resided in a refugee camp in Greece for approximately nine months. Late in May of 1978 they arrived in Toronto, and on August 15, 1978 their son, Victor Daniel Caratun, was born.
Madam Justice Van Camp made two important findings of fact with respect to the period involved in the foregoing factual summary [reported (1987), 61 O.R. (2d) 359, 9 R.F.L. (3d) 337 (H.C.J.)]. First, she found that the appellant’s marriage and subsequent relationship with the respondent was, on his part, for the purpose of obtaining permission to leave Romania and immigrate to North America to practise dentistry there. Second, she found that the appellant had ascertained that it was easier for a couple with children to immigrate to North America and, consequently, the petitioner became pregnant while the couple were interned in Greece.
After they arrived in Toronto, it was necessary for the appellant to become reasonably proficient in English in order to obtain a licence to practise dentistry. From July 1978 until January 1979 he attended a course at George Brown College, paid for by the Canadian government. In addition, he received a training allowance in the amount of $1,900 from Canada Manpower. From the time of their arrival in Canada until the respondent obtained his licence to practise dentistry in May of 1981, both parties worked very hard — the respondent at jobs on the assembly line in a factory, as a beautician in her home, and as a hairdresser. Shortly after their arrival the appellant worked on weekends and in the evenings as a dishwasher and a waiter. In 1979 he obtained employment at a dental lab, and in December of that year he was employed at the Toronto General Hospital Dental Clinic at a salary of $18,000 per annum. During this time he continued his efforts toward passing examinations to obtain his licence to practise dentistry in Ontario. After a number of attempts, he finally succeeded in obtaining his licence in May of 1981.
Two days after the appellant was notified that he had passed his final exam and was qualified to practise dentistry, he advised the respondent that he wished a divorce. The trial judge found July 18, 1981, to be the valuation date for purposes of the Family Law Act, 1986, S.O. 1986, c. 4 (the “F.L.A.”).
CONTRIBUTION TOWARD THE OBTAINING OF APPELLANT’S DENTAL LICENCE
The reasons of the trial judge make it quite clear that Dr. Caratun’s primary objective in marrying Mrs. Caratun and fathering their child was to assist him in immigrating to North America to practise dentistry. Mrs. Caratun worked extremely hard over a number of years in Israel and in Canada to assist Dr. Caratun in attaining his ultimate objective. Two days after attaining that objective he rejected Mrs. Caratun as his wife, at the time when family assets were next to non-existent, but his future income earning ability was substantial.
Facts such as these raise difficult legal questions, given the purpose of the F.L.A. on the one hand and its specific provisions on the other. The combining of spousal efforts over a number of years to provide for the education and professional qualification of one spouse is not unusual in our society. The inevitable result, if there is a separation on attaining the joint objective, is that one family member is left with no assets and often very little in the way of educational or professional qualifications with which to sustain herself or himself in the future. The extreme unfairness of the situation is patent, but the possibility of a legal remedy is far from settled law.
DENTAL LICENCE AS “PROPERTY”
Mrs. Caratun’s position at trial, which was accepted by the trial judge, was that Dr. Caratun’s dental licence is property within the meaning of that word as defined in s. 4(1) of the F.L.A., of which the relevant portion reads: “property” means any interest, present or future, vested or contingent, in real or personal property. . . .
That definition is broadly framed, and includes all conceivable types of property in the traditional common law sense. However, it does not, by its terms, extend the meaning of property beyond those limits. The contrary argument is that in construing that definition one must keep in mind the F.L.A. policy of marriage partnership, which requires, on final separation, the equal division of wealth accumulated during the marriage; and that a licence to practise a particular profession constitutes wealth in the matrimonial context.
Two important cases at the trial level have reached opposite conclusions on this issue — the trial decision in this case and the decision of Killeen L.J.S.C. in Linton v. Linton (1988), 64 O.R. (2d) 18, 11 R.F.L. (3d) 444 (H.C.J.) [affd (1990), 1 O.R. (3d) 1, 30 R.F.L. (3d) 1 (C.A.)]. Both decisions include detailed and thoughtful analyses of this issue, and substantial reference to authorities, both Canadian and American. The American decisions are so varied as to be of little assistance. Although all purport to be based on the wording of the particular statute involved, they reach varying results based on statutes with very similar wording.
In determining the issue of whether a professional licence constitutes “property”, the cases and the numerous articles written on the subject concentrate primarily on two aspects of the problem: first, the nature or characterization of a licence, and second, the difficulty of valuing a licence in the family property context.
(i) Characterization of licence
The broad definition of property in the F.L.A. clearly encompasses many forms of intangibles — a classification into which a licence must fall if it is to be considered property. The common law has never had any difficulty in dealing with property evidenced by pieces of paper representing bundles of rights — such as a share certificate with its attendant rights to dividends, voting privileges, and distribution of assets on corporate dissolution. If a licence to practise a profession is property, what are its attendant rights? Apart from possible benefits such as the right to join professional groups and clubs — which are not relevant in this context — the only real right conferred on the holder of the licence is a right to work in a particular profession. That right, assuming it is held at the time of separation, is a present right to work in the future, and it will continue for as long as the holder of the right is professionally and personally able to perform the activity involved. It is the nature of the right given by the licence which, in my view, causes insurmountable difficulties in treating such a licence as property for matrimonial purposes. Those difficulties arise first, because it is not a right which is transferable; second, because it requires the personal efforts of the holder in order to be of any value in the future; and third, because the only difference between such a licence and any other right to work is in its exclusivity.
(a) Non-transferability
One of the traditional indicia of property is its inherent transferability. That transferability may, of course, be precluded either by law or by contract. In contrast, the right or licence to practise a particular profession is by its very nature a right personal to the holder, incapable of transfer. It is very different in nature from the professional practice which may be built up by the licensee after attaining the licence. The practice itself is clearly capable of transfer for value, although the market is limited to other licensees. Where spouses separate before a practice has been built up, there is nothing available for transfer.
In Brinkos v. Brinkos (1989), 69 O.R. (2d) 225, 20 R.F.L. (3d) 445, 69 O.R. (2d) 798 (supp. reasons) (C.A.), Carthy J.A., speaking for this court, discussed the distinction between rights which are inherently inalienable and those which are rendered inalienable either by law or by agreement. At p. 230 O.R., p. 451 R.F.L., he quoted the definition of “property” in Jowitt’s Dictionary of English Law , 2nd ed. (1977), at p. 1447:
In its largest sense property signifies things and rights considered as having a money value, especially with reference to transfer or succession, and to their capacity of being injured. Property includes not only ownership, estates, and interests in corporeal things, but also rights such as trade marks, copyrights, patents, and rights in personam capable of transfer or transmission, such as debts.
It is clear that many rights or things which are restrained from transfer by law are by agreement or otherwise inherently transferable and are of value to their owners. Such rights or things fall within the normal legal definition of property, and would clearly fall within the statutory definition of property in the F.L.A. However, right or things which are inherently non-transferable, such as the right to practise a profession, clearly do not constitute property in any traditional sense.
(b) Requirement of personal efforts of the licensee
Under the F.L.A., the types of property included in the statutory definition are very broad-ranging. The definition is in the F.L.A. for the purpose of determining the value of the property to be included in arriving at “net family property” to be equalized under s. 5. I see no way in which that definition can be interpreted to include work to be performed by either spouse in the future. It goes without saying that without the personal efforts of the licensee, the licence will produce nothing. The only provisions in the F.L.A. that allow one spouse to share in the fruits of the other spouse’s future labours are the support provisions, which do not form a part of the equalization payment under s. 5.
The policy of the F.L.A. emphasizes principles of partnership during marriage and self-sufficiency following its termination. When the marriage ends the partnership ends. Placing a value on future labours of either spouse for purposes of the equalization payment would frustrate those policy objectives.
(c) Right to work in general
The only difference between a professional licence and the ability and right of any individual to perform a particular type of work is in the exclusive nature of a professional licence. Only those who have successfully survived the rigours of professional training have the right to practise their profession. Nonetheless, the difference between the right to practise a profession and the right to work at any job which requires special skill or knowledge is a right which differs only in scope, but not in substance. A plumber, carpenter, or an electrician spends a substantial period of time in apprenticeship before becoming proficient at his trade: a salesman spends a substantial period of time developing a clientele in order to enhance his income: a business executive may spend a substantial period of time in university and then working his way up the corporate ladder to attain his level of income. Should the law consider all of these attainments as property for the purposes of determining the equalization payment under the F.L.A ? Clearly not. I see no interpretation of the F.L.A., either specifically under s. 4, or generally, which would allow the court to treat such attainments as property.
(ii) Valuation of licence
It is clear from the considerations referred to above, that there are substantial difficulties, both practical and conceptual, in treating licences as “property”. In addition, the valuation of such a right would be unfairly speculative in the matrimonial context. A myriad of contingencies, including inclination, probability of success in practice of the profession, length of physical and mental capability to perform the duties of the profession, competition within the profession, and many others, all render a fair valuation of the licence unusually difficult. But a further potential inequity arises: support orders may be varied if circumstances change, but no amendment of an equalization payment is possible regardless of changed circumstances.
The valuation approach approved by the trial judge in this case was to compare the appellant’s actual professional income since attaining his dental licence up to September 1986 with the average earnings of an honours university graduate of the same age during the same period. His future professional income from 1986 until his expected retirement age of 65 was determined, based on his actual income level adjusted by the rate of growth of income for dentists according to the American Dental Association. The difference between his projected future earnings and those of honours graduates was valued at an annual discount rate of 2.5 per cent according to the Ontario Rules of Civil Procedure, O. Reg. 560/84. Based on this approach, a valuation of the dental licence as of valuation date, July 18, 1981, was found to be $379,965. This valuation did not take into account any of the contingencies of the type referred to above. Another method of valuation, which resulted in the figure of $219,346 was to compare the expected career earnings of the average dentist obtaining his licence in July 1981 and retiring in November 2013, to the average earnings of honours university graduates for the same period.
Either valuation approach is logical, if the licence is “property”. However, it would be equally logical to treat a university degree as property, and then value that degree by comparing incomes of university graduates with those of high school graduates. In the matrimonial context, the fallacy lies in treating a licence as property on valuation date, when most of its value depends on the personal labour of the licensed spouse after the termination of the relationship. That future labour does not constitute anything earned or existing at the valuation date. For all of the above reasons it is my view that a professional licence does not constitute property within the meaning of s. 4 of the F.L.A.
CONSTRUCTIVE TRUST
The trial judge decided that the appellant’s dental licence was property within the meaning of s. 4 of the F.L.A. However, she did not include the value of the licence in the appellant’s net family property, but rather decided that the licence would be held by the appellant subject to a constructive trust in favour of the respondent in the amount of $30,000 — that amount representing the value of the respondent’s contribution to the acquisition of the licence. Given a finding that the licence constituted property, it is my view that the court had no discretion as to whether or not to include its value in net family property under s. 5(1) of the Act.
The finding of constructive trust was based on cases involving circumstances substantially different than those in this case. The two decisions of the Supreme Court of Canada in Rathwell v. Rathwell, [1978] 2 S.C.R. 436, 1 R.F.L. (2d) 1, and Becker v. Pettkus , [1980] 2 S.C.R. 834, 19 R.F.L. (2d) 165, were decided at a time when the relevant statutes of Saskatchewan and of Ontario would not have permitted appropriate recovery to the spouses. Both cases involved real property and other tangible assets which would clearly come within the definition of “property” under the Ontario F.L.A. Since the enactment of the F.L.A., cases have applied the constructive trust doctrine for the purpose of allowing a spouse, in appropriate circumstances, to share in the increased value of property from the valuation date until the time of trial. But again, those cases involve tangible physical assets. The three British Columbia decisions referred to by the trial judge — Piters v. Piters (1980), 20 B.C.L.R. 393, 19 R.F.L. (2d) 217 (S.C.); Underhill v. Underhill (1983), 45 B.C.L.R. 244, 34 R.F.L. (2d) 419 (C.A.); and Jackh v. Jackh (1980), 22 B.C.L.R. 182, 18 R.F.L. (2d) 310 (S.C.) — are all cases dealing with the issue of a proprietary interest in a professional practice, as contrasted with the claimed proprietary interest in a licence to practise.
The trial judge stated that she did not see “any reason in principle why a professional licence cannot be subject to a similar proprietary interest in the form of a constructive trust”. I agree that if the licence constituted “property” then there is no reason why, in a proper case, that property could not be subject to a constructive trust. However, if the licence does not constitute property, then there is nothing to which the constructive trust could attach. None of the cases relied on by the trial judge in this case assist in establishing that a licence is property to which a constructive trust can attach.
UNEQUAL DIVISION OF NET FAMILY ASSETS
The trial judge considered a possible method of compensating Mrs. Caratun would be to order an unequal division of net family assets pursuant to s. 5(6), treating the respondent’s contribution to her husband’s professional training as a “circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property”. Since I am of the view that the licence does not constitute property within the F.L.A., an unequal division of net family property would not solve this dilemma, as the parties had accumulated next to nothing in the way of family assets at the date of separation.
COMPENSATORY SUPPORT
The partnership theory of marriage espoused by the F.L.A., and any ordinary sense of fairness, require that some form of compensation be afforded the respondent in this case for her substantial contribution toward the career aspirations of her husband. The need for a remedy is made even more pronounced in this case because of the fact that no family assets had been accumulated at valuation date because Dr. Caratun separated from his wife immediately upon obtaining his licence. Nonetheless, any such remedy must be provided in accordance with the provisions of the relevant statutory provisions.
The only provisions of the F.L.A. which I consider available to provide compensation in a situation such as this are the support provisions. The trial judge considered this possibility in her reasons in which she states [p. 372 O.R., p. 353 R.F.L.]:
There are, however, a number of difficulties with this solution. Section 30 of the F.L.A. provides that support is to be based on need and ability to pay. A person who has financed his or her spouse’s professional training may be financially independent and have no need for support.
Furthermore, the provision of support would prolong the dependence of the spouses and is contrary to the F.L.A. ‘s policy of encouraging former spouses to become self- supporting. Finally, compensating the contributing spouse by means of support fails to recognize the degree or licence as the product of an economic partnership in which both spouses have an interest and are entitled to share. Rather than being a matter of right or entitlement, support is discretionary and is based upon need.
I agree that these problems exist under the F.L.A., but do not consider them insurmountable in a case where no alternative solution is available. However, in this case the applicable legislation is the corollary relief provisions of s. 11(1) of the Divorce Act, R.S.C. 1970, c. D-8, (the “old Divorce Act”) the relevant portions of which read:
11(1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:
(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of
(i) the wife,
(ii) the children of the marriage, or
(iii) the wife and the children of the marriage . . .
The wording in the old Divorce Act is somewhat different from the wording of the support provisions of the F.L.A. However, s. 11(1) is expressed in broad terms, and encompasses all of the relevant factors outlined under the provisions of the F.L.A.
In this case it is clear from the facts found by the trial judge that the respondent made a significant contribution to the marriage relationship, and more particularly to the ability of the appellant to attain his dental licence. Although the evidence did not disclose the dollar terms of the economic consequences of the relationship to Mrs. Caratun, it is clear that she gave up the practice of her profession in Israel, and came to this country where she worked as a waitress and hairdresser to assist her husband to attain his professional objective. Mrs. Caratun sacrificed, or at least delayed, her personal career advancement to assist her husband in furthering his. Both of their future lives were affected substantially as a result. His income earning ability and future prospects have been enhanced significantly. While she is not destitute, her income earning ability and future prospects have been diminished significantly.
I am of the view that a compensatory support order pursuant to s. 11(1) of the old Divorce Act is appropriate in this case. The trial judge took all of the relevant factors into consideration in arriving at the amount of $30,000, which she considered an appropriate amount to reflect the respondent’s contribution to the obtaining of the appellant’s dental licence, and awarded that amount in a lump sum. I see no reason to disturb that decision.
CROSS-APPEAL
The respondent argues in her cross-appeal that, given the trial judge’s finding that the licence constituted property within the terms of the F.L.A. , the full value of the licence should have been included in net family assets for the purpose of determining the equalization payment. I think that result logically follows. However, given the trial judge’s reasons as a whole, had she proceeded in that manner, it would have been appropriate to then order an unequal distribution pursuant to s. 5(6) of the F.L.A., and the result would have been the same.
DISPOSITION
I would not interfere with any other provisions of the trial judgment. In result, I would dismiss the appeal and the cross- appeal, with costs to the respondent in the appeal and no costs in the cross-appeal.
Appeal and cross-appeal dismissed. ESTT