



COURT OF APPEAL FOR ONTARIO

CITATION: Lauzon v. Fortier, 2018 ONCA 1086

DATE: 20181228

DOCKET: C64865

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Julie Lauzon

Appellant

and

Lionel Fortier

Respondent

J. Summers, for the appellant

Y. Guilbault and Jessica Houle, for the respondent

Heard: December 13, 2018

On appeal from the
    judgment of Justice M.P. Shelston of the Superior Court of Justice, dated December
    21, 2017.

REASONS FOR DECISION

[1]

This is an appeal of a judgment after trial following marriage
    breakdown.  The appellant contends that the trial judge erred in ordering that
    the respondent pay her an equalization payment of $166,674.64 by way of pension
    rollover, and in ordering that she pay the respondent the sum of $128,560 plus
    interest for his interest in the matrimonial home. The parties had agreed to
    the transfer of the matrimonial home after separation. In October 2016, the
    court ordered the transfer of the home further to the agreement and dispensed
    with the requirement for the respondents signature. The appellant asserts that
    the trial judge ought to have set off the value of the respondents interest in
    the matrimonial home against the equalization payment that was owed, with the
    balance payable by pension rollover. Her position is that the trial judges
    order to the contrary was made without jurisdiction. In the alternative, she
    asserts that even if the order could have been made, it should not have been
    since the trial judge failed to consider all relevant factors.

[2]

For the reasons that follow we dismiss the appeal.

[3]

The relevant facts are as follows.

[4]

The parties separated in October 2014 after 15 years of marriage. By
    mid-April 2015 the respondent had moved out and the appellant was paying all
    expenses associated with the matrimonial home. The respondent commenced his
    application at that time, seeking various relief, including equalization of net
    family property and the immediate sale of the matrimonial home. The appellant asked
    for the equalization of net family property and exclusive possession of the matrimonial
    home and its contents. She also specifically asked that she have exclusive
    possession of the matrimonial home and its contents until the equalization of
    net family property and
until she could
    obtain refinancing of the matrimonial home to pay the [respondent] for his
    share
.

[5]

A temporary consent order on October 21, 2016 provided for child
    support, access and that the children would reside with the appellant at the
    matrimonial home.

[6]

On June 9, 2016 the parties signed interim minutes of settlement which
    were incorporated into an interim order of the same date. Among other things
    they agreed as follows:

5. The matrimonial home shall be transferred to the
    mother on the following conditions:

(a) the father shall obtain an appraisal with
    Independent Appraisers at his cost. The father shall be allowed to attend with
    the appraiser, but he shall not bring any one with him. The mother may have any
    third-party present. The father will not communicate with the mother during the
    appraisal. The appraisal will be either on the weekend or in the evening after
    5:30 p.m.

(b) The mother shall forthwith apply to the bank for
    approval to remove the father from the mortgage;

(c) Subject to the ability of the bank to comply and
    the consent of counsel, should the mother not be approved within 30 days of the
    minutes, the home shall be listed for sale by Mario Lemieux on the following
    conditions:

(i)
    the listing price will be as recommended by Mario Lemieux; and

(ii)
    the parties shall accept any offer that is at least 95% of the listing price.

(d) Provided the mother is approved, the house shall
    be transferred into the mothers name alone within 60 days of the appraisal.
    The cost of the transfer shall be shared by the parties.

6. The equalization of the net family properties
    shall be addressed at a later date.

[7]

The parties subsequently agreed that the equity in the matrimonial home
    was $256,519 and that the respondents share for his equity was $128,260.

[8]

On October 13, 2016 the parties were in court, each seeking a finding of
    contempt against the other. The appellant sought an order that the respondent
    was in contempt for failing to transfer to her his interest in the matrimonial
    home. The respondent alleged that the appellant was in contempt for failing to
    obtain the necessary financing to purchase his interest or to sell the
    matrimonial home. Labrosse J. dismissed both motions. He granted summary
    judgment in favour of the appellant to dispense with the respondents consent
    to transfer his interest in the matrimonial home. At that time Labrosse J.
    identified that the respondent wished to satisfy the equalization payment by
    way of a pension transfer but that that issue should be reserved for the trial
    judge.

[9]

The respondents half-interest in the matrimonial home was transferred
    to the appellant on November 3, 2016.

[10]

By
    the time the application proceeded to trial in September 2017, the parties had
    settled the issues of custody, access and support on a final basis, and the
    trial judge incorporated the terms of their settlement into his final order.

[11]

The
    central issues at trial were as follows:

·

The respondents claim for occupation rent from April 2015 until
    November 3, 2016 when title to the home was transferred;

·

Equalization of net family property;

·

The respondents claim for payment for his interest in the
    matrimonial home;

·

The amount of the equalization payment owed by the respondent to
    the appellant and how equalization would be satisfied; and

·

Whether the respondent was entitled to an order for the sale of
    the matrimonial home.

[12]

The
    respondents claim for occupation rent was dismissed. The parties disagreed
    about the value of a savings account in the appellants name. The trial judge
    accepted the appellants evidence that the account was joint with her father,
    and included only one half the value of the account for equalization purposes.
    Neither of these conclusions is challenged by the respondent in the appeal.

[13]

The
    trial judge then calculated the equalization payment owed by the respondent to
    the appellant as $144,934.47. He observed that the question of how the
    equalization payment was to be made was disputed between the parties. The
    appellant submitted that the equalization payment should be satisfied by the
    respondent receiving a credit of $128,260, representing his equity in the
    matrimonial home, and that the balance be paid by a transfer from the
    respondents pension plan grossed up by 15% for income tax. The respondent
    sought an order that he be paid the equity in the matrimonial home and that if
    the appellant was unable to make the payment, that the home be sold. The
    respondent proposed that the equalization be satisfied by a pension rollover.

[14]

The
    trial judge had to determine how the equalization payment was to be made. The
    appellants position was that the parties had agreed that the respondent would
    receive a credit against equalization for his interest in the matrimonial home.
    The trial judge noted that this was denied by the respondent, who was
    consistent in his position that the appellant should buy out his interest in
    the matrimonial home.

[15]

The
    trial judge observed that, although the parties were represented by counsel at
    the time, the interim minutes of settlement did not address how the respondent
    was to be paid his equity or how equalization was to be determined. The parties
    did not agree on the effect of the transfer on the equalization calculation and
    payment or on how the equalization payment was to be made.

[16]

In
    the absence of an agreement, the trial judge determined the issue after
    considering the provisions of the
Family Law Act
and relevant
    jurisprudence. He noted that he had considered the following factors:

·

the respondents pension comprised 59% of his assets at the date of
    separation;

·

at separation the two largest assets were the matrimonial home
    with equity of $256,519 and the respondents pension valued at $331,759;

·

at separation, the parties total net liquid assets were
    $9,063.38;

·

the respondent has always requested that he be bought out of his
    interest in the matrimonial home;

·

the respondent had purchased his own residence post-separation;

·

the interim minutes of settlement do not assist either party in
    their position that either there is to be a credit for the respondent or that the
    appellant owes the respondent a payment for his equity in the home;

·

the maximum transferable amount under the terms of the
    respondents pension plan was $180,529.48 accumulated from July 19, 1999 to
    October 11, 2014.

[17]

After
    referring to the preamble of the
Family Law Act
, its primary goal as a
    division of assets that is fair to both spouses, the fact that the parties
    worked hard throughout their marriage, and that their largest asset, other than
    the respondents pension, was the matrimonial home, the trial judge concluded
    that it would be unfair to the respondent to leave the marriage after 15 years
    with what amounted to a single asset  his pension  that he could not access
    for many years. He therefore ordered that the equalization payment be made by a
    pension rollover, a decision he observed was in keeping with the primary goal
    of the
Family Law Act
that the division of assets be fair to both
    spouses.

[18]

The
    trial judge held that the appellant owed the respondent the sum of $128,560 for
    his share in the matrimonial home. After reviewing the relevant statutory
    provisions, he concluded that he could not order the sale of the matrimonial
    home to enforce the payment of this post-separation adjustment as it was not
    related to the equalization payment which the respondent, not the appellant,
    was required to make.

[19]

The
    final order therefore required the respondent to pay an equalization payment of
    $166,674.64 (which included a 15% gross-up for income tax) by way of rollover
    of his pension, and the appellant to pay the respondent $128,560 for his share
    in the matrimonial home, with interest at 3% effective the date of the
    transfer.

[20]

On
    appeal there is no dispute about the amounts owed by way of equalization or the
    value of the respondents interest in the matrimonial home. The sole question
    is whether the trial judge erred in refusing to address the respondents
    entitlement as a set-off against the equalization payment he owed to the
    appellant.

[21]

First,
    the appellant asserts that the trial judge did not have jurisdiction to make
    the order he did. The appellant contends that the effect of the interim minutes
    of settlement is that the parties had reached a final agreement on the transfer
    of the home and that the only financial issue left to be determined was
    equalization. The appellant argues that under the
FLA
it is not open
    to the court to order the payment for the transfer of an asset that does not
    directly satisfy equalization. That is, her position is that the only question for
    the court is how the equalization payment is to be satisfied by the payor.

[22]

We
    disagree. The appellants jurisdiction argument is based on an interpretation
    of the parties agreement that was not accepted, and was specifically rejected,
    by the trial judge. The trial judge concluded that the parties were not in
    agreement as to how the equalization payment was to be made or as to how the
    respondent was to be compensated for transferring his interest in the
    matrimonial home to the appellant. The inclusion of the words the equalization
    of the net family properties shall be addressed at a later date, without more,
    did not mean that the respondent would be entitled to payment for his share of
    the matrimonial home only by way of set-off against the equalization payment,
    once the amount was determined. As the trial judge noted, if the parties
    intended that result, the minutes should have said so. He concluded that the
    parties agreed to defer that issue to trial.

[23]

Indeed,
    the appellants position at trial was not that the parties had reached a final
    agreement about the transfer of the matrimonial home, so that the only issue
    left to be determined was equalization. The agreement was silent as to how the respondent
    was to be compensated for the transfer of his equity in the home which had
    occurred between the date of separation and the trial. And since the appellant rightfully
    acknowledged that the respondent was entitled to some form of compensation for
    the transfer (whether by payment or by set-off), both parties effectively
    agreed that there was an issue beyond the value of the equalization payment 
    always calculated as at the date of separation  that was left to be resolved. 
    That is, for the court to grant either partys request an order was required
    that went beyond the value of the equalization payment owing
at the time of
    separation
and how it was to be paid.

[24]

When
    looked at this way, it is clear that the court had jurisdiction to make the
    order it did. Both parties had requested orders beyond what was required only
    to equalize their net family properties. And the court routinely makes such
    orders to account for post-separation adjustments. In the absence of an
    agreement between the parties to that effect, the trial judge was not obliged
    to order the payment to be made by way of set-off against the equalization
    payment owed to the appellant by the respondent. It was open to him to make the
    order that he did.

[25]

As
    the second ground of appeal, the appellant asserts that even if there was
    jurisdiction to make the order, the trial judge did not consider all relevant
    factors when he refused to set off the respondents value in the matrimonial
    home against the equalization payment that was owed. In particular, she points
    to the trial judges reference to the respondent having always requested that
    he be bought out of his interest in the matrimonial home, which was included
    in his list of enumerated factors and his failure to mention in the same list
    the fact that she had always requested a set-off against equalization. She also
    contends that the trial judge failed to take into consideration the fact that ordering
    her to pay the respondent for his share would require her to sell the home in
    which she lives with the children and from which she operates a home day-care.

[26]

We
    do not give effect to this ground of appeal. We are satisfied, on a review of
    the record, that the trial judge was aware of these circumstances, and took
    them into consideration when he balanced the parties interests. We note that
    the trial judge was only presented with options at two extremes: that the
    entire value of the respondents interest in the house be set off against the
    equalization payment he owed, or that the equalization payment be satisfied
    entirely by a pension rollover. The result does not reflect an unreasonable
    exercise of discretion, and there is accordingly no basis to interfere.

[27]

For
    these reasons the appeal is dismissed. The respondent shall have his costs of
    the appeal in the sum of $3,500, inclusive of disbursements and HST. The appellant
    owes the respondent the net amount of $2,500 after setting off the costs
    awarded in favour of the appellant in the sum of $1,000 in respect of the
    respondents unsuccessful motion to this court.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


