



COURT OF APPEAL FOR ONTARIO

CITATION: Keresturi v. Keresturi, 2017 ONCA 162

DATE: 20170224

DOCKET: C60815

Strathy C.J.O., Laskin and Trotter JJ.A.

BETWEEN

Linda Gaye Keresturi

Applicant (Appellant)

and

Lewis William Keresturi

Respondent (Respondent)

Gary Joseph and Ryan Kniznik, for the appellant

Deborah L. Ditchfield, for the respondent

Heard: February 22, 2017

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated June 26, 2015, with reasons reported at 2015
    ONSC 3565, and from the costs order, dated October 30, 2015.

ENDORSEMENT

[1]

The parties, then in their late 60s and of relatively modest means, went
    to court to resolve the outstanding financial issues arising from their 40-year
    marriage. After protracted litigation and a ten-day trial, the judge found in
    favour of the husband on most issues. He ordered a $140,000 equalization
    payment to be paid by the wife, dismissed the wifes claim for an unequal
    division of net family property and ordered costs of $109,248 to be paid by the
    wife.

[2]

We dismissed the wifes appeal with reasons to follow. These reasons
    address the three grounds of appeal advanced before us.

Rejection of Expert Evidence

[3]

The appellant contends that the trial judges rejection of the evidence
    of her expert valuator, based on the experts alleged lack of independence, was
    tainted by error because the trial judge failed to analyze whether the nature
    and extent of the experts connection to the litigation or parties rendered him
    unable to give fair and independent opinion evidence: see
White Burgess
    Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R.
    182, at para. 49. While the appellant concedes that the trial judge did not
    exclude the experts opinion, she says that he effectively did so by giving it
    no weight.

[4]

The issue arose in connection with the valuation of nine pieces of farm
    equipment owned by the husband. The expert valuators called by the parties gave
    starkly different opinions. The appellants expert gave a value of $257,500;
    whereas the respondents expert put the value at $83,800.

[5]

The trial judge expressed concerns about the neutrality of the
    appellants expert. Her expert had been previously retained by the respondents
    bank in connection with proceedings against the respondent. As well, the
    experts business partner was married to the appellants sister.

[6]

The trial judge referred to
White Burgess
and admitted the
    evidence of the appellants expert. Having done so, he preferred the evidence
    of the respondents expert, who gave a thorough and reasoned explanation for
    his analysis of values. The trial judges reasons for giving little weight to
    the appellants expert included the experts assumption that the equipment was
    in good condition, his failure to personally inspect the equipment, and his use
    of insured values for some of the equipment. In contrast, the respondents
    valuator was personally familiar with much of the equipment, and was of the
    view that many items were old, poorly maintained, and money pits. In the
    final analysis, the trial judge accepted the evidence of the respondents
    expert in its entirety and gave no weight to the evidence of the appellants
    expert.

[7]

The weight to be given to the experts opinions was wholly within the
    province of the trial judge. While he might have valued the equipment based on
    some amalgam of their valuations, he was not required to do so and he was
    perfectly entitled to wholly prefer the evidence of one expert to the evidence
    of the other. He gave cogent reasons for doing so and we see no error in his
    decision.

Net Family Property

[8]

The appellant argues that the trial judge erred in failing to award her
    an unequal share of net family property (NFP) under s. 5(6) of the
Family
    Law Act,
R.S.O. 1990, c. F.3 (
FLA
),

based on the
    husbands intentional or reckless depletion of his net family property, largely
    as a result of his bankruptcy some 30 years earlier in the late 1980s. She claims
    that this should be regarded as intentional or reckless depletion of the
    respondents NFP under s. 5(6)(d) of the
FLA
, so as to make equal
    division of NFP unconscionable. She also claims that the trial judge erred in
    principle by undertaking the s. 5(6) analysis before quantifying the amount of
    the equalization payment. The determination of whether the payment would be
    unconscionable under s. 5(6) can only be made once the amount of the payment
    has been quantified:
Frick v. Frick
, 2016 ONCA 799, 132 O.R. (3d) 321,
    at para. 33.

[9]

We do not accept either submission. The trial judge addressed the
    appellants assertion that the respondent had recklessly depleted his NFP. He
    found that the respondent had not intentionally caused the farming losses that resulted
    in his bankruptcy. A substantial part of those losses were due to a
    devastating crop failure caused by weather in the mid-1980s, which made it
    impossible for the respondent to keep up his payments to the bank and resulted
    in his hospitalization for major depression. Lengthy litigation ensued with the
    bank. The judge concluded that it was not possible, in the circumstances, to
    second guess the reasonableness of the respondents actions. The appellant bore
    the onus of proof on this issue and she simply did not discharge the burden
    upon her to prove recklessness.

[10]

While we acknowledge that the trial judge did not strictly follow the correct
    approach to the s. 5(6) analysis, we are not satisfied that his failure to do
    so affected the outcome. The financial issues were not complex. On the one
    hand, the appellant held title to the matrimonial home, which had equity of
    approximately $250,000. On the other hand, the respondent owned farm equipment,
    valued by his expert appraiser at $83,800. It was apparent that if his
    appraisers expert opinion was accepted, as it was, there would be a
    substantial equalization payment from the appellant to the respondent, absent a
    finding of unconscionability under s. 5(6).

Costs

[11]

The appellant says the trial judges award of costs of $109,248 to the respondent
    was punitive, based on an error in principle, and plainly wrong.

[12]

We do not give effect to this submission. The trial judge gave separate
    reasons on costs. He considered the relevant principles, including those set
    out in rule 24 of the
Family Law Rules
, O. Reg. 114/99 as discussed in
    this courts decision in
Serra v. Serra
, 2009 ONCA 395, 66 R.F.L.
    (6th) 40. In concluding that the respondent was entitled to full recovery of
    his costs, the trial judge found, among other things, that: (a) the respondent
    had served and filed two reasonable offers of settlement prior to trial; (b)
    the appellant had protracted the trial by taking unreasonable and unattainable
    positions on most of the issues; (c) the appellant failed to agree to facts
    that should have been agreed to, thereby requiring massive preparation of
    documentary evidence; and (d) the appellants conduct increased the costs of
    litigation. These conclusions were available to him on the record.

[13]

While the costs were substantial, the appellant has identified no error
    in principle in the exercise of the trial judges discretion and we cannot say
    that the award is plainly wrong: see
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

Disposition

[14]

For these reasons, the appeal is dismissed with costs to the respondent
    fixed at $10,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

John Laskin J.A.

G.T. Trotter J.A.


