



COURT OF APPEAL FOR ONTARIO

CITATION: Gomez v. McHale, 2016 ONCA 318

DATE: 20160502

DOCKET: C61434

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Lilybeth Gomez

Applicant (Appellant)

and

Brian Michael McHale

Respondent (Respondent)

Elliot Birnboim, for the appellant

Colin Still, for the respondent

Heard: April 25, 2016

On appeal from the judgment of Justice
J.
    Bryan
Shaughnessy of the Superior Court of Justice, dated December 3,
    2015.

ENDORSEMENT


[1]

The appellant Lilybeth Gomez appeals from the Order of Shaughnessy J. of
    the Superior Court of Justice dated December 3, 2015 granting her an
    equalization payment of $60,000.

[2]

The order under appeal arose from motions for summary judgment brought
    by both parties. The appellant wife sought a judgment for equalization of the
    net family property ($268,000) or, alternatively, for four-fifths of that
    amount ($214,000). The respondent husband Brian McHale sought a judgment
    dismissing the plaintiffs clam for an equal or unequal division of net family
    property.

[3]

The parties began dating in July 2007. The appellant moved into the
    respondents home, which is the sole property in issue on the claim for
    division of family property, in September 2009. The parties married in June
    2013. They separated in February 2014.  The appellant contends that the entire
    2007-2014 period needs to be considered as the period of cohabitation. However,
    as the motion judge recorded, counsel for the [appellant] invited this court
    to ignore [the 2007-2009] period  and simply to rely on the dates of
    cohabitation not in dispute, i.e. 2009-2014. We proceed on this basis.

[4]

Because the parties cohabited for less than five years, s. 5(6) of the
Family
    Law Act
, R.S.O. 1990, c. F.3 (
FLA
) is central to the
    equalization issue:

5(6) The court may award a spouse an amount that is
    more or less than half the difference between the net family properties if the
    court is of the opinion that equalizing the net family properties would be
    unconscionable, having regard to

(e) the fact that the amount a spouse would otherwise
    receive under subsection (1), (2) or (3) is disproportionately large in
    relation to a period of cohabitation that is less than five years.

[5]

The appellant appeals the motion judges decision on three grounds.

[6]

First, the appellant contends that the motion judge failed to consider
    the parameters of the motions before him as defined by the parties Notices of
    Motion, thereby offending the
audi alterem partem
rule. Specifically,
    the appellant asserts that the only options for the motion judge were: (1)
    grant the appellant an equal distribution of net family property ($268,000);
    (2) grant the appellant an unequal four-fourths distribution of net family
    property ($214,000); or (3) grant partial judgment
in
    some amount
to the appellant and direct the balance to proceed to trial.

[7]

We reject this submission. Put bluntly, this is not the way motions for
    summary judgment, especially duelling motions, work. The motion judge was
    entitled to consider all the evidence and then apply the relevant statutory provision,
    s. 5(6) of the
FLA
, and determine both whether an unequal division was
    appropriate and, if so, the quantum of the unequal division. He was not limited
    to choosing one of the two amounts proposed by the appellant and, if he was
    inclined to reject them, referring the question of quantum on to a trial.

[8]

Second, the appellant asserts that the motion judge erred by granting
    judgment on a final basis rather than a partial basis to enable the issues to
    be heard fully on the merits.

[9]

In our view, this submission is merely a reformulation of the first
    issue. The response is, again, that the appellant brought a motion for summary
    judgment. The motion judge heard and determined it. He was not limited to
    choosing only one of the appellants alternative positions.

[10]

Third,
    the appellant submits that the motion judge granted an unequal division of
    family property on an arbitrary basis in two respects.

[11]

The
    appellant contends that the motion judge erred by not following a mathematical
    formula for calculating the unequal division of net family property. Section
    5(6)(e) of the
FLA
applies when cohabitation is less than five years.
    In several cases, courts have looked at the actual period of cohabitation (e.g.
    48 months) and then fixed an unequal division of net family property using that
    period as a percentage of the five year statutory period, i.e. 48/60 = 80 per
    cent): see, for example,
Sarcino v. Sarcino
, [1999] O.J. No. 902 (Ont.
    Gen. Div.) and
Kucera v. Kucera
(2005), 16 R.F.L. (6th) 250 (Ont. Sup.
    Ct.).

[12]

We
    do not accept this submission. Although a mathematical formula may be of
    assistance in some cases, we do not think that the motion judge erred by not
    applying it in this case. He did what s. 5(6) of the
FLA
requires. He
    looked carefully at the backgrounds of both parties, determined that an equal
    division would be unconscionable, and fixed what he regarded as a reasonable
    figure. We see no error in the motion judges approach.

[13]

Finally,
    the appellant points to an error in the motion judges statement about the
    appellants alternative submission about an unequal division: The
    applicant/wife submits that this court  should  award the wife 40% of the
    presumptive amount [$268,566.61]. This calculates to be $107,426.64 payable by
    the husband to the wife. The appellant asserts, and the respondent concedes,
    that the appellants position was that she should receive 80 per cent of the
    presumptive amount, i.e. $214,853.28. The appellant further contends that the
    motion judge probably used $107,426.64 as the base against which he decided to
    reduce the distribution to the appellant to $60,000. Accordingly, if he had
    stated the appellants position correctly, $214,853.28, it follows that he
    would have awarded her $120,000, not $60,000.

[14]

In
    our view, this submission is speculative. There is no language in the trial
    judges reasons between his statement about the appellants position and his
    ultimate conclusion about quantum to suggest that he linked these numbers in a
    formulaic way. On the contrary, his analysis in the reasons between these two
    passages is anchored in a consideration of various factors about the parties
    contributions and tells heavily in favour of the respondent:

I am not persuaded that the mathematical formula proposed by
    the applicant/wife is appropriate in the circumstances of this case. The home
    is the most significant asset and it was brought into the marriage by the
    husband. The husband made significant improvements to the home, including
    during the period of cohabitation and the marriage. The wife made no contribution
    to the maintenance or improvements to the home. She did contribute to the
    purchase of groceries and she attended to the needs of her daughter.

In our view, this catalogue of factors supports the
    final amount of equalization at $60,000.

[15]

The
    appeal is dismissed. The respondent is entitled to his costs of the appeal
    fixed at $9,900, inclusive of disbursements and HST.

Doherty
    J.A.

J.C.
    MacPherson J.A.

B.W.
    Miller J.A.


