



COURT OF APPEAL FOR ONTARIO

CITATION: Muraven v. Muraven, 2021 ONCA 657

DATE: 20210924

DOCKET: C68643

Lauwers, Coroza and Sossin JJ.A.

BETWEEN

Eric Muraven

Applicant (Respondent)

and

Fay-Lynn
    Muraven

Respondent
    (Appellant)

Dani Z.
    Frodis, for the appellant

Ryan M.
    Kniznik, for the respondent

Heard:
    September 2, 2021 by video conference

On appeal from the orders of Justice Mario D. Faieta
of the Superior Court of Justice
, dated June 29, 2020 and August 18, 2020.

REASONS
    FOR DECISION

[1]

The appellant, Fay-Lynn Muraven, and respondent, Eric Muraven, were
    married in 2003. They have two children. After thirteen years of marriage, the
    parties separated in 2016 after the respondent left the matrimonial home.

[2]

In February 2020, the parties went to trial to determine various parenting
    and support issues. Shortly after the start of trial, the parties engaged a
    mediator and settled the parenting arrangements and ongoing support issues
    related to the children. The parties also agreed that the remaining financial
    issues would be determined by way of a motion for summary judgment to be
    decided by the trial judge.

[3]

In reasons dated June 29, 2020, the trial judge decided a range of
    financial issues related to the parties incomes; retroactive child support
    owed by the respondent; retroactive s. 7 special or extraordinary expenses
    per the
Federal Child Support Guidelines
, SOR/97-175;
and the equalization of net family property. Ultimately,
    the trial judge held that the respondent should pay the appellant an
    equalization payment of $67,327.51; retroactive child support in the amount of $30,427;
    and arrears of s. 7 expenses in the amount of $30,515.13. Additionally, the
    appellant owed the respondent a post-separation adjustment amount. The trial
    judge declined to order any prejudgment interest to be paid on the amounts
    owing to the appellant.

[4]

The parties could not settle the final order of the trial judge. A
    further teleconference was held on July 23, 2020 to address several matters in
    respect of the June order. At this teleconference, the appellant sought to
    reopen the trial and asked the trial judge to reconsider his decisions on net
    family property, income for support purposes, and s. 7 expenses. All the arguments
    on these issues were dismissed by the trial judge in further reasons dated
    August 18, 2020.

[5]

The appellant appeals the decision of the trial
    judge and raises three issues relating to (1) a date of marriage deduction; (2)
    the after-tax cost of the childrens parochial school; and (3) the trial judges
    refusal to grant prejudgment interest on the amounts owing by the respondent.

Date of Marriage Deduction

[6]

The appellant argued before the trial judge
that
    $80,000 in proceeds from the sale of inherited land should not form part of her
    net family property in calculating the equalization payment because, per s.
    4(2) of the
Family Law Act,
R.S.O. 1990, c. F.3

(
FLA
),
    the property was acquired by gift or inheritance from a third person after the
    date of marriage. The appellant received $100,362.33 in February 2015, during
    marriage, as proceeds of sale of this inherited land. The trial judge rejected
    this submission and noted that the appellant had testified that these funds
    were the result of an inheritance she had received in 1991, years prior to the
    date of marriage. It was held in trust for her until it was sold during
    marriage. Therefore, because the property was acquired by inheritance by the
    appellant prior to the marriage, the trial judge reasoned that the proceeds did
    not qualify for exclusion under s. 4(2) of the
FLA
.

[7]

The appellant raised an alternative date of
    marriage deduction argument with the trial judge during the July teleconference.
    The appellant argued that the land should be ascribed the value that she
    received after it was sold and deducted from her net family property. The trial
    judge noted that there was no evidence as to the propertys specific location,
    size, or value on the date of marriage and that he would not have approved
    reopening the trial to allow such additional evidence because the appellant
    could have advanced this alternative claim on the motion for summary judgment.
    Furthermore, the trial judge held that he was not prepared to guess the value
    of the property on the date of marriage. Accordingly, he granted no deduction.

[8]

The appellant submits that the trial judge erred
    by applying inconsistent standards when reviewing the evidence and determining
    the value of the parties date of marriage assets. She argues that the trial
    judge held her to a more exacting standard while overlooking the weaknesses and
    gaps in the respondents evidence, and further submits that the respondent
    deserved less leniency because he was non-compliant in his disclosure
    obligations under the
Family Law Rules
, O. Reg. 114/99.

[9]

We find no support for the appellants argument
    that the trial judge was uneven in his treatment of the evidence of the
    parties. The trial judge was not more lenient in his approach to the respondents
    401K evidence compared with the appellants evidence on the land parcel. Importantly,
    the 401K was raised as a date of marriage asset at the time of summary judgment
    while the land parcel was not. The respondent, for example, provided the trial
    judge with evidence of the 401Ks value in 2016 and evidence of the annual rate
    of return since 2008. Finding that no contributions had been made after 2003, the
    trial judge ascribed the 401K a date of marriage value of $65,000, which was
    nearly half the respondents suggested value for the deduction. On the other
    hand, when later asked to consider the appellants land parcel as a date of
    marriage asset, the trial judge noted that there was no evidence of the
    particulars of the property, such as the specific location or size, and that there
    was no evidentiary basis for the value of the land on the date of marriage. It
    was open to the trial judge to reject the claim where there was insufficient
    evidence.

[10]

We also see no basis to interfere with the trial
    judges conclusion that, because the property was acquired by inheritance by
    the appellant prior to the marriage, the proceeds did not qualify for
    exclusion. Finally, we find no error in the trial judges refusal to consider
    the appellants alternative argument. The trial judge was in the best position
    to decide whether, at the expense of finality, fairness dictated that the trial
    be reopened. The appellant has not pointed to an error that would warrant
    interference by this court in the trial judges exercise of discretion. We
    reject this ground of appeal.

Parochial School

[11]

When deciding the issue of s. 7 expenses, the
    trial judge assessed each partys share of the costs of parochial school for
    both children. In determining his share, the respondent argued that the
    appellant was able to claim a $10,000 childcare expense deduction as well as a
    charitable donation credit in previous tax years. The respondent argued that,
    in light of these tax benefits, the appellants after-tax cost of the parochial
    school was $34,423 rather than $59,650, as claimed. The appellant argued that
    the respondent should have raised this issue earlier and disputed the extent of
    the tax benefit. The trial judge ruled that the estimate of a 40-50 percent tax
    benefit was reasonable given the appellants income since 2016 and accepted the
    respondents calculations for his share of the parochial school expenses.

[12]

The appellant raised this issue again during the
    July teleconference and sought to provide additional evidence to support her
    calculations. However, the trial judge ruled that the evidence could have been
    provided before the hearing, and in any case, would be unlikely to change the
    result. The trial judge noted that this was essentially an argument that the
    appellant did not have sufficient time to respond to the respondents May 20,
    2020 reply affidavit before the summary judgment motion was heard on May 23 and
    May 25, 2020. However, that position was not advanced that time nor did the
    [appellant] seek additional time to respond. Therefore, he dismissed the
    appellants request for reconsideration of this issue.

[13]

We see nothing in this ground of appeal. The
    trial judge quite properly considered any income tax deductions, credits, and
    benefits in determining the amount of the s. 7 expense and, for the reasons
    outlined above, we again see no basis to interfere with the trial judges
    exercise of discretion in refusing to reopen the trial to hear further evidence
    that could have been called during the hearing in May.

Prejudgment Interest

[14]

After determining the amounts owing to the
    appellant, the trial judge concluded that prejudgment interest would not be
    granted on the equalization payment and the arrears in child table support. Other
    than stating that he declined to make an award of prejudgment interest, he gave
    no specific reasons for that decision.

[15]

The appellant argues that the trial judge erred
    because he did not provide reasons, notwithstanding a legislative presumption
    in favour of awarding prejudgment interest and the appellants detailed submissions
    on the issue.

[16]

As a general rule, a payor spouse is required to
    pay prejudgment interest on an equalization payment owing to the payee spouse. However,
    the applicable legislation makes clear that the granting or denial of
    prejudgment interest is discretionary:
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 130. There are exceptions to the general rule. Exceptions
    arise where, for various reasons, the payor spouse cannot realize on the asset
    giving rise to the equalization payment until after the trial, does not have
    the use of it prior to trial, the asset generates no income, and the payor
    spouse has not delayed the case being brought to trial:
Burgess v. Burgess
(1995), 24 O.R. (3d) 547 (C.A.), at p. 552;
Fielding v. Fielding
, 2015
    ONCA 901, 129 O.R. (3d) 65, at para. 43.

[17]

Although the trial judge did not provide reasons
    for his decision not to award prejudgment interest, in this case the trial
    judge made findings that support his refusal to award prejudgment interest. The
    major asset identified at trial was the matrimonial home. The trial judge
    specifically found that there was no evidence that the respondent obtained any
    financial benefit, as joint owner of the home, in having the appellant continue
    to reside in the matrimonial home and pay its carrying costs for more than
    three years following the separation. He further noted that the appellant chose
    to remain in the matrimonial home and incur its carrying costs rather than seek
    an order for its sale.

[18]

These findings firmly support the decision not
    to award prejudgment interest on the equalization payment. Although reasons for
    declining to award prejudgment interest should generally be provided, we see no
    basis to interfere with the trial judges ultimate decision
.

[19]

Nor do we see any error in the trial judges
    decision not to award prejudgment interest on the child support arrears. The
    trial judge recognized that the respondent did make efforts to make several
    payments of child support in the amount of $30,456 post-separation and that the
    respondent agreed to pay more than his proportionate share of some of the s. 7
    expenses. Indeed, the trial judge observed that the respondent agreed to pay
    for certain s. 7 expenses that the trial judge would not otherwise have ordered.
    Again, these factors supported the trial judges decision not to grant
    prejudgment interest for child support in this case.

Conclusion

[20]

For these reasons, the appeal is dismissed.

[21]

In accordance with the agreement of counsel at
    the oral hearing, the respondent is entitled to his costs of the appeal in the
    amount of $10,000, all-inclusive of disbursements and taxes.

P.
    Lauwers J.A.

S.
    Coroza J.A.

L.
    Sossin J.A.


