Best v. Best, (1997) 103 O.A.C. 344 (CA)

• Judge: Finlayson, Doherty and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 03, 1997
• Jurisdiction: Ontario
• Citations: (1997), 103 O.A.C. 344 (CA)

Best v. Best (1997), 103 O.A.C. 344 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. OC.021

Theodore Clifford Best (petitioner/appellant) v. Marlene Shirley Best (respondent/respondent in appeal)

(C17034)

Indexed As: Best v. Best

Ontario Court of Appeal

Finlayson, Doherty and Charron, JJ.A.

October 3, 1997.

Summary:

The 52 year old spouses separated in 1988 after 12 years' marriage. It was the second marriage for both. Each had adult children from their previous marriages, but no children from the present marriage. The husband petitioned for divorce. The trial judge granted a divorce and ordered that the husband pay the wife $147,649.50 as an equalization payment, $2,500 monthly spousal support and $45,000 costs. The husband appealed. The wife cross-appealed, seeking certain alternate relief if the hus­band's appeal was successful.

The Ontario Court of Appeal dismissed the husband's appeal and the wife's cross-appeal.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Pensions - A hus­band and wife separated in 1988 after 12 years' marriage - At the date of separation, 20 years of the husband's 32 pensionable years predated the marriage - The value of the pension apportioned to the marriage period was either $372,041 (value-added approach) or $151,480 (pro-rata (on ser­vice) approach) - The Ontario Court of Appeal affirmed the value-added ap-proach, which produced a fairer value of pension accruals during marriage in defined benefit plans - See paragraphs 23 to 35.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Pensions - A hus­band and wife separated in 1988 after 12 years' marriage - At the date of separation, 20 years of the 52 year old husband's 32 pensionable years predated the marriage - At issue was the apportionment of the pension value earned during the marriage, which depended upon the expected retire­ment date at the time of separation - The trial judge fixed the retirement date at 57.4 years, notwithstanding that at the trial date the husband was 58 and still working - The Ontario Court of Appeal held that the trial judge did not err - The trial judge properly made his decision "without using the benefit of hindsight", stating that "facts which were unknown to, or not within the contemplation of, the pension holder on valuation date are not relevant" - Based on all relevant information available as of the date of separation, a retirement age of 57.4 was reasonable notwithstanding, in hind­sight, the husband did not in fact retire at that age - See paragraphs 6 to 22.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - The 52 year old spouses separated in 1988 after 12 years' marriage (second marriage for both of them) and divorced one year later - There were no children from the marriage - The husband was a school principal - The wife obtained a university degree during the marriage and training as a real estate salesperson, but health prob­lems left her with no means of support - The trial judge awarded $2,500 per month spousal support, with no time limit - The husband did not challenge the amount, but claimed that the trial judge should have ordered that support terminate when he retired - The Ontario Court of Appeal held that the trial judge did not err in making support not limited in time - The court noted that the husband was entitled to apply to vary support on the basis of changed circumstances - See paragraphs 42 to 44.

Cases Noticed:

Kennedy v. Kennedy (1996), 89 O.A.C. 257; 19 R.F.L.(4th) 454 (C.A.), refd to. [para. 12].

Sauder v. Sauder (1996), 2 O.T.C. 198; 23 R.F.L.(4th) 228 (Gen. Div.), refd to. [para. 30, footnote 2].

Valenti v. Valenti (1996), 21 R.F.L.(4th) 246 (Ont. Gen. Div.), refd to. [para. 30, footnote 2].

Deane v. Deane (1995), 14 R.F.L.(4th) 55 (Ont. Gen. Div.), refd to. [para. 30, footnote 2].

Knippshield v. Knippshield, [1995] 5 W.W.R. 257; 129 Sask.R. 92; 11 R.F.L.(4th) 36 (Q.B.), refd to. [para. 30, footnote 2].

Ramsay v. Ramsay (1994), 119 Sask.R. 81; 111 D.L.R.(4th) 312 (Q.B.), refd to. [para. 30, footnote 2].

Marsham v. Marsham (1987), 59 O.R.(2d) 609 (H.C.), refd to. [para. 30, footnote 2].

George v. George (1983), 23 Man.R.(2d) 89; 149 D.L.R.(3d) 486 (C.A.), refd to. [para. 30, footnote 2].

Madden v. Madden (1997), 31 O.T.C. 143 (Gen. Div.), refd to. [para. 30, footnote 2].

Shafer v. Shafer (1996), 12 O.T.C. 140 (Gen. Div.), refd to. [para. 30, footnote 2].

Spinney v. Spinney (1996), 4 O.T.C. 295 (Gen. Div.), refd to. [para. 30, footnote 2].

Munro v. Munro, [1995] O.J. No. 1769 (Gen. Div.), refd to. [para. 30, footnote 2].

Rusticus v. Rusticus, [1995] O.J. No. 2925 (Gen. Div.), refd to. [para. 30, footnote 2].

MacLeod v. MacLeod (1994), 135 N.S.R.(2d) 49; 386 A.P.R. 49 (S.C.), refd to. [para. 30, footnote 2].

Deroo v. Deroo (1990), 28 R.F.L.(3d) 86 (Ont. H.C.), refd to. [para. 30, footnote 2].

Hierlihy v. Hierlihy (1984), 48 Nfld. & P.E.I.R. 142; 142 A.P.R. 142 (Nfld. C.A.), refd to. [para. 30, footnote 2].

Tuomi v. Tuomi, [1993] O.J. No. 687 (Gen. Div.), refd to. [para. 40, footnote 3].

Salib v. Cross (1993), 15 O.R.(3d) 521 (Gen. Div.), affd. (1995), 27 O.R.(3d) 255 (C.A.), refd to. [para. 40, footnote 3].

Best v. Best (1992), 57 O.A.C. 108; 9 O.R.(3d) 277 (C.A.), refd to. [para. 40, footnote 3].

Blais v. Blais (1992), 38 R.F.L.(3d) 256 (Ont. Gen. Div.), refd to. [para. 40, foot­note 3].

Randolph v. Randolph (1991), 34 R.F.L.(3d) 444 (Ont. Gen. Div.), refd to. [para. 40, footnote 3].

DaCosta v. DaCosta (1990), 74 D.L.R.(4th) 491 (Ont. Gen. Div.), refd to. [para. 40, footnote 3].

Alger v. Alger (1989), 21 R.F.L.(3d) 211 (Ont. S.C.), refd to. [para. 40, footnote 3].

Hilderley v. Hilderley (1989), 21 R.F.L.(3d) 383 (Ont. H.C.), refd to. [para. 40, footnote 3].

Fitzpatrick v. Fitzpatrick (1988), 17 R.F.L.(3d) 278 (Ont. S.C.), refd to. [para. 40, footnote 3].

Forster v. Forster (1987), 11 R.F.L.(3d) 121 (Ont. H.C.), refd to. [para. 40, foot­note 3].

Marsham v. Marsham (1987), 19 O.R.(2d) 609 (H.C.), refd to. [para. 40, footnote 3].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 40, footnote 3].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 4, sect. 5(1) [para. 6].

Authors and Works Noticed:

Canadian Institute of Actuaries, Recommendations for the Computation of the Capitalized Value of Pension Entitlements on Marriage Breakdown for Purposes of Lump-Sum Equalization Payments, generally [para. 23].

Ontario, Law Reform Commission, Report on Pensions as Family Property: Valua­tion and Division (1995), pp. 11 [para. 33]; 33 to 50 [para. 40]; 147 to 148 [para. 30].

Counsel:

Jirina Bulger, for the appellant;

Frank Tierney and Shawn Peers, for the respondent.

This appeal was heard on June 27, 1997, before Finlayson, Doherty and Charron, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Charron, J.A., and released on October 3, 1997.