Brignolio v. Brignolio, (1997) 29 O.T.C. 251 (GD)

• Judge: Poupore, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: March 06, 1997
• Jurisdiction: Ontario
• Citations: (1997), 29 O.T.C. 251 (GD)

Brignolio v. Brignolio (1997), 29 O.T.C. 251 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. AP.005

Patsy Elizabeth Brignolio (petitioner) v. Richard Gordon Brignolio (respondent)

(File No. D-12, 180/94)

Indexed As: Brignolio v. Brignolio

Ontario Court of Justice

General Division

Sudbury

Poupore, J.

March 6, 1997.

Summary:

A husband and wife married in 1975 and separated in 1993. The wife petitioned for divorce, requested custody of the remaining child of the marriage (aged 16), child support and a division of matrimonial assets including the husband's pension. The husband (aged 54) was retired on a disability pension ($37,792.52). The wife (aged 45) was employed with an annual income of $39,034. The divorce was granted. Custody and access were settled. The remaining issues were equalization of the parties' net family property and child support. When the trial commenced, the court allowed two motions. One allowed the husband to amend his pleadings to claim occupation rent, the other allowed the wife to increase her claim for child support from $750 per month to $1,400 per month. The wife commenced by reading into the record a Request to Admit consisting of 36 paragraphs of facts (including the value of the husband's pension) and 18 paragraphs of documents. Proof of service was filed. No response was ever delivered. Nevertheless, the husband objected to the admission of the Request to Admit.

The Ontario Court (General Division) held that the Request to Admit was admissible. The trial continued and the wife closed her case. On the second day of the husband's case, the husband applied for leave to withdraw the deemed admissions in the Request to Admit on the ground that his solicitor had erred in determining that the Request was not in proper form and did not merit a reply. The trial court dismissed the application to withdraw the deemed admissions. Final issues were (1) whether the husband's pension was property or an insurance receipt, (2) the quantum of child support, (3) and whether the court could take judicial notice of prevailing rents in determining occupation rent for the matrimonial home. The husband also applied for a new trial on the ground of reasonable apprehension of bias by the trial judge.

The Ontario Court (General Division) ruled that, inter alia, the after tax value of the husband's retirement pension entitlement from the date of the marriage to the date of separation be inserted into the wife's net family property statement. The court also ordered the husband would pay monthly child support of $750. The court dismissed the husband's application for relief regarding the issue of bias.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - See paragraphs 33 to 41.

Evidence - Topic 2280

Special modes of proof - Judicial notice - Particular matters - Rates and prices - See paragraphs 30 to 32.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - See paragraphs 30 to 32.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - See paragraphs 17 to 25.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - See paragraph 29.

Practice - Topic 4955

Admissions - Notice to admit - General - See paragraphs 1 to 6.

Practice - Topic 4959

Admissions - Withdrawal or amendment of - When available - See paragraphs 7 to 15.

Cases Noticed:

Wunsche v. Wunsche (1994), 70 O.A.C. 380; 18 O.R.(3d) 161 (C.A.), consd. [para. 5].

Black v. Hardwell, [1935] 2 W.W.R. 173 (Sask. C.A.), consd. [para. 5].

Charles David Pty. Ltd. v. Qualico Central Meat Packers Montreal Ltd., [1992] O.J. No. 2500 (Gen. Div.), consd. [para. 5].

Morrissey v. Lydiard (1993), 35 B.C.A.C. 299; 57 W.A.C. 299 (C.A.), consd. [para. 5].

Canpotex Ltd. v. Graham (1985), 5 C.P.C.(2d) 233 (Ont. H.C.), consd. [para. 5].

RSC Management Ltd. v. Cadillac Fairview Corp. (1985), 51 O.R.(2d) 107 (S.C. Master), consd. [para. 5].

699207 Ontario Ltd. v. Clark, [1992] O.J. No. 972 (Gen. Div.), consd. [para. 5].

McTaggart v. McTaggart (1993), 50 R.F.L.(3d) 110 (Ont. Gen. Div.), refd to. [para. 22].

R. v. Potts (1982), 36 O.R.(2d) 195 (C.A.), consd. [para. 31].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, generally [para. 1].

Divorce Act, R.S.O. 1985 (2nd Supp.), c. 3, generally [para. 1].

Family Law Act, R.S.O. 1990, c. F-3, sect. 4(2)(3) [para. 22].

Pension Benefits Act, R.S.O. 1990, c. P-8, sect. 44 [para. 26].

Rules of Civil Procedure (Ont.), rule 51 [para. 5].

Authors and Works Noticed:

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 971-972 [para. 5].

Watson, Garry D., and Perkins, Graig, Holmested and Watson - Ontario Civil Procedure (1991), vol. 3, p. 51-7 [para. 5, footnote 1].

Counsel:

R.B. Michael Keenan, for the petitioner;

Oliverio E. Massimiliano, for the respondent;

Brian Howe, for Trevin Brignolio.

This action was heard at Sudbury, Ontario, by Poupore, J., of the Ontario Court (General Division), who delivered the following decision on March 6, 1997.