Greenglass v. Greenglass,

• Jurisdiction: Ontario
• Judge: Winkler, C.J.O., Armstrong and Epstein, JJ.A.
• Neutral Citation: 2010 ONCA 675
• Citation: (2010), 276 O.A.C. 62 (CA),2010 ONCA 675,99 RFL (6th) 271,[2010] CarswellOnt 7761,[2010] OJ No 4409 (QL),276 OAC 62,276 O.A.C. 62,(2010), 276 OAC 62 (CA),[2010] O.J. No 4409 (QL)
• Date: 04 May 2010
• Court: Court of Appeal (Ontario)

Greenglass v. Greenglass (2010), 276 O.A.C. 62 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.031

Marcy Greenglass (petitioner/respondent) v. Melvin Greenglass (respondent/appellant)

(C50904; 2010 ONCA 675)

Indexed As: Greenglass v. Greenglass

Ontario Court of Appeal

Winkler, C.J.O., Armstrong and Epstein, JJ.A.

October 19, 2010.

Summary:

In divorce proceedings, the wife sought, among other things, child support for their youngest child, retroactive and ongoing spousal support, and an unequal division of net family property.

The Ontario Superior Court, in a decision reported [2009] O.T.C. Uned. I40, ordered as follows: (1) an equalization payment from the husband to the wife in the amount of $1,031,323.74, reduced by a credit to the husband of $363,000, leaving a total owing of $668,323.74; (2) retroactive spousal support of $126,900 for the wife to July 2009; and (3) ongoing monthly spousal support of $1,416.67, from August 1, 2009, reviewable at reasonable intervals. The court ordered the husband to pay costs in the amount of $67,500. The husband appealed.

The Ontario Court of Appeal allowed the appeal in part. The husband's equalization payment was reduced to $518,323.74. The retroactive spousal support was reduced to $101,808. The ongoing spousal support was reduced to $1,400 per month, with no review at reasonable intervals. The court quashed an order requiring the husband to name the parties' adult children as beneficiaries of a life insurance policy and pay the premium. The court ordered that there be no costs of the trial: the parties were now in the position of having achieved divided success.

Family Law - Topic 868.3

Husband and wife - Marital property - Distribution orders - Equalization payments - In calculating the equalization payment that the husband was to make to the wife, the trial judge rejected the husband's deduction for the future costs of the litigation that he was involved in with his former employer - The trial judge ruled that the husband had failed to establish that there was a reasonable basis to have foreseen that the fees would have amounted to $1 million - The Ontario Court of Appeal held that the trial judge erred - The litigation arose out of actions taken during the marriage and the claim had crystallized before the date of separation - The husband's litigation counsel provided evidence upon which to ground an assessment of future legal costs - While it was true that many aspects of the future course of the litigation and its associated costs were uncertain, there was one thing certain at the date of separation: the husband was going to incur additional legal costs - See paragraphs 20 to 32.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - [See Practice - Topic 7030 ].

Family Law - Topic 4006.2

Divorce - Corollary relief - Maintenance awards - To children - Parent's obligation - The Ontario Court of Appeal quashed an order requiring the husband to name the parties' adult children as beneficiaries of a life insurance policy and pay the premium - Neither party had a legal obligation to provide child support - See paragraph 53.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - The Ontario Court of Appeal noted that the parties were "apparently content" to rely on the Spousal Support Advisory Guidelines to help the court determine the husband's spousal support obligation - The suggested range in these circumstances was 37.5% to 50% of the difference between the parties' gross incomes - The court agreed with the trial judge that here, spousal support should be awarded at the higher end of this range - This was a long-term marriage and the wife's career was affected by the responsibilities that she assumed at home raising the parties' two children - See paragraphs 64 to 66.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To wife - Considerations - The Ontario Court of Appeal held that the trial judge did not err in failing to take into account, in her determination of the husband's spousal support obligation to the wife, the husband's voluntary contributions toward the support of the parties' adult children - See paragraph 52.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Effect of division of matrimonial property - The Ontario Court of Appeal held that the trial judge in a divorce/net family property/spousal support matter erred in awarding spousal support prior to determining the equalization of net family property - However, in the present case, there had been a long term marriage and the wife had a compelling case for indefinite spousal support - Factoring in the equalization payment would have made little difference - See paragraphs 40 to 44.

Family Law - Topic 4136

Divorce - Practice - General - Pleadings - Amendment - [See Practice - Topic 2143 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - In this divorce/net family property proceeding, the trial judge refused to allow the husband to amend his statement of claim to seek an unequal division of net family property - The trial judge indicated that the proposed amendment would delay the trial, causing prejudice to the wife that could not be compensated for in costs - Since the proceeding had already been delayed by separate litigation that involved the husband and his former employer, further delay would have caused hardship to the wife - She did not have the same resources to weather prolonged financial insecurity - The husband had been aware of the mounting legal costs for years and had made no attempt to amend his pleading in a timely fashion - The Ontario Court of Appeal upheld the decision as within the trial judge's discretion - See paragraphs 15 to 19.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - The trial judge in a divorce/net family property/spousal support matter made orders against the husband and ordered him to pay the trial costs of $67,500 - The husband appealed - The Ontario Court of Appeal allowed the appeal in part - The court ordered that there be no costs of the trial: the parties were now in the position of having achieved divided success - See paragraphs 72 and 73.

Cases Noticed:

Stefureak v. Chambers, [2004] O.T.C. 922; 2005 CanLII 16633 (Sup. Ct.), refd to. [para. 18].

Leslie v. Leslie (1987), 9 R.F.L.(3d) 82 (Ont. H.C.), refd to. [para. 26].

Nicol v. Nicol (1989), 21 R.F.L.(3d) 236 (Ont. H.C.), refd to. [para. 26].

Crutchfield v. Crutchfield (1987), 10 R.F.L.(3d) 247 (Ont. H.C.), refd to. [para. 26].

Drysdale v. Drysdale (1994), 9 R.F.L.(4th) 20 (Ont. U.F.C.), refd to. [para. 26].

Johnston v. Johnston et al., [1998] O.J. No. 5495 (Gen. Div.), affd. [2000] O.A.C. Uned. 57; 2000 CanLII 14718 (C.A.) leave to appeal refused (2000), 261 N.R. 392; 141 O.A.C. 399 (S.C.C.), refd to. [para. 27].

Salamon v. Salamon (1997), 26 O.T.C. 123 (Gen. Div.), refd to. [para. 27].

Cade v. Rotstein (2004), 181 O.A.C. 226 (C.A.), refd to. [para. 27].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 34 R.F.L.(6th) 1, refd to. [para. 41].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161, consd. [para. 42].

Choquette v. Choquette, [1998] O.A.C. Uned. 330; 39 R.F.L.(4th) 384 (C.A.), refd to. [para. 70].

Counsel:

Judith M. Nicoll, for the appellant;

Gary Joseph and Geoffrey Wells, for the respondent.

This appeal was heard on May 4, 2010, by Winkler, C.J.O., Armstrong and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Epstein, J.A., and released on October 19, 2010.