Sengmueller v. Sengmueller, (1994) 69 O.A.C. 312 (CA)

• Judge: Morden, A.C.J.O., McKinlay and Carthy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 16, 1994
• Jurisdiction: Ontario
• Citations: (1994), 69 O.A.C. 312 (CA);1994 CanLII 8711 (ON CA);1994 CanLII 8711 (NS CA);17 OR (3d) 208;111 DLR (4th) 19;2 RFL (4th) 232;[1994] OJ No 276 (QL);25 CPC (3d) 61;45 ACWS (3d) 1101;69 OAC 312

Sengmueller v. Sengmueller (1994), 69 O.A.C. 312 (CA)

MLB headnote and full text

Helga Sengmueller (petitioner/appellant) v. Frederick Sengmueller (respondent)

(No. C8706)

Indexed As: Sengmueller v. Sengmueller

Ontario Court of Appeal

Morden, A.C.J.O., McKinlay and Carthy, JJ.A.

February 16, 1994.

Summary:

A wife obtained a divorce and spousal and child support. The husband was ordered to pay her a $368,556.06 equalization payment under s. 5 of the Family Law Act. The wife appealed the equalization payment on the ground that the trial judge erred in deducting from net family property $137,697.69 in notional costs of disposition and that the rate of prejudgment interest should have been 15% rather than 11%. The husband cross-appealed, claiming there should be no pre­judgment or postjudgment interest and that no costs award should have been made at trial. The husband sought to adduce evidence of events occurring since the trial date.

The Ontario Court of Appeal dismissed both the appeal and the cross-appeal.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - Dispo­sition costs - The Ontario Court of Appeal stated that "costs of disposition as well as benefits should be shared equally" - If the evidence satisfied the trial judge, on a balance of probabilities, that the disposi­tion of any item of family property will take place at a particular time in the future, then the tax consequences (and other proven costs of disposition) are not specu­lative, and should be allowed either as reduction in value or as a deductible lia­bility - It would be unfair to limit deduc­tion of disposition costs to cases where disposition of assets was necessary to satisfy an equalization payment - There should be evidence to permit the trial judge to assess the likely time of disposi­tion, the likely disposition costs and the present value of those costs as at the valu­ation date - See paragraphs 16 to 36.

Practice - Topic 9031

Appeals - Evidence on appeal - Admis­sion of "new evidence" - In a marital property division action, valuation day was April 1988, the trial was held in May 1990 and judgment was given in September 1990 - On appeal, the husband sought to adduce evidence of changed property values and other matters occurring after the trial date - This evidence did not exist until after the trial date - The Ontario Court of Appeal exercised its discretion to admit the evidence, notwith­standing the evidence did not exist until after the trial and would normally not affect the result - The court set out the limited purposes for which the evidence would be considered - See para­graphs 6 to 10.

Cases Noticed:

Cook v. Mounce (1979), 26 O.R.(2d) 129 (Div. Ct.), refd to. [para. 9].

Mercer v. Sijan (1976), 14 O.R.(2d) 12 (C.A.), refd to. [para. 10].

McPherson v. McPherson (1988), 27 O.A.C. 167; 63 O.R.(2d) 641 (C.A.), refd to. [para. 16].

Starkman v. Starkman (1990), 43 O.A.C. 85; 75 O.R.(2d) 19 (C.A.), refd to. [para. 16].

Heon v. Heon (1989), 69 O.R.(2d) 758 (H.C.), disapprvd. [para. 16].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 134(4)(b) [para. 8].

Family Law Act, R.S.O. 1990, c. F-3, sect. 4(1) [para. 16]; sect. 4(3) [para. 32]; sect. 5 [para. 1].

Family Law Reform Act, R.S.O. 1980, c. 152, generally [para. 17].

Counsel:

C.C. Mark, Q.C., for the appellant;

Thomas G. Bastedo, Q.C., for the respon­dent.

This appeal and cross-appeal were heard on June 1, 1993, before Morden, A.C.J.O., McKinlay and Carthy, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by McKinlay, J.A., and was released on February 16, 1994.