Ward v. Ward, 2012 ONCA 462

• Judge: Feldman, Sharpe and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 29, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 462;(2012), 293 O.A.C. 63 (CA)

Ward v. Ward (2012), 293 O.A.C. 63 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.015

Carolyn Jane Ward (applicant/respondent in appeal) v. Murray Carl Ward (respondent/appellant in appeal)

(C53354; 2012 ONCA 462)

Indexed As: Ward v. Ward

Ontario Court of Appeal

Feldman, Sharpe and Simmons, JJ.A.

June 29, 2012.

Summary:

Spouses separated in 2007 after 11 years' marriage. Two months before the husband left the marriage, he convinced the wife to use $180,000 of a $200,000 gift to her from her father to pay down the line of credit on the matrimonial home. The wife was awarded an unequal division of net family property ($90,000 benefit to the husband) based on unconscionability under s. 5(6) of the Family Law Act ([2011] O.T.C. Uned. 570). The husband appealed.

The Ontario Court of Appeal, Simmons, J.A., dissenting, dismissed the appeal. The trial judge made no palpable and overriding factual errors and correctly stated the high threshold for establishing "unconscionability". There was no basis for the court to intervene by conducting a de novo unconscionability analysis.

Family Law - Topic 870

Husband and wife - Marital property - Distribution orders - Appeals - [See Family Law - Topic 875 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - Spouses separated in 2007 after 11 years' marriage - The husband earned $300,000 per year - The wife, having abandoned her career to care for their two children, recently commenced employment at $95,000 per year - Two months before the husband announced that he had purchased a condominium and was leaving the marriage, he had convinced the wife to use $180,000 of a $200,000 gift to her from her father to pay down the line of credit on the matrimonial home - The wife agreed to do so in an attempt to save their troubled marriage, but the husband left anyway - The wife testified that had she known that, she would not have used $180,000 of her excluded property to benefit the husband by $90,000 - The trial judge made an unequal division of net family property ($90,000 in the wife's favour), finding that it would be "unconscionable" for the husband to benefit by that amount - The Ontario Court of Appeal dismissed the husband's appeal - The trial judge made no palpable and overriding factual errors and correctly stated the high threshold for establishing "unconscionability" - The trial judge understood that more than "unfairness" and "inequity" was required; that an equal division would have to "shock the conscience of the court" - It was not the court's role on appeal to conduct a de novo unconscionability analysis - See paragraphs 1 to 36.

Cases Noticed:

Mehmeti v. Mehmeti, [1999] O.T.C. Uned. 836 (Sup. Ct.), refd to. [para. 18].

Chalifoux v. Chalifoux (2008), 425 A.R. 361; 418 W.A.C. 361; 2008 ABCA 70, refd to. [para. 21].

Ezurike v. Ezurike (2008), 269 N.S.R.(2d) 72; 860 A.P.R. 72; 2008 NSCA 82, refd to. [para. 21].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 21].

Serra v. Serra (2009), 246 O.A.C. 37; 93 O.R.(3d) 161; 2009 ONCA 105, refd to. [para. 26].

Bobyck v. Bobyck Estate (1993), 13 O.R.(3d) 559 (Gen. Div.), refd to. [para. 30].

Conway v. Conway, [2005] O.T.C. Uned. 401 (Sup. Ct.), refd to. [para. 31].

W.G.C. v. A.C., [2004] O.T.C. 757 (Sup. Ct.), refd to. [para. 32].

Boisvert v. Boisvert, [2007] O.T.C. Uned. D93 (Sup. Ct.), refd to. [para. 33].

S.P. v. M.R., [1996] 2 S.C.R. 842; 199 N.R. 241, refd to. [para. 35].

M.E.M. v. P.L., [1992] 1 S.C.R. 183; 132 N.R. 266; 44 Q.A.C. 178, refd to. [para. 35].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 36].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 2002 SCC 33, refd to. [para. 43].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 43].

MacDougall v. MacDougall (1996), 2 O.T.C. 361 (Gen. Div.), refd to. [para. 97].

Szuflita v. Szuflita Estate et al., [2000] O.T.C. Uned. 132; 4 R.F.L.(5th) 313 (Sup. Ct.), refd to. [para. 107].

Best v. Best, [1999] 2 S.C.R. 868; 242 N.R. 1; 123 O.A.C. 1, refd to. [para. 109].

Linov v. Williams, [2007] O.T.C. Uned. A62 (Sup. Ct.), refd to. [para. 111].

Murphy v. Murphy (1987), 17 R.F.L.(3d) 422 (Ont. Dist. Ct.), affd. [1999] O.A.C. Uned. 33 (C.A.), refd to. [para. 115].

Kozuch v. Kozuch, [1992] O.J. No. 1893 (Gen. Div.), refd to. [para. 115].

Brett v. Brett (1999), 119 O.A.C. 94; 44 O.R.(3d) 61 (C.A.), refd to. [para. 119].

Counsel:

Marcel R. Banasinski, for the appellant;

Douglas Quirt, for the respondent.

This appeal was heard on November 22, 2011, before Feldman, Sharpe and Simmons, JJ.A., of the Ontario Court of Appeal.

The judgment of Court was released on June 29, 2012, and the following opinions were filed:

Feldman, J.A. (Sharpe, J.A., concurring) - see paragraphs 1 to 37;

Simmons, J.A., dissenting - see paragraphs 38 to 125.