Wunsche v. Wunsche, (1994) 70 O.A.C. 380 (CA)

• Judge: Arbour, Osborne and Abella, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 25, 1994
• Jurisdiction: Ontario
• Citations: (1994), 70 O.A.C. 380 (CA)

Wunsche v. Wunsche (1994), 70 O.A.C. 380 (CA)

MLB headnote and full text

Marta Julia Wunsche (respondent) v. Edgar Richard Wunsche (appellant)

(C12588)

1 Indexed As: Wunsche v. Wunsche

Ontario Court of Appeal

Arbour, Osborne and Abella, JJ.A.

April 25, 1994.

Summary:

A husband and wife separated in 1987 after 26 years' marriage. The trial judge ordered the husband to make an equalization payment under the Family Law Act and to pay future and past spousal support. Addi­tionally, the trial judge ordered the appoint­ment of a receiver/manager over the hus­band's assets and his four companies' assets. The husband appealed on the ground that, inter alia, the trial judge erred in admitting into evidence a valuator's report of the value of his shareholdings.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in admitting the report into evidence, erred in appointing the receiver/manager and erred in ordering that the $20,000 paid under court order as interim disbursements be considered pay­ment of past support.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of - [See Family Law - Topic 888 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - A wife applied for an equalization payment under the Family Law Act - The trial judge valued the husband's shareholdings in his four com­panies on the basis of a valuator's report - The trial judge ruled that the report was deemed to be admissible after the husband failed to respond to the wife's Request to Admit the authenticity of the report under rule 51.03 - The Ontario Court of Appeal held that the trial judge erred in admitting the report and relying on it - The rule 51.03 deemed admission was not an ad­mission by the husband that the valuation was correct, but was only an admission that it correctly expressed the valuator's opinion - The husband objected to the report and there was no examination or cross-examination of its author - The court ordered a new trial to determine valuation on the basis of admissible evi­dence - See paragraphs 13 to 27.

Family Law - Topic 2228

Maintenance of wives and children - Interim relief - Variation of - A husband and wife separated in 1987 - In 1990, an interlocutory order required the husband to pay $20,000 on account of the wife's interim disbursements, which amount was to be dealt with later in relation to costs - The trial judge ordered that the $20,000 be converted to a payment of retroactive interim support - The Ontario Court of Appeal held that the trial judge erred in so converting the interlocutory order - See paragraph 29.

Practice - Topic 1733

Pleadings - Notice to admit facts - Failure to respond - Effect of - [See Family Law - Topic 888 ].

Receivers - Topic 1606

Appointment - Improper appointment - Liability for fees and costs - A husband was ordered to pay support and an equal­ization payment under the Family Law Act - The trial judge, on her own initiative, appointed a receiver/manager of the hus­band's assets and the assets of his four companies - The receiver/manager's man­date was to ensure the judgment was paid, not to preserve assets - The husband had no opportunity to oppose the appointment - The wife did not request the appoint­ment in her pleadings or at trial - The Ontario Court of Appeal set aside the appointment - The court stated that the husband and wife were not liable for the receiver/manager's fees and disbursements - The court ordered that the issue be left to be dealt with by the receiver/manager and the appropriate government authority -See paragraphs 30 to 39.

Receivers - Topic 1733

Appointment - By court - Jurisdiction - [See Receivers - Topic 1606 ].

Cases Noticed:

Canpotex Ltd. et al. v. Graham et al. (1985), 5 C.P.C.(2d) 233 (Ont. H.C.), refd to. [para. 19].

Statutes Noticed:

Evidence Act, R.S.O. 1990, c. E-23, sect. 52 [para. 20].

Family Law Act, R.S.O. 1990, c. F-3, sect. 4 [para. 2]; sect. 5(1) [para. 8]; sect. 5(6) [para. 2].

Rules of Civil Procedure (Ont.), rule 51.03 [para. 17].

Counsel:

Francine Sherkin, for the appellant;

Paul J. Franchi and E. Zeppieri, for the respondent;

D. Langley, for Ernst & Young, the receiver.

This appeal was heard on January 24, 1994, before Arbour, Osborne and Abella, JJ.A., of the Ontario Court of Appeal.

The following judgment of the Court was delivered by Osborne, J.A., and released on April 25, 1994.