Hamilton v. Hamilton, 1996

--------------------------------------------------------------------------------

C13792

COURT OF APPEAL FOR ONTARIO

OSBORNE, DOHERTY and MOLDAVER JJ.A.

B E T W E E N : )

)

BEVERLEY HAMILTON )

) Michael Miller for the appellant

Petitioner/Respondent )

)

- and - ) Michael Anne MacDonald for the

) respondent

JOHN BEATTY HAMILTON )

)

Respondent/Appellant )

) Heard: February 29, 1996

)

OSBORNE J.A.:

This is an appeal from the judgment of MacFarland J. in which she determined the equalization payment owed by the respondent, Mrs. Hamilton, and the amount of child and spousal support to be paid by the appellant, Mr. Hamilton. She also imposed an extensive non-molestation order, clearly intended to keep Mr. Hamilton away from his former wife and his children. The trial judge made lump sum spousal and child support orders and a lump sum interim child support adjustment. She deducted the equalization payment that she found Mrs. Hamilton owed to Mr. Hamilton from the total of the lump sum support awards. The difference was $167,738. This amount is shown in paragraph one of the formal judgment and is the amount Mr. Hamilton was ordered to pay Mrs. Hamilton. The trial judge dealt separately with the parties' RRSP's and the cottage. As a result, the $167,738 figure as the trial judge calculated it does not reflect the trial judge's treatment of these assets. Mr. Hamilton contends that the $167,738 figure is too high. He takes issue with all of its constituent elements (the equalization payment and the lump sum support orders). He also appeals from the trial judge's order banishing him from the District of Muskoka where Mrs. Hamilton lives. Mrs. Hamilton, who has not cross-appealed, takes the position that the trial judge was correct in concluding on a bottom line basis that Mr. Hamilton owes her $167,738.

THE FACTS

I need only refer to the facts in skeletal form. Mr. and Mrs. Hamilton were married in 1972. They have five children Eric, born April 25, 1975, Jody born March 5, 1979, Lisa born August 1, 1981, Kim born March 23, 1984 and Tracey born June 22, 1988. Mr. Hamilton has a serious drinking problem. Mrs. Hamilton decided to separate from him in September 1990. On September 25, 1990, Mr. Hamilton moved out of the matrimonial home into the family cottage located on an island in Lake Muskoka.

On October 4, 1990 Mrs. Hamilton consulted a lawyer to inquire about her legal rights. The next day at about 6:30 a.m., Mr. Hamilton appeared with a rifle at the matrimonial home. He aggressively questioned Mrs. Hamilton about where she had been on October 4th. Eventually Mrs. Hamilton told him that she had been to see a lawyer. Mr. Hamilton's response was to shoot his wife at close range. Miraculously, Mrs. Hamilton was not killed. After a significant period of hospitalization and rehabilitation she recovered, albeit not completely.

Mr. Hamilton was charged with and convicted of attempted murder on June 28, 1991. He was sentenced to imprisonment for 8 years and 4 months. His appeal against conviction and sentence was dismissed. He is still incarcerated, his applications for parole having been denied.

Throughout his working life, Mr. Hamilton was employed as a delivery man, first in Toronto and then in Bracebridge. For a number of years before he was incarcerated, he delivered the Toronto Star in the Bracebridge area where the Hamilton family lived. This job required Mr. Hamilton to work for a few hours in the early morning. He frequently spent the rest of the day drinking.

I see no need to review Mrs. Hamilton's employment history. It will be sufficient to note that she worked throughout the marriage, taking time off only when she gave birth to her five children. At various times she had two jobs.

Throughout their marriage, through gifts and inheritances, Mr. and Mrs. Hamilton and their children were provided with financial assistance by Mr. Hamilton's family. This, together with their relatively modest earnings, enabled them to acquire assets, including a matrimonial home and a cottage, the value of which substantially exceeded the value of assets they would have been able to accumulate had they had to rely only on their incomes from employment.

On October 12, 1990 Mrs. Hamilton commenced divorce proceedings. She sought, among other things, custody, a non-molestation order, lump sump child and spousal support and an unequal net family property division. Mr. Hamilton counter-petitioned for access to his children, an unequal division of net family property and a declaration that Mrs. Hamilton held the cottage property in trust for him. In his counter-petition he acknowledged that his conduct toward Mrs. Hamilton after the date of separation was "totally unacceptable." The concession, although somewhat understated, is appropriate.

THE TRIAL JUDGMENT

(i) The Equalization Payment

After reviewing the facts in significantly more detail than I have, the trial judge turned to the issue of the parties' net family property. In dealing with that issue, the trial judge appears to have grouped the relevant property into three categories: Mrs. Hamilton's property, Mr. Hamilton's property and what the trial judge referred to as "family property." This latter category included the parties' matrimonial home, their cottage and the RRSP's that each of them had accumulated as of the date of separation. The trial judge dealt with these assets separately in that she did not include them in the net family property ledger sheets.

The trial judge first considered the cottage. She noted that title was held by Mrs. Hamilton but found that most of the purchase funds were a gift from Mr. Hamilton's mother. She concluded that the gift was to the parties jointly and thus concluded that the cottage was "family property." She reached this conclusion without resort to trust principles. There was no specific evidence as to the value of the cottage on the valuation date which was September 25, 1990 (the date of separation). The estimated value of the cottage in the Spring of 1993 was between $210,000 and $220,000. The trial judge concluded that its value had likely decreased since the valuation date. She held that the appropriate disposition was to direct a sale of the cottage and divide the proceeds equally between Mr. and Mrs. Hamilton after deducting disposition costs, subject to a credit in favour of Mrs. Hamilton for one-half of all of the funds she had paid for realty taxes and insurance from the valuation date to the date of the sale. Because of the approach taken by the trial judge, the cottage did not form part of the net family property of either Mr. or Mrs. Hamilton.

After dealing with the cottage, the trial judge determined the net family property of Mr. and Mrs. Hamilton, leaving aside their RRSP's and the matrimonial home. Her calculations were as follows:

Mr. Hamilton

Mrs. Hamilton

Boat, motor, trailer

$ 15,000

House & Cottage Contents

$ 8,000

2 Snowmobiles

1,000

Ford Excel

2,500

Ford Van

12,000

Shares

2,300

Shares

2,300

Life Policy

14,790

All-Terrain Vehicle

4,000

Bank Accounts

4,000

MGB

5,000

Life Policy

4,600

Bank Accounts

8,000

TOTAL

$ 51,900

TOTAL

$ 31,590

The trial judge then took the parties' debts into account. She found that Mr. Hamilton's debts at separation were $2,736 and Mrs. Hamilton's debts were $6,192. These debts reduced the trial judge's calculation of Mr. Hamilton's net family property from $51,900 to $49,164 and Mrs. Hamilton's net family property from $31,590 to $25,398. She then subtracted $25,398 from $49,164 and divided the difference by two, with the result that Mr. Hamilton owed Mrs. Hamilton a preliminary equalization payment of $11,883. I refer to the equalization payment as preliminary because it did not take into account all of the parties' property or appropriate deductions and exclusions.

Having established a preliminary equalization payment of $11,883, the trial judge credited Mrs. Hamilton with $1,500, representing one-half of the realty taxes and insurance that she had paid on the matrimonial home. This increased the preliminary equalization payment from $11,883 to $13,383 owing to Mrs. Hamilton.

The trial judge then deducted $15,145 from the $11,883 that Mr. Hamilton owed Mrs. Hamilton as the preliminary equalization payment. The $15,145 figure represented the total proceeds from the post-valuation date sale by Mrs. Hamilton of Mr. Hamilton's Ford van and all-terrain vehicle. The result of this deduction left Mrs. Hamilton owing $1,762 to Mr. Hamilton.

The trial judge next considered the parties' RRSP's. She found that Mr. Hamilton's RRSP account had a value of $29,000 and Mrs. Hamilton's RRSP account had a value of $11,000 at the valuation date. She established a separate equalization payment ledger and equalization payment for the parties' RRSP accounts and ordered Mr. Hamilton to transfer $9,000 out of his RRSP's to Mrs. Hamilton, as one-half the difference between the RRSP account values.

Finally, the trial judge considered the matrimonial home. Like the cottage and the RRSP's she treated the matrimonial home independently of other property. She noted that title was held by Mrs. Hamilton and ordered that title remain in her name. She found that the value of the matrimonial home on the valuation date was $185,000. She ordered Mrs. Hamilton to pay Mr. Hamilton one-half of that value, being $92,500, "to extinguish his interest in the home."

The outcome of the trial judge's rolling net family property calculation was that, leaving aside the RRSP's and the cottage, Mrs. Hamilton had to pay $94,262 to Mr. Hamilton. In addition, Mr. Hamilton had to transfer $9,000 from his RRSP account to Mrs. Hamilton and Mr. Hamilton was entitled to one-half the proceeds of the sale of the cottage subject to the deduction for realty taxes and insurance that I have noted.

(ii) Spousal and Child Support

To determine the appropriate support awards, the trial judge considered the value of Mr. Hamilton's existing assets. Because he was incarcerated and his job prospects after release were poor, she did not consider any employment-related income in assessing his prospective ability to pay. The trial judge took into account the $94,262 owing to him as the equalization payment, the $108,800 that Mr. Hamilton had on deposit in a trust company (this was excluded property) and his $100,000 share of the estimated proceeds from the sale of the cottage.

Based on Mr. Hamilton's estimated net worth of approximately $300,000, the trial judge ordered a lump sum spousal support award of $100,000. She deducted the equalization payment owed to Mr. Hamilton with the result that Mr. Hamilton was required to pay $5,738 to meet his spousal support obligations.

The trial judge then considered child support. She made a lump sum child support order of $150,000. This figure represented an award of $500 a month for each of the parties' five children for five years. She also made a lump sum interim child support adjustment order of $12,000 because Mr. Hamilton had paid what the trial judge viewed as a manifestly inadequate child support to Mrs. Hamilton during the two years between separation and trial. The two lump sum child support awards increased Mr. Hamilton's debt to Mrs. Hamilton to $167,738. It is that figure that appears in paragraph one of the formal judgment.

To satisfy the debt that the trial judge found Mr. Hamilton owed to Mrs. Hamilton, the trial judge ordered Mr. Hamilton to transfer to Mrs. Hamilton $69,634.12 from his National Trust deposit account, $15,000 from a bank deposit account and his share of the proceeds of the sale of the cottage. He was also ordered to maintain a life insurance policy naming the children as irrevocable beneficiaries and to maintain in good standing the policies owned by each of the children and to turn these policies over to the children when they reached 21 years of age.

THE GROUNDS OF APPEAL

The appellant raised a number of grounds of appeal in his notice of appeal and factum. However, in oral argument the appellant raised only the following issues:

1. The trial judge did not make a proper determination of the equalization payment required by s. 4 of the Family Law Act. More particularly, the appellant contended that the trial judge failed to calculate the net family property of Mr. and Mrs. Hamilton and left the cottage and matrimonial home out of the net family property calculations.

2. The trial judge erred in making a spousal support order of $100,000 and a child support order of $150,000. Mr. Hamilton takes issue with the quantum of those orders, not with their lump sump character.

3. The trial judge erred in banishing Mr. Hamilton from the District of Muskoka permanently. The appellant submits that there is no statutory authority for making this order.

ANALYSIS

1. The Equalization Payment

Section 4 of the Family Law Act sets out the framework for determining the equalization payment. The relevant parts of s. 4 for the purposes of this appeal are as follows:

4.--(1) In this Part,

...

"net family property" means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse's debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse's debts and other liabilities, calculated as of the date of the marriage;

...

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse's net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

...

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

It is apparent that the Legislature intended that the steps required for calculating net family property set out in s. 4 be followed and that the scope of judicial discretion be limited to those cases to which s. 5(6) of the Act applies. Under s. 5(6) a court may award an amount that differs from the equalization payment arrived at through the s. 4 calculation if the court is of the opinion that equalizing the net family properties would be unconscionable having regard to a variety of factors set out therein. The considerations in s. 5(6), however, have nothing to do with the required threshold determination of which spouse owns what property: see Skrlj v. Skrl, (1986), 2 R.F.L. (3d) 305 (Ont. H.C.).

The first step required by s. 4 is to identify all relevant property. Then ownership has to be determined. At this stage, trust principles may be brought to bear such that ownership of property for net family property purposes is deemed to be different from that which may be recorded in a title document. Once the ownership of property is established, the value of the property at the valuation date must be determined.

Next, the court must determine the relevant deductions and exclusions under s. 4(1) and 4(2) of the Family Law Act. When that exercise is complete, the court calculates each spouse's net family property and then, following the Act, determines the required equalization payment to be paid by one party to the other. It is at this point that the court considers whether to reduce or eliminate the equalization payment by resort to the provisions of s. 5(6) of the Act.

I agree with the appellant's counsel that the trial judge did not follow s. 4 of the Act in determining the parties' net family property. Although I think the trial judge ought to have followed the provisions of the Act, the dollar figure I come to by following the Act does not differ significantly from that determined by the trial judge, once the effect of the lump sum support orders is taken into account.

I begin by repeating that all property owned by either Mr. or Mrs. Hamilton ought to have been brought into each party's net family property balance sheet according to the ownership of that property. I set out below what I view to be the appropriate net family property statements for Mr. and Mrs. Hamilton, including relevant deductions and exclusions. I highlight those assets and their values that I treat differently than the trial judge.

(A) Assets Owned by the Parties on Valuation Day

Mr. Hamilton

Mrs. Hamilton

Boat, motor, trailer

$ 15,000

House & Cottage Contents

$ 8,000

2 Snowmobiles

1,000

Ford Excel

2,500

Ford Van

12,000

Shares

2,300

Shares

2,300

All Terrain Vehicle

4,000

Life Policy

14,790

MGB

5,000

Bank Accounts

4,000

Life Policy

4,600

RRSP

11,000

Bank Accounts

8,000

Watch

3,750

RRSP

29,000

Earrings & Necklace

6,000

National Trust Account

108,800

Engagement Ring

3,000

Cottage

100,000

Cottage

100,000

Matrimonial Home

185,000

TOTAL

$277,700

TOTAL

$352,340

(B) Deductions

Mr. Hamilton

Mrs. Hamilton

Debts

$2,736

Debts

$6,192

Engagement Ring

3,000

TOTAL

$2,736

TOTAL

$9,192

(C) Exclusions

Mr. Hamilton

Mrs. Hamilton

National Trust Account

$108,800

Earrings and Necklace

$6,000

Watch

3,750

TOTAL

$108,800

TOTAL

$9,750

(D) Equalization Payment Calculation

(a) Mrs. Hamilton's Net Family Property = $352,340 –($9,192 + $9,750) = $333,398

(b) Mr. Hamilton's Net Family Property = $277,700 –($2,736 + $108,800) = $166,164

The equalization payment owed by Mrs. Hamilton is one-half of the difference between $333,398 and $166,164, that is $83,617.

Some explanation for the adjustments to the trial judge's calculations is required.

The Matrimonial Home

The matrimonial home was owned by Mrs. Hamilton. The trial judge took it out of the net family property calculation and dealt with it separately. Unlike the cottage, neither Mr. nor Mrs. Hamilton suggested in their pleadings that the ownership of the matrimonial home was different from its registered ownership. I see no basis upon which to conclude that the house was not owned solely by Mrs. Hamilton. I thus treat it as her property alone. There is no issue as to the value of the matrimonial home on valuation date. Because the matrimonial home is Mrs. Hamilton's property, the amount she paid on it for taxes and insurance from the date of separation to the date of trial is either a support issue or a s. 5(6) issue; it is not an issue that should be considered in determining the equalization payment (other than by resort to s. 5(6)). Section 5(6) was not raised as a basis on which to vary the equalization payment and Mrs. Hamilton does not take issue with the lump sum support orders. I would, therefore, not grant the $1,500 amount paid for taxes and insurance as a credit to Mrs.

Hamilton.

The Cottage

The cottage was registered in Mrs. Hamilton's name. However, the trial judge treated it as a jointly owned asset and dealt with it separately so as to leave the cottage out of the net family property and equalization payment calculations. In concluding that the cottage was jointly owned, the trial judge did not seem to resort to trust principles. Rather, she viewed the cottage as a "family asset" because most of the money used to purchase it ($250,000 of the $315,000 purchase price) was given to Mr. and Mrs. Hamilton by Mr. Hamilton's mother.

I think the trial judge's ownership conclusion can be supported. It is established that the Family Law Act definition of property includes beneficial interests arising from express, resulting and constructive trusts: see Rawluk v. Rawluk, (1990), 23 R.F.L. (3d) 337 (S.C.C.). In his pleadings, Mr. Hamilton claimed an ownership interest in the cottage. It is not clear to me how, or even whether, he pursued this claim at trial. Nonetheless, in my view, the conclusion reached by the trial judge in respect of the joint ownership of the cottage can be justified by application of trust principles.

A presumption of a resulting trust arises in favour of persons who contribute financially to the purchase of property but do not take title in their own name, and do not intend to give a gift of the entire beneficial interest in the property to the registered or recorded title holder. Equity presumes that the non-titled party does not intend a gift when he contributes to the purchase price of a property. The non-titled party is treated as the equitable holder of the beneficial interest; the extent of his or her beneficial interest is proportionate to the financial contribution made to acquire the property. The presumption of a resulting trust is rebuttable on a showing by the title-holder that the non-titled party intended the title-holder to have the property for his or her own benefit. The presumption of a resulting trust is also rebuttable on a showing that the transfer to the titled party was not gratuitous. See Oosterhoff and Gillese, Text, Commentary and Cases on Trusts, 4th ed. (1992) and Hovius, Family Law: Cases Notes and Materials, 3rd ed. (1992). Section 14 of the Family Law Act recognizes a presumption of resulting trust notwithstanding the fact that the title-holder and non-titled party are husband and wife. It provides:

14. The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between husband and wife, as if they were not married, except that,

(a) the fact that property is held in the name of spouses as joint tenants is prima facie proof that the spouses are intended to own the property as joint tenants; and

(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a).

The concept of a constructive trust is different from that of a resulting trust. Dickson J. in Petkus v. Becker,, [1980] 2 S.C.R. 834 held that for a court to impose a constructive trust, there must be an unjust enrichment arising from the way in which title is held. An unjust enrichment exists when there is an enrichment on the part of the titled party, a corresponding deprivation on the part of the non-titled party and no juristic reason for the titled party to retain the enrichment. There must also be a link between the benefit conferred and the property claimed to be subject to the trust: see Peter v. Beblow, (1993), 101 D.L.R. (4th) 621 at 649-50.

Mr. and Mrs. Hamilton acquired the cottage property with a gift of money that the trial judge found was given to them jointly by Mr. Hamilton's mother. Title to the cottage was taken solely by Mrs. Hamilton. Mr. Hamilton testified that the cottage and house were placed in Mrs. Hamilton's name for "business purposes" because he faced losing his licence for impaired driving. However, his cross-examination revealed that the charge of impaired driving arose out of an incident that occurred one month after title was put in Mrs. Hamilton's name. Thus, Mr. Hamilton's supposed business purpose could not have motivated how title was taken and is not relevant to the trust analysis.

In my view, the facts of this case justify imposing a resulting trust whereby the beneficial ownership of the cottage is held jointly by Mr. and Mrs. Hamilton. Mr. Hamilton made a direct contribution to the purchase price in the sense that he was a joint donee and then a joint contributor of the purchase money. The extent of Mr. Hamilton's equitable interest in the cottage is directly related to his contribution to its purchase price. The precise amount of this contribution is not clear from the trial judge's findings.

Mr. Hamilton claims to have provided a total of $190,000 toward the purchase of the cottage (an amount representing one-half of the gift from his mother plus $65,000 referred to in the evidence as being inheritances from his aunt and father). He would then be entitled to hold about three-fifths of the beneficial interest in the cottage. However, in the absence of a specific finding by the trial judge on the issue whether he in fact used the $65,000 toward the cottage, it seems sensible to limit his interest to one-half.

I do not think it is appropriate to resort to a constructive trust remedy in this case. The contribution at issue was a direct financial contribution to the acquisition of the property and thus the circumstances come directly within the traditional resulting trust analysis. It would also be somewhat perverse in light of the facts of this case to argue that the remedy of a constructive trust should be granted in favour of Mr. Hamilton to prevent an unjust enrichment that would accrue to Mrs. Hamilton were he not given an interest in the cottage.

There was no direct evidence of the value of the cottage on the valuation date, being September 25, 1990. The trial judge assessed its value as $200,000 which was apparently based on its estimated value in the Spring of 1993. Considering the lack of evidence regarding the value of the cottage in September 1990, I see no basis upon which to interfere with the value used by the trial judge.

The Van and All-Terrain Vehicle

Mrs. Hamilton was the registered owner of the van. The trial judge viewed the van as family property, but for reasons not clear to me, treated it as Mr. Hamilton's property for net family property purposes. I see no reason to allocate that item of property to Mr. Hamilton. Treating Mrs. Hamilton as the owner of the van is consistent with the parties' filed net family property statements.

As noted, the trial judge credited Mr. Hamilton with the $11,145 that Mrs. Hamilton received when she sold the van after the date of separation. The trial judge did this because of her treatment of the van as Mr. Hamilton's property. In light of my conclusion that the van belonged to Mrs. Hamilton's, it was open to her to sell it. Mr. Hamilton is therefore not entitled to this credit.

There is no reason to interfere with the trial judge's finding that the all-terrain vehicle was Mr. Hamilton's property. Mrs. Hamilton sold this vehicle after separation for $4,000. The trial judge found that the sale proceeds were used "...to support herself and the children" between separation and the trial. In these circumstances I do not think it appropriate to vary the equalization payment under s. 5(6) to credit Mr. Hamilton with the $4,000.

Miscellaneous Assets

Mrs. Hamilton's watch, earrings, necklace and engagement ring are recorded as her property in the net family property statement I have drafted. The engagement ring was presumably given to her before her marriage and was thus property she owned at the date of marriage. It is therefore recorded as a deduction, as provided in s. 4(1)(b). I have assumed that it did not increase in value between the date of marriage and the date of separation because there was no evidence on that issue. The value of Mrs. Hamilton's earrings, necklace and watch, which were given to her by her parents after the marriage is properly excluded under s. 4(2)1.

The balance on deposit in Mr. Hamilton's account with National Trust, which represents what is left of his inheritance received during his marriage, is properly recorded as part of his net family property and as an exclusion under s. 4(2)1.

2. The Spousal and Child Support Order

This was an appropriate case in which to make lump sum spousal and child support orders. The trial judge approached the quantification of the lump sum orders in a sensible way and I see no reason to interfere with her conclusions that Mr. Hamilton be required to pay $150,000 in lump sum child support and $100,000 in lump sum spousal support. Nor would I interfere with her adjustment of interim child support, requiring Mr. Hamilton to pay a further lump sum of $12,000. The manner in which the trial judge dealt with child, spousal and interim support does not exceed "the generous ambit within which reasonable disagreement is possible." See Silver v. Silver, (1985), 49 R.F.L. (2d) 148 at 150. I would therefore not interfere with the lump sum support orders arrived at by the trial judge.

3. The Banishment Order

Mr. Hamilton challenges the scope of the restraining order made under s. 46(1) of the Family Law Act. Section 46(1) provides:

46.--(1) On application, a court may make an interim or final order restraining the applicant's spouse or former spouse from molesting, annoying or harassing the applicant or children in the applicant's lawful custody, or from communicating with the applicant or children, except as the order provides, and may require the applicant's spouse or former spouse to enter into the recognizance that the court considers appropriate.

In practice, most orders issued under s. 46(1) contain standard terms that prohibit a spouse from molesting, annoying, harassing, or even communicating with the applicant spouse. These standard terms seem to have been applied even where the offending spouse has been somewhat violent and an alcoholic: see Godwin v. Bolsco, [1993] O.J. 297 (Prov. Div.); Shaver v. Shaver, [1991] O.J. 2198 (U.F.C.); Zegil v. Zegil, [1987] O.J. 1316 (S.C.).

Mrs. Hamilton relies on McDonald v. McDonald, (1994), 5 R.F.L. (4th) 215 (Ont. Gen. Div.) in support of upholding the order permanently banishing Mr. Hamilton from the District of Muskoka. McDonald was a case in which the husband abused his wife physically and emotionally. The court made the usual order restraining Mr. McDonald from molesting, annoying or harassing his wife and any of her children. The court further ordered that Mr. McDonald enter into a recognizance, which included the conditions that he not communicate in any manner with Mrs. McDonald and "that he not for any reason whatsoever enter upon the property at 2011 Simcoe Street North, Oshawa and the cottage property."

The banishment order imposed by the trial judge in this case which prevents Mr. Hamilton from being in an entire District, is considerably wider than that imposed in McDonald. In my opinion there is no statutory authority for the trial judge's order. I would strike out paragraph 7 of the final order and in its place put an order requiring that Mr. Hamilton enter into a recognizance with the condition that he not enter upon, for any reason whatsoever, the residence or cottage property occupied by Mrs. Hamilton or any premises or property that to his knowledge is occupied, temporarily or permanently, by her.

SUMMARY AND CONCLUSION

As I calculate the parties' net family property, Mrs. Hamilton is required to pay an equalization payment of $83,617 to Mr. Hamilton. I would not interfere with the trial judge's awards in respect of child support, spousal support and the interim child support adjustment. Paragraph 1 of the formal judgment and the $9,000 RRSP transfer in favour of Mrs. Hamilton reflects Mr. Hamilton's net obligation after the equalization payment and support awards are taken into account.

The equalization payment as I have determined it is slightly lower than that determined by the trial judge and then deducted from Mr. Hamilton's support obligations. Because there is no cross-appeal, there is no basis to reflect this modest variation so as to increase the $167,738 figure in paragraph 1 of the trial judge's final order.

I would not interfere with that part of the judgment directing a sale of the cottage property, with paragraph 2 of the judgment that deals with the parties' RRSP accounts or with the other implementation provisions of the judgment.

I would therefore dismiss the appeal. The respondent is entitled to the costs of the appeal, which I would fix at $6,000 together with assessable disbursements.

C13792

COURT OF APPEAL FOR ONTARIO

OSBORNE, DOHERTY and MOLDAVER JJ.A.

B E T W E E N :

BEVERLEY HAMILTON

Petitioner/Respondent

- and -

JOHN BEATTY HAMILTON

Respondent/Appellant

J U D G M E N T