Dodman v. Preston

Dodman v. Preston

The Court held that the sale proceeds were jointly owned and the respondent had no right to apply the appellant's share toward the equalization payment; the trial judge's direction permitting that funding was erroneous and must be set aside, while the costs award was otherwise upheld but modified on appeal.

Citation
2016 ONCA 59
Parties
Applicant (respondent): Janis Arline Dodman (formerly Preston); Respondent (appellant): Mitchell Lewis Preston
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 January 2016
Procedural Posture
Family / Appeal
Outcome
Appeal granted in part and dismissed in part: the trial judge's direction regarding funding of the equalization payment is set aside; the appeal on the costs award is dismissed; costs of the appeal awarded to the appellant in the amount of $7,500 inclusive.
Legal Topics
Equalization Payment, Division of Matrimonial Property, Funding of Equalization, Costs of Appeal, Spousal Support, Child Support, Custody and Access, Occupation Rent
Source Language
English
Family Law Equalization Payment Division of Matrimonial Property Funding of Equalization Costs of Appeal Spousal Support Child Support Custody and Access +1 more

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Parties

Janis Arline Dodman (formerly Preston)

Applicant (respondent)

Mitchell Lewis Preston

Respondent (appellant)

Procedural Posture

Family / Appeal

Legal Issues

  1. 1 Whether proceeds from sale of matrimonial home that are jointly owned can be used by one party to fund an equalization payment owed to the other party
  2. 2 Whether the trial judge erred in awarding costs to the respondent given the error in the funding direction
  3. 3 Whether the error regarding funding materially affected the trial judge's costs assessment

Ratio Decidendi

The Court held that the sale proceeds were jointly owned and the respondent had no right to apply the appellant's share toward the equalization payment; the trial judge's direction permitting that funding was erroneous and must be set aside, while the costs award was otherwise upheld but modified on appeal.

Court Disposition

Appeal granted in part and dismissed in part: the trial judge's direction regarding funding of the equalization payment is set aside; the appeal on the costs award is dismissed; costs of the appeal awarded to the appellant in the amount of $7,500 inclusive.

Orders

  • Set aside the trial judge's direction that sale proceeds held in trust be applied so that the respondent receives $183,911.76 with the balance payable to the applicant; the respondent may not use the appellant's share of the jointly owned sale proceeds to fund the equalization payment.
  • Dismiss the appeal regarding the trial judge's costs award.