“When disposition costs are in issue, courts apply three rules: (i) the overriding principle of fairness applies, i.e., that costs of disposition as well as benefits should be shared equally; (ii) each case should be decided on its own facts, considering the nature of the assets involved, evidence as to the probable timing of their disposition, and the probable tax and other costs of disposition at that time, discounted as of valuation day; and (iii) disposition costs are deducted before arriving at the equalization payment, except in the situation where “it is not clear when, if ever,” there will be a realization of the property: McPherson v. McPherson (1988), 63 O.R. (2d) 641, 13 R.F.L. (3d) 1 (Ont. C.A.).
To determine the appropriate notional RRSP tax rates—where the parties disagree—the court’s analysis must rely on evidence supporting the expected time of disposition: Virc v. Blair, 2016 ONSC 49 (Ont. S.C.J.). If the evidence is lacking, the court may consider both agreed upon rates for other assets as well as hindsight evidence of post-separation text rates and actual disposition costs incurred upon sale of RRSPs: ibid at para 198.
For pensions, a similar reliance on evidence is preferable: Green v. Green, [2007] O.J. No. 454, 38 R.F.L. (6th) 378 (Ont. S.C.J.) at para 46. As a contingent interest, the court must examine what was “reasonably foreseeable on the valuation date”: Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271 (Ont, C.A.).”
Lambert v. Peachman, 2017 ONSC 7450 (CanLII) at 21(x)(a)-(c)