July 25 – Equalization & Prejudgment Interest

“The principles for awarding prejudgment interest on equalization payments are not necessarily identical to those used in commercial cases: McQuay v. McQuay(1992), 8 O.R. (3d) 111(Div. Ct.). The weight of jurisprudence in family law cases at the trial level indicates that exceptions do exist to the usual award of interest on an equalization payment. Specifically, the court’s discretion will be exercised under s. 130 of the Courts of Justice Act, supra, and prejudgment interest will not be awarded on an equalization payment where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial.  See Rotchill v. Rotchill, [1992] W.D.F.L. 1552; Balloch v. Balloch(1991), 35 R.F.L. (3d) 189; Karakatsanis v. Georgiou(1991), 33 R.F.L. (3d) 263; De Acetis v. De Acetis(1991), 33 R.F.L. (3d) 372; Gregoric v. Gregoric(1991), 4 O.R. (3d) 604; Jukosky v. Jukosky(1990), 31 R.F.L. (3d) 117, all decisions of the Ontario Court (Gen. Div.); and Rickett v. Rickett(1990), 71 D.L.R. (4th) 734(Ont. H.C.) ; Genna v. Genna(February 14, 1990), (Ont. S.C.) (unreported); Woeller v. Woeller(1988), 15 R.F.L. (3d) 120(Ont. Dist. Ct.) ; Humphreys v. Humphreys(1987), 7 R.F.L. (3d) 113(Ont. H.C.) ; and Harry v. Harry(1987), 9 R.F.L. (3d) 121(Ont. Dist. Ct.) . Most of these cases involve the matrimonial home, but some also involve a pension. The approach indicated in cases such as Humphreys, supra, and Gregoric, supra, was specifically approved in McQuay v. McQuay, supra.”

 Burgess v. Burgess, 1995 CarswellOnt 896 at 25