Court of Appeal for Ontario

Date: 2025-04-25
Docket: COA-24-CV-0401
Coram: Huscroft, Coroza and George JJ.A.

Between

Kristine Jill Hill
Applicant (Respondent in Appeal)

and

Albert Edward Green
Respondent (Appellant)

Counsel:
Elliot Birnboim, for the appellant
Matthew Lambert and Scott De Groot, for the respondent

Heard: 2025-04-16

On appeal from the order of Justice John Krawchenko of the Superior Court of Justice, dated March 18, 2024.

Reasons for Decision

1The appellant husband and the respondent wife are both Status Indians and members of the Six Nations of the Grand River. They began cohabiting in 2007, were married in 2013, and separated in 2015. During their relationship the two ran multiple businesses and accumulated substantial assets. All of the real property at issue in this case is located on-reserve.

2In 2018 the respondent brought an application seeking a divorce only. In his answer the appellant advanced property claims and sought spousal support, which prompted the respondent to amend her application to seek similar relief. The property in dispute included a tobacco farming operation, profits from their 2015 tobacco harvest, a gas station, and other movable assets. The trial focused on property valuation and how to divide the assets between the parties.

3The respondent was largely successful at trial. The trial judge found her to be a credible witness on most issues and accepted the expert evidence she tendered on asset valuation. He found that the appellant had failed to provide information that he was in the best position to provide, and rejected the evidence of his expert witnesses. He found further that there was no unjust enrichment. The trial judge ordered the respondent to make an equalization payment to the appellant in the amount of $33,674.49, but ordered the appellant to pay the respondent $60,270.00 for funds taken from their joint bank account, as well as $1.075 million, half of the 2015 tobacco profits, which the trial judge found had been retained by the appellant.

4The appellant appeals this order on the basis that the trial judge 1) erred by disregarding the parties’ concession of a joint family venture (“JFV”) and ordering standard equalization; 2) erred in his valuation of the parties’ assets by i) using the assets’ fair market value rather than their fair value, and ii) applying discounts to account for the property being on-reserve; and 3) erred in declining to award compensatory spousal support.

5We are not persuaded by any of the appellant’s arguments, which were to simply restate the arguments he made at trial, all of which were considered and rejected by the trial judge. With respect to his argument about JFV we note that both parties claimed that the other had been unjustly enriched and that, after considering all of the evidence before him, the trial judge rejected each of their claims. As there is no basis to interfere with this finding, we agree with the trial judge that “the Family Law Act, R.S.O. 1990, c. F.3 and its equalization mechanisms are sufficient to fairly adjudicate this dispute without the necessity of engaging in a JFV analysis”.

6Nor do we see any error in the trial judge’s approach to valuing the parties’ assets. While the trial judge did not expressly say that he was determining their fair value, that is in effect what he did. In arriving at his findings on valuation the trial judge simply preferred and accepted the expert evidence tendered by the respondent because, unlike the approach taken by the appellant’s experts, it did not involve a “theoretical severance” of land to provide a “speculative comparator” to property that is situated off-reserve and included a discount for lack of marketability. This was open to him.

7On that last point about lack of marketability, which was referred to as the “reserve factor”, we observe that in this case there was no available market data about land on the Six Nations Reserve, which left the trial judge with a difficult task. At the end of the day, after hearing all of the evidence and considering the parties’ submissions, he accepted the evidence of the respondent’s expert witness who accounted for the unique features of on-reserve property. And, contrary to the appellant’s argument before us, there is no unassailable legal principle that a trial judge is prohibited from using such an approach to valuation.

8Lastly, we reject the appellant’s arguments on the issue of spousal support. There was ample support for the trial judge’s conclusion that neither party “seriously pursued” this issue at trial and for his finding that there was no basis to make such an order.

9For these reasons the appeal is dismissed. Costs are payable by the appellant to the respondent in the agreed upon all-inclusive amount of $35,000.