Court File and Parties
CITATION: Medeiros v. Medeiros, 2009 ONCA 734
DATE: 20091021
DOCKET: C48717
COURT OF APPEAL FOR ONTARIO
Simmons, Rouleau and Watt JJ.A.
BETWEEN:
Julie Anna Medeiros
Applicant (Respondent in Appeal/ Appellant in Cross-Appeal)
And
Carlos Medeiros
Respondent (Appellant in Appeal/ Respondent in Cross-Appeal)
AND BETWEEN:
Robert Posa
Applicant (Respondent in Appeal/ Appellant in Cross-Appeal)
and
Julie Anna Medeiros
Applicant (Respondent in Appeal/ Appellant in Cross-Appeal)
and
Carlos Medeiros
Respondent (Appellant in Appeal/ Respondent in Cross-Appeal)
Counsel: Philip Epstein and Michael Zalev for Carlos Medeiros
Carol E. Struthers for Julie Anna Medeiros and Robert Posa
Heard: July 24, 2009
On appeal from the judgment of Justice Lorna Lee Snowie of the Superior Court of Justice dated March 31, 2008.
By the Court:
[1] This appeal arises out of two actions that were tried together. One action was a matrimonial proceeding between Julie Medeiros and Carlos Medeiros; the other action was a claim by Julie's brother, Robert Posa, on a promissory note given to him by Julie and Carlos.
[2] Following a five-day trial, Snowie J. held that the promissory note reflects a valid debt and that Julie and Carlos owe Robert $220,000 plus $57,923.29 in interest.
[3] Although the trial judge did not do an equalization calculation, the parties acknowledge that, if the trial judge's finding concerning the promissory note is upheld in this court, both spouses would have a deemed net family property of zero and neither would owe an equalization payment to the other.
[4] On appeal, Carlos submits that the trial judge erred in finding that there is a valid debt owing to Robert and that she further erred in failing to make an order relating to his interest in the jointly owned matrimonial home.[^1]
[5] By way of cross-appeal, Julie submits that the trial judge erred in failing to determine what is to happen with the parties’ jointly owned assets. On behalf of herself and Robert, she asks that Carlos's interest in the matrimonial home be transferred to her in satisfaction of Carlos's debt to Robert.
[6] Further, in the event this court determines that the trial judge erred in finding there is a valid debt owing to Robert, Julie submits that the trial judge erred in failing to find that a document entitled “Instructions” dated May 29, 1999 constitutes a domestic contract in which Carlos agreed to renounce any claim he has to share in the monies advanced under the promissory note. In the alternative, Julie argues that the $220,000 is the value of an asset, the claim against her mother, that she brought into the marriage and this amount should be deducted when calculating her net family property. In addition, Julie claims that the trial judge erred in failing to find that Julie is entitled to an unequal division of the parties’ net family properties.
[7] Finally, as the trial judge has not yet delivered a decision with respect to the costs of the trial, both parties asked that this court address that issue.
[8] Because the trial judge found that the promissory note was a valid debt she did not address all of the alternate submissions; nor, as noted by Carlos, did she deal with the joint interest in the matrimonial home. Both parties asked this court to exercise our powers under s. 134 of the Courts of Justice Act to make all necessary findings so as to finally resolve the issues between them. We agree that, to do so, is in the best interest of the parties.
Background
i) The Debt Issue
[9] Julie and Carlos were married on July 6, 1991. It was Julie's second marriage and Carlos's first.
[10] In January 1996, Julie and Carlos purchased a home on Spyglass Crescent in Mississauga for $187,000 and took title as joint tenants. They made a $20,000 down payment using funds received from Julie's mother, Phyllis Posa, and obtained a mortgage to pay the balance of the purchase price.
[11] In early 1996, Phyllis sued Julie and Carlos for $31,000, which she claimed they owed pursuant to various promissory notes. Julie and Carlos retained a lawyer named Michael Handler to defend the action, and Julie counterclaimed for $250,000 on account of monies she claimed Phyllis owed her in relation to properties Phyllis held for Julie and her first husband during Julie's first marriage.
[12] The litigation between Phyllis, Julie and Carlos proceeded over the next four years during which the parties exchanged numerous offers to settle. Phyllis wanted assurances that any settlement payment she made would be protected from Carlos in the event that his marriage to Julie broke down. However, given Phyllis’s history of suing her children, Julie was not prepared to accept any type of settlement arrangement that would allow Phyllis to force her to repay the settlement funds at a later date.
[13] Two sets of Julie and Carlos’ instructions to Mr. Handler in relation to preliminary offers are noteworthy for the purposes of this appeal.
[14] On November 11, 1996, Julie and Carlos signed a document entitled “Instructions” in which they rejected an offer from Phyllis and instead instructed Mr. Handler to settle the action for a payment of $175,000 on terms that included the following:
Carlos Medeiros will execute whatever document is appropriate to confirm that he renounces any subsequently acquired right to share in the proceeds of settlement of this action which may form part of the joint family assets.
[15] Subsequently, on May 28, 1999, Julie signed a further document entitled “Instructions”, which indicated that Phyllis wished to gift Julie $200,000 but “still insist[ed]” on Carlos renouncing any claim to the gift as a precondition to its payment.
[16] In the May 28, 1999 Instructions, Julie acknowledged that if she and Carlos separated or divorced, Carlos would be in a position to claim monies that had been gifted to her by her mother unless there were written documents confirming that he renounced any claim to the gift. Julie confirmed that she was willing to attempt to settle the dispute with her mother on terms that included “execution of any document reasonably required to confirm that Carlos Medeiros renounce[d] any subsequent acquired right to share in the proceeds of [the] settlement.”
[17] Further, Julie and Carlos both signed an additional section of the May 28, 1999 Instructions in which Carlos confirmed that he had reviewed the May 28, 1999 Instructions, he did not want independent legal advice, he had “no desire to obtain a benefit from a financial gift by Phyllis Posa to Julie Medeiros if Julie and [he] were ever to separate or divorce,” and that he was “prepared to sign any appropriate document to accomplish that purpose.”
[18] Some time in 2000, Robert Posa became involved in the negotiations to attempt to resolve the litigation between Phyllis, Carlos and Julie. On March 14, 2000, Julie and Carlos proposed the following settlement to Phyllis:
i) Phyllis would give $200,000 to Robert;
ii) Robert would give $200,000 to Julie and Carlos; and
iii) Julie and Carlos would give Robert a promissory note for $220,000 with interest payable on demand and a mortgage against their home to secure the promissory note.
[19] However, unbeknownst to Phyllis, Julie and Carlos and Robert also agreed that Robert would sign an acknowledgment that the promissory note had been satisfied as well as a discharge of the mortgage, that these documents would be placed in escrow with Mr. Handler, and that Julie would be given sole authority to have the documents released.
[20] Phyllis subsequently provided the following response to Julie and Carlos's offer:
i) Phyllis would give $200,000 to Robert;
ii) Robert would loan the $200,000 to Julie and Carlos if and when they granted him a mortgage on their home; and
iii) as long as Robert obtained a first mortgage against Julie and Carlos's home and advanced the $200,000 to them, he would have no obligation to repay Phyllis.
[21] Phyllis gave the $200,000 to Robert at the end of March 2000. On May 29, 2000, Julie and Carlos signed a promissory note under which they agreed to pay Robert $220,000 plus interest. They also signed a mortgage to Robert as security for the promissory note.
[22] On May 30, 2000, Robert signed an acknowledgment that the promissory note had been satisfied and a discharge of the mortgage. These documents were placed in escrow with Mr. Handler and Julie was given sole authority to have them released.
[23] On May 31, 2000, Mr. Handler received the $200,000 from Robert and disbursed the funds as follows:
i) $154,065.40 to pay off two mortgages registered against the Spyglass property;
ii) $31,034.60 to Michael Handler on account of legal fees; and
iii) $15,000 to Julie and Carlos.
[24] That same day, Mr. Handler registered the mortgage against the Spyglass property and Julie and Carlos gave $15,000 to Robert to repay a debt they owed him.
[25] On December 11, 2000, Phyllis, Julie and Carlos signed mutual releases and minutes of settlement confirming the terms of their settlement. On December 15, 2000, the court action between Phyllis, Julie and Carlos was dismissed without costs.
[26] On September 9, 2001, Julie and Carlos signed an agreement to purchase a property located at 24 Beehive Drive in Bolton. In order to obtain financing for the purchase, Julie instructed Mr. Handler to register the discharge of Robert’s mortgage against the Spyglass property. Although Carlos disputed the issue at trial, the trial judge found that Carlos promised to give Robert a new mortgage to be registered against the Beehive property once the purchase was completed.
[27] Julie and Carlos sold the Spyglass property on July 24, 2002 and completed the purchase of the Beehive property on September 3, 2002. No mortgage to Robert was registered at that time.
[28] The trial judge found that Julie and Carlos began living separate and apart under the same roof on June 1, 2004. Subsequently, in about August 2004, Robert presented a new mortgage to Carlos to be registered against the Beehive property but Carlos refused to sign.
[29] Robert demanded payment of the promissory note on October 13, 2004 and commenced his action against Julie and Carlos on November 23, 2004. Carlos defended the action; Julie did not. Julie commenced a divorce application against Carlos on May 24, 2005.
[30] Following a five-day trial, at which Robert and Julie were represented by the same counsel, the trial judge found that the mortgage against the Spyglass property that was discharged was simply collateral to the promissory note, that the promissory note to Robert had never been satisfied, and that the acknowledgment of satisfaction of the promissory note had never been released from escrow. She held that Carlos and Julie owe Robert $220,000 plus interest from the date of the demand and directed that the principal and interest owing be split equally between them. In addition, she directed that Julie and Carlos enter into a new collateral mortgage in favour of Robert to be registered against the Beehive property.
Analysis
1. Did the trial judge err in finding there is a debt owing to Robert?
[31] Carlos submits that the trial judge erred in finding that there is a debt owing to Robert under the promissory note because it is clear from the documentary evidence that there was no expectation that the $200,000 advanced by Robert would ever have to be repaid.
[32] We agree. Although the trial judge concluded at page 6 of her reasons that all parties understood that Phyllis was obsessed with ensuring that no part of any funds she advanced to Julie would form part of Julie's net family property and that the only way to resolve the outstanding litigation “was to satisfy all concerned, in particular Phyllis Posa, that Julie's money would be safeguarded for Julie only, in case of marital breakdown”, the real issue in this case was whether the arrangements the parties entered into were effective to carry out that purpose.
[33] In our view, the trial judge erred in failing to take account of the documentary evidence demonstrating that there was an understanding between Robert, Julie and Carlos that Robert would never make a demand on the note and that, in fact, Robert had gifted the money to Julie.
[34] As was noted by the trial judge, at the time of entering into the settlement Julie and Carlos provided Mr. Handler on March 14, 2000 with instructions that included the following terms:
We Julie and Carlos Medeiros acknowledge that Julie's brother, Robert Posa, has been attempting to find a compromise solution to end the lawsuit between us as Defendants and Plaintiffs by Counterclaim and Phyllis Posa as Plaintiff and Defendant by Counterclaim.
We understand that the most recent proposal will cause Robert Posa to advance $200,000 to us (in trust to Michael A. Handler) upon a mortgage being registered against our home located at 7206 Spyglass Crescent, Mississauga. The mortgage will be a collateral mortgage securing a promissory note by which we would promise to pay Robert Posa $220,000 on demand. The note would not bear interest except if there was a default.
We are prepared to go along with the settlement because Robert Posa has assured us that he will never make a demand on the note. Robert Posa has also assured Michael Handler that he will sign a discharge of the mortgage once the mortgage is registered. The discharge of the mortgage will, however, only be registered on title at the specific written instructions of Julie Posa Medeiros.
We are signing these instructions voluntarily in the hope of ending the outstanding legal proceedings. Carlos Medeiros acknowledges that the $200,000 payment is directly intended to benefit his wife Julie and will only indirectly benefit him. Carlos Medeiros is, however, jointly and severally liable on the mortgage and promissory note to Robert Posa. Carlos Medeiros understands that only Julie Posa Medeiros can instruct Michael Handler to retire this indebtedness and to, that effect, therefore Michael Handler is in a conflict of interest.
Carlos acknowledges this conflict of interest. Carlos has been offered the opportunity of consulting with his own completely independent lawyer and is choosing not to do so. [Emphasis added.]
[35] Although it is clear from these instructions that the parties contemplated the creation of documents evidencing a loan, it is also clear that Julie would have sole control of additional documents evidencing satisfaction of that same loan and that Julie and Carlos only entered into the settlement “because Robert Posa ha[d] assured [them] that he [would] never make a demand on the note.”
[36] Robert confirmed this assurance in handwritten instructions to Mr. Handler given prior to the acknowledgment of satisfaction of the promissory note and the discharge of collateral mortgage being prepared:
To Whom it May Concern:
Although I hold a mortgage for $220,000 on the house on Spyglass for Julie & Carlos Medeiros the[re] is no interest or principal in [sic]which is to be paid or will ever have to be paid.
Thank You.
Robert Posa
[37] Robert acknowledged that no principal or interest would ever have to be paid on the mortgage. Although it appears that the primary purpose of Robert’s assurance was to ensure that Phyllis could not compel Robert to call the loan in the event she had a change of heart, the transaction could not constitute a loan in one set of circumstances but not in another. That is, in the face of Robert’s acknowledgment, there can be no finding of a valid debt.
[38] Moreover, in our view, the acknowledgement of satisfaction of the promissory note, the discharge of the mortgage, the escrow arrangements, and Robert and Julie's decision to somehow be represented in this litigation by the same counsel all belie the suggestion that there is a real debt owed to Robert. Rather, these documents and arrangements make it clear that Julie is and always has been entitled to the benefit of the $200,000. As such, these facts support a finding that Robert gifted the $200,000 to Julie at the time the monies were advanced.
[39] In the result, we would set aside the trial judge's orders that Carlos and Julie owe Robert $220,000 plus interest under the promissory note and that Carlos and Julie enter into a new collateral mortgage in favour of Robert on the Beehive property. In their place, we would substitute an order dismissing Robert's action against Carlos and Julie[^2].
2. Did the trial judge err in failing to find that the 1996 and 1999 Instructions constituted a domestic contract?
[40] By way of cross-appeal, Julie contends that the 1996 and 1999 Instructions constitute either a domestic contract or an agreement to enter into a domestic contract under which Carlos renounced, or agreed to renounce, any claim to share in the proceeds of any settlement she received from her mother. In the alternative, she claims that Carlos should be estopped from resiling from his promises not to make any claim to a share of any settlement proceeds. In the further alternative, Julie relies on the doctrine of part performance to make Carlos’s promises enforceable.
[41] Finally, Julie claims that Carlos should not be permitted to commit a fraud on the court by resiling from the promises set out in the minutes of settlement under which the litigation with Phyllis was settled. We do not accept any of these submissions.
[42] Section 4. (2) 6 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) provides that property excluded under a domestic contract does not form part of a spouse’s net family property:
(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:
Property that the spouses have agreed by a domestic contract is not to be included in a spouse's net family property.
[43] Section 55. (1) of the FLA establishes the requisite formalities for an enforceable domestic contract:
- (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
[44] In this case, none of the written statements upon which Julie seeks to rely constitute an enforceable domestic contract.
[45] We note, first, that the terms of the 1996 and 1999 Instructions were not repeated in the written instructions Julie and Carlos gave to Mr. Handler in 2000 when the litigation with Phyllis was actually settled. This may have been because the structure of the settlement that was implemented differed from prior offers in that it purported to provide for a loan rather than a gift. Had the settlement involved a true loan, it would not have been necessary for Carlos to renounce any claims to the proceeds.
[46] In any event, in our view, the 1996 and 1999 Instructions simply do not apply to the arrangements that were made in 2000. There is no indication that either document constituted standing instructions. On the contrary, the parties provided distinct instructions on all three occasions. Moreover, the section of the 1999 Instructions that Julie alone signed states specifically, “[T]his settlement proposal & these instructions therefore replace the earlier Offer to Settle of November 14, 1996 for 30 days only. Thereafter the earlier Settlement Offer becomes effective again.” These provisions are a clear indication that each of the 1996 Instructions and 1999 Instructions constituted separate instructions. It is accordingly not possible to treat the language in the 1996 and 1999 Instructions as constituting an enforceable domestic contract between Carlos and Julie.
[47] Further, we are not satisfied that estoppel or part performance have any application in this case. Julie is attempting to rely on promises that are not contained in a domestic contract to have a portion of her share of the value of the parties’ matrimonial home excluded from her net family property. In our view, the legislature has made it clear that any such exclusion can only be accomplished by way of an enforceable domestic contract.
[48] We are not persuaded that Julie is entitled to rely on a submission that Carlos is committing a fraud on the court. The settlement of the litigation with Phyllis contemplated certain payments and agreements. Julie, Carlos and Robert then entered into another arrangement that, in a sense, circumvented Phyllis’ intent that the funds only be lent to Julie. In these circumstances, it is not open to Julie to assert that Carlos is committing a fraud on the court. Furthermore, the only order obtained arising from the minutes of settlement was an order dismissing Phyllis’ action against Julie and Carlos; Phyllis has not advanced a claim in these proceedings.
[49] Finally, the cases relied on by Julie have little bearing on the facts before us. They all enunciate the equitable principle that a party cannot rely on a former fraud for his or her present claim. Carlos seeks to rely on what we have found to be the true nature of the arrangement between Julie, Robert and himself.
3. Did the trial judge err in failing to find that Julie’s Claim Against her Mother was an Asset at the date of Marriage with a value of $220,000?
[50] In a telephone conference call held following the appeal hearing, Julie raised a further argument concerning the equalization calculation.
[51] As noted in paragraph 11 above, in about 1996, Julie counterclaimed against Phyllis for $250,000 in relation to properties Phyllis held for Julie and her first husband, Tony Sacco, during their marriage. Phyllis eventually gave Robert $200,000 to settle the lawsuit, Robert paid the $200,000 to Julie and Julie and Carlos gave the promissory note for $220,000 to Robert.
[52] If we do not accept Julie’s other arguments concerning the monies received from Robert (namely, the monies are a debt owing to Robert or they are excluded property under a domestic contract), Julie submits that the debt owing to her from Phyllis, which Julie brought into her marriage with Carlos, should be valued at $220,000. According to Julie, the amount of her settlement with Phyllis is the best evidence of the value of that debt.
[53] Even if it were appropriate to use hindsight to value the debt, we would not accept this argument. In our view, the elaborate arrangements made by the parties to try and insulate this money from any claims by Carlos, demonstrate that a significant component of the monies represented a gift to Julie from Phyllis, which everyone knew Julie intended to invest in the matrimonial home. If $220,000 was a true reflection of the asset Julie brought into the marriage, she was entitled to a deduction in that amount when calculating her net family property even though the money was later invested in the matrimonial home.
[54] Apart from information in an Agreed Statement of Fact concerning the home Julie and Tony lived in prior to their separation (the “15 Norglen property”), there was little evidence at trial to assist in valuing the debt owed to Julie by Phyllis on the date of Julie’s marriage to Carlos. The information in the Agreed Statement of Fact suggests that the maximum value of the total debt owing in relation to the 15 Norglen property is $82,000, meaning Julie’s share would be $42,000. However, Phyllis paid Tony $50,000 to settle his action against her for his share of the debt. In our view, the $50,000 payment to Tony is the best evidence of the value of Julie’s share of the debt and we value the asset Julie brought into the marriage at $50,000.
4. Did the trial judge err in failing to find that Julie is entitled to an unequal division of the parties' net family properties?
[55] Julie relies on ss. 5 (6)(f), (g) and (h) of the FLA claim that the trial judge erred in failing to find that she is entitled to an unequal division of the parties' net family properties. Those sections provide as follows:
- (6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract;
(h) any other circumstance the relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[56] There is a high threshold to find an equalization of net family properties “unconscionable”. We are not satisfied that Julie can meet this threshold and therefore we do not accept this submission.
[57] In Serra v. Serra, 2009 ONCA 105, this court described the threshold for unconscionability under s. 5(6) in the following terms at para. 47:
In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: see Merklinger v. Merklinger (1992), 1992 CanLII 7539 (ON SC), 11 O.R. (3d) 233 (Ont. Gen. Div.), aff’d (1996), 1996 CanLII 642 (ON CA), 30 O.R. (3d) 575 (C.A.); Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789 (C.A.); McDonald v. McDonald (1988), 1988 CanLII 8635 (ON SC), 11 R.F.L. (3d) 321 (Ont. S.C.); and LeVan (S.C.J.).
[58] The trial judge in this case was clearly satisfied that the purpose of the arrangements entered into between Phyllis, Robert, Julie and Carlos was to ensure that settlement funds advanced by Phyllis would not form part of Julie's net family property and that Carlos understood that. Given that the arrangement was not effective in law to achieve that purpose, and the fact that Julie ended up paying off more than her share of the parties’ liabilities, the question we now need to address is whether an equalization of net family properties rises to the level of unconscionability in this case. In our view, it does not. Julie had legal advice and could have asked Carlos to sign a domestic contract to shelter the settlement proceeds at the time the arrangements were made. She did not do so.
[59] Moreover, assuming without deciding, that the circumstances of this case fall within the enumerated subsections of s. 5(6), those factors cannot be considered in isolation; rather, all relevant circumstances must be considered: Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789 (C.A.)
[60] In this case, both Julie and Carlos contributed to the marriage. In our view, Julie’s contributions were not sufficiently disproportionate so as to rise to the level of unconscionability. The two were married for about 13 years prior to their separation. During the course of their marriage, Carlos worked seasonally for a period of time until he returned to school to obtain his certificate as a heavy equipment operator; Julie remained out of the full-time workforce for a period of time to care for their three children.
[61] Following their move to the Beehive property, Julie and Carlos increased their mortgage by about $60,000 to pay expenses and reduce their other debts. Leaving aside the promissory note to Robert and without taking account of real estate fees or other selling expenses, their equity in the Beehive property on the date of trial was about $240,000.
[62] Apart from the $220,000 issue, on appeal, the parties agreed on the values of their respective assets and liabilities on the valuation date. Including his one-half interest in the matrimonial home, Carlos owned property valued at $248,212.64 on the valuation date.[^3] After subtracting his liabilities on the valuation date of $102,165.08 and $7,200 in property owned on the date of marriage, Carlos has a net family property of $138,847.56.
[63] Including her one-half interest in the matrimonial home, Julie owned property valued at $254,803.33 on the valuation date. After subtracting her liabilities on the valuation date of $109,267.90, $57,200 in property owned on the date of marriage and $5,800 in excluded property, Julie has a net family property of $82,535.43.
[64] In the result, Carlos owes Julie $28,156.98 as an equalization payment.
[65] Given that the settlement funds intended for Julie account for about $150,000 of the $240,000 equity in the matrimonial home, the amount of the equalization payment might strike some as unfair. However, in our view, any unfairness that may exist does not rise to the level of unconscionability. This is particularly the case when considered in light of the provisions of the FLA that favour an equal division of the value of the matrimonial home even where the home is brought into the marriage by one of the spouses or its acquisition is funded by gift, inheritance, or insurance or damage proceeds following the marriage, albeit subject to be equitable considerations set out in s. 5(6).
[66] In the circumstances, we would not give effect to this ground of appeal.
5. Did the trial judge err in failing to make an order concerning the parties’ jointly held assets?
[67] All parties submit that the trial judge erred in failing to make an order to finalize the distribution of the parties’ joint assets, including the Beehive Property and its contents. However, in fairness to the trial judge, the issue of the sale of the matrimonial home was not raised in the application.
[68] In light of Julie’s acknowledgement that she is not relying on Carlos’s failure to formally request a sale of the matrimonial home, we direct that Julie be afforded an opportunity to purchase the matrimonial home at a price to be agreed upon, but that upon default of agreement within 90 days, the matrimonial home should be sold and the net proceeds divided equally following payment to Julie of $34,156.98 together with accrued interest (being the equalization payment of $28,156.07 plus $6,000 in retroactive spousal support plus post-judgment interest on those sums).
Conclusion
[69] Based on the foregoing reasons, the appeal is allowed, paragraphs 8 and 9 of the trial judge’s order are set aside, Robert’s action against Julie and Carlos is dismissed and orders are made requiring Carlos to pay Julie an equalization payment of $28,156.98 plus post-judgment interest, and for the buyout or sale of the matrimonial home on the terms set out above. In the unusual circumstances of this case, we make no order as to costs of the appeal and order that there be no order as to costs of the trial.
RELEASED: October 21, 2009 “JS”
“Janet Simmons J.A.”
“Paul Rouleau J.A.”
“David Watt J.A.”
[^1]: In his appeal material and at the oral hearing, Carlos also claimed that the trial judge erred in ordering him to pay retroactive spousal support of $6,000.00. Carlos subsequently abandoned that ground of appeal.
[^2]: Although Julie did not defend Robert's action, a dismissal of the action against Julie flows from our finding that the promissory note does not reflect a valid debt.
[^3]: Although Carlos took the position in his closing submissions at trial that the matrimonial home had a value of $330,000 on the valuation date, on appeal Carlos and Julie agreed that a value of $440,000 should be attributed to the home for the purposes of the equalization calculation.