Martin v. Sansome

Ontario Reports

Court of Appeal for Ontario,

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

January 10, 2014

118 O.R. (3d) 522 | 2014 ONCA 14

Case Summary

Civil procedure — Trial — Adjournment — Applicant in matrimonial proceedings serving notice of intention to act in person but unsuccessfully seeking adjournment in order to retain counsel one week before trial and again on day of trial — Trial judge finding that [page523] applicant's last-minute adjournment request was deliberate ploy — Trial judge not erring in exercise of his discretion in denying adjournment.

Courts — Judges — Bias — Reasonable apprehension of bias — Trial judge's expressions of annoyance with self-represented applicant and his interventions in examination of witnesses in order to focus and clarify evidence and move trial along not giving rise to reasonable apprehension of bias.

Family law — Domestic contracts — Setting aside — Parties agreeing to buy husband's parents' farm jointly — Wife told on day before purchase was to close that she could not be on title and that she was required to sign domestic contract waiving all rights to farm — Wife sent for "independent legal advice" to lawyer who was effectively blind and who did not review contract with her — Wife completely unaware of implications of signing agreement — Trial judge not erring in setting aside contract under s. 56(4) of Family Law Act — Family Law Act, R.S.O. 1990, c. F.3, s. 56(4).

Family law — Property — Constructive trust — Trial judge finding that husband was enriched by wife's contributions to farm held in husband's name and that wife suffered corresponding deprivation — Trial judge erring in failing to consider whether monetary award would be sufficient before granting remedy of proprietary constructive trust — Monetary award sufficing — Unjust enrichment arising from parties' marriage being addressed through operation of equalization provisions under Family Law Act — Family Law Act, R.S.O. 1990, c. F.3.

Family law — Support — Child support — Father failing to pay any child support for child who was just short of 18 on date of separation and in community college when mother claimed child support two years later — Father clearly having means to pay child support — Trial judge not erring in ordering father to pay retroactive child support from date of separation.

The parties had an 18-year relationship and a ten-year marriage. The applicant's parents offered the parties the opportunity to live on and manage the family dairy farm on the condition that they marry. The parents agreed that, after an initial three-year proving period, the parties would be able to buy the farm. After the marriage, the parties worked on the farm shoulder to shoulder. On the day before the purchase of the farm was to close, the respondent was informed that she could not be on title and was required to sign a domestic contract waiving all rights to the farm. She was sent for "independent legal advice" to a lawyer who was effectively blind and who could not and did not read the domestic contract or review it with her. After the milk quota and dairy herd were sold, the respondent worked off the farm, paid all household expenses from her income and deposited the balance into an account in the applicant's name. The parties separated one day before their daughter's 18th birthday. Following the separation, the appellant paid no child support. The respondent supported the daughter while she finished high school and attended community college. About two years after the separation, the applicant issued an application for a divorce. In her answer, the respondent sought an order setting aside the domestic contract and granting her a 50 per cent interest in the farm, an order for equalization of the parties' net family property and an order for child support. (The daughter was still attending community college at that time.) The trial judge set [page524] aside the contract, declared the respondent the owner of an undivided one-half interest in the farm and ordered the applicant to pay retroactive child support from the date of separation with interest at the rate of 10 per cent. The applicant appealed.

Held, the appeal should be allowed in part.

The trial judge did not err in the exercise of his discretion in refusing the self-represented applicant's request on the day of the trial for an adjournment so that he could retain counsel. The applicant had served a notice of intention to act in person. At a settlement conference, the case management judge set a trial date and told the applicant that the trial would proceed on that date whether or not he had a lawyer. The trial judge was entitled to find that the applicant's last-minute adjournment request was a deliberate ploy.

The trial judge's expressions of annoyance with the applicant and his intervention in the examination of witnesses to clarify evidence and move the trial along did not give rise to a reasonable apprehension of bias.

The trial judge did not err in setting aside the domestic contract under s. 56(4)(b) of the Family Law Act ("FLA") on the basis that the respondent did not understand the nature or consequences of the contract. The fact that the respondent appreciated that the contract was not good for her did not mean that she understood either the nature or the consequences of the contract.

The trial judge did not err in finding that the applicant was enriched by the respondent's contributions to the farm and her homemaking, child care and other support services and that the respondent suffered a corresponding deprivation. However, having found unjust enrichment, he erred in failing to consider whether a monetary award would be sufficient before impressing the farm with a constructive trust in favour of the respondent. In the circumstances, a monetary award would suffice. The unjust enrichment arising out of the parties' marriage could be addressed through the operation of the equalization provisions of the FLA. The applicant was ordered to pay the respondent an equalization payment of $390,646.77 and grant her a charge against the property to secure payment.

The trial judge did not err in ordering the applicant to pay retroactive child support to the date of separation. Given the applicant's assets and income, it was apparent from the record that he would not suffer material hardship as a result of a retroactive award. In the circumstances, neither the lack of a direct explanation why the respondent waited some two years before claiming child support, or the trial judge's failure to comment on that factor, was fatal. The trial judge erred in ordering post-judgment interest at the rate of 10 per cent on the arrears of child support. The interest rate should be reduced to 3 per cent.

Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10, 274 O.A.C. 1, 328 D.L.R. (4th) 577, 2011EXP-624, 411 N.R. 200, J.E. 2011-333, [2011] 3 W.W.R. 575, 64 E.T.R. (3d) 1, 14 B.C.L.R. (5th) 203, 300 B.C.A.C. 1, 93 R.F.L. (6th) 1, EYB 2011-186472, apld

S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37, 270 D.L.R. (4th) 297, 351 N.R. 201, [2006] 10 W.W.R. 379, J.E. 2006-1543, 61 Alta. L.R. (4th) 1, 391 A.R. 297, 31 R.F.L. (6th) 1, EYB 2006-108061, 149 A.C.W.S. (3d) 626, consd

Other cases referred to

Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), [2010] O.J. No. 212, 2010 ONCA 47, 265 O.A.C. 247, [2010] 2 C.N.L.R. 18 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91]; [page525] McNamee v. McNamee (2011), 106 O.R. (3d) 401, [2011] O.J. No. 3396, 2011 ONCA 533, 69 E.T.R. (3d) 38, 280 O.A.C. 372, 335 D.L.R. (4th) 704, 4 R.F.L. (7th) 13, 204 A.C.W.S. (3d) 857; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4, 65 D.L.R. (4th) 161, 103 N.R. 321, J.E. 90-299, 38 O.A.C. 81, 36 E.T.R. 1, 23 R.F.L. (3d) 337, 19 A.C.W.S. (3d) 260; Ward v. Ward (2012), 111 O.R. (3d) 81, [2012] O.J. No. 3033, 2012 ONCA 462, 293 O.A.C. 63, 99 C.C.P.B. 1, 352 D.L.R. (4th) 201, 26 R.F.L. (7th) 358, 217 A.C.W.S. (3d) 395; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50, 2003 SCC 45, 231 D.L.R. (4th) 1, 309 N.R. 201, [2004] 2 W.W.R. 1, J.E. 2003-1819, 19 B.C.L.R. (4th) 195, 7 Admin. L.R. (4th) 1, [2004] 1 C.N.L.R. 342, 40 C.P.C. (5th) 1; Young v. Young, [2001] O.J. No. 42 (C.A.), affg 1999 CarswellOnt 2706 (S.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128, 129, 130(1)(b), (2)

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am.], ss. 2(1) [as am.], 15.1(1), 15.2(1)

Family Law Act, 1986, s. 10(1)

Family Law Act, R.S.O. 1990, c. F.3, ss. 4(2) [as am], 4(2)(5), (3), 5(6), (7), 9(1)(b), 10(1), (d), 11, 18(1), (3), 19(1), 31(1) [as am.], 56(4)(b)

Mortgages Act, R.S.O. 1990, c. M.40, Part III [as am.]

APPEAL from the judgment of G.A. Campbell J. of the Superior Court of Justice dated June 26, 2012 in a matrimonial litigation.

Aaron Franks and Michael Zalev, for appellant.

Pamela L. Hebner and Patrick W. Jocsak, for respondent.

The judgment of the court was delivered by

HOY A.C.J.O.: —

I. Overview

[1] This appeal arises out of a dispute following marriage breakdown. The dispute centred on the validity of a domestic contract and the ownership of a non-operating farm that had been in the family of the husband, the appellant Delmer Martin, for over 180 years. Retroactive child support for the parties' daughter, who was 23 years of age at the time of trial, was also at issue.

[2] The trial judge denied the appellant an adjournment to retain counsel. A difficult 11-day trial followed. Ultimately, the trial judge set aside the domestic contract and declared the appellant's wife, the respondent Linda Sansome, owner of an undivided one-half interest in the farm. The trial judge also ordered the appellant to pay retroactive child support from the date of separation, together with interest at the rate of 10 per cent. Further, the trial judge ordered the appellant to repay one-half of a $27,000 loan advanced by his mother-in-law. [page526]

[3] The appellant argues that the trial judge erred in denying his adjournment request and that the trial judge's conduct of the trial gives rise to a reasonable apprehension of bias. The appellant effectively concedes that, on the evidence adduced at trial, the trial judge did not err in setting aside the domestic contract. However, the appellant argues that the trial judge erred in concluding that the respondent was unjustly enriched and entitled to a 50 per cent interest in the farm through the proprietary remedy of a constructive trust, and that he provided inadequate reasons for his conclusion. The appellant further submits that the trial judge erred by not equalizing the parties' respective net family property. The appellant also argues that the trial judge made a number of errors in ordering retroactive child support and erred in ordering him to repay one-half of the loan advanced by his mother-in-law. The appellant also says that the trial judge did not give him an adequate opportunity to respond to the respondent's cost submissions. The appellant submits that a new trial must be ordered.

[4] I am not persuaded that the trial judge erred in denying the appellant's request for an adjournment, or that the record raises a reasonable apprehension of bias. I accept that the trial judge erred by impressing the farm with a constructive trust in favour of the respondent and by not equalizing the parties' net family property. I would order the appellant to pay the respondent an equalization payment in the amount of $390,646.77, plus pre- and post-judgment interest, and grant her a charge against the property to secure payment, as detailed below. I would also reduce the rate of pre- and post-judgment interest on the arrears of child support to 3 per cent. The respondent properly concedes that the trial judge erred in ordering the appellant to repay one-half of a loan advanced by her mother before the appellant's bankruptcy, and such provision should accordingly be set aside. I would not interfere with the trial judge's costs award.

[5] I first provide some background, and then address each of the appellant's grounds of appeal.

II. Background

[6] The appellant is currently 52 years old; the respondent is 53. They met in 1985 and began living together in 1988. Their daughter, Brittany, was born in 1989. They married in 1996 and separated on February 27, 2007, after an 18-year relationship and a ten-year marriage. At the time of separation, Brittany was one day shy of her 18th birthday.

[7] The appellant grew up in a Mennonite family, on the farm at issue. The appellant stopped going to school and started [page527] working on the farm after grade eight. Around 1980, the appellant left the farm and tried his hand at a number of jobs. He ultimately started buying and renovating properties, and then renting them, through his company DBM Inc.

[8] Except for a brief maternity leave when Brittany was born, the respondent worked throughout the relationship, including for the appellant's company, DBM Inc. The money that the respondent earned through employment was deposited into a business account in the name of DBM Inc. and comingled with other money.

[9] The appellant's business floundered. The parties took out a second mortgage on their jointly owned matrimonial home so that the appellant could complete renovations on some of his properties. Ultimately, the parties defaulted on the mortgage and, in or about 1996, both the appellant and DBM Inc. made assignments in bankruptcy. The second mortgagee foreclosed and obtained a judgment of approximately $50,000 for the shortfall against the respondent, who had not declared bankruptcy.

[10] The appellant's parents offered the parties the opportunity to live on and manage the farm, on the condition that they marry. The appellant's parents agreed that, after an initial three-year "proving period", the parties would be able to buy the farm for $450,000. The parties married on July 27, 1996, and from August 1996 until December 1999 or January 2000, they worked on the dairy farm, in the words of the trial judge, "shoulder to shoulder". Among other tasks, the respondent milked the herd of dairy cattle twice a day by herself.

[11] In December of 1999 or January of 2000, the appellant's parents sold the farm's milk quota and the dairy herd. The farm ceased to be an operating farm. According to a letter written by the appellant to his parents in June of 1999, the milk quota had increased in value since the time he and the respondent took over the farm due to the couple's management and hard work.

[12] The congregations of some Mennonite churches take directing roles in the affairs of church members, and the parents' church took an interest in the sale of the farm to the parties. The church assigned members of the congregation to form a committee to advise the parents on the sale. Negotiations began at the end of 1999 and were conducted by committees comprised of members of the parents' church and the parties' church, and not directly by the parties and the appellant's parents. An agreement was finally reached that the farm was to be purchased by the appellant and the respondent, jointly, for $500,000. All involved, including the appellant and the respondent, signed a document [page528] embodying the key terms of the agreement, including that the agreement was "subject to satisfactory financing". The appellant's parents' lawyer subsequently drafted an agreement of purchase and sale reflecting that both the appellant and the respondent were to be the purchasers, and that their share of the sale proceeds from the milk quota and the dairy herd ($119,000) was to be paid to both of them, and credited against the purchase price.

[13] Without the respondent's knowledge, her name was "stroked out" as one of the purchasers on a subsequent draft. On the morning of April 13, 2000, the day before the purchase of the farm was to close, the appellant and the respondent attended their lawyer's office to sign the documents required to purchase the farm. The respondent was told, for the first time, that she was required to sign a domestic contract waiving all rights to the farm. She was given two reasons for this. First, the judgment of the second mortgagee of the parties' former matrimonial home was still outstanding against her and the proposed mortgagee of the farm would not advance the necessary financing if the respondent was on title. Second, the committee from the appellant's parents' church would not let the sale proceed unless she did so.

[14] That same morning, the parties' lawyer sent the respondent for "independent legal advice" to a lawyer who was effectively blind. That lawyer could not and did not read the domestic contract or review it with the respondent. The lawyer spent a total of 20 minutes with the respondent, who cried throughout but ultimately signed the domestic contract. She did so knowing that the domestic contract was not good for her. The lawyer did not charge the respondent.

[15] The evidence before the trial judge was that, at the time that the parties entered into the domestic contract, the respondent's only asset was a one-quarter interest in a family cottage that she inherited on the death of her father in 1982, with an estimated value of $50,000. That was offset by the outstanding judgment against her in favour of the second mortgagee. The respondent would be left with nothing; the appellant -- who, the trial judge found, did not make full disclosure of his assets in the domestic contract -- would get the farm, and what the trial judge described as his secret cache of money.

[16] The trial judge found that both the circumstances surrounding the execution of the domestic contract and the result were unconscionable.

[17] After the milk quota and herd were sold, both parties again worked off the farm. The respondent deposited her income [page529] into a joint account from which she first paid all household expenses. She transferred the remaining amount to an account in the appellant's name alone. This arrangement continued until the parties separated. The trial judge found that between the time that the milk quota and herd were sold and the date of separation, the respondent contributed all of her funds to the joint betterment of the family interests.

[18] The trial judge found that the respondent had believed that when the second mortgagee's judgment against her was no longer outstanding, she could have her name on title as a half-owner. However, when the couple received a clear execution certificate showing that the second mortgagee's judgment against the respondent was no longer outstanding, the appellant refused to add the respondent's name on title to the farm.

[19] The parties' separation on February 27, 2007 was triggered by Brittany's discovery of graphic sexual images of the appellant and a woman who was not the respondent on the appellant's computer.

[20] Following separation, the appellant -- then a long-distance trucker -- initially slept in the living room, when not on the road. After his mother died, he moved into the "doddy house" -- the separate living quarters attached to the main farmhouse, with access to the main house through adjoining doors on each floor that his parents had lived in. The appellant has paid all of the home's expenses since separation.

[21] The appellant paid no child support for Brittany. Brittany did not graduate from high school in June 2007. She was very upset by the separation and finished the year two credits short. She returned to high school for the fall term to obtain the two credits she needed. She worked full-time at Home Hardware for about six months and continued to live at home. In September of 2008, she moved to Toronto and started a two-year program at Humber College. Brittany financed her tuition with student loans and worked part-time. The respondent continued to maintain a home on the farm for Brittany, and provided her with some financial assistance, including paying for clothing, transportation, a cellphone and groceries, and making payments towards her Visa bill. Brittany graduated from Humber College in May of 2010 and has been working since, making minimum wage. She owes approximately $14,600 in student loans.

[22] Since 2009, the appellant has received a total of $420,000 from his mother's estate and has dissipated virtually all of it.

[23] On May 21, 2009, the appellant issued an application for a divorce. He did not request any corollary relief. Several months later, the respondent filed an answer seeking, among [page530] other things, an order setting aside the domestic contract and granting her a 50 per cent interest in the farm, an order that the equalization of the parties' net family property be determined, and an order for child support. The appellant filed a reply asking that the domestic contract be upheld and that the respondent's claims be dismissed.

III. Denial of Adjournment

[24] On June 4, 2012, a week before the trial was scheduled to begin, the appellant sought an adjournment of the trial. The case management judge refused to grant an adjournment. Then, on June 11, 2012, the first day of trial, the appellant brought a second motion for an adjournment. The trial judge also refused to adjourn the trial. The appellant argues that the trial judge erred in refusing to grant an adjournment.

[25] From the time that the appellant issued his application (May 21, 2009) until November 18, 2011, the appellant had counsel. On November 18, 2011, the appellant served a notice of intention to act in person. On that date, he confirmed under oath that it was his intention to proceed both to the pending settlement conference and to trial without a lawyer. At the settlement conference held on December 19, 2011, the case management judge fixed June 11, 2012 for the start of the trial and told the appellant that the trial would proceed on that date whether he had a lawyer or not. By the scheduled trial date, the appellant had not filed an updated financial statement, tax returns or a written opening statement, as required by the by practice direction.

[26] The appellant was represented by counsel at the outset of trial for the purpose of seeking an adjournment. Counsel indicated that the appellant had contacted one other lawyer.

[27] The trial judge considered the last-minute nature of the appellant's request for an adjournment, the fact that the appellant had not done any of the things that a party who represented himself and was intending to proceed to trial would have done, and what he characterized as the parties' untenable living circumstances. (The appellant and his girlfriend live in the doddy house. The appellant has locks on his side, ensuring his privacy, but would not permit the respondent to install locks. He violates the respondent's privacy by entering the side of the house in which she resides.) The trial judge concluded that the appellant's last-minute adjournment request was a deliberate ploy.

[28] The decision of a trial judge to grant or refuse an adjournment is highly discretionary. Having regard to the [page531] evidence before, and the submissions made by counsel to, the trial judge as to what had transpired prior to the start of trial, there is in my view no basis to interfere with his decision to deny the adjournment sought. I would not give effect to the appellant's first ground of appeal.

IV. Reasonable Apprehension of Bias

[29] The appellant argues that the trial judge's interventions in the examination of witnesses, particularly his statement that the appellant had been an "idiot" in an exchange with appellant's counsel during the motion for an adjournment at the outset of trial, created a reasonable apprehension that the trial judge was biased in favour of the respondent. The appellant submits that a new trial must be ordered.

[30] Counsel for the respondent says the trial judge's comments reflect his frank and sometimes sharp manner of expression with counsel and litigants generally, and, reading the transcript as a whole, do not reflect bias. She submits that the trial judge's conduct must be viewed in context: a set of facts that cried for justice and a five-day trial the respondent could not afford that ran to ten days because of the appellant's unreasonable approach. Moreover, she argues, the trial judge attempted to help the appellant.

[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50, 2003 SCC 45, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:

[W]hat would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude[?] Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly[?]

[32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76.

[33] In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), [2010] O.J. No. 212, 2010 ONCA 47, 265 O.A.C. 247, at para. 230, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91, this court provided additional guidance:

A determination of whether a trial judge's interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather [page532] than as isolated occurrences, from the perspective of a reasonable observer throughout the trial.

[34] And again, at para. 233:

The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

[35] This trial required a more proactive approach than is customary. I have reviewed those instances in which the trial judge intervened in the examination of witnesses. In most cases, they were motivated by an effort to focus the evidence on the matters in issue, clarify evidence and move a difficult trial along. In a few instances, the trial judge's questions were inappropriate, his language was ill-advised or he transmitted his reaction to the distressing evidence that he heard.

[36] Some of the trial judge's conduct reflected his impatience and annoyance. The trial judge acknowledged this. In his orally delivered reasons, he apologized to the parties for his impatience at times. He explained: "I heard far too much evidence about things that were irrelevant, most of which Mr. Martin insisted upon presenting, despite my frequent entreaties to focus on the main issue".

[37] While judges are expected to conduct the proceedings before them in a courteous and civil manner, and I cannot condone the trial judge's expressions of impatience and annoyance, "[i]solated expressions of impatience or annoyance by a trial judge as a result of frustrations . . . do not of themselves create unfairness": Chippewas, at para. 243.

[38] As the respondent argues, the trial judge made clear efforts to assist the appellant. For example, he provided instructions on how to call and subpoena witnesses, gave the appellant an extension of time to provide a list of witnesses, and attempted to help the appellant to focus his evidence and structure his questions. He also interrupted the evidence to ensure that the appellant understood the main issues in the proceedings and the implications of the proceedings.

[39] I have also considered those instances in which the trial judge's comments or questions were inappropriate. If taken alone, these statements could create the impression that he favoured the respondent's case over the appellant's. However, I am not satisfied that when considered in the context of the trial, as a whole, a reasonable person would have the impression that the trial judge was predisposed to decide the issues before him in favour of the respondent. [page533]

V. The Domestic Contract

[40] The appellant acknowledges that the evidence that was adduced at trial "raises issues" about the domestic contract. In my view, he effectively concedes that, on the record before him, the trial judge did not err in setting aside the domestic contract. Nonetheless, I will briefly address the trial judge's decision to set aside the domestic contract.

[41] Subsection 56(4)(b) of the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA") provides that "[a] court may, on application, set aside a domestic contract or a provision in it . . . if a party did not understand the nature or consequences of the domestic contract".

[42] In this case, the trial judge found that the respondent had in effect no independent legal advice and "held the mistaken belief that it did not matter whether her name was on the property or not and that it did not matter that she willingly signed a formal agreement". He found that the respondent "had no clue about what the implications of such a significant legal document really meant. All she knew was that she had to sign it if the deal was going to close". As noted above, the trial judge also found that she mistakenly believed at the time that she signed the contract that once the couple received a clear execution certificate such that having her name on title no longer posed a barrier to financing, she would at that time go on title.

[43] The evidence supporting these findings was overwhelming. It included evidence from the lawyers who acted on the sale transaction and provided "independent legal advice" to the respondent.

[44] In effect, the trial judge found on the evidence that the respondent "did not understand the nature or consequences of the domestic contract" as provided by s. 56(4)(b) of the FLA.

[45] The fact that the respondent appreciated that the domestic contract was not good for her does not mean that she understood either the nature or consequences of the domestic contract. I see no error in the trial judge's finding that she did not.

VI. Unjust Enrichment and Constructive Trust

(1) A framework

(a) Relevance to married spouses

[46] The FLA is a detailed statutory scheme for resolving issues arising out of marital breakdown. Section 10(1) provides for the determination of questions of title between married spouses. This includes consideration of any beneficial interests [page534] in property arising pursuant to the imposition of a remedial constructive trust:

A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5.

[47] In Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4, Cory J., writing for the majority of the Supreme Court, relied on s. 10(1) of the Family Law Act, 1986 (which is identical to s. 10(1) of the current Act) to confirm that the statutory scheme for the equalization of spouses' property on marriage breakdown does not completely supersede the remedial constructive trust. Before property can be equalized under the Family Law Act, a court must first determine the "net family property" of each spouse. This exercise requires first that all questions of title be settled.

(b) Analysis arising from Kerr v. Baranow

[48] The Supreme Court reiterated existing principles of unjust enrichment in Kerr v. Baranow, [2011] 1 S.C.R. 269, [2011] S.C.J. No. 10, 2011 SCC 10 in the context of a dispute between unmarried persons in a domestic relationship. Kerr reaffirmed that where unjust enrichment is established, the first remedy to consider is always a monetary award. A court will impress a proprietary remedy -- normally a constructive trust on property -- only if the plaintiff satisfies it that a monetary award would be insufficient in the circumstances and that there is a sufficiently substantial and direct link between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property.

[49] The Supreme Court in Kerr also grappled with how monetary damages should be quantified where unjust enrichment occurs in the context of a domestic relationship between unmarried persons. Kerr abolished the dichotomy between a quantum meruit assessment of damages and a proprietary remedy. Justice Cromwell explained the new approach, at para. 87:

My view is that when the parties have been engaged in a joint family venture, and the claimant's contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant's contributions. In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture.

[50] He made clear that there is no presumption that wealth will be shared equally: para. 85. [page535]

[51] At para. 100, Cromwell J. summarized the court's holding as follows:

1. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

2. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant's contributions.

3. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

4. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

[52] In this way, the framework established in Kerr requires the court to ask the following questions:

(1) have the elements of unjust enrichment -- enrichment and a corresponding deprivation in the absence of a juristic reason -- been made out;

(2) if so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money;

(3) if the answer to question 2 is yes, should the monetary damages be quantified on a fee-for-service basis or a joint family venture basis; and

(4) if, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

(2) The trial judge's reasons

[53] The trial judge found that there was clear and persuasive evidence of a joint family venture from 1988 until the date of separation, and a nexus between the respondent's deprivation and the farm. He held that a person does not have to make an actual financial contribution to the purchase of the property to have a constructive trust in that property. He concluded that the respondent had a constructive trust in the farm, and declared the respondent the owner of an undivided one-half interest in the farm. [page536]

(3) The parties' submissions

[54] The appellant argues that the trial judge's reasons are almost completely silent on the issue of unjust enrichment and do not address why the remedy of a proprietary constructive trust was appropriate in the circumstances, or why, if appropriate, the respondent should receive a 50 per cent interest in the farm. He submits that any remedy for unjust enrichment should reflect that the purchase of the farm was financed, up to almost 42 per cent, by what the trial judge found were a gift to the appellant of $119,000[^1] and an advance against his inheritance in the amount of $90,000, both received after marriage.

[55] The respondent argues that the evidence supports the trial judge's finding of a joint family venture, and his conclusion that there was a nexus between the respondent's efforts and the farm.

(4) Analysis

[56] I agree with the appellant that the trial judge failed to first specifically consider whether the appellant was unjustly enriched. However, reading the reasons as a whole, it is clear that the trial judge did find unjust enrichment in this case. The respondent contributed homemaking, child care and other support services for the duration of the relationship. She worked on the farm "shoulder to shoulder" with the appellant for three years. She made improvements to the farmhouse while she and the appellants were tenants. Her salary helped to finance the household, and she provided funds to the respondent. The appellant was enriched by her contributions. There was no juristic reason for the appellant's enrichment and the respondent's corresponding deprivation.

[57] The trial judge's main error -- and an error of law -- was that, having found unjust enrichment, he failed to consider the first avenue of remedy, namely, a monetary award, and instead went straight to a finding of a nexus to the farm.

[58] As noted above, once unjust enrichment has been found, the court must first consider the sufficiency of a monetary remedy. In most cases, money will be sufficient; the challenge is in calculating the amount. It is only if a monetary award is inappropriate or insufficient, and the plaintiff can also demonstrate [page537] a sufficiently substantial and direct link or causal connection between her contributions and the acquisition, preservation, maintenance or improvement of the property, that the court may make a proprietary award by impressing the property with a constructive trust.

[59] Kerr, at para. 52, makes clear that the onus is on the plaintiff to establish that monetary damages would be insufficient, and instructs that "the court may take into account the probability of recovery, as well as whether there is a reason to grant the plaintiff the additional rights that flow from recognition of property rights" in determining whether damages would be insufficient in the circumstances.

[60] From my review of the record, the respondent did not lead any evidence, or make any submissions, that a monetary award would be insufficient. Given the appellant's ownership of the farm, and the possibility of using the farm property as security for any monetary award pursuant to either s. 9(1) (b) or 10(1)(d) of the FLA, I am not satisfied that recoverability is an issue. Nor do I see any basis for recognizing additional property rights. The fact that the respondent was initially a party to an agreement of purchase and sale for the farm does not, in my view, warrant granting her a proprietary interest. That agreement included a financing condition which could not be satisfied if the respondent were on title. Moreover, this is not a situation where, for example, there is an operating farm that the wife continues to want to operate, or the wife has an attachment to this particular property that cannot be replaced with money. While the respondent would enjoy the post-separation increase in property value as an additional right flowing from the recognition of a property interest, this benefit is clearly a monetary one and cannot be used as a rationale for finding a monetary award insufficient.

[61] Had the trial judge considered whether monetary damages would have been sufficient, he would (or should) have found on the facts of this case that a monetary award would suffice.

[62] The next question is how, in the case of married persons, such an award should be calculated.

[63] Section 5(7) of the FLA makes clear that the express purpose of the equalization provisions of the FLA is to address the unjust enrichment that would otherwise arise upon marriage breakdown:

5(7) The purpose of this [equalization] section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the [page538] assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[64] In McNamee v. McNamee (2011), 106 O.R. (3d) 401, [2011] O.J. No. 3396, 2011 ONCA 533, at para. 66, this court stated that, "in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act".

[65] The calculation of monetary damages under the principles in Kerr is an imprecise exercise. As noted above, under Kerr there is no presumption that wealth will be shared equally; unlike the FLA, Kerr does not presume an equal contribution to the property acquired in the course of the family venture. Nor is it clear to me that Kerr contemplates special treatment where the property at issue is a matrimonial home.

[66] In my view, if unjust enrichment as the result of a marriage has been found, and it has been determined that monetary damages can suffice, the aggrieved party's entitlement under the equalization provisions of the FLA should first be calculated. Where appropriate, s. 5(6) of the FLA, which provides for an unequal division of net family properties where equalization would be unconscionable, should be invoked.

[67] Below, I calculate the respondent's entitlement under the equalization provisions of the FLA. I conclude that, in this case, the unjust enrichment arising out of the parties' marriage is addressed through the operation of the equalization provisions under the FLA. I leave for another day the question of what should be done in those rare cases where monetary damages for unjust enrichment arising out of marriage cannot be adequately addressed by the equalization provisions of the FLA.

VII. Equalization

[68] At trial, the respondent submitted that if the domestic contract were set aside and she were not entitled to a 50 per cent interest in the farm through a constructive proprietary trust, she was entitled to an equalization payment in the amount of $534,130.77. This calculation assumes that the entire farm constitutes a matrimonial home.

[69] This assumption -- which is challenged by the appellant -- is significant. The acquisition of the farm was financed as to almost 42 per cent by what the trial judge found were a gift to the appellant in the amount of $119,000 and an advance against his inheritance in the amount of $90,000. The fact that property acquired by a spouse was funded by gift or inheritance is a factor [page539] in the equalization scheme under the FLA, and in my view would also be a factor in calculating monetary damages on the basis of a joint family venture under Kerr.

[70] Subsection 4(2) of the FLA states, in relevant part, the following:

4(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:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

[71] Under s. 4(2)(5) of the FLA, in effect, an otherwise excluded asset that is invested in the matrimonial home loses its status as an excluded asset: Ward v. Ward (2012), 111 O.R. (3d) 81, [2012] O.J. No. 3033, 2012 ONCA 462, at para. 73. However, the special treatment of the matrimonial home for the purpose of s. 4(2), para. 5 extends only to property that is so-deemed; where the matrimonial home is found not to extend to the entire property, a gift or inheritance that can be clearly traced into a part of the property that is not the matrimonial home would allow that portion of the property to be excluded from the net family property as set out in s. 4(2)(5). At the same time, s. 4(3) of the FLA squarely places the onus for proving an exclusion from the net family property on the person claiming it.

[72] As indicated above, it is not clear to me that a joint family venture analysis under Kerr would treat a matrimonial home differently from another property. In other words, where the acquisition of a matrimonial home -- or the portion of a property that constitutes a matrimonial home -- was financed in whole or in part by a gift or an inheritance, an equalization payment calculated under the FLA could be greater than monetary damages calculated on the basis of a joint family venture under Kerr.

[73] I agree with the appellant that in this case the entire farm does not constitute a matrimonial home.

[74] Subsection 18(1) of the FLA provides as follows:

18(1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. [page540]

[75] Subsection 18(3) of the FLA speaks specifically to the treatment of residences "on farmland, etc." and their designation as a matrimonial home:

18(3) If property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence.

[76] In Young v. Young, 1999 CarswellOnt 2706 (S.C.J.), affd [2001] O.J. No. 42 (C.A.), MacKenzie J. interpreted s. 18(1) and (3) as placing the onus upon the party seeking to rebut the presumption created by s. 18(1) to establish on the balance of probabilities that the subject lands on which the residential dwelling is located were used in the ordinary course for purposes other than residential. In my view, the appellant has rebutted that presumption. According to the appraiser's report, the tillable land on the farm comprised a total of 114 acres and was used for agricultural crop production. The undisputed evidence is that, from the time the property was purchased, the surrounding farm land was leased to third parties. Rent paid was applied to the mortgage. Indeed, the mere fact that the farm land was continuously leased is evidence that the parties did not regard it as necessary to the use and enjoyment of the residence.

[77] I would infer that it was the 114 acres of tillable land that was leased. The respondent's appraiser valued this portion of the farm at $991,800 at the date of separation. As to the remainder of the farm property -- valued at $218,454 at separation -- I find that the appellant has not satisfied his burden of showing that the land was used in the ordinary course for purposes other than residential. I would accordingly include this portion of the farm as part of the matrimonial home. On my calculation, the matrimonial home ($218,454) represented 18 per cent of the total value of the farm ($991,800 + $218,454 = $1,210,254) at the date of separation. This is relevant to my calculations below.

[78] When he purchased the farm, the appellant did not allocate his gift and inheritance as between the matrimonial home and the balance of the farm. Given that he did not do so, and that the rental income from the non-matrimonial home portion of the farm was applied to the payment of the mortgage, I would allocate the gift and inheritance first to the matrimonial home portion of the farm. To the extent the gift and inheritance exceeded the value of the matrimonial home at the time of purchase, I would allocate the balance to non-matrimonial home portion.

[79] The purchase price of the entire farm was $500,000. Using the percentage derived from the respondent's appraiser's values at the date of separation, I would treat the matrimonial [page541] home as having a value at the time of purchase equal to 18 per cent of that amount, or $90,000, and treat the non-matrimonial home portion of the farm as having a value at the date of purchase of $410,000. I would treat the advance against inheritance in the amount of $90,000 as having funded the purchase of the matrimonial home. I would allocate the gift in the amount of $119,000 -- 29 per cent of the purchase price of the non-matrimonial home portion of the farm -- to the non-matrimonial home portion of the farm. As the purchase of the non-matrimonial home portion was funded, as to 29 per cent, by a gift, I would exclude 29 per cent of the value of the non-matrimonial home portion of the farm at the date of separation (.29 x $991,800 = $287,622) from the appellant's net family property. I would include the balance of the total value of the farm ($1,210,254 - $287,622 = $922,632) in the appellant's net family property.

[80] The remaining elements in the calculation of the equalization payment are not controversial. Having reviewed the record, including the parties' financial statements, the respondent is entitled to an equalization payment in the amount of $390,646.77. I attach a net family property statement as Schedule A, supporting my calculation, and indicating the source of the amount relied on to effect the calculation.[^2]

[81] I would accordingly order the appellant to pay the respondent an equalization payment in this amount, together with prejudgment interest at the rate of 2.3 per cent and post-judgment interest at the rate of 3 per cent. As detailed in my disposition, below, I would also order, pursuant to s. 9(1) (b) of the FLA, that a charge be placed on the farm property as security for payment of that amount. Because the farm is not an operating farm, s. 11 of the FLA -- which effectively directs the court to avoid forcing the sale of an operating farm whenever possible -- does not apply.

[82] According to s. 19(1) of the FLA, both spouses have an equal right to possession of the matrimonial home, and I order that the respondent shall continue to have the right to occupy her half of the matrimonial home until the earlier of (i) the [page542] closing of the sale of the farm property by the respondent, and (ii) 60 days after the respondent has paid the equalization payment, all arrears of child support, and interest thereon, in full.

VIII. Retroactive Child Support

[83] The trial judge attributed income to the appellant in the amount of $52,000 per year, and ordered support based on the Child Support Guidelines from the February 27, 2007 date of separation to May 1, 2010. He determined that the total arrears were $18,278, and ordered them payable forthwith, together with interest on the arrears at the rate of 10 per cent.

[84] The appellant argues that the trial judge made several errors:

(1) When the respondent made her claim for child support in July 2009, Brittany was no longer a "child of the marriage". Child support is for children of the marriage, not adults who used to have that status: S. (D.B.) v. G. (S.R.), [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37, at para. 89.

(2) The trial judge did not consider any of the factors that were set out by the Supreme Court in S. (D.B.) for when retroactive child support may be ordered.

(3) The trial judge did not address why it was appropriate to order child support for the period before the date of effective notice that the respondent was seeking child support, or consider any of the factors relevant thereto.

(4) The trial judge did not explain why it was appropriate to order child support for the entire period from the date of separation until Brittany graduated from college.

(5) The trial judge did not explain why the child support that he ordered would bear interest at the rate of 10 per cent, as opposed to the applicable post-judgment interest rate of 3 per cent.

[85] I deal with the appellant's arguments in turn.

[86] First, at the date that the respondent filed her answer claiming child support, Brittany was a student at college, and therefore had been unable to withdraw from her parents' charge. Accordingly, the trial judge did not err in treating Brittany as a "child of the marriage" and finding that he had jurisdiction to order support: see S. (D.B.), at paras. 88-89. [page543]

[87] Second, while the trial judge did not specifically address all of the factors identified in S. (D.B.) in his reasons, the trial judge made findings of fact in relation to key factors based on which retroactive child support was clearly appropriate.

[88] In S. (D.B.), the Supreme Court instructed that before exercising its discretion to award retroactive child support, the court should consider four factors: whether the payee parent delayed unreasonably in seeking child support, whether the payor parent engaged in blameworthy conduct, the present and past circumstances of the child, and any hardship the payor parent would suffer as a result of a retroactive award. None of these factors is decisive. As Bastarache J. wrote, at para. 99, "At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix."

[89] Furthermore, Bastarache J.'s reasons in S. (D.B.) distinguish between situations in which there is an existing support order or agreement and what is sought is a retroactive increase in support versus situations in which there has not already been a court order for child support to be paid. This is because, unlike the payor who paid support in reliance upon an existing order or agreement, the non-custodial parent who has paid no support had no reasonable basis for his actions; he knew or ought to have known that he should have been paying something. As Bastarache J. stated, at paras. 80-81 of S. (D.B.), regarding cases where no child support has been paid:

[T]he status quo does not involve any existing payment of child support. This fact immediately differentiates the present context in a very important way: absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. The non-custodial parent's interest in certainty is generally not very compelling here.

[90] In this case, at the date of separation, Brittany was a high school student, living at home. The trial judge found that the appellant absented himself from Brittany's life from the time of separation. Despite receiving $420,000 from his mother's estate and presumably earning an income from his trucking job, he made nothing available to Brittany for her education or her daily needs. He spent it all on himself. The trial judge found in his reasons that Martin "hadn't paid a dime" in child support.

[91] It is clear that the trial judge considered the appellant's conduct blameworthy. The evidence revealed a child of the marriage who needed financial help. Given the appellant's assets and income, it was apparent from the record that he would not suffer material hardship as a result of a retroactive [page544] award. In all of these circumstances, neither the lack of a direct explanation why the respondent waited some two years before claiming child support, or the trial judge's failure to comment on this factor, is fatal.

[92] Turning to the appellant's third argument, I do not agree that the trial judge erred in ordering child support from the date of separation. Under s. 31(1) of the FLA, a parent has a free-standing obligation to support any child who is enrolled in a full-time program of education. A parent who entirely fails to meet this obligation should not be rewarded for his conduct by a future release from his obligation in the face of non-payment. At para. 81 of S. (D.B.), Bastarache J. stated that in the case of the non-custodial parent who has not paid any support, there is no restriction in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as to the date from which the court may order that the award take effect.

[93] I agree with the trial judge's conclusion that in this case child support should be awarded retroactive to the date of separation.

[94] Fourth, I also agree that it was appropriate to order child support for Brittany for the period from the date of separation until Brittany graduated from college. The respondent claimed child support under the Divorce Act and the FLA. Under s. 2(1) of the Divorce Act, "child of the marriage" means a child of the two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[95] Subsection 15.1(1) of the Divorce Act states that a court may make an order requiring a spouse to pay for the support of a child of the marriage. I am satisfied that Brittany was unable to withdraw from the charge of her parents, and continued to qualify as a child of the marriage within the meaning of the Divorce Act, until she finished college. She required the respondent's support -- financial and otherwise -- as she grappled with the fallout from her parents' separation, completed high school, worked for six months while living at home and presumably saving for college, and while in full-time attendance at college.

[96] Finally, I accept the appellant's argument that the trial judge erred in ordering post-judgment interest at the rate of 10 per cent on the arrears of child support. I would reduce the rate of interest to 3 per cent. [page545]

[97] Under s. 130(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under s. 128 (prejudgment interest) or s. 129 (post-judgment interest), allow interest at a rate higher than that provided for in either section. In doing so, the court is required to take into account the factors listed in s. 130(2). They include the circumstances of the case and the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding.

[98] The interest awarded is on the arrears of child support. The trial judge recognized the appellant's wrongful conduct in deciding to award retroactive child support and considered that the appellant's conduct unnecessarily lengthened the trial in fixing the costs of trial. He did not explain why he awarded interest at a rate higher than that provided for in ss. 128 and 129. In the absence of reasons explaining the factors underlying his decision to allow interest at a rate of 10 per cent, I would reduce the rate of interest on the arrears of child support to the rate of 3 per cent proposed by the appellant.

[99] I would also grant a charge on the farm property pursuant to s. 15.2(1) of the Divorce Act to secure payment of the arrears of child support and interest thereon, as detailed in my disposition, below.

IX. Costs at Trial

[100] The appellant argues that the trial judge failed to give the appellant adequate time to consider the issue of costs, and that his costs order accordingly cannot stand. I disagree.

[101] Immediately after delivering his oral reasons, the trial judge invited submissions on the issue of costs. The trial judge reviewed the bill of costs respondent's counsel presented: approximately $73,000, inclusive of disbursements and HST, for a ten-day trial, calculated on a substantial indemnity scale from January 13, 2012, on the basis of an unaccepted offer to settle.

[102] When the trial judge asked the appellant if he wished to make responding submissions, the appellant responded: "Absolutely nothing, I'm disgusted right now. This is unconscionable."

[103] The trial judge proceeded to award costs in accordance with the bill of costs that respondent's counsel had presented to him, noting that in his view the appellant had wasted a full five days of trial time by his decision not to prepare during the six months prior to trial. He noted that the appellant had not complied with any rules of the court, made any disclosure or [page546] prepared a trial record, an agreed statement of facts or affidavit of documents.

[104] The appellant declined the opportunity to make responding submissions. He did not request additional time to review the respondent's costs submissions. In my view, there is no basis for interfering with the trial judge's award of costs.

X. Disposition

[105] In disposing of the appeal, I would

set aside the trial judge's order declaring the respondent the owner of an undivided one-half interest in the farm;

order the appellant to pay the respondent an equalization payment in the amount of $390,646.77, together with prejudgment interest at the rate of 2.3 per cent and post-judgment interest at the rate of 3 per cent;

order, pursuant to s. 9(1)(b) of the FLA and s. 15.2(1) of the Divorce Act, that a charge be placed on the farm property as security for payment of the equalization amount, arrears of child support and interest thereon. The respondent may register this charge on title to the property. If the appellant does not pay all such amounts in full within 60 days, then the respondent shall have the power to sell, or concur with any other person in selling, the farm property by public auction or private contract, provided that no such sale shall be made until after 30 days' notice in writing has been given to the persons and in the manner provided by Part III of the Mortgages Act, R.S.O. 1990, c. M.40. The provisions of the Mortgages Act shall, except as provided below, otherwise apply, mutatis mutandis, to the exercise by the respondent of her power to sell the farm property. If the appellant does not pay the full amount owing under the order within 60 days, the respondent is entitled to sell the property to satisfy the full amount of the award, and any arrears of child support, as provided above;

order that the respondent shall continue to have the right to occupy her half of the matrimonial home until the earlier of (i) the closing of the sale of the farm property by the respondent, and (ii) 60 days after the respondent has paid the equalization payment, all arrears of child support, and interest thereon, in full;

reduce the rate of prejudgment and post-judgment interest on the arrears of child support to 3 per cent; [page547]

set aside the trial judge's order requiring the appellant to repay one-half of a loan advanced by the respondent's mother before the appellant's bankruptcy. The respondent properly concedes that the trial judge erred in so holding.

[106] I would otherwise dismiss this appeal.

[107] If the parties are unable to agree on the issue of costs, I would permit them to make brief written submissions within the three weeks following the release of these reasons.

Appeal allowed in part.

SCHEDULE A

Notes

[^1]: The $119,000 amount was one-quarter of the proceeds of sale of the milk quota and the farm's herd. The appellant's three siblings received a cash gift in an equal amount.

[^2]: I note that a discrepancy exists as to the value of the mortgage on the farm at the date of separation. The appellant's financial statement indicates that the mortgage was worth $181,000 at separation and $151,000 at the date of trial. However, at trial, the appellant testified that the mortgage was worth $151,000 at separation. The appellant provides a similar figure ($150,000) in Schedule E of his factum. Accordingly, I assumed a mortgage value of $151,000 for the purposes of my equalization calculation.

End of Document