Court of Appeal for Ontario

CITATION: Ogg v. Ogg, 2016 ONCA 474

DATE: 20160614

DOCKET: C61609

BEFORE: MacPherson, Juriansz and Pardu JJ.A.

BETWEEN

John David Ogg

Applicant (Respondent in Appeal)

and

Cheryl Ann Ogg

Respondent (Appellant in Appeal)

COUNSEL:

Cheryl Ann Ogg, acting in person

John David Ogg, acting in person

HEARD: June 10, 2016

On appeal from the judgment of Justice Michael G. Emery of the Superior Court of Justice, dated December 21, 2015.

ENDORSEMENT

[1] Cheryl Ogg appeals from rulings made by a trial judge, after final judgment was rendered, in order to give effect to his decision for realization of John Ogg’s interest in the jointly held matrimonial home.

[2] In the event Ms. Ogg elected to purchase Mr. Ogg’s interest in the matrimonial home, the final judgment provided a mechanism to determine the value of that home:

If John and Cheryl cannot agree upon the fair market value of the matrimonial home by November 30, 2015, each of them may consult with a real estate broker of their choice to determine the highest fair market value for which the matrimonial home could have been sold between June 1, 2015 and November 30, 2015 and the fair market value for the starting place of the calculation shall be the average of those estimates of fair market value.

[3] Both parties appeared in person before the trial judge. They could not agree to anything. They did not file affidavit evidence or testify. Both made submissions as to the value that should be ascribed to the matrimonial home, and handed up information provided to them by realtors. Ms. Ogg took the position that the house should be valued at $625,000. She said she researched the market with the aid of a realtor, Brad Sauve, and that the average fair market value for all homes sold in the area was $640,767. She and her realtor, she said, concluded that the highest fair market value the home could have been sold for was $625,000. Mr. Ogg pointed out that just six days earlier, Mr. Sauve had indicated in writing that the fair market value was $640,000 to $650,000. Mr. Ogg took the position that Ms. Ogg had prevailed upon Mr. Sauve to reduce his estimate. Mr. Ogg produced an email from a realtor indicating that having viewed the home on November 30, 2015, and reviewing comparable sales, it was his opinion that the home could be listed for $679,000 and that he was confident it could be sold for that price. The trial judge averaged the $625,000 and $679,000 figures, and on December 21, 2015 ordered that the home was to be valued at $652,000.

[4] Ms. Ogg says that the trial judge erred by using Mr. Ogg’s figure of $679,000, as that reflected a listing price and not fair market value. However, the information provided by Mr. Ogg’s realtor indicated that he was confident that the home could be sold for a listing price of $679,000.00. This amounts to an estimate of fair market value. The trial judge’s decision was not unreasonable, based on the information that was available to him. While Mr. Ogg submits that the amount should have been higher, he has not filed a cross appeal.

[5] The trial judge bent over backwards to help the parties by making a decision based on their oral and documentary submissions. Determination of value is not an exact science, and the figure he chose falls within the range of reasonable outcomes.

[6] Ms. Ogg also takes issue with a post judgment adjustment made to credit Mr. Ogg in the sum of $4550 for interest paid by him after separation on $130,000 removed from a joint line of credit by Ms. Ogg. Ms. Ogg submits that the trial judge should not have given credit to Mr. Ogg for interest paid on the line of credit because Mr. Ogg deducted the monthly interest paid from the spousal support paid, and that to now give Mr. Ogg credit for these payments results in her paying twice for the line of credit interest. We do not accept this submission. The trial judge found that Mr. Ogg should not have deducted the line of credit interest from the support payments, and gave Ms. Ogg retroactive support to replace those amounts. Credit to Mr. Ogg for these post separation payments was appropriate.

[7] Accordingly, the appeal is dismissed with costs to the respondent Mr. Ogg in the sum of $1000, inclusive of HST and disbursements.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“G. Pardu J.A.”