ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Darrell Olszowka
Terry W. Hainsworth, for the Applicant
Applicant
- and -
Anna Marie Olszowka
Deborah L. Ditchfield, for the Respondent
Respondent
HEARD:
February 27, 28, 29 and March 1, 5, 6, 7, 8, 9 and 12, 2012
The Honourable Mr. Justice B.H. Matheson
JUDGMENT
1After all the evidence was in, the applicant asked the court to re-open the trial to allow in a witness, a Mr. John Terdick. He had loaned to the respondent some $30,000 and it was not referred to in the respondent’s financial statement, as it should have been. I allowed this witness to be recalled. The application was heard on April 3, 2012.
2I asked counsel for written argument. The applicant filed his written argument on May 4, 2012. The respondent filed her written argument on May 18, 2012. The applicant filed his reply on May 24, 2012.
3There are a number of issues that have to be dealt with. They are:
The relationship of the two parties.
Ownership of the barns, chicken quotas. This heading will also deal with the issue of unjust enrichment.
The financing of the farm operations.
Equalization of the family assets.
Child support and access.
THE RELATIONSHIP OF THE TWO PARTIES
4David Olszowka (“David)” was born on December 27, 1966. Anna Olszowka (“Anna”) was born on July 11, 1967. They were married on November 4, 2000, and separated on June 15, 2007. There was one son of this union, Joseph David Olszowka (“Joey”) born on July 29, 2004.
5There is a dispute as to when they started to live together as a common law couple.
6David, in my opinion, was very vague as to when they started to live together in a common law relationship. In his initial application, found at tab 1 of the continuing record, he leaves blank the section dealing with the date that they first lived together. In his reply, he states that they were living together since March 2005. See tab 5 of the continuing record. In his testimony the common law relationship started in 2007, when they got the modular home. He stated that he did spend a lot of time with Anna in 1993-4.
7In 1994 when both the parties went to the bank they were referred to as fiancés. This was the evidence of Mr. Eric Harrop of the Bank of Montreal. He was a witness called by the applicant.
8Mr. Harrop also stated that David was going to train her in chicken farming. This was satisfactory for him.
9In the applicant’s document brief (Exhibit 1), at D3 there is a promissory note dated 17 November 1994, signed by the parties as David and Anna Olszowka. It was joint and several. It was business that they were doing with Wallenstein Feed and Supply Ltd. This certainly is a good indicator as to how the two parties thought their relationship was at that time.
10She was a court reporter at the time that she met David. She transferred her job in Brantford to be closer to David.
11Anna stated that she and David went to Florida in February 1992 for 7 to 10 days. David had trouble in remembering that trip.
12She stated that she would be working about two to three days as a court reporter, and then would spend time with David.
13She did live with her parents for a period of time after meeting David, but gradually spent more time with David.
14Her mailing address was not changed from her parents’ residence for a period of time. I do not put much weight on that point, considering that they were living in a trailer for a period of time at David’s barn.
15She stated that she was living fulltime with David in the spring or summer of 1992.
16I accept the evidence of Anna on the evidence that she gave over that of David with respect to the start of the common law relationship. He was very vague on that issue.
17There was a Valentine’s Day card given by David to Anna dated February1994, which states: “Anna, you have brought me much happiness and good memories over the time we have known each other I’m looking forward to the future with you, much love and understanding.” There are other comments on the card that indicate a strong relationship.
18I, therefore, find that the common law relationship started in 1992. It is difficult to state which month they became a couple.
OWNERSHIP OF THE BARNS, CHICKEN QUOTA
19This heading will also deal with the issues of whether there is an express trust in favour of the applicant dealing with the barn number two (“Barn #2”) and the chicken quota in the name of Anna. The applicant also dealt with the issue of unjust enrichment if the court does not find that there is an express trust.
20David had purchased land from a Jack Wilton Elliott on October 6, 1989 for some $60,000. See Exhibit 1, tab B1. He put a mortgage on the land with CIBC for some $400,000. This was to buy the land and erect a chicken barn on the property. He had to build a laneway in order to access his barn.
21As stated, he was in a relationship with Anna starting in 1992. He had previously been working as a tobacco farmer for his grandmother. He now wanted to become a chicken farmer.
22There were members of his family that were chicken farmers. That is one reason why he wanted to become one. I take it from the family background that he learned from them about the business of chicken farming. Aside from that, there was little evidence of what training he did to become a chicken farmer in his own right.
23Anna purchased the land next to the land that David had purchased on March 31, 1994. See Exhibit 1, tab B7. The purchase price was $65,000.
24David in his testimony stated that he had Anna buy this land from Jack Wilton Elliott for him. The reason that he did so was because he was concerned that if Elliott knew that he was the buyer he would charge him much more. Anna paid only $5,000 more than he did.
25He states that Anna purchased the land for him. Anna denies that.
26There is no evidence what so ever that David put up any money for this purchase.
27The offer to purchase was in her name. See Exhibit 6, tab 14. She placed a deposit of $500 out of her own bank account. See Exhibit 6, tab 14.
28Anna took out a mortgage with the Bank of Montreal for $196,000 dated March 31, 1994. See Exhibit 6, tab 18. This was to finance the building of Barn #2. There were no guarantors on that mortgage.
29Anna’s parents took out a mortgage with the Bank of Montreal in the amount of $90,000 on March 23, 1994. This was for security to the Bank for its loan to Anna Marie Chimniak.
30David did not guarantee the loan that Anna took out with the Bank of Montreal. His company Olszowka Poultry Inc. (“OPI”) did. There was no evidence that either David or OPI were ever called on to cover any of Anna’s indebtedness.
31Her parents put up the rest of the cash by taking out a mortgage on their Burlington property. See Exhibit 6, tab 23.
32It is interesting to note that when David started this litigation by way of an application on June 11, 2008, he only was asking for a divorce. One would have expected that with the monetary amounts in the millions he would have also included the financial aspects that were the subject of this trial. It was raised by the respondent.
33David states that he always intended that the barn and the quota in Anna’s name were his.
34In Exhibit 6, tab 39, the Chicken Farmers of Ontario wrote a letter to the respondent dated the 1st of December 2008. It deals with the purchases and sale of chicken quota by Anna Chimniak. I attach this as Schedule 1.
35I will deal with the financing of some of the quota that are in Anna’s name. I notice, according to the letter, that she sold quota to Delmer and Eleanor Jantzi on May 12, 2005. The amount of quota sold was 2,000 units at $52 a unit. This would amount to Anna receiving some $104,000.
36She later sold 4,500 units to Hans and Susan Van Berkel on December 20, 2005 at $52.60 a unit. This would mean that she received some $237,000.
37There was no evidence that the applicant objected to her receiving these funds.
38Anna needed to acquire chicken quota for Barn #2. She was advised through an employee of Wallenstein Feeds that Don Drost was trying to sell 10,000 units. On September 12, 1994 she purchased the units at $17.50 per unit from Drost. See Exhibit 6, tab 25 and 27.
39The cost was $175,000. Her father gave an initial deposit of $15,000. (See letter of Mr. Homeniuk, Exhibit 6, tab 19.) She put down $2,500 to make up the deposit.
40The balance of the payment of $157,500 was financed by Wallenstein Feeds. The promissory note was signed by David and Anna Olszowka living at R.R.#4, Simcoe. See Exhibit 3, tab D3. It is interesting to note that Anna signed the note with Olszowka. They were not married until some six years later. Anna had to buy her chicken feed from Wallenstein, as was the usual custom.
41David and his company OPI were never called upon to make any payments on this promissory note, according to the evidence.
42Anna’s evidence is that she paid for the feed and all payments on the loan.
43In 1996 she and OPI purchased more quota. Anna purchased 17,000 units. One block of 14,915 units were from Kleinmen’s and 2,085 from MiCon Farms. See Exhibit 6, tab 31.
44It was financed in the following manner. OPI borrowed $360,000 from Farm Credit Corporation. OPI then advanced the sum of $304,000 to Anna at an interest rate of 8¼ %. Anna stated in her evidence that she paid all interest and payments of this loan. David did not provide any evidence to the contrary.
45Anna’s loan to OPI was replaced with a mortgage to CIBC from Anna in the amount of $400,000. See Exhibit 6, tab 32.
46She also paid off the loan from Wallenstein Feed by obtaining a promissory note from Maple Lodge Farms in the amount of $160,000.
47After the separation on June 15, 2007, Anna acquired more chicken quota from Piasecki Poultry Farms on July 26, 2007. The amount was 3,000 units. She purchased this at the rate of $58.20 a unit.
48I, therefore, find that the barn and chicken quota were in the legal name of Anna. This was conceded by the applicant in his written submission.
49The applicant is stating that the barn and the chicken quotas were in trust for him by way of an express trust. The applicant goes on to say that if the court does not find for David on the first ground that the property, quota and barn were in trust for him by way of an express trust, the court should find for him on the secondary argument of unjust enrichment.
THE LAW WITH RESPECT TO EXPRESS TRUST AND UNJUST ENRICHMENT
50Before the court may deal with the question of equalization, it must first deal with the issue of ownership. In this case, with respect to Barn #2 and the chicken quota in Anna’s name, the court must deal with the issues raised by the applicant that (a) there is an express trust in favour of the applicant, and (b) failing that, there has been unjust enrichment on Anna’s part and the court should rectify that.
51The applicant in his submissions stated that there were two reasons why the land and Barn #2 and the chicken quotas in the respondent’s name were held by her in trust for him.
52The first ground is that the farming assets that were registered in her name were held in trust for him pursuant to an express trust. The second ground that the applicant is the sole beneficial owner of the farming assets is based on the argument that there was unjust enrichment if the respondent were to maintain the ownership at his expense.
53In dealing with the argument of express trust raised by the applicant, it is conceded that the onus of proof is on the applicant.
54The applicant spent very little time in dealing with his argument with respect to express trust in favour of him with respect to the farm assets in the name of the respondent.
55He referred to the case of MacDonald v. MacDonald 2003 NSSC 8, 2003 NSSC 008.
56In that case Justice Gerald Moir stated at para. 2 the following:
“I am satisfied that the deed was subject to a trust. While the terms of the trust were spoken and not reduced to writing and while some of the terms have to be implied, the Statute of Frauds does not apply.”
57The applicant takes that case to stand for the proposition that an express trust may be created verbally and that there is no requirement at law that an express trust be reduced to writing.
58In this case, there was a deed with respect to the land. The issue was as to what the terms of the conveyance were.
59In the case at bar there is no reduction of the ownership of the farm property, known as Barn 2, to writing. I will deal with the Ontario Statute of Frauds, R.S.O. 1990, c S. 19 paragraphs 1, 2 and 4.
60The respondent has taken the position that the onus is on the applicant to establish the express trust as well to establish a constructive trust. The applicant states that in establishing a constructive trust, he must establish the following three legal steps to show:
A benefit has been conferred by the applicant upon the respondent.
A corresponding detriment has been placed on the applicant.
An absence of a conventional juristic reason from established categories of reason to deny recovery by the applicant.
61The applicant states that the established categories could include contracts, a disposition of law, a donative intent, or some other valid legal, equitable or statutory exception.
62The applicant states that if he establishes that there is no juristic reason from an established category then he has made out a prima facie case. That, according to the applicant’s argument, is rebuttable by the respondent, but the onus is on her to show why she should retain the ownership of the farming assets.
63This law is stated by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C. R. 269, at paras. 36 to 45:
C. The Elements of an Unjust Enrichment Claim
(1) Enrichment and Corresponding Deprivation
36 The first and second steps in the unjust enrichment analysis concern first, whether the defendant has been enriched by the plaintiff and second, whether the plaintiff has suffered a corresponding deprivation.
37 The Court has taken a straightforward economic approach to the first two elements – enrichment and corresponding deprivation. Accordingly, other considerations, such as moral and policy questions, are appropriately dealt with at the juristic reason stage of the analysis: see Peter, at p. 990, referring to Pettkus, Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38, and Peel, affirmed in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 31.
38 For the first requirement – enrichment – the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).
39 Turning to the second element – a corresponding deprivation – the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90). That is why the second requirement obligates the plaintiff to [page 295] establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Rathwell, at p.455).
(2) Absence of Juristic Reason
40 The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p. 44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30.
41 Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law (Peter, at pp. 990-91; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P. D. Maddaugh and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Goods and Services Tax, 1992 CanLII 69 (SCC), [1992] 2 S.C.R. 445; Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.)). However, just as the Court has resisted a purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list. This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract” (Peel, at p. 803).
42 A critical early question in domestic claims was whether the provision of domestic services could support a claim for unjust enrichment. After some doubts, the matter was conclusively resolved in Peter, where the Court held that they could. A spouse or domestic partner generally has no duty, at common law, equity, or by statute, to perform work or services for the other. It follows, on a straightforward economic approach, that there is no reason to distinguish domestic services from other contributions (Peter, at pp. 991 and 993; Sorochan, at p. 46). They constitute an enrichment because such services are of great value to the family and to the other spouse; any other conclusion devalues contributions, mostly by women, to the family economy (Peter, at p. 993). The unpaid provision of services (including domestic services) or labour may also constitute a deprivation because the full-time devotion of one’s labour and earnings without compensation may readily be viewed as such. The Court rejected the view that such services could not found an unjust enrichment claim because they are performed out of “natural love and affection” (Peter, at pp. 989-95, per McLachlin J., and pp. 1012-16, per Cory J.).
43 In Garland, the Court set out a two-step analysis for the absence of juristic reason. It is important to remember that what prompted this development was to ensure that the juristic reason analysis was not “purely subjective”, thereby building into the unjust enrichment analysis an unacceptable “immeasurable judicial discretion” that would permit “case by case ‘palm tree’ justice”: Garland, at para. 40. The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied:
First, the plaintiff must show that no juristic reason from an established category exists to deny recovery. . . . The established categories that can constitute juristic reasons include a contract (Pettkus, supra), a disposition of law (Pettkus, supra), a donative intent (Peter, supra), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.
The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery.
As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. [paras. 44-46]
44 Thus, at the juristic reason stage of the analysis, if the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties (Pettkus, at p. 849) and moral and policy-based arguments about whether particular enrichments are unjust (Peter, at p. 990). For example, in Peter, it was at this stage that the Court considered and rejected the argument that the provision of domestic and childcare services should not give rise to equitable claims against the other spouse in a marital or quasi-marital relationship (pp. 993-95). Overall, the test for juristic reason is flexible, and the relevant factors to consider will depend on the situation before the court (Peter, at p. 990).
45 Policy arguments concerning individual autonomy may arise under the second branch of the juristic reason analysis. In the context of claims for unjust enrichment, this has led to questions regarding how (and when) factors relating to the manner in which the parties organized their relationship should be taken into account. It has been argued, for example, that the legislative decision to exclude unmarried couples from property division legislation indicates the court should not use the equitable doctrine of unjust enrichment to address their property and asset disputes. However, the court in Peter rejected this argument, noting that it misapprehended the role of equity. As McLachlin J. put it at p. 994, “It is precisely where an injustice arises without a legal remedy that equity finds a role.” (See also Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, at para. 61.)
EXPRESS TRUST
64The applicant, as previously stated, is relying initially on the primary theory that Anna would hold the farm property (Barn #2 and the chicken quotas) in an express or constructive trust for him.
65As stated on several times there is no written document that would assist the court in arriving at the conclusion that there was an express or constructive trust in favour of the applicant with respect to the farm assets in Anna’s name.
66The applicant relies mainly on oral evidence given by the witnesses. He attacks those whose evidence is favourable to the respondent’s position. These attacks go to the credibility of those witnesses that assist the respondent’s position.
67With respect to the evidence of the applicant, there is no document that would assist him in establishing that there was an agreement that the respondent was holding the farm property for him. Rather, there is evidence that he called in the hope that the oral evidence would be sufficient to establish that express trust.
68This argumentum ad hominen approach to furthering the position of the applicant is one that should be dealt with carefully. This attack on the character of an individual who is advancing a position instead of trying to disprove the truth of the individual statement may descend to a personal attack.
69The applicant attacks the credibility of the respondent by stating that “a sincere witness should be expected to admit that which is obvious”.
70The argument of the applicant states that the following undermine the credibility of the respondent:
She should have admitted that her inheritance from her mother’s estate merged with the family assets and thus was not eligible to be excluded from the equalization process.
She was not forthcoming as to the position of Krys Surmanski’s position of employment.
The date that she stated they started cohabiting.
The date that she stated she met the applicant. She stated on several occasions different years.
That there was only a brief period of 21 days from the Agreement of Purchase of the land purchased from Mr. Elliott and the statements that she gave to the bank.
The manner in which she paid for the groceries as opposed to the expenses of her chicken farming expenses.
That at the start of the relationship with the applicant, she still had mail gong to her parents’ residence in Burlington.
Her income statement for 1994 ranged from $23,922 to $17,134.
71I find that these inconsistencies, if accurate, do not impair the credibility of the respondent. I will be dealing with the credibility of the applicant and the respondent more fully later on.
72The applicant referred to the evidence of Ron Pols in order to show that the respondent had little input to the purchase and construction of Barn #2. He was referring to the purchase of the land and construction of the barn. This was in 1994. He still has a business relationship with the applicant.
73He made no notes of his observations in 1994 and was going by memory. His bills would go to OPI and not Ms. Chimniak.
74In cross-examination he did recall talking business with the respondent. He would meet her at poultry shows, where they would talk about farm equipment.
75I find that the evidence of Mr. Pols does not assist the applicant.
76The next witness that the applicant relies on is Daniel Haupt. He worked for Jarvis Chicks from 1993-94. He stated that he never saw Anna around the chicken barns. He only dealt with David. He was in Germany for a year in 1994 and then left Jarvis Chicks when he came back, after working a further year with the company.
77I find that he was of no assistance to the court with respect to what the respondent did or did not do.
78Chris Vanderkooy was called by the applicant. He was an official with the Ontario Chicken Producers Board. He did some surveillance on the parties because of some infractions that were committed in the overproduction of chickens for a company known as “Watts”.
79He made the conclusion that the respondent was learning the chicken business from David.
80He had both prosecuted for the overproduction and both were found guilty. The applicant paid a fine and the respondent lost several crops. Both pled guilty.
81He made no notes of the events or of the visits to the barns.
82The applicant attacked the credibility of John Terdick. As stated earlier, after the conclusion of the evidence it came to the applicant’s lawyer’s attention that Mr. Terdick had loaned the respondent some $35,000 and it was not disclosed in the respondent’s financial documents as required by law. This was the responsibility of the respondent and her lawyer. I allowed the trial to be reopened to allow further evidence from Mr. Terdick.
83Mr. Terdick was known to David before he met Anna. He introduced her to Mr. Terdick sometime in 1992, according to Mr. Terdick. He stated that he treated the applicant, and later the respondent, as family. There was much contact with the two parties. He stated that Anna would do work on the chicken farms when David was away. In his evidence he supported the position of the respondent as to the work that she put into both barns,
84The applicant states that Mr. Terdick is biased because of the loan of $35,000 to the respondent, and also because his wife takes the son of the parties to school while Anna is in court.
85I find that he is a credible witness and was trying to give his evidence in a clear and accurate position as possible.
86I find that there is no valid evidence that there was a trust, express or otherwise, in favour of the applicant.
87I will now deal with the second argument of the applicant that there was unjust enrichment.
UNJUST ENRICHMENT
88As stated earlier, there is a three-step process that the applicant must satisfy the court in order to establish that the respondent has been unjustly enriched at his expense. They are:
A benefit has been conferred by the applicant upon the respondent.
A corresponding detriment has been sustained by the applicant.
An absence of a juristic reason to allow the respondent to retain the benefit.
89The court must first decide if the applicant had conferred a benefit to the respondent.
90The applicant has stated that if it were not for his imput, both financially and work imput by him, the respondent would not have been able to obtain the land, chicken barn and the chicken quota.
91I have dealt with the financial aspect of this matter. The applicant did not provide the respondent with any direct financial benefit. His company, OPI, did provide some guarantees to the respondent. The company was never called upon its guarantee.
92The respondent, from the evidence, was never in default of the monies that she borrowed to finance the purchase of the land, erection of the barn, and the purchase of chicken quota.
93Her parents originally provided the money to get her started.
94Eric Harrop of the Bank of Montreal stated that it loaned money to the respondent. He stated that at the start she was still learning the poultry business from the applicant. He stated that he felt that she was very capable of learning the business. He did state that the applicant was initially her mentor, but she was a quick learner.
95Mr. Harrop stated that all the loans from the Bank of Montreal were deposited into her personal account.
96The applicant stated that he did all the work on behalf of the respondent. This was disputed by Anna. She stated that she worked her side of the business. She also stated that she did work on his chicken farming operations, especially when he was away hunting or working on his tobacco interests and rental property.
97This was also supported by the evidence of Mr. Terdick.
98It is also important to note that when the two parties were confronted by the Chicken Farmers association for overproduction, both parties stated that they were at fault and agreed to the penalties. If the applicant truly believed that he was the beneficial owner of the respondent’s chicken quota, why did he let the respondent take the fall?
99She bought and sold chicken quotas and no objection was raised by the respondent.
100Her father paid some $34,500 to have the electrical and computer cost that Lorinez Lighting installed in her barn. See Exhibit 6, tab 20, page 5.
101When Canada Revenue audited OPI in 1997, CRA inquired about the management fee OPI paid to Anna, totalling some $65,000. OPI’s accountant, Ernie Rauwerda, asked the parties to provide information as to the work that Anna Olszowka did for the applicant’s business. See Exhibit 13, tabs 1 and 2. Amongst other comments, it stated that “Anna became a vital part of Olszowka poultry operation in 1994, at that time Dave was growing approximately 50 acres of tobacco in Burford, raising his poultry operation in Simcoe and maintaining his St. George property which was the original poultry farm.” It then goes on to list 15 duties that Anna performed.
102This was submitted to the audit department of CRA and apparently accepted by it.
103I find that there was no benefit conferred by the applicant to the respondent.
104Also there was no corresponding detriment to the applicant, rather he or his company benefited from the work and effort that she put into his company.
105There is no reason why the respondent should transfer any of her assets to the applicant. There will be some adjustments when we deal with the equalization process.
106Nor do I find that the operations of both parties should be dealt with as a joint family venture. They kept the farming operations of both separate and apart from the other.
STATUTE OF FRAUDS
107Sections 1, 2 and 4 read as follows:
Writing required to create certain estates or interests
1.(1) Every estate or interest of freehold and every uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments shall be made or created by a writing signed by the parties making or creating the same, or their agents thereunto lawfully authorized in writing, and, if not so made or created, has the force and effect of an estate at will only, and shall not be deemed or taken to have any other or greater force or effect.
Leases to be made by deed
(2)All leases and terms of years of any messuages, lands, tenements or hereditaments are void unless made by deed. R.S.O. 1990, c. S.19, s. 1.
How leases or estates of freehold, etc., to be granted or surrendered
2.Subject to section 9 of the Conveyancing and Law of Property Act, no lease, estate or interest, either of freehold or term of years, or any uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments shall be assigned, granted or surrendered unless it be by deed or note in writing signed by the party so assigning, granting, or surrendering the same, or the party’s agent thereunto lawfully authorized by writing or by act or operation of law. R.S.O. 1990, c. S.19, s. 2.
Writing required for certain contracts
4.No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. R.S.O. 1990, c. S.19, s. 4; 1994, c. 27, s. 55.
108Justice Tausendfreund, of our Superior Court, made the following comments as to the application of the Statute of Frauds, in the case of Cowderoy v. Sorkos Estate, 2012 ONSC 1921.
109Basically the facts that he found were as follows as stated at paragraph 1:
The plaintiffs bring this action against the defendant estate (“the estate”) for an interest in certain lands registered in the name of the estate. They rely on a purported arrangement proposed to them in 1985 by the now late Kostas Sorkos (“Gus Sorkos” or “Gus”) that he would leave them, as an inheritance, certain properties he referred to as ‘the farm’ and ‘the cottage’. In return, the plaintiffs were to assist him with their time and energy in the upkeep, maintenance and preservation of these properties and attend to that end to all tasks he requested of them. ...
110He found that over the years the plaintiffs had done considerable work on his farms, as per the oral agreement that the Justice found.
111The Justice went on to refer to a Court of Appeal decision in Erie Sand and Gravel Ltd. v. Seres’ Farms Ltd., 2009 ONCA 709 at para. 49:
49 The purpose of s. 4 of the Statute of Frauds is to prevent fraudulent dealings in land based on perjured evidence. However, Equity will not allow the Statute of Frauds to be used as an "engine of fraud". It created the doctrine of part performance to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy: see Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69 at para. 10. The requirements in s. 4 of the Statute of Frauds must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document -- that is, they diminish the opportunity for fraudulent dealings with land based on perjured evidence.
112The evidence of the applicant and some of his witnesses do not provide in my opinion evidence of part performance to allow the Statute of Frauds not to be applied.
EQUALIZATION
113I have found that the chicken quotas of both parties are those that are in each party’s name. I also find that Barn #2 is owned by the respondent, and the applicant has the barn which is in his name.
114There are a number of chattels that were owned by one or other of the parties. The parties have basically agreed to most of these items, with the exception of Barn #2, the chicken quotas in the respondent’s name, and her inheritance from her mother.
115I find that the monies which she did receive were comingled with other assets, such that there was no way the court could trace them. Therefore, the inheritance will not be a separate item in arriving at the finding of the equalization.
116I will attach a schedule “A” that will outline the items that were at issue on the equalization.
CHILD SUPPORT AND ACCESS
117There is one child born between the applicant and the respondent, namely Joseph David Olszowka (Joey), born July 29, 2004.
118Joey has been in the primary care of the respondent since the separation.
119The applicant did not pay child support for many months after the separation. He is now paying $600 a month for child support. I see no reason to alter that amount. Child support will be reviewed annually after the income tax returns have been received.
120I see no reason to consider retroactive payments of child support.
121The applicant and his present partner (Heather Wolf) have a child, Chase. He is about six years younger than Joey. Everyone agrees that the two boys have bonded and enjoy being with each other.
122The applicant wants to extend the amount of time that the two children have together. This was advanced by the applicant shortly before the start of these proceedings.
123Both Heather and Anna are able to deal with the two children on a best interests basis.
124After reviewing the evidence with respect to the custody and access, I make the following order:
The applicant and the respondent shall have joint custody of Joseph David Olszowka.
The primary residence of Joseph shall be with the respondent.
The applicant shall have access on alternating weekends from Friday at 3:15 p.m. until Sunday at 7:00 pm. This will be extended to 7:00p.m. on Monday, if Monday is a statutory holiday.
The applicant shall have access every Wednesday from 3:15 p.m. until 8:30 a.m. on Thursday.
There will be equal sharing of summer holidays, Christmas holidays, and March school break.
Joey will be with applicant for Father’s day weekend, and with the respondent on Mother’s day weekend.
Joey will have reasonable telephone, e-mail and text access.
The parties may extend access if it is convenient and in the best interests of Joey.
125I may be spoken to about costs or, if parties agree, I will receive written costs submissions on the following terms: The respondent shall serve and file her Bill of Costs and argument within 30 days of the release of these reasons; the applicant shall have 15 days from the receipt of the respondent’s submissions. The respondent shall have 5 days to respond to the applicant’s submissions.
Matheson J.
Released: October 5, 2012
Schedule A
ASSETS OWNED ON VALUATION DATE
Applicant Respondent
Matrimonial Home $ 500,000.00
Cottage – Temagami $ 39,000.00 $ 39,000.00
Household goods & furniture $ 920.00 $ 10,805.00
2000 Corvette $ 25,000.00
Cigar Boat $ 32,700.00
Guns & gun safe $ 5,515.00
2002 Bombardier $ 3,200.00
2002 Skidoo $ 2,900.00
Fishing equipment $ 410.00
Engagement Ring $ 33,500.00
Anniversary Ring $ 6,200.00
2002 Quad $ 2,400.00
Taxidermy $ 1,250.00
Bank Account -$ 702.39
Chicken Quota $1,700,071.00 $1,509,081.81
Value of Property Owned $2,287,663.61 $1,623,586.00
DEBTS AND LIABILITIES AT VALUATION DATE
Mortgage – matrimonial home $ 298,268.70
Mastercard $ 26,068.26
Conditional Sales Contract-Boat & Trailer $ 38,048.00
Notional Personal Tax $ 259,866.00 $320,715.00
$ 622,250.96 $320,715.00
PROPERTY, DEBTS AND OTHER LIABILITYS ON DATE OF MARRIAGE
Other Property – OPI $1,538,668.00
Guns $ 5,270.00
Fishing equipment $ 307.00
Chimniak Farms $1,167,935.00
2002 Corvette $ 65,000.00
1990 Cougar $ 3,500.00
Jewellery $ 39,700.00
1991 Mustang $ 6,000.00
$1,544,245.00 $1,282,135.00
Personal Tax Liability $ 224,370.00 $ 228,204.00
Net Value of Property Owned on
Date of Marriage $1,319,875.00 $1,053,931.00
EXCLUDED PROPERTY
From Respondent’s mother $ 15,000.00
Debts and Liabilities at Valuation $ 622,250.96 $ 320,715.00
Property on Date of Marriage $1,319,875.00 $1,053,931.00
Excluded Property $ 15,000.00
$1,942,125.96 $1,389,646.00
Value of AssetsOwned on
Valuation Date $2,287,663.61 $1,623,586.00
Debts & Liabilities andValue of Assets
owned on Date of Marriage $1,942,125.96 $1,389,646.00
Net Family Property $ 345,537.65 $ 233,940.00
Applicant Pays Respondent $ 55,798.83
COURT FILE NO.: 5359/08
DATE: 2012/10/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Darrell Olszowka
Applicant
- and –
Anna Marie Olszowka
Respondent
JUDGMENT
Matheson J.
Released: October 5, 2012