ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Catherine Alpersha Smith
Applicant
- and -
Tony Lloyd Berry
Respondent
Denise Badley, for the Applicant
Respondent, in person
HEARD: October 2, 3, 4, 5 and 12, 2012
Herman J.
1Mr. Berry seeks the equalization of net family property.
2Mr. Berry received $50,000 from the proceeds of sale of the matrimonial home at 75 Mansewood Gardens. He claims that he should have received substantially more in view of his contributions to that property and to a second property at 11 Berner Trail.
3Ms. Smith disagrees that Mr. Berry received less than his share of the equalization of net family property. In the event that I conclude otherwise, she submits that equalization would be unconscionable in the circumstances.
4The parties married on August 26, 1989.
5Ms. Smith claims the parties separated in March 2001. Mr. Berry claims they separated in December 2005.
6The parties were granted a divorce on August 24, 2006.
7Ms. Smith’s sole claim was for a divorce. Thus, once the divorce was granted, the remaining claims were Mr. Berry’s claims for the equalization of net family property and spousal support. Mr. Berry did not pursue the spousal support claim at trial.
Date of Separation/Valuation Date
8Ms. Smith claims the parties separated in March 2001, although they continued to live separate and apart at Mansewood Gardens until it was sold in August 2005.
9Mr. Berry claims he and Ms. Smith separated in December 2005 when, on his return from Jamaica, he was arrested at the Berner Trail home.
10On August 24, 2006, Backhouse J. held a hearing on the issue of the divorce. Her endorsement indicates: “I am satisfied based on Ms. Smith’s evidence that the parties have been separated for over 1 year. A divorce will issue”. It has therefore been judicially determined that the parties did not separate in December 2005, as claimed by Mr. Berry.
11It is Ms. Smith’s position that the parties separated in 2001. She testified that Mr. Berry called the police on her in 2001. The police came to the house and told her she had to leave. When she returned home, Mr. Berry told her that if she would give him money, he would leave. According to Ms. Smith, she was not able to give him money, so they lived separate and apart in the same house. Mr. Berry lived in the basement, where he had his music, a bathroom and kitchen, and she had a bedroom and en suite bathroom upstairs.
12In 2002, Ms. Smith and her friend, Hyacinth Dennie, bought 11 Berner Trail together. Ms. Dennie testified that Ms. Smith had approached her about buying a house together. Ms. Smith told her that there were problems in her marriage. Ms. Smith wanted to sell Mansewood Gardens and buy another property in which to live.
13Mr. Berry claims that he and Ms. Smith lived together as husband and wife until his arrest in December 2005. He testified that when they sold Mansewood Gardens in August 2005, they moved together to Berner Trail. However, he agreed that he left for Jamaica in August or September 2005, returned to Toronto on December 30 or 31, 2005, went to Berner Trail and was arrested upon his arrival and removed from the property.
14Mr. Berry shipped a twenty foot container of goods to Jamaica in August or September 2005. According to the container slip, it contained 163 pieces of personal and household effects.
15Mr. Berry’s tax return for 2002 says that his marital status was “single”. Mr. Berry’s explanation for this was that Ms. Smith and her lawyer wrote all the income tax returns.
16Ms. Smith presented in evidence a letter from the Canada Customs and Revenue Agency (“CCRA”), dated September 19, 2005, asking her for clarification of her marital status. The letter indicates that Ms. Smith had reported her marital status as “separated, single or divorced” on her 2002-2004 tax returns and that Mr. Berry still lived with her. In her reply to CCRA, Ms. Smith indicated that her marital status from 2001 to date was “separated”, and that she and Mr. Barry had lived in separate quarters, separate and apart, at Mansewood Gardens until it was sold in August 2005.
17Two documents from the Royal Bank – a Transaction Record and an Investment Account statement - both dated August 29, 2005 and both in Mr. Berry’s name, give his address as 40 Overture, Scarborough, Ontario. Mr. Berry said he does not know what 40 Overture is. According to him, he has relatives who live on that street but not at that number. Mr. Berry’s first explanation for the Overture address was that Ms. Smith told him to use it. He then said the paper was fraudulent.
18In view of the prior determination that the parties had been separated for more than a year as of August 24, 2006 and the evidence given at trial, I accept Ms. Smith’s version of events. In particular, I find: the parties separated on or about March 2001; they did not reconcile after that date; after their separation, the parties lived separate and apart at Mansewood Gardens until August 2005; and they never lived together at Berner Trail.
75 Mansewood Gardens
19Mr. Berry claims a 50 per cent interest in Mansewood Gardens. According to his Net Family Property Statement, dated June 29, 2012, his interest in the property was worth $242,000. He does not list the property in his Net Family Property Statement, dated June 28, 2012.
20Ms. Smith purchased Mansewood Gardens at some point in the 1980’s with Calvin Noble. Ms. Smith lived in the house and rented out rooms to tenants. After Ms. Smith and Mr. Berry married, they lived together at Mansewood Gardens.
21Mr. Noble’s interest was bought out in 1992 or 1993. Mr. Berry said that he gave Ms. Smith $13,000 cash to buy out Mr. Noble. However, Ms. Smith testified that Mr. Berry did not contribute anything. Rather, she cashed in a Guaranteed Investment Certificate to buy out Mr. Noble’s interest. She presented, in evidence, a copy of a Guaranteed Investment Certificate in her name, in the amount of $13,700, with a 1993 maturity date.
22Although Mr. Berry may believe that he was a part-owner of Mansewood Gardens, the parcel register indicates that Ms. Smith was the sole owner after Mr. Noble’s interest was bought out. Mr. Berry recalled signing a mortgage for $135,000. However, the Charge/Mortgage of Land document indicates that he signed only as a spouse, consenting to the transaction.
23It is undisputed that Mr. Berry received $50,000 from the sale of the home. He received $8,000 in advance of closing because he needed it to pay for the container to ship items to Jamaica. He received $42,200 on closing.
24Mr. Berry disputes Ms. Smith’s position that she only received $64,580 from the net proceeds of sale. The Trust Ledger Statement from the lawyer who handled the real estate transaction shows that Ms. Smith received $64,580. However, Mr. Berry testified that Ms. Smith received more than that and Ms. Smith and the lawyer cheated him.
25The Trust Ledger Statement also shows that the Toronto-Dominion Bank was paid $94,962.88 to discharge the mortgage on the property. Mr. Berry said the Trust Ledger Statement is a false statement, made up by Ms. Smith and the lawyer. When Mr. Berry was shown the photocopy of a cheque to the Toronto Dominion Bank for $94,962.88, he said the money went back to Ms. Smith.
26In my opinion, the evidence is overwhelming that Ms. Smith only received $64,580 as her share of the proceeds of sale.
27Ms. Smith testified that she and Mr. Berry agreed on the division of the proceeds in the lawyer’s office. According to Ms. Smith, she told Mr. Berry it was only fair that she would get more because he did not contribute to the house and he took a music set, which was worth more than $100,000, and tools.
11 Berner Trail
28Mr. Berry claims a 50 per cent interest in 11 Berner Trail. According to his Net Family Property Statement, dated June 28, 2012, his interest is worth $170,000; according to his Net Family Property Statement, dated June 29, 2012, that interest is worth $120,000.
29Ms. Smith said that Mr. Berry did not have anything to do with Berner Trail: they did not live there together and he made no contribution to it.
3011 Berner Trail was purchased in 2002 by Ms. Smith and Hyacinth Dennie, as joint tenants. It continues to be owned by the two of them. From 2002 to 2005, they rented the property out to tenants. Ms. Smith moved there in August 2005 after the sale of Mansewood Gardens.
31Mr. Berry claims that Berner Trail was the matrimonial home until the parties’ separation in December 2005. He said he gave Ms. Smith $10,000 to fix up the basement at Berner Trail. He also testified that Ms. Smith took money out of Mansewood Gardens by way of a mortgage of $135,000 in order to purchase Berner Trail.
32I have already found that Berner Trail was not the matrimonial home and Ms. Smith and Mr. Berry never lived there together. It was purchased after the parties’ separation. Accordingly, if Mr. Berry has any claim, it would be on the basis of Ms. Smith allegedly depleting the equity in Mansewood Gardens in order to purchase Berner Trail or Mr. Berry allegedly contributing to Berner Trail in the form of money, supplies or labour.
33The evidence does not support Mr. Berry’s claim that Ms. Smith mortgaged Mansewood Gardens in order to obtain funds to purchase Berner Trail. According to the mortgage documents, the mortgage of $135,000 resulted from combining two mortgages in 1992. Ms. Smith did not buy Berner Trail until ten years later, in 2002, as evidenced by the Transfer/Deed of Land. The Deed and the Charge/Mortgage for Berner Trail show that the purchase price was $248,000 and the mortgage was $244,435.
34The evidence also does not support Mr. Berry’s claim that he contributed to Berner Trail. Mr. Berry said he gave Ms. Smith $10,000 to do repairs. He testified that the $10,000 came from the $50,000 he received from the sale of Mansewood Gardens.
35A bank statement from Mr. Berry’s Royal Bank investment account shows that he made a one-year investment of $10,000 on August 29, 2005. According to Mr. Berry, he withdrew this $10,000 on the same day or the next day and gave the money to Ms. Smith to fix the basement. It does not make sense that Mr. Berry would have made a one-year investment, only to withdraw it the same day or the following day. Furthermore, Mr. Berry did not provide a copy of a bank statement showing the withdrawal.
36Mr. Berry also testified that he bought plumbing pipe and drywall from Home Depot to do repairs. However, the receipts he provided in support of this assertion were from 2006, not 2005.
Other Property
37Ms. Smith provided a Net Family Property Statement as to her property. With the exception of Mansewood Gardens, which is valued as of the date of sale in 2005, all items are valued at the date of marriage and at 2001, the date of separation.
38Aside from Mansewood Gardens, Ms. Smith claimed the following property: $10,000 in household goods at the date of marriage and at the valuation date; $10,000 in the bank at the date of marriage and nothing in the bank at the valuation date; and, excluding the mortgage on Mansewood Gardens, a debt of $3,400 at the date of marriage and debts of $20,000 at the valuation date. In the result, excluding the equity in Mansewood Gardens, Ms. Smith’s financial position was worse at the valuation date than at the date of marriage.
39There was very limited evidence on Mr. Berry’s net family property and what evidence there was, was problematic. Mr. Berry himself questioned the accuracy of the contents of his Financial Statement and the two Net Family Property Statements he signed in July 2012.
40The two Net Family Property Statements are dated June 28, 2012 and June 29, 2012, respectively. Both of these Statements have valuation dates of 2012, which is of limited assistance in determining the value of family property at the date of separation, in this case, 2001. The June 28 version lists debts on the valuation date of $84,000, with no debts on date of marriage; the June 29 version has debts on both the valuation date and the date of marriage of $84,000. The June 28 version sets out Mr. Berry’s net family property as $86,000; the June 29 version sets out his net family property as $228,000.
41None of the Statements contain any reference to household goods or vehicles owned at the valuation date. However, the Financial Statement refers to household items worth $120,000 at the date of marriage, including a Nissan Pathfinder, dishwasher, air conditioner, televisions, bedroom set, living room set, washer dryer, refrigerator. This is questionable, since the evidence is that, at the date of marriage, it was Ms. Smith who owned a home, not Mr. Berry.
42The evidence is that Mr. Berry shipped various goods to Jamaica in a twenty foot container to Jamaica in August or September 2005. Although Mr. Berry at first said there was not much in the container, only plywood to fix up his mother’s home in Jamaica, he agreed that, in addition to a lot of wood, he packed up music, construction tools, a refrigerator and four televisions. Mr. Berry said he shipped about 70 pieces; the container slip says there were 163 pieces of personal and household effects in the container.
43Mr. Berry also referred to a vehicle he owned during his testimony. Ms. Smith said Mr. Berry bought a Pathfinder van after they married.
44Mr. Berry testified about a significant debt arising from the non-payment of fines for driving without a licence or driving without insurance. He presented a document showing that he had fines owing in the amount of $45,989 as of June 2011. However, there was no evidence as to what the debt was at the date of marriage or at the valuation date.
45There was no evidence as what funds Mr. Berry had in his bank accounts at the date of marriage and the date of separation. Mr. Berry did not disclose his bank account statements in Canada and Jamaica dating from 2001, as required by the consent order of February 2007. He said he went to the banks and his wife had cancelled all the proof. According to him, Ms. Smith paid off the bank manager.
46Mr. Berry’s Financial Statement refers to a TD bank account with a value “unknown” at the valuation date. His Net Family Property Statements do not make any reference to bank accounts although he testified that he wrote cheques to Ms. Smith from Royal Bank and Scotiabank accounts. Mr. Berry presented several bank books at the trial – from Canada Trust, RBC and Scotiabank. However, the earliest entry is September 2005.
47Ms. Smith also believes that Mr. Berry owns property in Jamaica, as evidenced by the sums of money he sent down to relatives and a picture of a house in Jamaica. Mr. Berry testified that the money he sent down to Jamaica was to help his family and the house belongs to his parents.
Analysis
48The fundamental difficulty with Mr. Berry’s claim is the lack of reliable evidence with respect to his property.
49It was a challenge for Mr. Berry to present his case. He appeared in person. His ability to read and write is limited. Mr. Berry had difficulty understanding the trial process and various legal concepts, such as, evidence, examination-in-chief and cross-examination.
50I appreciate that the trial process can be overwhelming to an individual who appears in person without the benefit of counsel. However, Mr. Berry has the onus to establish his claim on the balance of probabilities. If he is unable to do so, I am unable to find in his favour.
51In a family law proceeding, a party’s pleadings, Financial Statement and Net Family Property Statement are all critical documents. Mr. Berry signed these various documents, but said he did not understand what he signed and disowned all or parts of their contents.
52Mr. Berry also did not produce much of the disclosure that was ordered, on consent, by Jarvis J. on February 12, 2007. Mr. Berry was represented by counsel at the time.
53Mr. Berry rests his claim on his assertion that he should receive 50% of the value of Mansewood Gardens and Berner Trail.
54I conclude that Mr. Berry has no interest in Berner Trail: the property was not the matrimonial home; it was purchased after the parties’ separation; it was not funded from a mortgage on Mansewood Gardens; and Mr. Berry did not make any contribution to the property.
55Although Mr. Berry was not an owner of Mansewood Gardens, it was the matrimonial home and formed part of the family property. It is not in dispute that Mr. Berry received less than 50% of the proceeds of sale of Mansewood Gardens: he received $50,000 and Ms. Smith received $64,580.
56However, that is not the end of the inquiry. Mr. Berry’s claim that he received less than 50% of the proceeds of sale cannot be considered in isolation of the parties’ net family property. The fundamental problem is that Mr. Berry has not provided evidence to establish what his net family property was.
57Section 5 of the Family Law Act, R.S.O. 1990, c. F.3 provides that the spouse whose net property is the lesser of the two net family properties is entitled to one-half the difference between them. Without evidence as to his net family property, Mr. Berry cannot establish that the $50,000 he received is less than his entitlement.
58Mr. Berry provided no disclosure or reliable evidence of his property position at the date of marriage and at the valuation date of 2001 or, for that matter, evidence as to the value of his property at his proposed separation date of 2005.
59Mr. Berry explained that he was unable to provide disclosure because Ms. Smith had all the documents. His explanations as to why he was not able to obtain documents independently of Ms. Smith, in particular, why he could not obtain documents from the bank were not credible.
60Mr. Berry said his Financial Statement and Net Family Property Statements were not correct, in whole or in part. The Statements do not, in any case, provide reliable information as to his assets or debts at the date of marriage and at the valuation date. Although Mr. Berry gave some evidence as to having bank accounts, a car and household goods, he did not provide evidence as to what these various assets were worth.
61In view of the lack of evidence from Mr. Berry, I accept Ms. Smith’s explanation that Mr. Berry received less than 50% of the proceeds of sale because he had contributed less and he took other valuable property. I draw an adverse inference from Mr. Berry’s failure to provide an itemized list of all the contents shipped to Jamaica and the value of each item, as required by the 2007 disclosure order.
Conclusion
62Mr. Berry seeks the equalization of net family property.
63It is undisputed that Mr. Berry received less than half of the proceeds of sale of the matrimonial home. However, he has not established that the $50,000 he received was less than half of the net family property.
64Mr. Berry did not provide evidence as to what his property was – at the date of marriage and the valuation date - and can therefore not establish that he received less than his share. He did not present a coherent position as to what his family property was, nor did he disclose the information he was ordered to provide, which might have cast some light on the situation. Mr. Berry said all or part of his Financial Statement and Net Family Property Statements were inaccurate but he did not provide an alternative position or evidence to enable me to conclude that he received less than his entitlement.
65Mr. Berry’s claim is therefore dismissed.
66Given this conclusion, it is not necessary to consider Ms. Smith’s alternative argument, that is, if Mr. Berry received less than half of the difference between the net family properties, the equalization of the net family properties would be unconscionable.
Costs
67At the conclusion of the hearing, I heard oral submissions as to costs. I was provided with copies of offers to settle in a sealed envelope. I did not look at these offers until after I determined that the claim would be dismissed.
68Ms. Smith is the successful party. She seeks costs of $16,300 in fees and $218 in disbursements. Her claim for costs is limited to the trial and trial preparation.
69Ms. Smith’s counsel’s rates are $300 an hour. Her year of call is 1997. The trial lasted 5 days. Her counsel says she spent a minimum of 20 hours preparing for trial. There were two Trial Management Conferences. However, costs were not reserved and will therefore not be awarded.
70I appreciate that it was challenging for Mr. Berry to present his case. However, the result was that it made it more difficult for Ms. Smith to respond. It was unclear what Mr. Berry’s case was. Ms. Smith had to provide evidence that Mr. Berry should have provided. Mr. Berry provided very little of the disclosure he was ordered to provide, although Mr. Berry was represented by counsel at the time the order was made, and the order was on consent.
71Inability to pay may be a factor to take into account in determining costs. Mr. Berry said he is on social assistance. However, his failure to provide adequate financial disclosure makes it difficult to determine his ability to pay.
72Ms. Smith offered to settle the proceeding on the basis that she would not pay Mr. Berry anything and he would pay her costs on a substantial indemnity basis. In my view, this does not qualify as an offer to settle, since it does not represent any compromise.
73Mr. Berry offered to accept the sum of $120,000, with no costs.
74The circumstances do not, in my opinion, warrant full or substantial indemnification as to costs.
75Considering these various factors, it is fair and reasonable that Ms. Smith be awarded $10,000 costs, inclusive of HST and disbursements.
Herman J.
Released: November 1, 2012
COURT FILE NO.: 06-FD-314174
DATE: 2012/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Catherine Alpersha Smith
Applicant
- and -
Tony Lloyd Berry
Respondent
REASONS FOR JUDGMENT
Herman J.
Released: November 1, 2012