COURT FILE NO.: D1767/09
DATE: 2012-11-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dr. Bronte Lester Golda
Applicant
– and –
Dr. Mary Barbara Syty-Golda
Respondent
Kirsten Hughes, for the Applicant
Michael P. Clarke, for the Respondent
HEARD: March 20, 21, 22, 23, 26, 28, 29, April 10, 2012
the honourable mr. justice r. j. mazza
Introduction
[1] This is an action which is limited to monetary claims made by each party against the other for equalization and post separation compensatory payments. The parties, Dr. Mary Syty-Golda (herein after referred to as “Mary”) and Dr. Bronte Golda (herein after referred to as “Bronte”) were married in 1977 and separated on February 1, 2008 when Mary asked Bronte to leave the matrimonial home after which Mary became the sole occupant of the home until its sale.
[2] In view of the fact that the claims of one party against the other are very specific, I intend to deal with the claims by category.
Matrimonial Home
[3] The property was scheduled to close on September 1, 2010. Bronte hired the services of a long time friend, Burkhard Novak, for the purpose of retrieving items prior to the sale.
[4] Mr. Novak testified that he attended on or about August 22, 2010. While in the home he noticed that it was in somewhat of a disarray and took photographs in support of his observations are at Tab 24 of Exhibit 63. Although Mr. Novak, with the assistance of two other men who accompanied him, had loaded a cube van of items from a list provided to him by Bronte, Mary would not permit him to take some of those items and, in fact, instructed him to remove them from the van. He also observed Mary unpacking items from various boxes. Although Mr. Novak had offered to return the next day, Mary advised him that that was not necessary since she had hired movers and, therefore, did not require any further assistance.
[5] Bronte attended the office of Peter Cass, solicitor retained for the sale of the property, to execute the sale documents and to return the key to the home. Because of a previous commitment to a journey to Poland to visit his mother, Bronte appointed Dr. George Pakozdi as Power of Attorney in order to complete the sale. At the time the house had been listed for sale and up to the day of closing, approximately one thousand bottles of wine, with the average price of $200.00 per bottle, remained stored in the cellar. As well, there was a substantial amount of furniture on the main floor of the home which had not yet been packed.
[6] Dr. Pakozdi, in order to ensure completion of the closing on the scheduled date, had offered to Mary to store the wine in his residence which was located only twenty minutes from the matrimonial home. That offer was rejected. However, Dr. Pakozdi, now realizing a delay in the sale was inevitable, but in order to avoid an aborted sale, attempted to compensate the purchasers by making several offers in incremental amounts of $2,000.00, followed by an offer of $5,000.00, followed by an offer of $10,000.00. Dr. Pakozdi testified that the purchasers, on their part, also offered to purchase some items which still remained in the home and which had not yet been stored; and further offered to store the wine for a period of two months after they obtained possession, provided that Mary maintained insurance on the wine. The purchasers also included some minor conditions. Exhibit 48, a letter between Peter Cass, solicitor for the vendors and John Vitulli, Jr., solicitor for the purchasers, sets out the conditions under which the purchasers were prepared to take possession on the initial closing date. The letter reads:
Dear Mr. Cass:
Re: Zarcone purchase from Golda/Syty-Golda
564 North Shore Boulevard East, Burlington
As you know, we act as the solicitors for Nancy Zarcone in relation to the above noted transaction.
On August 30, 2010, Mrs. Zarcone was contacted by Mrs. Golda, during which time, she was advised by Mrs. Golda that she suggested that she would not be able to provide vacant possession of the property on September 1, 2010 as she was looking to store her extensive and rather expensive collection of wines at the wine cellar situated on the property and that she did not feel she should be responsible to remove from the property certain pieces of her husband’s possessions who is apparently abroad until September 7, 2010. Certain discussions ensued and, with respect to the wine, the parties agreed that Mrs. Golda would be entitled to store her wine at the property without any recourse or liability to Mrs. Zarcone whatsoever for a period of six to eight weeks following closing in exchange for the table situated below the glass mirror in the front entrance. It is fully expected that Mrs. Golda maintain insurance over and to the wine during which time it is stored at the property. With respect to Mr. Golda’s property, however, Mrs. Zarcone has no interest in acquiring same and confirms that it shall be removed from the property prior to closing.
Further, on August 31, 2010, Mrs. Zarcone attended upon the property, at which time, she noticed that there was still a significant amount of chattels, boxes and other property of the vendors which still remained on the property. While, at this time, Mrs. Zarcone discussed with Mrs. Golda the prospects of acquiring an eight piece cookbook set entitled “Beautiful Cookbook”, a three piece reindeer set, and a bunk bed set, no agreement has been reached, and Mrs. Zarcone wishes to confirm that, but for these items (provided an agreement can first be reached) and the wine settled as aforesaid, your clients are required to provide vacant possession on closing. Mrs. Zarcone is in a position to close the transaction today, and wishes to do so, particularly since she has already made arrangements with her contractors and others.
Lastly, during her said attendance, Mrs. Zarcone also noticed that the doorknob to the kitchen door had been broken and that Mrs. Golda had removed some window coverings whereas the Agreement provides that all window coverings shall be included in the purchase and sale. Please ensure that the doorknob is replaced and that all window coverings remain on the property.
Please give consideration to the foregoing and contact us to discuss at your earliest convenience.
Yours truly,
Milligan Gresko Brown Vitulli Limberis LLP
John Vitulli, Jr.
Mary failed to meet the above conditions and consequently on September 1, 2010 the deal was aborted.
[7] However, the matrimonial home ultimately sold on or about September 15, 2010 but at a reduced price resulted in a loss to the parties of $250,000.00. However, in order to assure that, in fact, this transaction would be completed, Bronte testified that Mary forced him into signing the following agreement which reads as follows:
AGREEMENT BETWEEN MARY SYTY GOLDA AND BRONTE GOLDA DATED SEPTEMBER 14, 2010 AT 10:30 PM REGARDING THE SALE OF 564 NORTHSHORE BLVD EAST, BURLINGTON.
IT IS AGREED NEITHER MARY SYTY GOLDA OR BRONTE GOLDA WILL PROCEED WITH ANY LITIGATION AGAINST EACH OTHER FOR ANY DAMAGES INCURRED DUE TO THE FAILURE TO CLOSE THE SALE OF 564 NORTHSHORE BLVD EAST ON SEPTEMBER 1, 2012.
IT IS FURTHER AGREED BRONTE GOLDA WILL PAY MARY SYTY GOLDA THE AMOUNT OF $125,000.00 FROM THE PROCEEDS OF SALE OF 564 NORTHSHORE BLVD EAST ON SEPTEMBER 17, 2010 FROM THE NEW AGREEMENT OF PURCHASE AND SALE FROM ZARCONE DATED SEPTEMBER 9, 2010 IN THE AMOUNT OF $2,200.000.
IT IS FURTHER AGREED ALL PREVIOUS CORRESPONDENCE ISSUED BY BRONTE GOLDA DATED SEPTEMBER 13, 2010 AND SEPTEMBER 14, 2010 REGARDING THE FOREGOING SETTLEMENT WILL BE DISREGARDED BY ALL PARTIES INVOLVED.
Mary testified that Bronte had prepared the agreement and had signed it voluntarily.
The real estate transaction, in fact, was completed on or about September 15, 2010.
Submissions
[8] Ms. Kirsten Hughes, on behalf of Bronte, submits that the failed real estate transaction was due to Mary’s failure to have the house ready for occupation by the original date of closing. She submits that it was Mary’s “acts and omissions” that resulted in a reduced price of the sale of the matrimonial home and that, therefore, Bronte should not be financially responsible for the loss for which the parties were forced to accept because the home was not ready for vacant possession on September 1, 2010.
[9] Ms. Hughes further submits that Mary’s demands that Bronte sign the agreement which would assure her compensation for the loss which the parties suffered as a result of the aborted first sale by way of a written agreement amounted to coercion and Bronte signed the agreement under extreme duress. In support of her position of the alleged involuntariness she makes reference to the previous agreement prepared by Bronte which reads as follows:
I, Bronte acknowledge the receipt of the offer on the house at 564 Northshore Blvd. East, Burlington, Ontario in the amount of $2,200,000.00 dated Sept. 12th, 2010 and expiring Sept. 13th, 2010.
I acknowledge that Dr. Mary Syty-Golda refused to sign the offer, as well as the previous offer, unless she was compensated by me in the amount of $125,000.00 on without prejudice basis.
I acknowledge that I absolutely disagree with her entitlement for any compensation as a condition to sign the offer.
I acknowledge that closing this sale is a paramount importance to me, as dealing with Dr. Mary Syty-Golda has been extremely destructive to my physical and psychological health. As such, for the purpose of concluding this sale and the time sensitive nature of the offer, I am prepared to issue a cheque for the demanded amount.
[10] Mr. Clarke submits that, in fact, the agreement was valid inasmuch as it was drafted by Bronte. Furthermore, Bronte agreed to disregard the above letter of September 14th which included an agreement not to take any further action against Mary who had, in fact, relied on the document. He also submits that Mary had held up her end of the bargain and that, therefore, Bronte owes Mary the amount of $125,000.00 as valid compensation.
Analysis and Conclusion
[11] In my review of the evidence, I find first, that Mary was the sole occupant of the matrimonial home for a significant period of time prior to its sale. I further find that Mary had ample notice of the date of closing as far back as January 10, 2010 and that she was aware of her responsibility to have the home prepared for vacant possession.
[12] I further accept the evidence of Dr. George Pakozdi and find as Bronte’s Power of Attorney he, in fact, acted appropriately and used maximum efforts to ensure the closing of the transaction on September 1st, efforts which included an offer to store the wine at his home and an offer of monetary compensation to the purchasers for any possible delay in closing. As well, I accept the evidence Mr. Burkhard Novak, a close friend of Bronte who, in fact, stated that when he attended on August 22, 2010 and was shown the home by Jane Kenny, a friend of Mary, the house was in a state of disorder and that, in fact, he noted that Mary was unpacking various boxes and removing items from boxes rather than making efforts to ensure the property would be in a state of orderliness for the closing.
[13] I, therefore, find that in the circumstances as described, that Mary, who had assumed full responsibility for preparing the home for sale but failed to act expeditiously and efficiently to complete preparations by the day of closing and, therefore, is solely responsible for the aborted sale on September 1, 2010 which ultimately led to a reduced purchase price at the time the property closed on September 15, 2010. I further find that Mary failed to make adequate alternative arrangements for storage of the wine prior to sale. Even if it can be argued that it was reasonable for her to refuse the offer of Dr. Pakozdi and the purchasers to store the wine, nevertheless, she had ample time to arrange storage through Fine Wine Reserve whom she had ultimately hired.
[14] Therefore, I find in the circumstances, that Bronte should not share the responsibility for the failed closing and the reduced sale price. I find in the circumstances, that Bronte signed the agreement on September 14, 2010 under duress, at the hands of Mary and, in fact, his signature on the document was the only way of assuring that the sale of the matrimonial home would be completed on or about September 15, 2010. Whether or not Bronte prepared the agreement, I find, does not shift any of the blameworthiness to him. The only option available to him because of Mary’s insistence upon payment to her of one-half of the difference between the original sale price and the actual sale price before she would cooperate to ensure the second closing was to comply. Therefore, since I find that Bronte’s decision to sign the agreement was not because he gave his genuine consent but because of the unreasonable position taken by Mary, I declare the agreement invalid and find that Bronte is not required to compensate Mary in the amount of $125,000.00.
Staging Costs for the Sale of the Matrimonial Home
Testimony of Jane Kenny
[15] The only independent evidence available to this court aside from Mary’s testimony on this issue of staging costs was the evidence of Jane Kenny. Ms. Kenny testified that she was a close friend of Mary and became an employee of hers on or about 2008 up to and including January 2011. She was hired as a file clerk and an assistant to Barb, Mary’s assistant. Those tasks began on or about February of 2010 until the house was vacated.
[16] She further stated that her duties and assisting at the matrimonial home were to help Mary in staging the home, cleaning it, and getting it ready for sale. She was also involved in packing. In terms of her involvement in cleaning the house, her recollection was that she “helped clean [the home] about eight or ten times.”
[17] Ms. Kenny stated that other individuals had assisted Mary; her niece, Natalia, and a woman referred to “Ms. Lau, who came once and packed up some Christmas gifts.” She also referred to a woman by the name of Irene who helped her pack in August and to other people by the name of Marie, Peter and Stefan who helped at various times although she could not specify how often they came and how long they stayed.
[18] During her testimony, Ms. Hughes asked her the following questions regarding the method of monetary compensation, to which she gave the following responses:
Q. Okay, and you said you were paid through the office but you mean by way of a business cheque?
A. Yes.
Q. So, do I understand that even when you were used told by Mary to be at the matrimonial home to clean, to declutter, whatever she had you do, that you were still technically under the employ of the medical practice?
A. Yes.
Q. Okay. What was your rate of pay?
A. $12.00 an hour.
Further on in her testimony, Ms. Hughes asked the following questions and received the following answers:
Q. Was there ever any time when you were providing services for Mary for which you were not paid?
A. Many. I’d work at night, I’d work weekends.
Q. And you didn’t receive any compensation for those?
A. No.
Q. So were you paid based on a regular Monday to Friday?
A. Basically. I’d work.
Q. Set hours per day?
A. No, just I would call it into Barb or Barb knew what I worked, like she knew I was there at 9 every morning.
[19] During cross examination Ms. Kenny further admitted that Mary, in fact, hired locums, specifically, a Dr. Elder and a Dr. Nalezny. She had already stated in her evidence in chief that Mary would, in fact, sleep late and start work at her office around 12:00 noon. Mary, during her own testimony, confirmed Ms. Kenny’s evidence relating to her method of payment. She also testified that in addition to Ms. Kenney she was assisted by Paula Verga, Natalia Golda, a person by the name of Hazel as well as a man by the name of Joseph, a man by the name of Anthony and one Steven Grazik.
Submissions
[20] Mr. Clarke submits that as a result of this staging, Mary incurred expenses in the total amount of $36,857.60 as set out at Tab 2 of Exhibit 62. The expense included amounts paid to Hazel, Jane Kenny, Paula Verga and Natalia Golda for their services as well as amounts paid to doctors for services rendered on behalf of Mary to care for her patients. This was necessary because of what Mary claimed was Bronte’s refusal to assist her. Consequently, Mary was required to pay the amount of $16, 830.00 for locum tenens. Mr. Clarke further submits that all these expenditures were necessary in order for Mary to adequately prepare the home for sale. In addition to arranging care for her patients, Mary’s efforts included taking truck loads to the dump, arranging for the cleaning of the home as well as subsequent storage expenses for the wine and household contents which Bronte, according to Mary’s testimony, refused to retrieve them when given the opportunity to do so prior to closing.
[21] Mr. Clarke submits that all the expenses incurred by Mary located at Exhibit 62, Tabs 2 to 5, are legitimate expenses and, therefore, his client should be compensated accordingly.
[22] Ms. Hughes submits that except for three exceptions, namely; 1) a replacement cheque of $1,740.80; 2) a reimbursement of net costs of computer lease of $524.20 and; 3) a reimbursement of one-half of the staging contracts of $2,103.83 totalling $4,368.03, Bronte disputes the remainder of the costs being claimed by Mary.
[23] Ms. Hughes further submits that the costs are excessive and, in any event, Mary is not entitled to any reimbursement over and above the reimbursement of expenses acknowledged by Bronte at the rate of fifty percent of those costs for the following reasons:
a. Locum tenens – Mary has not established any evidence of the payment of these sums “other than her self-created list.” She further claims there is no evidentiary basis for this expense relating to the matrimonial home. Lastly, Mary confirmed that some of the locum tenens were used during holiday periods, several of which he took during the times in question.
b. With respect to the amounts paid to Jane Kenny, Ms. Hughes submits that Ms. Kenny testified that she was frequently paid by way of business cheques written from the respondent’s practice and furthermore, the respondent herself, Mary indicated that some, if not all these payments, would likely have been deducted as business expenses through her practice given that Mary is entitled to a deduction for these business expenses, the applicant should not be obligated to reimburse her for the benefit of this tax deduction.
c. With respect to Paula Verga and Hazel, Mary presented no proof of any such payments actually being made; neither was called as a witness to confirm the nature of the work performed and whether, in fact, they received payments.
d. With respect to the payments to other parties including Natalia Golda, Joseph, Anthony and Steven Grazik, Ms. Hughes submits that the applicant takes the position that none of these claims included any actual proof of payments other than self-produced sheets.
e. With respect to the moving contracts for which the respondent is claiming $2,051.77, Bronte takes the position that in view of the fact that he had obtained the services of Mr. Burkhard Novak to attend the matrimonial home with the moving truck for two days prior to the closing date to help remove items from the matrimonial home which Dr. Golda claims was less than twenty-five percent of the entire contents, Dr. Golda’s debt should be confined to fifty percent of those costs, if at all.
Analysis and Conclusion
[24] It is the obligation of parties at a trial, when proving their claims, to provide the court with best evidence.
[25] In the case before me Mary makes significant claims for reimbursement of expenses she allegedly incurred for locum tenens and cleaning “staff” at the matrimonial home. Of all the individuals involved, I have only the evidence of Jane Kenny and Mary who testified as to the presence of other people who assisted in the staging and packing of the matrimonial home. Not only do I not have the evidence of the other individuals but I do not have, at the very least, any receipts from those individuals confirming the amounts they were paid for assisting Mary. As well, I find Mary also failed to present the court with documentary evidence supporting the payments she made to the doctors who covered her practice when she stated she was unable to attend. Even if both Dr. Elder and Dr. Nalezny were, in fact, hired as locums by Mary, nevertheless, there is no verification of the hours worked. In that regard, I further find that Mary failed to clearly establish, on the balance of probabilities, that the time she was required to be away from her practice was directly and exclusively related proportionately to the time during which she said she was required to be at the matrimonial home attending to the preparations for sale.
[26] Given the significant amounts of money being claimed by Mary, I find that she was obligated to provide the court with either oral testimony from the parties who provided services or, at the very least, documentary evidence by way of receipts from those same parties to confirm payments. I find that Mary had an obligation to make an effort to obtain this evidence or, in the alternative, to provide the court with a plausible explanation as to why such evidence, either orally or by documentation, was not available. I find that Mary’s self-generated list is not adequate. As for the services rendered by Jane Kenny, although she acknowledged working for Mary at her home to help her stage the home for sale, given that Jane Kenny admitted in evidence that she was paid by a cheque through the business, and given that I find that Mary by her own evidence, admitted that some of these cheques were deducted as business expenses, and given that this court has no way of knowing whether some or all of those claims had already been deducted by Mary as a business expense, I cannot allow Mary’s claims for either locum tenens or cleaning staff and, therefore, find that Bronte is not required to compensate Mary for those expenses for which she has made a claim.
[27] However, with respect to the expenditures supported by invoices at Tab 2 which total $8,790.55, I find that Bronte is to reimburse Mary for fifty percent of those costs. In my opinion they are reasonable and I find are directly related to staging costs. As well, based on Ms. Hughes’ submissions, Bronte will provide Mary with a replacement cheque of $1,740.80 and a reimbursement of net costs of the computer lease of $524.20. As well, Bronte is to reimburse Mary the amount of $2,103.83.
[28] With respect to those last three amounts, they should be paid in full if, in fact, they represent half of the costs; otherwise, if they represent the full costs, Bronte is to pay Mary one-half of those amounts.
Computer Lease
[29] It is unrefuted that the parties were jointly liable for a lease of the computers related to the business, it is agreed that Bronte owes to Mary the net amount of $520.92, there appears to be a $0.92 difference, I accept the amount that is set out in the detailed calculation provided by Ms. Hughes in her written submissions.
Items of Jewellery
[30] In my review of the parties’ respective net family property statements, for the most part, they agree on the value of the jewellery with the exception of a Rolex watch, Bulgari star pendant, Peridot ring, and as Bronte referred to in his net family property “various silver and gold jewellery”, and “various costume jewellery.”
Submissions
[31] Mr. Clarke submits that the Peridot ring and brooch which Bronte assesses at $8,438.84 is an evaluation based on an Amex bill of January 23, 2008 and found at Exhibit 51 to these proceedings. He submits that the actual value of the ring and brooch is actually $4,825.66 since Mary had returns of $3,613.18 relating to all the purchases. In any event, Mary admitted in evidence she had gifted her Peridot ring to her mother prior to separation.
[32] Ms. Hughes submits that even if, in fact, the respondent did gift the ring to her mother prior to separation, the value of items purchased immediately prior to separation should be included in the Net Family Property Statement. Moreover, Ms. Hughes submits that Mary has denied the existence of two brooches set out in Bronte’s Net Family Property Statement but failed to provide the court with any corroborating evidence to support her position.
[33] With respect to the Rolex watch, Mary values it at $5,000.00 which Mr. Clarke submits is a more accurate value than the alleged $25,000.00 claim by Bronte, Ms. Hughes submits that the Rolex watch was valued without her presenting any evidence or appraisal to support that allegation and, therefore, she should be denied any consideration by this court in its determination of the value of this item.
Analysis and Conclusion
[34] In my review of both Net Family Property Statements, I do note that Mary valued the Rolex watch at $5,000.00.
[35] With respect to the $25,000.00 figure, I find that Bronte, in fact, used that amount as representative of several pieces of jewellery including the Rolex watch. Those items included the Cartier gold wedding band and, as already indicated, the silver and gold jewellery and stainless and costume jewellery. The latter two collective items had not been referred to in Mary’s Net Family Property Statement.
[36] With respect to the specified items of jewellery, I agree with Mr. Clarke’s submissions that Bronte bases his evaluation on the Amex bill filed as Exhibit 51 to these proceedings. I further agree that it is clear from the Exhibit that Mary did receive credits for items which she returned and, therefore, I find that the true value of the Peridot ring is, in fact, $4,825.56 and should be added to the Net Family Property Statement of Mary.
[37] With respect to the Rolex watch, given that Bronte’s evaluation of $25,000.00 included the Rolex watch along with compilation of other jewellery, I find that the best evidence with respect to the value of the ladies’ Rolex watch would be that of Mary and, therefore, I fix the watch’s value at $5,000.00. As for the items which Bronte says were in her possession but which she did not make reference to, namely, the second brooch and the silver, gold and stainless costume jewellery, other than the testimony of the parties, there is no independent evidence to confirm the existence of these items of jewellery at the date of separation and, therefore, I find that the evidence on that issue is inconclusive and will not give any value to these items of jewellery.
[38] With respect to the Cartier gold wedding band for which Bronte gave no value, I am satisfied with Mary’s value of $1,400.00 as set out in her Net Family Property Statement.
[39] As for the Peridot ring, I have Mary’s evidence that she gave her ring to her mother prior to separation. However, I find that when a party is preparing a Net Family Property Statement the onus is on that party to provide the court with the best evidence which, in this case, is corroborating evidence to explain why certain items which should normally form part of the Net Family Property Statement are not, due to special circumstances, included in the Net Family Property Statement.
[40] In the case of the Peridot ring I find that Mary could have easily provided the court with corroborating evidence supporting her testimony that the Peridot ring had been gifted to her mother prior to separation. Since the value of the Peridot ring has already been determined by this court, that amount should be included in Mary’s Net Family Property Statement.
Mercedes-Benz
[41] Prior to separation, Bronte was involved in a motor vehicle accident in which his Mercedes-Benz was completely destroyed and for which he received the amount of $65,059.80 from the insurance company. In his testimony he stated that he believed he had arranged a loan for the automobile which amounted to the difference between the monies he received from the insurance company and the price of the car which he placed at approximately $106,000.00 including G.S.T.
Submissions
[42] Mr. Clarke submits that apart from the $65,059.80 that Bronte received from the insurance company, the balance of the monies for the Mercedes was taken from the joint accounts which he claims is broken down as follows:
• P.S.T. - $10,579.43 (cheque #4823 and drawn from account #1287, marked as Exhibit 59)
• Car deposit - $5,000.00 (cheque #4802, marked as Exhibit 59)
• Additional purchase price of the motor vehicle - $34,790.00 (cheque #4763 drawn from account #1168 marked as Exhibit 27)
• Rims and tires - $6,480.00 (cheque #4493 drawn from account #1287) which Mr. Clarke submits was not challenged on cross examination.
[43] According to Mr. Clarke’s calculations the purchase price was $104,790.00. Added to that amount would be the P.S.T. and cost of the rims, bringing the total cost of the motor vehicle and its parts to $121,849.43. The difference between the full amount and the amount received by Bronte from the insurance company is $56,789.63 and, therefore, Mr. Clarke is requesting, on behalf of his client, the amount of $28,394.81.
[44] Ms. Hughes submits that according to Bronte’s testimony, he deposited $50,000.00 into the account for the purpose of purchasing the motor vehicle and disputes using joint funds to purchase the vehicle. Pursuant to Exhibit 60, Bronte confirmed the existence of the loan on the day of its deposit.
Analysis and Conclusion
[45] Firstly, I note correspondence between Mr. Philip Campbell, Financial Planner of RBC Financial Planning and Bronte dated March 26, 2012 and marked as Exhibit 27 to these proceedings. The letter reads as follows:
The deposit of $164,849.80 credited to this account on February 21, 2008 was comprised of the following three cheques:
Cheque drawn on account 6001168 $54,000.00
TD Meloche Monnex $65,059.80
Hamilton Downtown Medical $34,790.00
The confusion in reviewing this transaction is the fact that cheque #62 in the amount of $65,000.00 drawn on account 6001168 is deposited to the same account. The teller handling this transaction should simply have destroyed the cheque or returned it to you, since you can see from the transaction history that this cheque cleared out of the account on the same day.
On February 21, 2008, a draft was issued to you payable to Mercedes Benz Canada Inc in the amount of $99790.00. This amount is equal to the total of the $65,000.00 cheque plus the cheque from Hamilton Downtown Medical in the amount of $34,790.00.
[46] Secondly, I note that there are two cheques corresponding to the amount of $65,000.00 and $34,790.00 signed by Bronte and referred to in the memo portions of each cheque as a car purchase, marked as Exhibit 20 to these proceedings, and totalling $99,790.00. Those cheques were written on February 21, 2008, the same day as that amount was deposited into the account confirmed by the bank record marked as Exhibit 21. Both cheques are payable to Cash, with the amount of $65,000.00 being drawn from an account at the Royal Bank of Canada and the amount of $34,790.00 being withdrawn from the Hamilton Downtown Medical Clinic account. As well, Exhibit 52, the motor vehicle purchase agreement, was completed and finalized on February 22, 2008. Accordingly, it appears that the transaction was finalized on that same day. Therefore, I find that the evidence that Bronte arranged a loan with the bank for the purchase of the vehicle was far from convincing.
[47] Although Exhibit 60, a letter from Philip Campbell, financial planner, refers to the amount of $50,000.00 related to “the captioned car loan issued in Bronte’s name on March 6, 2008 to account #2001287/00742 of the Hamilton Downtown Medical Centre”, a joint bank account, I find the evidence is not clear that monies used by Bronte for purchase of the Mercedes-Benz and related expenses were solely from the loan monies. Firstly, although I agree that $65,000.00 of the purchase price was from the insurance proceeds, I find that there is no clear explanation as to why the amount of $34,790.00 towards the purchase of that automobile came from the joint account #1168 of the Downtown Medical Centre and there is no clear evidence that at least half those monies were returned to the account. Secondly, I do not have any convincing proof on the balance of probabilities that the amount of $10,579.43 presumably representing P.S.T. on the automobile withdrawn from joint account #1287, and the amount of $5,000.00 representing a partial payment set out in the motor vehicle purchase agreement marked as Exhibit 52 to these proceedings also drawn on joint account #1287, and the amount of $6,480.00 also drawn on joint account #1287, are all proceeds of the loan arranged by Bronte. Although there is the deposit of $50,000.00 into the joint account, I am unable to find that there is a nexus between the loan and the purchase of the Mercedes-Benz. In other words, I find that the monies are not traceable in order to satisfy this court that Bronte replaced the monies written on the joint accounts for the purchase of the Mercedes-Benz and the related accessories with the loan which he procured for said purchase.
[48] Accordingly, I find that with respect to the purchases towards the Mercedes-Benz, Bronte did use the amount of $56,789.63 from the joint accounts that he is only entitled to make use of half of that amount and, therefore, he must reimburse Mary the amount of $28,394.81.
Monies Taken from Joint Accounts - #1648, #1168 and #12102-922-2
Submissions
[49] Ms. Hughes, on behalf of Bronte, submits that Mary removed monies from two joint accounts. The first withdrawal, as submitted, is from the account with the Royal Bank, #1648. Ms. Hughes submits that Mary acknowledged withdrawal from this account at Exhibit 63, Tab 2 totalling $31,000.00. As well, Ms. Hughes submits that Mary made further withdrawals from joint account #1168 in the amount of $44,000.00 on July 28, 2008 as set out in Exhibit 39 and a further $6,000.00 between February 2009 and July 2009 which Ms. Hughes submits represents Mary’s contribution to her RRSP. These latter withdrawals are confirmed at Tab 3 of Exhibit 63 which is a letter from a Mr. Philip Campbell, from the Royal Bank, dated March 19, 2012.
[50] Mr. Clarke submits that during cross-examination, Bronte admitted taking the following amounts from the parties’ joint account #1648 as follows:
• February 1, 2008 - $922.00
• February 15, 2008 - $4,152.00 and $1,050.00
• February 19, 2008 - $9,312.00
• August 20, 2008 - $28,876.00
• August 20, 2008 - $26,614.00 - #12102-922-2
• November 18, 2008 - $42,400.00
Mr. Clarke also submits that Bronte did not recall taking the money or withdrawing the money which Mr. Clarke says is contrary to the cheques marked as Exhibit 15 and the bank statement marked as Exhibit 40. He submits that Mary testified that Bronte wrote these cheques or transferred the funds for his own benefit in the above amounts. Further, Bronte made a further withdrawal on May 20, 2008 from account #1648 in the amount of $5,000.00. The total amount of withdrawals by Bronte is $91,712.00. Mary, therefore, is seeking a reimbursement of $45,856.00.
[51] Ms. Hughes, in reply, states that Bronte was responsible for payment of the parties’ joint and individual credit card debts and that he always separated personal from business expenses and attempted to allocate funds spent by each party. She further submitted that Mary did not provide Bronte with documents relied upon during cross-examination in advance of the trial nor any time prior to trial that she indicates that she is making a claim for this money. These issues were never raised at discovery and, consequently, Bronte did not have specific recall. Moreover, Mary also admitted that she availed herself with the joint funds in these two accounts.
[52] Specifically, with respect to the withdrawal of $26,614.00 from account #12102-922-2 on August 20, 2008, Ms. Hughes submits Bronte testified that that money was withdrawn to be deposited into Bronte’s new family health team account in his name alone. The reason for the withdrawal was because services for “L.I. health workers were provided to the respondent were discontinued by the family health team and it was on the advice of the family health team that Bronte made this deposit.” Accordingly, these funds were not for the use of either party.
[53] Ms. Hughes further submits that with respect to the withdrawal of $28,876.00 from account #1648, it was withdrawn to secure an income tax payment and that she further submits that there was a corresponding payment of income tax in the amount of $28,876.00 from that account.
[54] With respect to the claim by Mary of reimbursement of half the amount of $42,400.00, Ms. Hughes submits that Mary failed to provide an exhibit to confirm this evidence and that, in fact, no evidence was tendered by either party during the trial. Inasmuch as the issue was not raised at trial in any specific manner, Ms. Hughes submits that Mary should not be allowed to make any reference to this alleged claim.
Analysis and Conclusion
[55] The Oxford Dictionary identifies the joint bank account as follows: a “joint bank account, in the nature of a joint tenency account is an account in which either owner may exercise full rights to make deposits or withdrawals on his or her signatures.” Once the parties separate, this court must determine what it considers to be an equitable distribution.
[56] Firstly, with respect to the amount of $31,000.00 withdrawn by Mary on July 18, 2008, this court’s recollection is that Mary admitted in testimony to withdrawing that amount. With respect to the amount of $44,000.00, also drawn on July 28, 2008 from account #1168, I find that the withdrawal of that amount is confirmed in Exhibit 39 and that, in fact, that amount was transferred to account #6002190 whose sole owner is Dr. Mary Syty-Golda. Accordingly, Mary is ordered to reimburse Bronte half of that total amount of $75,000.00, namely, $37,500.00.
[57] In addition to the further amounts of $6,000.00 withdrawn by Mary between the months of February 2009 and July 2009, I find that those withdrawals were confirmed by Mr. Philip Campbell of the RBC in his letter of March 19, 2012 at Tab 3 of Exhibit 63. Part of the letter reads as follows:
I can confirm that for the period February 2009 to July 2009, inclusive, retirement contribution savings of $1,000.00 were deducted from the caption account for credit to the RBC retirement savings plan of Dr. Mary Syty-Golda.
The caption account referred to by Mr. Campbell was RBC account #6001168 (also known as #1168) in the names of Bronte and Dr. Mary Syty-Golda. Accordingly, I find that Mary must reimburse Bronte a further $3,000.00.
[58] As for the amount of $26,624.00 from account #102-922-2, I have Bronte’s explanation that it was with monies deposited into Bronte’s new family health team account and was set aside for the purposes of services. I find that there is no evidence offered by Mary to satisfactorily counter that explanation. Therefore, I find that those monies have been neutralized and were set aside to provide ongoing medical services.
[59] With respect to the amount of $28,876.00 I note in Exhibit 40 that it appears to be a transfer from branch to branch. I do, however, have Bronte’s admission that he, in fact, used those monies. The difficulty I have had is to find any evidence that would unequivocally demonstrate that the amount was paid for income tax purposes including whose income tax the payment represented. Since I do not have the clear evidence which I require, and since the money was taken from the joint account, Bronte is to reimburse Mary one-half of that amount.
[60] With respect to the amount of $42,400.00, I disagree with Ms. Hughes’ submission that no evidence was tendered by either party during the examination-in-chief of March 29, 2012. Mary was asked the following questions and gave the following answers:
Q. Sorry, hang on one second, you know what, let’s start with November 18, 2008. That’s the last page. And there is a debt memo there. Do you want to tell us about that?
A. Yes. That was transfer of funds of $42,400.00.
Q. Okay and who took the transfer?
A. I believe Dr. Golda took the transfer.
Q. Okay, do you know the reason for it?
A. No, I do not.
Q. Oh, okay.
Inasmuch as I do not have evidence from Bronte that, he, in fact, denies moving those monies from that joint account, I find that Bronte did remove monies from that account without explanation. Therefore, I order that he reimburse Mary for one-half of that amount.
[61] With respect to the amount of $9,312.00, Mary testified that it was “Dr. Golda’s withdrawal” and, therefore, I find that Bronte must reimburse Mary one-half of that amount. With respect to the remaining monies, namely, $922.00; $4,152.00; and $1,050.00, in my review of the evidence, I find there is really no clear explanation from either party and, therefore, I find that those monies are to be equally distributed to the parties.
Monies Taken from Joint Account #1287
[62] During her testimony, Mary testified that Bronte had taken certain monies from account #1287. Specific cheques related to that account were admitted into evidence. Mr. Clarke, in his submissions, made reference to the specific cheques from that account and Mary, as part of her testimony, provided an explanation “according to her recollection” as to how the monies were spent.
Submissions by Mr. Clarke
[63] Mr. Clarke made submissions which I have reproduced as follows:
Bronte’s CIBC Visa #2438 – March 15, 2008 – cheque #4828 - $2,590.00 (Exhibit 56)
Mary had expenses of $950.00; Bronte had expenses of $4,217.72.
Bronte paid $2,590.00 from joint account. Half was Mary’s. Bronte used $1,295.00 of Mary’s money to pay $950.00 of her debt.
Bronte owes Mary $345.00.
Bronte’s Amex #3500 – May 15, 2008 – cheque #4837 - $3,048.24 (Exhibit 59)
Mary had expenses of $417.02. Bronte had expenses of $2,631.32. Bronte paid $3,048.29 from the joint account. One half was Mary’s. Bronte used $1,524.12 of Mary’s money to pay $417.00 of her debt.
Bronte owes Mary $1,107.10.
Bronte’s CIBC Visa #2438 – May 15, 2008 – cheque #4834 - $3,833.69 (Exhibit 57)
Mary had expenses of $1,018.85. Bronte had expenses of $4,702.89. Bronte paid $3,833.68 from the joint account. One half was Mary’s. Bronte used $1,916.84 of Mary’s money to pay $1,018.85 of her debt.
Bronte owes Mary $897.99.
Bronte’s Amex #3500 – August 15, 2008 – cheque #4449 - $3,642.08
Mary had expenses of $603.42. Bronte had expenses of $3,038.42. Bronte paid $3,642.08 from the joint account. One half was Mary’s. Bronte used $1,821.04 of Mary’s money to pay $603.42 of her debt.
Bronte owes Mary $1,217.62.
Bronte’s CIBC Visa #2438 – September 18, 2008 – cheque #4482 - $5,074.60 (Exhibit 58)
Mary had expenses of $6,225.94. Bronte had expenses of $2,446.67. Bronte paid $5,074.60 from the joint account. One half was Mary’s. Bronte used $2,537.30 of Mary’s money to pay $6,225.94 of her debt.
Mary owes Bronte (3,688.64).
Bronte’s Amex #3500 – September 16, 2008 – Cheque #4475 - $3,132.92 (Exhibit 59)
Mary had expenses of $2,169.98. Bronte had expenses of $962.94. Bronte paid $3,132.92 from the joint account. One half was Mary’s. Bronte used $1,566.46 of Mary’s money to pay $2,169.98 of her debt.
Mary owes Bronte ($603.52).
Bronte’s Amex #3500 – October 17, 2008 – cheque #4487 - $5,821.87 (Exhibit 59)
This was for a “conference in Italy”. Bronte paid $2,613.60 from the joint account. One half was Mary’s.
Bronte owes Mary $1,306.80.
Bronte’s Amex #3500 – October 16, 2008 – cheque #4487 - $5,821.87 (Exhibit 59)
This was for a “conference in Rome”. Mary had expenses of $493.77. Bronte had expenses of $5,328.10. Bronte paid $5,821.27 from the joint account. One half was Mary’s. Bronte used $2,910.63 of Mary’s money to pay $493.77 of her debt.
Bronte owes Mary $2,416.86.
Bronte’s CIBC #2438 – October 16, 2008 – cheque #4491 - $2,547.06 (Exhibit 59)
Mary had expenses of $34.30. Bronte had expenses of $2,444.07. Bronte paid $2,547.06 from the joint account. One half was Mary’s. Bronte used $1,273.53 of Mary’s money to pay $34.30 of her debt.
Bronte owes Mary $1,239.23.
Bronte’s Amex #3500 – December 16, 2009 – cheque #4493 - $6,480.00
Bronte paid $6,480.00 from the joint account for rims/tyres. One half was Mary’s.
Bronte owes Mary $3,240.00.
Amitours – January 26, 2008 – cheque #4872 - $2,900.00 (Exhibit 59)
Bronte paid $2,900.00 from the joint account to pay for a trip to a medical conference. One half was Mary’s. Bronte used $1,450.00 of Mary’s money.
Bronte owes Mary $1,450.00.
Bronte’s CIBC Visa #2438 – December 15, 2008 – cheque #4506 - $1,647.94 (Exhibit 59)
All of the expenses were Bronte’s. Bronte paid $1,647.97 from the joint account. One half of the money was Mary’s. Bronte used $823.97 of Mary’s money.
Bronte owes Mary $823.97.
A present for his employee “Paul” – cheque #4548 - $1,000.00 (Exhibit 59)
This was Bronte’s expense only. Bronte paid $1,000.00 from the joint account. One half of the money was Mary’s. Bronte used $500.00 of Mary’s money.
Bronte owes Mary $500.00.
Bronte’s trip to Italy – cheque #4492 - $2,613.60 (Mary’s Direct examination)
This was Bronte’s trip to Italy. He used joint funds to pay for this.
Mary is entitled to one-half of this amount or $1,306.80.
The total amount owing by Bronte to Mary in relation to the joint account #1287 (other than the Mercedes) is $11,559.21.
Submissions by Ms. Hughes
[64] Ms. Hughes submits the following from her written submissions which I have also reproduced:
Monies drawn from Account #1287
The calculations provided in the Respondent’s submissions do not account for the separation of business from personal expenses. The Applicant gave detailed evidence with respect to his role in reviewing and ensuring payment of all joint credit card invoices. He explained that the parties made personal and business purchases and that he would separate same and ensure payment from the appropriate accounts.
The parties both derived a benefit from the deduction of any business related accounts, as they were, at the relevant times, operating in a joint practice. The Respondent essentially seeks to ignore this benefit and have the Applicant, three and a half years after the fact, bear the entire burden of the business related expenses.
Analysis and Conclusion
[65] Because I did not have the benefit of a forensic accountant, I found this area particularly difficult to discern and drew my conclusions mainly based on Mary’s very specific evidence although I disagree with some of the calculations.
[66] Bronte’s general reference to his use of monies from that account, sometimes to cover business expenses and sometimes to cover personal expenses, I cannot tell from my review of the cheques themselves, with one exception, which monies were used for business expenses and which monies were used for personal expenses. What I do have for my consideration are not only the cheques, but the various credit card statements setting out the debits of both parties which I have viewed and analysed. Along with the documentary evidence, I find that the best evidence, for the most part, in these particular circumstances is the testimony of Mary with respect to how these monies were used. Therefore, I have drawn the following conclusions.
With respect to cheque #4828 in the amount of 2,590.00, I agree with Mr. Clarke’s submissions and calculations with respect to this particular cheque and find that Bronte owes Mary the amount of $345.00
With respect to cheque #4837 in the amount of $3,428.24, I find that inasmuch as Mary’s debt was paid in full from this account, I find that she is entitled to one-half of the remaining surplus in the amount of $3,833.68. I agree with Mr. Clarke’s calculation find that Bronte owes Mary in the amount of $897.99.
With respect to cheque #4449 in the amount of $3,642.08, in this particular case, I found that Mary’s account was paid in full and, therefore, she is entitled to one-half of the remaining surplus after full payment of her account.
With respect to cheque #4482 in the amount of $5,074.60, I find that both parties are entitled to one-half of the amount paid by Bronte and, therefore, there is no adjustment to be made with respect to this particular cheque.
With respect to cheque #4475 in the amount of $3,132.92, I agree with Mr. Clarke’s calculation and find that Mary owes Bronte $603.52.
With respect to cheque #4487 in the amount of $5,821.87, I agree with Mr. Clarke’s calculation and find that the amount spent was for a conference in Italy which Bronte attended and, therefore, the amount owed to Mary is the amount of $1,306.80.
With respect to cheque #4487 in the amount of $5,821.87, again, I agree with Mr. Clarke’s calculation and find that the monies spent by Bronte was for his conference in Rome and, therefore, Bronte owes Mary the amount of $2,416.86.
With respect to cheque #4491 in the amount of $2,547.06, I note that the memo on the cheque was marked as office and, therefore, I find it was a business expense and there will be no adjustment and no monies owed to Mary.
With respect to cheque #4493 in the amount of $6,480.00, I find that Mary has already been credited with that amount previously in this decision in my reference to the expenses incurred for the Mercedes-Benz, therefore, there will be no amount owing by Bronte to Mary.
With respect to cheque #4872, I accept Mary’s testimony and find that Bronte owes to Mary $1,450.00.
With respect to cheque #4506 in the amount of $1,647.94, I find that all those expenses were indeed Bronte’s and, therefore, I find the amount owing to Mary is $823.97.
With respect to cheque #4548, I accept Mary’s testimony and find that Bronte owes to Mary $500.00.
With respect to cheque #4492, I accept the testimony of Mary with respect to this amount and find that Bronte owes Mary the amount of $1,306.80.
Counsel are to make the final calculations with respect to this particular category.
Claims made by Bronte under Exhibit 37 which was updated under Schedule B of Ms. Hughes’ submissions
[67] The following were the claims made by Bronte as set out under Schedule B of Ms. Hughes’ submissions which updated Exhibit #37:
Property taxes (1/2 total amount) $11,442.65
Overdraft interest (on Acct. #1168) $ 1,693.03
Respondent’s personal draws
(July ’08) Acct. #1648 (1/2 total amount) $15,500.00
Respondent’s personal draws (Feb. To
Dec. ’08) Acct. #1287 (11x$5,000.00 –
½ total amount) $27,500.00 Respondent’s personal draws (RRSP)
Account #1168 $ 6,000.00
Respondent’s personal draws
Acct. #1168 (1/2 total amount) $22,000.00
Cogeco (Jan. To Nov. 2009) $135.00 x 11 mos) $ 1,325.34
Chubb Insurance – Jan. 2009 – Sept. 2010 $ 7,344.72
Lock Smith $ 337.05
Awning Motor $ 929.25
Vacuum Replacement $ 847.50
Action Pest Control $ 210.00
Lily Pond Care $2,205.00
Snow removal (1/2 cost) $ 294.00
Rug cleaning (1/2 cost) $ 31.50
Eaves Repair (1/2 cost) $ 150.94
Raintree Irrigation $ 329.70
Action Window cleaning $ 245.00
Burkhard Novak $9,070.25
Marriott Fees (Jan. 2009 – present) $3,958.59
Klotz Restoration (repairs to Secretariat) $1,500.00
Wine Cooler Replacement $ 699.99
Total $113.614.51
[68] With respect to the claims as set out by Bronte in Schedule B, Mary has agreed to pay the following amounts:
Property taxes $11,442.65
Personal draws from #1648 $15,500.00
Personal draws from #1287 $27,500.00
RRSP $3,000.00
CHUBB $3,672.36
Locksmith $168.52
Awning motor $464.62
Vacuum $423.75
Pest control $105.00
Lily pond $367.50
Snow $294.00
Rug $31.50
Action windows $122.50
Burkhard Novak $4,535.12
Marriott Fees $1,035.22
$70,657.60
In many cases the amounts are one half of the amounts claimed by Bronte. These expenses should be shared by the parties except as otherwise indicated.
The total amount owing by Mary to Bronte is $70,657.60.
I find, therefore, that Mary is to reimburse Bronte in the amount of $70,657.60.
[69] The items in which Mary is not prepared to share expense are the repairs to the secretariat; the wine cooler; the eaves repairs; and the Raintree Irrigation. However, there appear to be invoices associated with these amounts and I find with respect to the eaves repairs, Raintree Irrigation and wine cooler, that they are all legitimate expenses. The two former expenses relate to the matrimonial home and the wine cooler relates to the parties’ wine collection. Accordingly, I find that Mary is to reimburse Bronte for one-half of these amounts except for the Raintree Irrigation. In my review of that invoice, it appears that the entire amount is $329.70. Therefore, Mary is to reimburse Bronte for only half of that amount. With respect to the secretariat, I do not have any evidence before me to suggest Mary was responsible for any damage to the secretariat and, therefore, Bronte’s claim with respect to that particular amount is dismissed.
Joint Loans
[70] It is not disputed that Mary paid the sum of $52,294.73. This payment of the joint loan was confirmed by Exhibit 41 which is a letter from Darren Fairfield of the Royal Bank confirming this payment was made solely by Mary. Mr. Clarke is claiming reimbursement of one-half of that amount. Ms. Hughes submits that Bronte is prepared to make one-half of the payment less service charges and interest which she submits that Mary confirmed were claimed as business deductions during this period.
Analysis and Conclusion
[71] I find that Mary did, in fact, make that claim and given that she benefitted from those deductions for income tax purposes which, I find, total $6,653.92, I find that Bronte owes to Mary the amount of $22,820.40 which represents half of the debt less interest and service charges.
Wine Storage and Transportation
[72] Mary is claiming one-half of the expense for wine storage which amounted to $3,778.66 in accordance with the invoice sent to her by Mark Russell of Fine Wine Reserve. Mr. Clarke submits that Mary, who chose not to allow Dr. Pakozdi to store the wine in his cellar at his home, opted justifiably, to retain Fine Wine Reserve.
[73] Ms. Hughes submits that, inasmuch as the son, Christopher, had divided the wines as of December 23, 2010, there was no justification for the wines to remain in storage until February 14, 2011 and although she submits her client is prepared to share some of the costs, she further submits that Mary should be responsible for the expense for the wine storage as of December 23, 2011 since she, for no justifiable reason, delayed release of the wines as of November 17, 2010. Moreover, Ms. Hughes submits all costs could have been avoided had Mary allowed Dr. Pakozdi to store the wine in his cellar.
Analysis and Conclusion
[74] Given the value of the wine, I accept that Mary’s choice not to allow Dr. Pakozdi to store the wine in his premises and instead retain Fine Wine Services was not unreasonable in the circumstances. However, once the wine had been divided by the son, Christopher, I find there was no justification for the wine to remain in storage for an additional two months. In that regard, Mary did not provide this court with a reasonable explanation. Therefore, I find that Bronte should equally share the expense for the wine storage only up to and including December 23, 2010 and that Mary is solely responsible for the additional expense incurred from December 23, 2010 on or until the date in which Bronte’s share of the wine was released to him.
Bronte’s Payment to Amex Written on Mary’s Account on February 15, 2008
[75] Exhibit 18 is a cheque written by Bronte on the account of Mary in the amount of $4,825.00. I agree Mr. Clarke’s submission and Bronte admitted to signing that cheque on re-examination, therefore, I order that he reimburse Mary for the full amount.
Bronte’s Wage Loss Claim From Motor Vehicle Accident Which Occurred in 2003
[76] Mr. David Smye, who represented Bronte for his claim of the motor vehicle accident of 2003, testified that at a mediation in December of 2006, Mr. Smye proposed, on behalf of his client, that his client’s short term economic loss should be $40,000.00. That proposal was countered by the defendant in the amount of $20,000.00 but was never formalized. Ms. Hughes submits that because it was never formalized, that all but $20,000.00 should be excluded from Bronte’s net family property statement.
[77] Mr. Clarke submits that, in fact, the income loss should be calculated to be approximately $60,000.00 since the separation between the parties occurred five years after the motor vehicle accident and, therefore, it would be reasonable to add another $20,000.00 to represent current value of that amount.
[78] In my review of Mr. Smye’s evidence, I do note that his estimate of Bronte’s income loss was $40,000.00 plus $3,000.00 interest. I find whether or not it was formalized, the only evidence I have is Mr. Smye’s estimate and, accordingly, I find that the amount of $43,000.00 should be added to Bronte’s net family property statement.
Net Family Property Statements and Equalization
[79] In my review of the parties’ net family property statements, for the most part, the parties agree on the valuations. However, there are a few exceptions. Those exceptions have already been considered in my decision, and specifically, with respect to the jewellery, and the parties’ different valuation, I accept the evaluation of Mary. Secondly, with respect to the proceeds from the motor vehicle accident, I have already fixed the amount at $43,000.00.
Orders on Consent
[80] On the presumption that the parties have consented, I make the following orders which I have extracted verbatim from Ms. Hughes’ submissions to which Mr. Clarke responded:
An Order that the Respondent transfer her title to Unit 102, 432 Main Street East, within 30 days of the date of the Order, and that the Respondent shall bear the costs related to this transfer.
An Order that the Applicant transfer his title to Unit #101, 432 Main Street East, within 30 days of the date of the Order, and that the Applicant shall bear the costs related to this transfer.
An Order that the parties’ interest in the Marriott vacation property be sold and the proceeds divided equally between them within 30 (thirty) days of the Order.
Property in Italy
[81] With respect to this property, about which this court has heard no evidence, there appears to be no resolution. Counsel may address this issue before me on what they consider to be possible options.
Conclusion
[82] In my review of the evidence presented at this trial I made my findings based on what I consider to be the best evidence since I note that the parties chose not to use the services and, ultimately, the expert evidence of a forensic accountant. My findings clearly affected, changed and modified each party’s claims against the other. It is possible that throughout my decision I may have made some findings that conflict with either party’s admission as to the amount owing to the other party. If, in fact, my findings do conflict with those admissions, then in each case, admissions by each party will prevail. As well, any duplication is to be omitted.
[83] Further, because my findings have resulted in a significant number of monetary adjustments and in order to ensure accuracy, counsel are asked to make the final calculations. Once those calculations are made, if counsel cannot agree, I may be spoken to on any disputed issues. Otherwise, counsel are to prepare for me a draft order for my review to enable me to formalize my findings as it pertains to final distribution of the monies. However, this is not intended to delay the release of any monies to which the parties are able to agree, and I so order. Calculations to which the parties are unable to agree are to remain in trust.
[84] As for the issue of costs, counsel will prepare written submissions of no more than five pages in length. I will be pleased to speak to counsel with respect to the timelines within which submissions are to be completed and filed. In closing, I wish to thank counsel for providing me with their very well organized and very helpful written submissions.
Mazza, J.
Released: November 28, 2012