SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: D-18,867/09
DATE: 20121206

RE: Monique Clement, Applicant

AND:
Robert Clement, Respondent

BEFORE: Madam Justice L. L. Gauthier

COUNSEL:
James Longstreet, Counsel, for the Applicant
Matti E. Mottonen, Counsel, for the Respondent

HEARD: December 6, 2012

ENDORSEMENT

[ 1 ] The Husband seeks an Order requiring the Wife to obtain a formal valuation of her 25 shares in CBI Sudbury Limited Partnership, as of the valuation date of July 29, 2009.

[ 2 ] The Wife opposes the motion. She says (a) the shares have no value, (b) she cannot afford the cost of a formal valuation, and (c) she has discharged her primary onus of establishing the value of the shares by providing the opinion of B. Rilling that the shares have nominal value.

[ 3 ] The case law is clear that the primary onus of establishing the value of an asset owned by a party resides with that party. The onus is met on a balance of probabilities. See Boisvert v. Boisvert 2006 23145 (ON SC), 2006, 40 R.F.L. (6 th ) 137 and Menage v. Hedges, 1987 5234 (ON SC), [1987] O.J. No. 1512.

[ 4 ] The only evidence the Wife has provided with regard to the value of the shares is an email from B. Rilling, the “main officer of the company”, to the Wife indicating the following:

I have prepared the valuation as requested.

Given the negative earnings stream, the shares would have a nominal value.

[ 5 ] There is no evidence of what qualifications B. Rilling has, what his role is in the company, or what information other than the income stream, that he might have relied upon to conclude that the shares have little or no value.

[ 6 ] The Wife has also provided the Financial Statements for CBI Sudbury Limited Partnership for the period ending December, 2009. Those statements show a loss to the operation for that year. I cannot, however, from that information, extrapolate that the Wife’s shares are worth nothing. It may be that the shares are worthless as of the valuation date, but I cannot conclude that on the evidence before me.

[ 7 ] I cannot, based on the limited evidence provided by the Wife, conclude that she has met her onus to provide “credible evidence” as to the value of the asset. See Conway v. Conway, 2005 14136 (ON SC), [2005] O.J. No. 1698.

[ 8 ] That being the case, the Wife cannot simply take the position that the Husband should pay for all or even part of the cost of obtaining a formal valuation of his own.

[ 9 ] While I recognize that my Ruling may cause hardship to the Wife, the case law is clear that she has the onus of providing credible evidence in support of the value (or lack of value) that she asserts, and, having failed to do that, she must obtain an independent valuation, at her cost. Di Luca v. Di Luca, 2004 5044 (ON SC), 2004 1 R.F.L. (6 th ) 162.

[ 10 ] IT IS ORDERED that the Wife obtain a formal valuation of the 25 shares in CBI Sudbury Limited Partnership, as at the valuation date.

[ 11 ] If the parties cannot agree on the costs of this motion, they are to communicate with the Trial Coordinator within twenty (20) days of this Ruling, in order to set a date and time to argue costs.

Madam Justice L. L. Gauthier

Date: December 6, 2012