ONTARIO

SUPERIOR COURT OF JUSTICE

OWEN SOUND COURT FILE NO.: 10-7455M
DATE: 20120208

B E T W E E N:

LEIGHTON JAMES VICKERS

Glenna G. McClelland, for the Applicant

Applicant

• and -

SALVATORE MARIE VICKERS

Errol Treslan, for the Respondent

Respondent

HEARD: January 27, 2010, By Teleconference

Price J.

Amended Endorsement

(Amending Citation Vickers v. Vickers, 2012 ONSC 847,
Endorsement released February 3, 2012)

NATURE OF MOTION

[1] The parties have requested directions from the Court on three issues pursuant to my Order dated January 7, 2011, namely:

a) The price at which the former matrimonial home is to be listed for sale;

b) The division of household contents;

c) Disclosure of documents requested by Mr. Vickers in a Request to Admit dated January 20, 2011.

[2] Having heard the submissions of counsel at a teleconference on January 27, 2012, and having reviewed the letters dated January 25 and January 31, 2012, from Ms. Vickers counsel, and dated January 27, 2012, from Mr. Vickers’ counsel, I will now deal with these issues.

a) Listing Price of the Matrimonial Home

[3] My Order dated January 7, 2011, directed the parties, by January 18, 2011, to agree upon and retain a real estate agent to sell the property and a certified real estate valuator to provide a valuation of the property, at a cost to be borne equally by them and to be reimbursed from the proceeds of sale. The order then provided:

5. The house shall be listed for sale by no later than February 28, 2011. The parties shall, before that date, agree in consultation with a real estate agent, on an initial listing price. In the event of disagreement as to the selection of real estate agent (or valuator) or as to the listing price, or as to any matter in relation to the sale of the house, either may seek directions from this Court, on short notice, by teleconference, which may be provided in the form of a letter from counsel, with relevant attachments, which may be provided to this Court by fax or e-mail, by arrangement with my judicial secretary.

[4] The parties did not comply with my Order. Mr. Vickers’ counsel writes, in her submissions as to the costs of the teleconference:

Immediately after Court, the parties agreed that the expense of retaining a “certified real estate valuator” to provide a value to the real estate agents, who would be experienced agents, was not required. The parties agreed that they would each have an agent who could choose a third if a value could not be agreed. This did not occur.

[5] The consequences of the parties’ non-compliance is described by Ms. Vickers’ counsel:

On March 15, 2011, we invited Mr. Vickers’ solicitor to provide us with a proposed listing agreement. No such listing agreement was ever provided.

On April 21, 2011, Mr. Vickers’ solicitor delivered a report from real estate agent Bruce Revell which opined a “value range” of $295,000 - $315,000 but, “because of needed work, repairs and conditions that were visible at the time of inspection” suggested that the property had a value of $295,000.

On July 21, 2011, we wrote Mr. Vickers’ solicitor to advise that the wife had nominated realtor Randy Byars as a co-listing agent and that we had requested that Mr. Byars immediately prepare a listing agreement.

One month prior to the parties’ agreed date of separation (i.e. September 18, 2008), the fair market value of the matrimonial home had been appraised at $357,000. The same appraiser returned to the property (at the request of the wife) on September 2, 2011 and has opined that the fair market value of the property was $306,000 as of that date.

On or about October 3, 2011, Mr. Byars delivered a proposed listing agreement to Mr. Revell. The listing agreement provided that the matrimonial home would be listed for sale at an asking price of $310,000.

On or about November 6, 2011, Mr. Revell wrote Mr. Vickers’ solicitor and advised that, in his opinion: “the asking price should be no more than Two Hundred and Ninety-five Thousand Dollars ($295,000)… I am not sure how this can be resolved.”

On November 8, 2011, Mr. Vickers’ solicitor wrote me to advise that Mr. Revell believed the value of the home was in the range of $250,000 and asking whether Ms. Vickers was now prepared to list the property at $250,000.

Over a year following Justice Price’s Temporary Order, Mr. Vickers remains in possession of the matrimonial home and it has not been listed for sale.

[6] Had the parties complied with the Order dated January 7, 2011, they would either have agreed on the selection of a certified real estate valuator or, in the event of disagreement, would have sought direction from the Court on their selection at the time, by letters setting out the qualifications of the valuator each proposed. A selection could then have been made and, based on a single valuation, a listing price would either have been agreed upon or, in the event of disagreement, a price would have been set by the Court.

[7] Mr. Byars, on behalf of Ms. Vickers, has now proposed that the property be listed at $310,000.00. Mr. Revell, on behalf of Mr. Vickers, has proposed that it be listed at $250,000.00. The property will be listed forthwith at $310,000.00. If it is not been sold within 30 days, the price shall be reduced to $295,000.00. If it still is not sold, the price shall be further reduced to $250,000.00. If either of the parties purchases the property, he or she shall pay all the costs of sale, including the real estate commission, and shall assume any liens.

b) Household Contents

[8] My Order dated January 7, 2011, provided, in part:

9. The parties shall, by January 18, 2011, agree upon and retain an auctioneer to sell all chattels jointly owned by the parties on the date of separation, in whosoever’s possession those chattels may be now. In the event of disagreement between the parties as to which chattels were or were not jointly owned on the date of separation, or as to any matter in relation to the retaining of an auctioneer and the sale of the chattels, either party may seek directions from this Court in the manner described in paragraph 5.

[9] The parties also did not comply with this term of the Order. Ms. Vickers’ counsel asserts that on July 21, 2011, Mr. Vickers’ solicitor advised that his client refused to have an auction of the chattels conducted at the matrimonial home, and suggested that the auction take place at a location south of Owen Sound. This would have required the transport of the chattels a distance of over 30 kilometres.

[10] On July 27, 2011, Ms. Vickers’ solicitor responded, asking Mr. Vickers’ counsel to confirm that if the auction were held at the location he proposed, Mr. Vickers would pay the cost of transporting the chattels in his possession to the auctioneer and Ms. Vickers would do the same with the chattels in her possession. Ms. Vickers’ solicitor stated that his client would not be selling anything she had brought into the marriage or which she was entitled to exclude by virtue of inheritance or gift. She had already provided a list of the items to be excluded and asked for a similar list from Mr. Vickers of the chattels in his possession that were owned by him prior to the marriage or that should be excluded as gifts.

[11] Mr. Vickers’ solicitor responded on August 19, 2011, as follows:

The contents are disputed as to what Ms. Vickers seeks to exclude from the sale. She may not arbitrarily decide. Since she is not co-operating, I am instructed that Mr. Vickers takes the position that gifts and inherited property which was used by the family lost its excluded character and became family property and must be sold. If Ms. Vickers wishes to revisit her position in view of this I think a settlement can be achieved.

The auction contract you provided was for a very large auction not one such as we are dealing with. The auction must occur when the house sells in which case it could occur at the house. However, I assume Ms. Vickers is interested in getting the best prices which would, no doubt, occur at the location in Owen Sound. This is not a large auction which will attract a lot of buyers.

[12] The Family Law Act [1] allows a spouse to deduct the value of property that he or she owned on the date of marriage from the value of property owned on the date of separation for the purpose of calculating “net family property” to be equalized pursuant to section 5 of the Act. The Act defines “net family property” as follows:

4. (1) In this Part,

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting ,

(b) the value of property , other than a matrimonial home, that the spouse owned on the date of the marriage , after deducting the spouse’s debts and other liabilities….

[13] The Act excludes from net family property the value of any property that the spouse acquired by gift or inheritance from a third person after the date of marriage. It provides:

4.(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property :

1. Property , other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage .

[14] In Fraser v. Fraser , Pierce J. stated:

I accept the respondent’s evidence that the items identified in her evidence came from her mother’s estate and ought not to be included in her net family property . Ms. Fraser has not challenged the claims by Mr. Fraser as to items he inherited from family; these, too, shall be exempt from division. [2] [Emphasis added]

[15] The Court reached a similar result with regard to inherited furniture, with no dispute from the parties, in Wolfe v. Wolfe . [3]

[16] The Family Law Act provides, in section 4(3), that the onus of proof to establish deductions and exclusions is on the party claiming them. Pierce J., in Fraser , applied this provision in declining to exclude items claimed to have been gifted to Ms. Fraser during the marriage, on the ground that she had not established, on a balance of probability, that they had not been given to the family as a whole. He stated:

The petitioner took issue with his wife’s claim that certain other chattels represented gifts to her alone from her family… The nature of the items suggests they were given to the Fraser family; that is how they were used. They are to be included in the wife’s property.

The parties disagree as to whether the antique pine trunk was a Christmas gift to them jointly from the respondent’s parents or to the respondent alone. Apart from the conflicting evidence of the parties, there is no other evidence. The trunk was used in the parties’ master bedroom. I find that the respondent has not met the onus, on a balance of probabilities, of demonstrating the value of this piece should be excluded from her net family property. [4]

[17] Mr. Vickers asserts that inherited/gifted items were used as joint family property from the time they were received, which, in most cases, was many years ago. He states: “It is doubtful that Ms. Vickers has a claim that any are traceable in that all were converted to family property through usage.”

[18] Inherited property does not become part of family property through usage. While property that was received by a spouse as a gift also does not become family property through usage, the use of an item by the family, in the absence of other evidence, may sometimes support an inference that it had been intended as a gift to the family. Because this issue has not been addressed in the material counsel have provided, I will entertain further submissions on this issue.

c) Disclosure

[19] My Order dated January 7, 2011, provided in part:

10. Each party shall, within 7 days (that is, by January 14, 2011), deliver to the other a Request for Information in Form 20. Each party shall by February 18, 2011, comply with the Request for information received. In the event that any documents requested are not produced, the party who received the Request shall, by February 18, 2011, provide a sworn Affidavit setting out in detail the steps taken to obtain the documents and the reasons why they could not be produced, together with a direction to any third parties who may have possession of the documents, directing the third party to produce them, at the expense of the party to whom the Request for Information was addressed, directly to the solicitor who delivered the Request for Information. Any dispute arising from the Requests and ensuring disclosure may be resolved by either party applying to this Court in the manner described in paragraph 5.

[20] Mr. Vickers’ counsel sent a Request for Information to Ms. Vickers on January 20, 2011, as appears from the Affidavit of Service of Lori Leask, a secretary in Ms. McClelland’s office. Some of the documents were provided and others were not. No affidavit was provided and no application was made to the Court in a timely manner.

[21] Among the documents requested were the monthly statements for all of Ms. Vickers’ bank accounts for the period of two years prior to separation (September 18, 2008). Ms. McLelland followed up with a letter dated July 21, 2011, to Mr. Treslan, setting out the documents that still had not been produced. These consisted of the following:

a. R.B.C. savings account 07882-5058011. From this account, Ms. Vickers had provided the statement for only one month, namely, September 25 to October 24, 2008;

b. R.B.C. joint personal account 5493150. From this account, Ms. Vickers had provided the statements for only the six months June 1 to Dec. 4, 2008;

c. Wachovia joint chequing account 1180394077639. From this account, Ms. Vickers had provided the statement for only one month, namely, Sept. 19 to October 22, 2008;

d. TD joint account 0508179. From this account, Ms. Vickers had provided the statement for only one month, which Ms. McLelland did not identify;

e. RBC joint business account 07882 100-298-9. Ms. Vickers had provided the statement for only one month, namely September 4 to October 3, 2008;

f. RBC RIFF account 381-17380. Ms. Vickers had provided the statement for only one month, namely Nov. to Dec. 2009;

g. BNS joint savings 120621170422. Ms. Vickers had provided the statement for only one month, September 2008;

h. CI Investment account 70749056. Ms. Vickers had provided the statements for only one year, 2009;

i. RBC account 07882-5015896. Ms. Vickers had provided the statement for only one month, February 2010;

j. RBC account 07882-5041934. Ms. Vickers had provided the statement for only one month, August to Sept. 2008;

k. RBC account 07882-5057336. Ms. Vickers had provided the statement for only one month, February 2010;

l. RBC joint VISA 4512108904785138. Ms. Vickers had provided the statement for only one month, October 2008;

m. BMO Mastercard 5191230049543557. Ms. Vickers had provided the statement for only one month, October 2008;

n. Canada Trust joint account

o. RBC business account 07882-100-298-9. Ms. Vickers had provided the statement for only one month, Oct-Nov 2009;

p. RBC account 591-18018-1-8. Ms. Vickers had provided the statement for only one month, August 2008.

[22] I am acceding to Ms. Vickers’ counsel’s request that I extend the time for production for a further sixty days for the following reasons:

a) There was partial compliance with the Request for Information by Ms. Vickers.

b) The documents requested were voluminous and many had to be sought from financial institutions.

c) Neither party complied diligently with the Order, with the result that the disposition of the home and its contents and, therefore, the resolution of the property issues in the proceeding, has been delayed. A further short delay in the production of the remaining documents, in these circumstances, will not prejudice Mr. Vickers.

[23] The time for production of these documents will therefore be extended to March 30, 2012.

d) Costs

[24] This motion was made necessary, in large part, by both parties’ non-compliance with the Order dated January 7, 2011. In these circumstances, it is appropriate that each party bear his or her own costs of the motion.

CONCLUSION AND ORDER

[25] Based on the foregoing, it is ordered that:

1. The parties shall forthwith agree upon and retain a real estate agent to sell the property municipally known as 628 Hwy. #6, Wiarton (“the property”). If the parties are unable to agree, by February 10, 2012, on a listing agent, they each may, after that date, sign a non-exclusive listing agreement with a realtor of their choice and, in that event, shall forthwith fax to the other party’s solicitor a copy of the listing agreement they have signed.

2. The initial listing price of the property shall be $310,000.00. If the property has not been sold by March 10, 2012, the listing price shall be reduced at that time to $295,000.00. If the property has not been sold by April 10, 2012, the listing price shall be further reduced at that time to $250,000.00.

3. If either of the parties to this proceeding enters into an agreement to purchase the property, that party shall pay all of the costs of sale, including the real estate commission, and shall assume all liens.

4. If the parties are unable to agree as to any matter in relation to the sale of the house, either may seek further directions from this Court, on short notice, by telephone conference, which may be provided in the form of a letter from counsel, with relevant attachments, by fax or email, by arrangement with my judicial secretary.

5. In consultation with the real estate agent or agents, the parties shall take reasonable steps to ready the house for sale. These steps shall be completed by February 17, 2012. The cost of these steps shall be paid by Mr. Vickers, who shall be reimbursed for them from the proceeds of sale of the house, up to the amount of $1,500.00 unless the parties agree in advance and in writing to a greater amount. The payment of these costs by Mr. Vickers, and the reimbursement of them from the sale proceeds, shall be without prejudice to the rights of the parties at trial to claim a re-apportionment of responsibility for the costs, together with or separate from claims for occupation rent and a set off of expenses relating to the house from the date of separation to the date of closing.

6. The parties shall take all reasonable steps to facilitate and complete the process of selling the house. If either party fails to comply with this paragraph, the other party may apply to this Court to dispense with the non-cooperating party’s participation in the process of selling the house, which application may be by motion to me, on short notice, for hearing by teleconference, which notice may be provided in accordance with paragraph 4.

7. The net proceeds of sale of the property after payment of taxes, real estate commission, legal fees of the sale and standard adjustments, and after reimbursement of the costs referred to in paragraph 5, shall be held in trust in an interest-bearing trust account by the parties’ real estate solicitor pending written agreement of the parties or further court order.

8. The personal property listed by Ms. McClelland in the attachment headed “Sally’s Inherited”, to her letter dated January 27, 2012, with the exception of items 5, 30, 40, 44, 46, 52, 53 and 54, are hereby vested in Ms. Vickers, free of any claim for ownership or equalization by Mr. Vickers.

9. If the parties are unable to agree as to whether items 5, 30, 40, 44, 46, 52, 53 or 54 were gifted to Ms. Vickers alone, either party has leave to make further submissions to me by February 10, 2012, concerning the provenance of the items, for a decision concerning them, and as to the costs of the motion.

10. The parties shall try to reach agreement by February 10, 2012, on the division of the remaining items on the lists that they have provided, by each taking turns choosing one item. To deal with any items the division of which the parties have been unable to divide to their mutual satisfaction, Ms. Vickers’ counsel, in consultation with Mr. Vickers’ counsel, shall arrange a four-way meeting or conference call, by February 10, 2012, in which the parties and their lawyers can participate, the cost of which shall be borne equally by the parties. Mr. Vickers shall have first choice from the remaining contents, as he has lived in the matrimonial home since separation. Any differential in value will have to be considered by the parties in the selection process. Any agreement made pursuant to this paragraph shall not be binding unless signed by both parties and their lawyers.

11. If the division made pursuant to paragraphs 10 does not result in a division of all items that is mutually agreeable, then Mr. Vickers shall arrange for any items referred to in that paragraph which the parties have not divided to their mutual satisfaction to be sold at auction immediately thereafter, by a professional auctioneer, agreed upon by the parties or closest in proximity to the matrimonial home. The net proceeds of sale, if any, will be divided equally between the parties. If there is a shortfall on the sale, any expenses will be borne equally by the parties.

12. If any of the contents on one of the parties’ list cannot be produced for sale, the party who is not in possession of them shall, by February 25, 2012, secure a professional appraisal of the saleable value of that item from the auctioneer selected in accordance with paragraph 11, and provide it to the party alleged to have been in possession of them, who shall be required to reimburse half of the value attributed to that item to the other party.

13. The party in possession of any family photographs shall obtain and provide to the other party a professional estimate of the cost of reproducing them and shall, if requested, have them reproduced at his or her own expense (that is, at the expense of the party in possession of them), one half of such expense to be reimbursed by the party receiving the copies, unless that party signifies (s)he does not want them reproduced.

14. If there is any further dispute arising from the disposition of the household contents, either party may seek directions from the Court by written submissions, served on the opposing party, to which the opposing party shall have one week to reply, for a decision by me, unless I decide, based on the material received from the parties, that a further hearing is required.

15. Ms. Vickers shall, by March 30, 2012, produce to Mr. Vickers all documents requested in Mr. Vickers’ Request for Information dated January 20, 2011, including all the monthly statements for the following accounts for the period September 18, 2006, to September 18, 2008:

a. RBC savings account 07882-5058011;

b. RBC joint personal account 5493150, with the exception of the statements from June 1 to Dec. 4, 2008;

c. Wachovia joint chequing account 1180394077639;

d. TD joint account 0508179;

e. RBC RIFF account 381-17380;

f. BNS joint savings 120621170422, with the exception of the statement for September 2008;

g. CI Investment account 70749056;

h. RBC account 07882-5015896;

i. RBC account 07882-5041934, with the exception of the statement for August to Sept. 2008;

j. RBC account 07882-5057336;

k. RBC joint VISA 4512108904785138;

l. BMO Mastercard 5191230049543557;

m. Canada Trust joint account;

n. RBC account 591-18018-1-8, with the exception of the statement for August 2008;

and all the monthly statements from September 18, 2006, to the present for the following business accounts:

o. RBC joint business account 07882 100-298-9, with the exception of the statement for September 4 to October 3, 2008;

p. RBC business account 07882-100-298-9;

q. Date of marriage appraisal of Ms. Vickers’ Wiarton home.

16. If any of the above documents is not produced by March 30, 2012, Ms. Vickers shall, by that date, produce a sworn affidavit setting out in detail the steps she has taken to obtain the document, the reasons it could not be produced, any third party who may be in possession of it, and a signed direction authorizing and directing such third party to produce it, at her expense, directly to Mr. Vickers’ solicitor.

17. There shall be no costs of this motion.

Price J.

Released: February 8, 2012

OWEN SOUND COURT FILE NO.: 10-7455M
DATE: 20120208

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: LEIGHTON JAMES VICKERS Applicant

• and – SALVATORE MARIE VICKERS Respondent

AMENDED ENDORSEMENT
(Amending Citation Vickers v. Vickers, 2012 ONSC 847, Endorsement released February 3, 2012)

Price J.

Released: February 8, 2012

[^1]: Family Law Act , R.S.O., c. F 3, s. 4(2)
[^2]: Fraser v. Fraser , 2004 7038 (ON SC) , at para. 11
[^3]: Wolfe v. Wolfe , 2003 18219 (ON SC) , at paras. 27 and 28
[^4]: Fraser v. Fraser , above, at para. 12 and 13