ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL DORN McHALE
Applicant
– and –
SUSAN ALEXIS McHALE
Respondent
Self Represented
Kenneth W.J. Rhodes, for the Respondent
HEARD: May 28, 29, 30, 2013 and
June 25 and 26, 2013
DESOTTI, J.
A. The Facts
1The parties were married to each other on June 29, 1991. This was their second marriage and there were no children of this marriage. The parties separated on September 9th, 2005.
2Both parties also had substantial assets at marriage and substantial debts.
3During the course of the marriage the applicant husband worked at Bell Canada but is now pensioned. At one point in time, he did operate a bed and breakfast called Aunt Bea’s Bed and Breakfast and did some excavating work. The respondent works at Lanxess and earns approximately $73,000.00 a year as her annual income.
4Prior to the date of marriage, the respondent wife owned a home on a farm of 100 acres and as well some significant farm equipment.
5The outstanding issues that were not resolved prior to trial concerned the value of this farm equipment prior to the marriage and on the date of separation; the quantum of spousal support; and the applicant husband wanted his share of the proceeds of the revenue from the crops and the oil and gas lease.
6The value of the matrimonial home and other matters were resolved on May 28th, 2013 as partial minutes of settlement were filed with the court to constitute a separate order. Unfortunately, thereafter, the applicant could not remember that he had signed these partial minutes of settlement and took issue that his signature was in fact represented on these minutes of settlement.
7As a result, the secretary of the counsel for the respondent took the stand and affirmed that she had in fact witnessed the applicant’s signature on these minutes of settlement. Frankly, a review of the transcript of this filing on May 28th, merely affirms that the minutes were filed and my order was made thereafter.
8The first assertion that Mr. McHale had received a forensic lab report affirming a forged signature is contained in his submissions to me of August 9, 2013. Presently, the applicant has sent me another letter dated August 20th, 2013 that claims that his signature was forged. He indicated again that he had received a report from a forensic lab in Toronto and has forwarded this report to the Sarnia Police Services to investigate his allegations.
9I have not seen this report nor has any report ever been forwarded to me but obviously if this report is proven to be true and if either Mr. Rhodes or his secretary has been involved in some fraudulent conduct, this would or could impact on the values as reflected in these partial minutes of settlement.
10Nevertheless on a balance of probabilities, I find that the applicant did in good faith sign those minutes of settlement and for unexplained reasons forgot that he signed same.
11The allegations against Mr. Rhodes or his secretary are made without substance or any objective proof. Obviously, there will be a cost sanction against the applicant husband when I deal with the issue of costs as a great deal of time was spent in arguing or disputing the applicant’s signature on these minutes of settlement.
12Without making too much of this most unusual issue, there was a significant disconnect with respect to the applicant’s understanding of the concept of proof on a balance of probabilities as will be reflected in my determination of the values of certain farm equipment that existed at the date of separation.
13Furthermore, and out of an abundance of caution, I have asked both parties, the unrepresented applicant husband and the represented respondent wife, to provide me with written reasons so that there could be no confusion about what was said or what was emphasized in their respective submissions to me.
14Finally, on consent and by now order of this court, the respondent wife irrevocably waives any survivor benefit from her husband’s pension. The end result of this waiver and the Form 4 that the respondent wife has sent in to the pension administrator (see Exhibit 39) is that the husband’s pension should be increased by the amount that it had been reduced as a result of the wife’s entitlement to those survivor benefits.
B. Analysis
15The wife agrees to continue to pay the sum of $600.00 per month as spousal support. Without spousal support, the husband’s income was $43,634.16 and the SSA Guidelines would indicate that spousal support would be $480.00 and not $600.00. However, the respondent, through her counsel’s submissions to me, is content to continue to make the $600.00 per month spousal support award.
16I should indicate that the question of need, although raised by the applicant husband in his submissions to me, were never part of the directed evidence before me. Both parties own their respective homes and the present level of spousal support, from my perspective is more of a reflection of life style expenses than actual need.
17In the result, spousal support shall continue to be paid as previous ordered by Justice Rady. Should the applicant’s income increase as a result of the change in the survivor’s benefit, the respondent spouse is at liberty to make an application to vary downward this spousal support award.
18Before leaving this issue some claim orally was advanced by the applicant husband, although not in his written application, that he should receive ½ of the income from the gas and oil lease on the property and as well as ½ of her farming income (I say income but from a historical perspective this was noted as an income loss). Without going into any great depth on this issue, these revenues and expenses were included in the respondent’s income tax return, which was the basis for the spousal support award.
19I thus see no merit in this assertion and conclude that experienced counsel such a Mr. McHale’s former counsel, Mr. McFadyen, did not claim these monies in the original application because he knew as does the respondent’s counsel that all income (and appropriate expenses) must be included in the respondent’s income tax return. I note Exhibit 38 reflects the position of the respondent’s accountant that all appropriate expenses were included in her income tax filing.
20The secondly issue that was or became a most unnecessary matter to litigate concerned the value of the horses and horse equipment. After Mr. Webster was called by the respondent, the applicant then agreed to the value as reflected in Exhibit 36 (Net Family Property of the Respondent). This became a non-issue.
21Going back to the alleged forged partial minutes of settlement that purports to resolve the value of the properties on the date of separation; the contents of the wife’s home on the date of separation; and the return of certain items to the husband and adjustments thereon as shown in Exhibit 36, I see absolutely no merit in the applicant’s position. The values as reflected in those partial minutes of settlement that were presented to the court in the presence of Mr. McHale and then ordered by me to go as filed, in my view, accurately reflected a negotiated resolution of those issues.
22The remaining issues are most noteworthy. There were some of the husband’s household contents that were never produced for appraisal, nevertheless, I have proceeded on the basis that his contents were valued at $1,750.00 as reflected in Exhibit 36.
23The second issue is the most glaring reason why unrepresented parties should avail themselves of counsel or at least seek the input of counsel when there seems to be a conflict in the evidence that is to be adduced in the course of the trial. The principle dispute has arisen over the value of the respondent’s farm equipment at the date of separation.
24The applicant husband chose Great West Auctions appraisal to value this equipment (Exhibit 10), while the respondent wife chose Jack Morris (Exhibit 6).
25Mr. Morris testified in a very straight forward manner and indicated why he believed certain values were different than those of Great West Auctions. He indicated that he had 36 years of experience as an auctioneer and indicated on two occasions that his appraised values and the actual auction price came within 3 and 4 per cent of the auction sales (see Exhibit 3). He also indicated that he observed the condition of various pieces of equipment and explained why he attributed certain values to these pieces of equipment. His evidence as to the value of these pieces of equipment was very persuasive.
26This evidence was given on May 28th, 2013. Thereafter the procedure that was agreed to was that we would then hear from Great West Auctions through the testimony of a Mr. Stephens. This evidence was to be given on May 29th, 2013.
27Mr. Stephens was not present on May 29th, 2013 and thus I adjourned the trial to May 30th. I am advised by Mr. McHale that Mr. Stephens arrived late to court and thus this unfortunate delay should not be a concern. Nevertheless, and lacking clairvoyance, the trial was then adjourned to June 13th, 2013.
28The trial actually was adjourned again on June 13th, 2013 because of a scheduling problem to June 25th, 2013. I note that the appraisal that was produced had no date and certain pages were missing. When this was pointed out to Mr. Stephens he indicated that he could not find this appraisal in his files.
29In the result, we could not ascertain when the report was produced or the date of the appraisal report. This shortcoming obviously was significant and thus it should come as no surprise to anyone present at the trial that as between the evidence of Mr. Stephens and Mr. Morris, the evidence of Mr. Morris on a balance of probabilities was and is preferred.
30However, I would also note, as did counsel for the respondent, that some of evidence of Mr. Stephens about the circumstances surrounding the preparation or attendance for the preparation of this report was decidedly vague. Furthermore, no value was attributed to this machinery on the date of marriage although this was included in the report of Mr. Morris.
31Mr. Stephens stated at page 1 and 2 of his testimony as follows:
A. I, I remember being there. I don’t remember the dates, no….
A. It’s pretty vague
Q. In other words, what date did you appraise the equipment as of ?
A. I, I’m, as of the date of separation, is what…
Q. Well tell us what it is.
A. I, I don’t know.
32Although the applicant husband called Pastor Tim Brown and a John Eldon Langstaff to assist him in determining certain values of this farm equipment, none of their evidence was relevant with respect to issue of the value of this equipment. If there was a purpose in calling these individuals, the passing of time left their knowledge of this equipment or the farming operation in a ‘memory void’ and was of no assistance to the court.
33There were some significant differences between the values attributed to the farm equipment. Counsel for the respondent in his submissions to me highlighted certain differences and the rationale for same. One of the most significant differences was in the value was in the John Deere 8820 combine with 220 grain head.
34Mr. Morris valued this piece of machinery at $12,600 and Great West valued this at $23,000.00 to $25,000.00. However, Mr. Morris explained that this combine had over 4,111 hours on its engine, which he indicated was twice the normal number of hours. By inference in an auction, a prospective buyer would discount this combine precisely for that purpose. More importantly, Mr. Morris indicated that even if this combine had only a 100 hours and was in pristine condition, it never would fetch the value ascribed to it by Great Western Auctions.
35I should also note that in comparing the two appraisals, there were at least six instances when Mr. Morris had actually higher values for certain pieces of equipment than was attributed to them by Great Western.
36In the result, and for the brief reasons expressed, I conclude on a balance of probabilities that the appraisal of Mr. Morris in its entirety is preferred to that of Great Western and will form the basis for any valuation of the farm equipment.
37There were a number of other items that the parties agreed to in Exhibit 36 (NFPS) but there were some differences. I shall only deal with the differences. I accept the respondent’s wife determination of the value of the husband’s Dodge Ram at $25,000.00 and not $18,000.00 to $20,000.00 as indicated in the appraisal report of Great Western Auction. I come to this determination because Mr McHale did not give any evidence on why the value should be so significantly reduced from his purchase price of $26,995.00 some seven weeks prior to separation.
38I have no reason to accept the appraisal of Great Western Auction on this item. For reasons that I have already expressed about some of the other shortcomings that I determined in respect of their appraisal of the farm equipment and other chattels in the possession of the applicant husband, I prefer the evidence of the respondent wife.
39With respect to the retirement date as expressed by the respondent wife, I accept her evidence that she plans to retire at age 65. There is frankly no evidence before me to the contrary.
40I accept the husband’s value for the BMO account at $86.00 versus the wife’s value of $386.47 even though the wife’s value is one day before separation. This would change the amount owing to the husband of an additional $300.00 divided by two or an extra $150.00.
41The error with respect to her BMO account has been fully explored and explained by both the respondent wife and in the clear and direct submission of her counsel. Without any doubt, this mistake is apparent and obvious and was certainly not any purposeful contrivance by the respondent wife (see also Exhibit 1, Tab 13).
42The insurance prepaid premiums of $4,161.00 paid by the respondent wife are accepted as accurate and was not the subject of any evidence given by the applicant husband.
43In Exhibit 1, Tab 2 is the appraised value of the respondent wife’s contents, farm equipment and vehicles on the date of marriage as valued by Mr. Morris. The applicant husband disputes these items as existing on the date of marriage or their values.
44With respect to this disagreement, I prefer the evidence of the respondent wife and the evidence of Mr. Wardell who testified that he was responsible for all the equipment repairs over the years on this farm. He specifically remembers much of the disputed farm equipment as being present on this farm after the respondent wife divorced her first husband, a Donald Pigott.
45He remembered the two white tractors, Allis Chalmers WD 45, a B 414 International, a Case SE tractor, and all of the supporting equipment such as a combine, drum spreader, and a pick-up truck.
46This evidence was direct not subject to any challenges in cross-examination, and was credible and corroborative of the respondent wife’s claim with respect to the value of her existing contents, farm equipment and vehicles on the date of marriage and is thus accepted as a deduction in the NFPS.
47Again Exhibit 1, Tab 17 affirms the sum contained with the bank accounts of the respondent wife on the date of marriage. There was really no contrary evidence on this position.
48With respect to Exhibit 36, I accept that the payout to the applicant spouse based on those items that were agreed to and those items that I have determined have properly been valued in the NFPS as $44,042.66. To this amount I would add the sum of $150.00 reflecting my determination with respect to the applicant’s BMO bank account. Thus the respondent wife shall pay to the applicant husband the sum of $44,192.66 within 30 days of this judgment.
C. Costs
49On the issue of costs, I would be remiss if I did not make it abundantly clear that at least during the trial proper, the conduct of the applicant spouse, although always polite, was a distraction to the resolution of the matter. His positions and evidence was not targeted or probative of any real disagreement. Most importantly, he did not appreciate how absolutely incongruous was his position with respect to the value of the farm equipment both at the time of marriage and at the date of separation.
50As I indicated earlier, faced with the absurdity, shortcomings, and embarrassment of the appraisal by Great Western Auction, there should have been no doubt that the values, as reflected in that appraisal, would be scrutinized and discounted. In short, facing that reality, any counsel would naturally conclude that in the compromise of that Great Western appraisal would lead a trial judge to accept the appraised values of the respondent’s wife’s appraiser, Mr. Morris. In that scenario, the resolution of the NFP or the conflict in the evidence concerning those values would or should be quickly realized in favour of the Morris appraisal.
51Instead, most of the trial, and I infer other attempts to resolve these property issues in the course of this litigation, were spent on these intractable positions and a steadfast belief and conclusions that the respondent spouse was engaged in wilful fraud and subterfuge. The applicant spouse’s submissions to me are replete with assertions of fraud, deception, and an attempt on the part of the respondent wife to subvert the course of justice and the evidence introduced during the trial. He stated, as part of constant theme in his submissions, “The trial was filled with lies and misleading statements”.
52The issue of costs is always a difficult matter when the emotions of a separation and divorce cannot be separated from the resolution of the family law issues. In this matter, on only a partial indemnity basis, I fix costs payable by the applicant husband to the respondent wife at $15,000.00 inclusive of disbursements and H.S.T..
53I have determined that costs should only be reflective on a partial indemnity basis because, on the issue of spousal support, there does seem to have been a small measure of success by the applicant spouse, at least at the motion court level.
54In the result, the sum of $15,000.00 shall be deducted from the amount that the respondent wife is ordered to pay the applicant husband. Thus the sum of $44,192.66 less $15,000.00 or $29,192.66 shall be paid by the respondent wife to the applicant husband within 30 days.
“Justice J.A. Desotti”
The Honourable Mr. Justice J.A. Desotti
Released: September 18, 2013.
COURT FILE NO.: 35/38/011742/06
ONTARIO
SUPERIOR COURT OF JUSTICE
MICHAEL DORN McHALE
– and –
SUSAN ALEXIS McHALE
REASONS FOR JUDGMENT
DESOTTI, J.
Released: September 18, 2013