COURT FILE NO.: 45576-11

DATE: 2013-12-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Karry Jackson

G.D. McLeod, for the Applicant

Applicant

- and -

Sandra Jackson

D. Olsen, for the Respondent

Respondent

HEARD: June 12, 2013 September 17, 18, 19, 20, 30, 2013 and October 1, 2013

THE HONOURABLE MR. JUSTICE G.A. CAMPBELL

ADDITIONAL REASONS FOR DECISION

I. Introduction

1At the conclusion of the oral evidence, I heard submissions from counsel on all issues, except for the sharing of the Child Tax Credit, costs and security for any costs order against the matrimonial home (should costs be granted to the Respondent).

2I gave brief oral reasons for my decision regarding the Respondent’s trust claim, the equalization payment ordered and the threshold issue of the availability to the Applicant of using hindsight evidence to determine the final equalization payment ordered. I advised that I would render additional and more fulsome reasons for rejecting Ms. McLeod’s invitation that the court should and could use hindsight evidence to fix the parties’ date-of-separation assets and debts.

3I ordered a transcript of counsel’s October 1, 2013 post-evidence submissions, then invited both counsel to submit written argument regarding the three remaining issues. I set a time line for those submissions, then proceeded to give oral reasons for (and made an endorsement of) an order regarding the constructive trust claim; title to the matrimonial home; household contents; the value of the Respondent’s corporation at the date of separation; equalization calculation amounts and the ultimate payment thereof; sale of matrimonial home; and exclusive possession of that home pending its sale.

4I have now received counsel’s written submissions regarding the remaining outstanding issues.

II. Hindsight Evidence in Calculating an Equalization Payment

5I have already somewhat addressed this aspect of the case during my oral reasons. I reiterate that I am entirely unpersuaded by Ms. McLeod’s argument that the case law that she presented establishes the regular use of such evidence. I confirm that Mr. Olsen’s response to each and every case presented by Ms. McLeod is the correct interpretation of the law. Further, I find entirely persuasive Mr. Olsen’s submission distinguishing the various cases offered and Ms. McLeod’s misinterpretation of the ratio of the cases that she believes supports the use of hindsight evidence as both appropriate and available in order to determine a final equalization payment.

6To be clear and to confirm my decision, I offer the following:

(a) Facts

7The Applicant husband (K.J.) and Respondent wife (S.J.) were married on September 20, 2003, and separated 6.5 years later on January 30, 2010. At the date of separation, the Respondent was in debt over $110,000. Over two years after the separation, the Respondent entered into a consumer proposal that provided for the reduction of the balance of that secured and unsecured debt from $110,000 to $27,000, to be paid over 60 months @ $450.00/month with no further interest or penalties accruing.

(b) The Parties’ Positions

8The Respondent’s position is that the total debt owed at the date of separation should be included in her NFP. The Applicant argues that the debt at the date of separation should be reduced in hindsight to reflect the effect of the consumer proposal, particularly the reduction of the debt owing to only $27,000.

(c) The Issue

9Should the Respondent’s valuation-day higher debt amount be included in NFP property calculations and should the equalization payment owed by the Applicant to the Respondent be based upon the full or the reduced debt amount?

(d) Some of the Case Law Presented

(i) Dababneh v .Dababneh 2003 1959 (ON SC), 2004, 48 R.F.L. (5th) 55

10Both the Applicant and Respondent cite and rely upon the Dababneh case. There, Mr. Dababneh co-signed a consolidation loan with his son for which they were jointly and severally liable. The son made monthly payments until his father’s separation from his mother , at which time the loan balance was $14,061. The bank then pursued Mr. Dababneh Sr. to make good on the loan. A payment was negotiated to settle the balance, interest and costs. At separation, this debt was a contingent liability of Mr. Dababneh Sr. The court extensively reviewed the case law that established the general principle that “hindsight” should not be used to determine a valuation-day value or debt. The court determined that due to his alignment with his mother, it was clear that the son had no intention of continuing loan payments. It was therefore possible through hindsight evidence to confirm in context that the debt was real and was actually going to be paid by Mr. Dababneh Sr. The court, therefore, allowed Mr. Dababneh to deduct the full amount of the contingent debt owing on valuation-day.

11Dababneh confirmed that a court should not take into account and assign value to property based upon events that occurred subsequent to the valuation day. (also see Best v. Best (1997), 1997 576 (ON CA), 156 D.L.R. (4th) 717). Any calculation of valuation must be performed with information available at the valuation date. (see Airst v. Airst (1998), 81 A.C.W.S. (3d) 107). Where it is unlikely that any liability would be incurred, or the risk was very remote, no deduction should be permitted. (see Johnston v. Johnston (1999), 86 A.C.W.S. (3d) 738)

12However, information gained post valuation-date is not without its use. Post valuation-day information is helpful to later confirm predictions or assumptions made at the time of valuation (see Airst, supra and Johnston v. Johnston (1999), 86 A.C.W.S. (3d) 738).

13The Court of Appeal decision in Roach v. Roach 1997 1020 (ON CA), 1997, 33 R.F.L. (4th) 157 (Ont. C.A.), appears to be the only case that does not follow the entire body of case law regarding the use of hindsight. In Roach, the trial court held that the wife would likely retire at 55, and used that retirement age to determine her benefit entitlement under a pension plan. The Court of Appeal confirmed this determination, relying in part on the fact that, post-separation, the wife and her new partner were enjoying a high standard of living and that she would likely retire early. That evidence did not exist at the time of separation. The O.C.A. did not give reasons why it permitted and relied upon that particular hindsight evidence. Accordingly, that decision offers no direction to a trial court on this issue.

Application of Dababneh to Jackson

14The Dababneh ruling, and the precedents relied upon to reach that decision, are applicable in this case. At the valuation date, Mrs. Jackson had a debt of about $110,000. It was not reasonably foreseeable then that Mrs. Jackson would enter into a consumer proposal, the effect of which would reduce her debt to $27,000. As argued by her counsel, reducing Ms. Jackson’s deduction would be improper, as hindsight evidence would have to be relied upon to determine that lower value.

15Hindsight evidence is only appropriately to be used to confirm prior predictions/ assumptions, not to determine the actual value of that debt or asset. This is a very important and significant difference. I accept Mr. Olsen’s able argument on that significant distinction.

(ii) Wood v. Wood (2004), 129 A.C.W.S. (3d) 750

16The Applicant also relies upon this case since that court took into account hindsight evidence. There, the husband and wife separated after 2 years of marriage and 17 years of cohabitation. The husband, who sold insurance at a brokerage firm, received a draw of $100,000 each year, which was then adjusted by the amount of sales commissions that he actually earned for the year. After separation, a letter of termination from the firm indicated that the husband was to repay a $45,000 shortfall between the $100,000 draw and the amount of commissions he actually earned that year. If husband was permitted to include that shortfall in his valuation-day calculation, he would only owe his wife $27,757.03, whereas if he was not permitted to do so his equalization payment increased to $50,257.53.

17The court held that the husband should NOT be permitted to treat the $45,000 amount as a debt. The husband had not demonstrated on a balance of probabilities, that he would have to repay the amount, as there had been no demand for re-payment by his former firm for two years.

18The approach taken in Wood, however, can be distinguished from the case at hand. In Jackson, hindsight evidence is sought to be used to determine the value of a debt. In Wood the hindsight evidence was not permitted so as to determine value, but to confirm that the debt would likely need not be repaid. Several courts have held (and I accept) that it is appropriate to use hindsight evidence to confirm predictions made at the date of valuation but not to set a valuation day value on evidence that later arises.

(iii) Poole v. Poole (2001), 2001 28196 (ON SC), 16 R.F.L. (5th) 397

19In Poole, former spouses owed the husband’s parents more than $80,000, evidenced by promissory notes. The money advanced was considered a debt, and the promissory notes were joint and several liabilities of both spouses. The court held that it was improbable, (but not impossible) that the husband’s parents would demand repayment from their son his half of the debt. Heeney J. discounted the value of the husband’s debt by 10 per cent of its face value for equalization purposes. He held that the court may value a debt in the same fashion as it values an asset. The discount was applied to reflect the fact that the husband would likely not be called upon to repay the debt.

20In Poole, the son’s debt repayment was unlikely and a reduction of the face amount owing was applied. Mr. Olsen argues that Poole can be distinguished since the information utilized in Poole (to determine the appropriate deduction) was available at the valuation date. He further argues that it would be improper, 2-3 years later after valuation day to reduce the Respondent’s deduction because the whole debt had not yet been called. He argues that to do so would be an improper reliance on hindsight evidence. I agree with this submission.

21Accordingly, based upon these and my previous oral reasons, I was (and am) persuaded to allow the Respondent a deduction for the full amount of the valuation-day debt. I then arrived at the equalization payment owing by Mr. Jackson to Ms. Jackson based upon that $100,000 amount. (inter alia)

III. Canada Child Tax Benefits (CCTB) and the Ontario Child Benefits (OCB)

22Is the Respondent entitled to all of the post-separation Child Tax Credits from January 30, 2010 until my Order of June 12, 2013.

23The Applicant’s position is that from separation the parties shared equal parenting of Nikkolas and that they are both entitled to an equal split of the tax credits. The Respondent asserts that from separation she had the full time care of their son and that the Applicant only exercised access to Nikkolas whenever his full time employment, his band commitments and his social life allowed. She says that arrangement continued for a year (just as it had during their earlier period of separation in 2008) until January 2011, when Mr. Jackson unilaterally decided to keep their son for one-half the time.

24The Respondent received all of the proceeds of the CCTB and OCB from separation until she made her consumer proposal (just over two years after separation). She testified that Mr. Jackson “agreed” to her receiving those benefits. Apparently she was wrong in that belief because unbeknownst to her, Mr. Jackson had made a claim to the CCTB and OCB for a retroactive re-adjustment of those benefits alleging an equal, de facto joint-custody arrangement from separation. He did not approach Ms. Jackson to negotiate any resolution of that issue before he surreptitiously made his claim.

25As a result of his claim, the Respondent is now required to reimburse CCTB and OCB $3,615.45 as a result of Mr. Jackson’s assertions and the government’s calculations.

26On this issue, I prefer the Respondent’s evidence as corroborated by much of the other evidence tendered the court surrounding the other events in the parties’ lives and approaches to their obligations as re-separated parents. Similar to much of their other evidence regarding their financial issues, Mr. Jackson's evidence was vague, spoken of in general impressions and without specificity. Ms. Jackson’s evidence however was detailed and specific.

27Therefore, I accept and find that post separation, for one year (until January 2011) Ms. Jackson was the primary care-giver of Nikkolas. For that period Mr. Jackson was an “access parent”. (when it fit his schedule) During that period, the Respondent was (and is) entitled to the full amount of both the CCTB and OCBs.

28Despite how it was effected by Mr. Jackson, I find that from January 2011 until my Order of June 12, 2013, the parties should have been (and shall) be entitled to one half of both sets of child benefits. Therefore, the debt/asset portions of the N.F.P. are to be adjusted accordingly.

IV. Roof Repairs

29I thought that I had already explained my decision regarding the roof repair debt to counsel, in court, during their submissions regarding how this debt was to be included in the N.F.P. findings and equalization payment calculation.

30Apparently counsel either believe that I had not considered and decided this aspect of the assets/debts or are confused whether it is already included in that final equalization amount.

31I have read both submissions on this issue and find that Mr. Olsen’s recollection of how I ruled is accurate.

32Accordingly, I accept Mr. Olsen’s comments found in para. 116 (page 3) of his written submission.

33The order shall be amended (if necessary) to include that change/confirmation of my finding.

IV. Costs

34Of course, costs considerations and orders are governed by Rule 24 of the Family Law Rules. As Broad J. observed at para. 3 f.f. of his costs endorsement in Lawder-Windsor v. Windsor, Kitchener court file # F-1583/97 dated November 28, 2013 (as yet unreported) there are certain guiding principles that Rule 24 offers, as follows:

[3] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) at para 42).

[4] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes a written offer at least seven days before the trial, and obtains an order as favorable as or more favorable than the offer, is entitled, unless the Court orders otherwise, to costs to the date that the offer was served and full recovery costs from that date. Even if subrule (14) does not apply, the Court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[5] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)). In the case of Johanns v. Fulford 2010 ONCJ at para. 13 it was held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

35There is much case law that addresses:

(1) the reasonableness/bad faith issues; (see: Lawson v. Lawson, [2004] O.J. No. 4135; Piskor v. Piskor, 2004 5023 (ON SC), 2004 CarswellOnt 5313; and Erikson v. Erikson, 2000 29675 (ON SC), 2000 CarswellOnt 1517 and 5809)

(2) that any costs decision should be considered in a “flexible and balanced” way; (see: Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.); and C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.))

(3) must represent a “fair and reasonable” amount that should be paid rather than an exact measure of the actual legal cost billed to a litigant; (see: Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.))

(4) should be assessed in “a fair and sensible manner” consistent with what the unsuccessful party might reasonably have expected to pay; (see: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.)) and

(5) that the costs order must be assessed to reflect some form of “proportionality” to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created. (see: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.)

36In this case seven (7) days were consumed, one of which was used sorting out the impact of Ms. McLeod changing law firms amidst the litigation and not serving a Notice of Change. As a result, Mr. Olsen served her former firm with a huge documents disclosure brief that she did not “discover” until the second (or third, I can’t recall exactly) day of trial. Much consternation occurred (and time expended unnecessarily) resolving the alleged “ambush” by Mr. Olsen of the Applicant and his counsel at trial (more of that later). How the Applicant and Ms. McLeod decide to resolve the costs wasted resulting from that occurrence is for them to undertake. However, the Respondent should not be deprived of her costs for the time squandered resulting from that set of circumstances that were not of her making.

37In addition, Ms. McLeod spent a great amount of time and presented much evidence on the issue of the value of the contents of the matrimonial home. She sought to make much of the fact that the Respondent did not obtain (and pay for) a professional evaluation of her bookkeeping business as ordered. The evidence clearly (and easily) established that Ms. Jackson’s business had no goodwill, minimal assets, no accounts receivable and was of no value at valuation day. Ms. McLeod emphasized Ms. Jackson’s flagrant non-compliance with a court order (in addition to various other affronts and allegations perpetrated by Ms. Jackon on Mr. Jackson that “prove” her unreasonableness) to support her submission that the Respondent acted “unreasonably” throughout the litigation and should, as a result, be deprived of any costs on the custody/access and that Mr. Jackson should be granted costs.

38The non-compliance with the court-ordered valuation of assets (house contents/ bookkeeping business) part of Ms. McLeod’s argument is deflated greatly by the reality (proven in court) that her own client also did not comply with the Order. Mr. Jackson (on the advice of his counsel, I might add) directed the chattels’-evaluator (Mr. Jutzi) to only include certain of the furniture in the home in his opinion of value and to exclude other more valuable assets (including Mr. Jackson’s several drum kits and electronic amplifiers/speakers) from his report. As a result of the party’s mutual non-compliance with the valuation-of-assets order, I place no import on that behaviour as it applies to this cost consideration.

39Both parties spent much time, effort and money on the custody/access issue. They eventually compromised their positions somewhat to, in effect, accept a much expanded version of the recommendations in the July 23, 2012 O.C.L. Report. The parties tendered Minutes of Settlement on that aspect of the case on June 12, 2013. I made a final order based thereon.

40On that date, both counsel reserved the right to make costs submissions on that issue at the conclusion of the trial. The following six days were taken up addressing the equalization of property issue, Ms. Jackson’s constructive trust claim and Mr. Jackson’s unequal division of property claim.

41I now have received, read and considered both costs submissions and the now-disclosed Offers to Settle.

(a) Settled Custody/Access Regime

42Mr. Jackson has a valid point when he argues that the final consent order of June 21, 2013 is similar to the recommendations of the O.C.L. report of July 2012. Indeed, his counsel suggests that the parties had achieved an “agreement in principle …” as early as December 2010 and that they “agreed at a settlement meeting” (I have no particulars of that agreement/when/where/who was there …?) that the custody access issue was resolved. The evidence of the parties “agreement”, tendered by Ms. McLeod (Tab #2 of her submission) makes no mention at all of the custody/access issue; only the property/money aspect of the dispute. Further, Ms. McLeod argues that Ms. Jackson acted unreasonably and in bad faith by not settling this issue and furthering her own selfish agenda. I disagree.

43In her recent decision in Marques r. Raulino 12 Nov 2013 (2013) ONCJ 609, Zisman J. finds that a party’s refusal to implement O.C.L. report recommendations does NOT constitute “unreasonable behaviour” as it relates to costs considerations set out in Rule 24. She decided (and I agree) that O.C.L. recommendations are mere suggestions that, prior to the hearing of the main action, have not been scrutinized by the court. In that case (as here) in view of the high conflict between the parents, it was understandable that the mother would not agree to a joint custody order or to change the status quo residential arrangement until all of the evidence had been heard.

44In this case, Ms. Jackson presented three (3) “concerns” that Mr. Jackson had to rectify before she would accede to the O.C.L. “suggestions”. To his credit, Mr. Jackson responded appropriately and as a result the parties ultimately resolved this aspect of the case by using the five basic O.C.L. report recommendations as a structure upon which they built their own very specific custody/parenting terms contained in the final consent order.

45As an aside, I would note that O.C.L. Reports do not, (nor is it within its mandate) make “findings of fact” as asserted by Ms. McLeod at para. 11 of her submission. Courts provide that function after hearing and considering all of the evidence, given under oath, by way of affidavit or orally.

46I do, however, agree with Ms. McLeod’s point that Ms. Jackson is deemed to accept the contents of the O.C.L. Report unless she serves and files a dispute thereto in a timely manner. As Magda J. observed, Ms. Jackson would “hardly (be) in a position (now) at trial to dispute any of its findings or conclusions”. (See Mason v. Belle 2010 ONSC 4325)

47In any event, having earlier made a finding regarding Nickkolas’ living arrangements post separation (supra), I am entirely unpersuaded that Mr. Jackson is entitled to a costs order for the expenses that he incurred totaling $21,167 up to June 13, 2013 (80% of which Ms. McLeod suggests was related to the custody issues; thus seeks an order for $16,933.60).

48I am supported in that conclusion (to deny Mr. Jackson any costs) when I note that Ms. Jackson had made three formal Offers to Settle (September 26, 2011; July 27, 2012; October 5, 2012), the last of which included twenty (20) paragraphs with detailed particulars regarding her proposal for custody/access/parenting. The first (and only?) offer that Mr. Jackson prepared and served was apparently contained in “Schedule C” of his Settlement Conference brief, dated April 8, 2013, only two months before trial (a copy of which was not included in Ms. McLeod’s written submission for me to examine to see whether it complied with the Rule 18 requirements; signed by both lawyer and party and whether there is included any terms regarding custody/access/parenting).

49In any event, Ms. McLeod well knows that there is case law that clearly rules that unsigned Offers to Settle that are included in Settlement Conference Briefs are not Rule 18 Offers to Settle. (See Harkness v. LeBlanc (2006), CarswellOnt. 4700 (Ont. S.C.J.) and Entwistle v. MacArthur (2007), CarswellOnt. 3149 (Ont. S.C.J.)

50On the evidence before me and despite the aspersions cast by Ms. McLeod regarding her perception of Ms. Jackson’s motivations (delay, fraud and “smear campaign”), I rule that neither party is entitled to costs regarding the custody/access aspect of this lawsuit.

51Accordingly, there shall be no order for costs regarding the custody/access claims.

52If I am wrong and costs should be awarded, based upon her several Offers to Settle and Mr. Olsen’s letter of April 19, 2013 (p. 3 and part of p. 4), I would grant partial indemnity costs to Ms. Jackson to that date and full indemnity costs thereafter (per Rule 18(16)) until June 21, 2013. I would set those costs at $12,500, plus HST payable by Mr. Jackson to Ms. Jackson.

(b) Property Issues: Equalization/Constructive Trust

53Of the two submissions, Mr. Olsen’s is the more persuasive and is better organized so that I could easily compare the competing Offers to Settle as against the end result ordered after trial. Ms. McLeod’s submission on the other hand, offers an ingenious and novel approach to justify her client’s argument that Ms. Jackson was not really very successful.

54I am unmoved by the hyperbole used and the self-serving gratuitous “re-framing” of events that allows Ms. McLeod to argue that there was “wasted time” at the trial due to Mr. Olsen’s “misconduct”. I disagree entirely and it ill-behooves her to “not raise as an issue throughout the trial …” (i.e.: Mr. Olsen’s alleged misconduct) to raise it now in her Reply submissions and as a result seek to have Ms. Jackson penalized by way of a reduction in costs.

55I well recall that the circumstances of the “missing disclosure brief” made it plain that the disconnect occurred due to Ms. McLeod’s own actions (or inaction) and not due to Mr. Olsen not discharging his obligation to his client or to the court process.

56There is absolutely no question that Ms. Jackson succeeded entirely on the financial issues. She is entitled to her full costs of the trial (Rule 24(1)).

57After now examining the Offers to Settle and reading the submissions, I agree with Mr. Olsen entirely that Ms. Jackson’s Offers are less than or the same as the final court order, Mr. Jackson’s Offers are significantly less than both Ms. Jackson’s Offers and the Final Order.

58Accordingly, Ms. Jackson should be granted her costs on a partial indemnity basis before her first offer and on a full indemnity basis thereafter.

59I agree with both counsel that the parties could not afford this seven day trial. But, in hindsight Mr. Jackson should have settled the financial part of the case soon after and according to the terms of the Respondent’s previous lawyer’s e-mail of December 14, 2010. Mr. Jackson was ill-advised to persist in his untenable position and to stubbornly “roll the dice” in an unsuccessful hope that his counsel’s novel view of hindsight evidence would vindicate him and make a seven day trial financially worthwhile. It wasn’t.

60Mr. Jackson should have either settled the case before the trial started or even during the trial when he must have realized that his evidence was not going well. He did not do so and therefore all of the time, effort and expense attributable to his decision not to settle must be laid at his feet.

61Accordingly, I order that Mr. Jackson shall forthwith pay to Ms. Jackson costs, which I set at $30,000, plus HST (or $42,500, including HST, if I am found to be wrong regarding my order of “no costs ordered” on the custody/access issue).

62Mr. Olsen seeks that I secure this costs order against Mr. Jackson’s remaining interest in whatever equity is left in the matrimonial home. Now that I have ordered that Ms. Jackson has an interest in the property herself and is a joint owner, her interests are as secure as they need to be. I decline to secure this costs order against the matrimonial home as asked.

G.A. Campbell J.