CITATION: Wilson v. Wilson, 2015 ONSC 2543

COURT FILE NO.: 3508/12

DATE: 2015-04-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ILIANA DIPES WILSON

Jonathan Marler, for the Applicant

Applicant

• and -

NICK JUNIOR WILSON

Self-Represented

Respondent

HEARD: April 9, 2014

AMENDED REASONS FOR JUDGMENT

Barnes, J.

INTRODUCTION

[1] The couple were married on May 14, 1989. They separated with no prospect of reconciliation on September 27, 2011. There are two children of the marriage one is now an adult.

[2] The couple agree to a divorce and divorce is granted in accordance with s. 12 of the Divorce Act.

[3] The issues to be determined at this trial are equalization of the family property; spousal support and partition and sale of the matrimonial home.

[4] I have previously released an endorsement in this matter with reasons to follow. These reasons amend and override any differences from my earlier endorsement.

[5] After considering all the evidence and the submissions of the parties this court orders as follows:

(a) Mr. Wilson shall pay Mrs. Wilson an equalization payment of $8,053.25;

(b) The Matrimonial Home with the address 2021 Shady Glen Road, Oakville, Ontario shall be listed for sale;

(c) Mrs. Wilson shall list the property for sale. Mrs. Wilson shall select a Real Estate Agent and Solicitor to handle the transaction;

(d) Mr. Wilson shall cooperate fully with Mrs. Wilson and her Agents to prepare the home; keep the home clean and show the home to prospective buyers;

(e) All consents, signatures of Mr. Wilson, necessary to facilitate the sale of the home are dispensed with;

(f) Mrs. Wilson shall use her best efforts to obtain the highest possible value for the property that the market will offer;

(g) The Solicitor retained by Mrs. Wilson shall retain the proceeds of the sale in trust until the joint debts of the parties on valuation date are paid off;

(h) From Mr. Wilson’s share of the proceeds the equalization payment of $8,053.25 shall be made to Mrs. Wilson;

(i) The total amount of any child support arrears Mr. Wilson may owe Mrs. Wilson, as of the date of sale, shall be deducted from Mr. Wilson’s share of the proceeds and paid to Mrs. Wilson;

(j) Should Mr. Wilson’s share of the proceeds be insufficient to pay all of the child support arrears, the Family Responsibility Office shall collect the remaining arrears;

(k) The remainder of the proceeds are to be divided equally between the parties; and

(l) Mrs. Wilson shall pay no child support to Mr. Wilson.

[6] These are my reasons for judgment.

BACKGROUND FACTS

[7] The couple married on May 14, 1999. The couple separated on September 27, 2011, when the police were called to resolve a domestic dispute in the matrimonial home. Mr. Wilson vacated the matrimonial home on that day. On November 11, 2011, Mrs. Wilson and the couple’s two daughters, Lily Wilson – an adult, and teenage daughter – Pamela Wilson vacated the matrimonial home.

[8] Mrs. Wilson has brought at least two motions seeking an order for the sale of the matrimonial home and its contents. Mrs. Wilson did not accept a proposal by Mr. Wilson to purchase her interest in the matrimonial home.

Equalization of the Family Property

[9] The statutory frame work for equalization of net family property is set out in s. 4 and s. 5 of the Family Law Act. Section 4 of the Family Law Act, provides the definition of what constitutes “property”; what property is included and excluded in an equalization of net family property calculation, the definition of “valuation date”, description of how a “valuation date” is to be determined and how the net family property is calculated:

4. (1) In this Part,

“court” means a court as defined in subsection 1 (1), but does not include the Ontario Court of Justice; (“tribunal”)

“matrimonial home” means a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date; (“foyer conjugal”)

“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,

(a) the spouse’s debts and other liabilities, and

(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, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”)

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date; (“bien”)

“valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

2. The date a divorce is granted.

3. The date the marriage is declared a nullity.

4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.

5. The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”) R.S.O. 1990, c. F.3, s. 4 (1); 2006, c. 19, Sched. C, s. 1 (2); 2009, c. 11, s. 22 (1-4); 2009, c. 33, Sched. 2, s. 34 (1).

Net family property, liabilities

(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property. 2009, c. 33, Sched. 2, s. 34 (2).

Excluded property

(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.

2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

7. Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).

Onus of proof re deductions and exclusions

(3) The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it. R.S.O. 1990, c. F.3, s. 4 (3).

Close of business

(4) When this section requires that a value be calculated as of a given date, it shall be calculated as of close of business on that date. R.S.O. 1990, c. F.3, s. 4 (4).

Net family property not to be less than zero

(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).

[10] How net family property is to be equalised is described in s. 5 of the Family Law Act:

Equalization of Net Family Properties

5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).

Death of spouse

(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (2).

Improvident depletion of spouse’s net family property

(3) When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net family property, the other spouse may on an application under section 7 have the difference between the net family properties divided as if the spouses were separated and there were no reasonable prospect that they would resume cohabitation. R.S.O. 1990, c. F.3, s. 5 (3).

No further division

(4) After the court has made an order for division based on subsection (3), neither spouse may make a further application under section 7 in respect of their marriage. R.S.O. 1990, c. F.3, s. 5 (4).

Idem

(5) Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract between the spouses provides otherwise. R.S.O. 1990, c. F.3, s. 5 (5).

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

[11] Under the statutory framework these steps must be followed:

(1) Determine each net family property of each spouse by doing the following:

a) Determine what property each spouse owned on the valuation date.

b) Determine the property value after making any applicable deductions and exemptions under s. 4.

(2) Determine if one spouse’s net family property is less than the others, if there is a difference in net family properties s. 5(1) provides that the difference between the two shall be equalized by dividing it equally and half of the difference shall be paid to the other spouse with the lower net family property, subject to step 3.

(3) The court must consider whether given the considerations listed in s. 5(6), it would be unconscionable to equalize the net family properties, if not the payments shall be made as described in step 2:

Berdette v. Berdette (1991), 3. O.R. 3d 513, 1991 CanLII 7061 (ON CA), [1991] O.J. No. 788 (Ont. C.A.).

VALUATION DATE

[12] For the purposes of this case the valuation date is the date when the parties separated with no reasonable prospect of reconciliation: s. 4 of the Family Law Act. That date is September 27, 2011.

EQUALIZATION OF NET FAMILY PROPERTY

Value of Assets owned on the valuation date

Real estate

[13] The Matrimonial Home: The appraised value is $540,000. The value of the matrimonial home is divided equally between the parties. Mr. Wilson did not challenge the condominium value of $57,300, attributed to him by Mrs. Wilson. On the valuation date, the total value of real estate assets for Mrs. Wilson was $270,000 and total value of real estate assets for Mr. Wilson is $327,300. This is not disputed.

[14] The total value of Real Estate for Mrs. Wilson is $270,000 and Mr. Wilson it is $327,300.

Household Goods and Furniture

[15] Coin collection Silver American dollars and Canadian coin collections: Mr. Wilson said the couple owned this coin collection. Mrs. Wilson testified that these items never existed. Mr. Wilson explained that the Silver American dollar collection was worth $10,500 and the Canadian coin collection was worth $3,000. In the absence of documentary evidence proving the existence of the coins and the value, I conclude that the coins do not exist and assign them a value of zero dollars.

[16] The master bedroom set: Mrs. Wilson took this item when she left the matrimonial home. She testified that she sold it for $2,000, no receipt or other documentary evidence was provided. Mr. Wilson testified that the master bedroom set was worth $10,937.05, he provided showroom pictures of the items, however, there was no evidence presented as to the valuation day value of the master bedroom set. The item was sold as a used item. Given the state of the record, I will assign it a value of $3,000 and attribute that value to Mrs. Wilson.

[17] Lily Wilson’s Bedroom Set: Mrs. Wilson testified that this bedroom set was purchased by Lily Wilson. No evidence from Lily on this point. No documentary evidence to prove this was provided. Mr. Wilson testified that this item belonged to both of them, he assigned a value of $2,875 to the set. No documentary evidence provided. The item is currently with Mrs. Wilson. I assign a value of $1,000 to this disputed item and attribute it to Mrs. Wilson.

[18] Pamela’s Bedroom Set: This item was left at the matrimonial home of Mr. Wilson. It is not disputed that it has a value of $2,000 which is attributed to Mr. Wilson.

[19] Living Room Set - Italian Special Edition: Mr. Wilson says this set is worth $8,050. Mrs. Wilson testified that she bought it for $3,500 and it has present value of $500. No documentary evidence produced to support either position of the value of the used Italian living room set. I set the value at $1,000 and attribute it to Mrs. Wilson.

[20] Ethan Allen Office Furniture: Mr. Wilson testified that these items were worth $13,102. Mrs. Wilson testified that the items were sold for $700 and in the absence of any documentary evidence the item(s) are assigned the value of $1,000 and attributed to Mrs. Wilson.

[21] Marble Top Iron Hand Made Art Table: Mrs. Wilson states she paid $700 for this table in 2002, and values it at $100. Mr. Wilson disputes this value but did not indicate what the value of this item should be. The item is assigned the value of $100 and attributed to Mrs. Wilson.

[22] Two Vases: Mr. Wilson said that these vases were purchased at an auction in the United States. He assigned a value of $1,000 to them. Mrs. Wilson testified that the vases had never existed. In the absence of any other evidence proving Mr. Wilson’s assertion, these items are assigned a value of zero dollars.

[23] Kitchen Appliances: These were left in the Matrimonial home. Mrs. Wilson says they are worth $1,500, Mr. Wilson says they are worth $2,000. There is no documentary evidence to support either position. The Appliances are assigned a value of $1,750 and attributed to Mr. Wilson.

[24] Henkel Knife Set, Kitchen Utensils, Cookware, Tableware, and Small Appliance: Mrs. Wilson asserts that she took less than 50 per cent of these items and assigns a value of $500 to them. Mr. Wilson assigns the value at $2,300. No documentary evidence was filed in support of either position. A value of $1,000 is assigned and $500 is attributed to both Mr. Wilson and Mrs. Wilson.

[25] Kitchen Table Set: This item was left in the matrimonial home. Mr. Wilson estimates the value to be $690. Mrs. Wilson estimates the value to be $400 but says that this is Mr. Wilson’s estimate. Therefore, the Kitchen Table Set is valued at $690 and attributed to Mr. Wilson.

[26] Miscellaneous House Items – Towels, Bathroom, and Draperies: Mrs. Wilson testified that she took about 50 per cent of these items when she left the matrimonial home. She estimated the value of the items to be $200. Mr. Wilson estimated the value to be $1,000. No documentary evidence provided in support of either position. The items are estimated to be worth $800 and $400 each is attributed to Mr. Wilson and Mrs. Wilson.

[27] Silverware: Mrs. Wilson said she took 50 per cent of these items and estimated the value of the items to be $100. Mr. Wilson contends that the silver ware is worth $600. No documentary evidence provided. The Silverware is assigned a value of $500. Mrs. Wilson and Mr. Wilson are each assigned $250 of the value.

[28] Six Persian Rugs: Mr. Wilson said the couple were in possession of six Persian rugs worth $4,000. Mrs. Wilson testified that the couple were never in possession of Persian rugs. They never existed. In the absence of other documentary evidence supporting the existence of the Persian Rugs a value of zero dollars is assigned.

[29] Six Wool Blankets: Mr. Wilson submits that these blankets were handmade. Mrs. Wilson says they were not handmade blankets. Mrs. Wilson said she took less than half of these blankets. She estimates they are worth $2,000. Mr. Wilson estimates the value to be $3,000. In the absence of any documentary evidence, to support either position, the blankets are assigned a value of $2,500. $1,250 each is attributed to Mr. Wilson and Mrs. Wilson.

[30] Harley Davidson (1997): Mrs. Wilson submits that the valuation date value is $5,500. Documentation provided by Mr. Wilson from the Ministry of Transportation list the value of the Harley Davidson as $500. I have no other documentary evidence of the value of the motorcycle and, therefore, the value of this asset is set at $500 and attributed to Mr. Wilson.

[31] Mercedes E-320 (2005): The 2011 Mercedes is estimated by Mrs. Wilson to be worth $28,000. There is no evidence to the contrary from Mr. Wilson and value was not challenged. The value of this asset is found to be $28,000 and attributed to Mr. Wilson.

[32] Mercedes C-230 (2006): The 2011 value of this asset is estimated by Mrs. Wilson to be $18,000. There is no evidence to the contrary from Mr. Wilson. This estimated value is unchallenged. The value of this asset is found to be $18,000 and is attributed to Mr. Wilson.

[33] Suzuki XL-7: Mrs. Wilson estimates the value of this asset to be $2,500. This is not disputed by Mr. Wilson. The 2011 value of this asset is $2,500 and is attributed to Mr. Wilson.

[34] Porsche 2011 Panamera: Mrs. Wilson estimates the 2011 value of this vehicle to be $120,000. Mr. Wilson did not challenge this valuation but said that this vehicle was Mrs. Wilson.

[35] Mrs. Wilson said that she and Mr. Wilson leased the vehicle for their joint business. She said they terminated the business when their relationship ended.

[36] Mrs. Wilson described their business as property management and she explained that the company paid the lease for the Porsche. Mrs. Wilson said she had stopped paying for the Porsche because she could not afford it.

[37] Adnan Bashir testified that he is the General Manager of a company called City Scape Real Estate Limited Brokerage. He said that Mrs. Wilson worked for that company.

[38] Mr. Adnan Bashir testified that Mrs. Wilson and Mr. Wilson performed contractual work for City Scape and jointly earned under $50,000 per annum.

[39] Mr. Bashir testified that he believed that the $25,000 down payment for the lease of the Porsche was paid by City Scape but he could not confirm this. Mr. Bashir did not know who was paying for the vehicle’s insurance.

[40] Mrs. Wilson and Mr. Wilson submitted a joint credit application to Porsche Canada, in support of the purchase of the Porsche; a letter from Porsche about renewing the lease was directed to Mrs. Wilson; a letter about finalizing insurance on the vehicle was directed to Mr. Wilson; Mr. Wilson and Mrs. Wilson both signed the Motor Vehicle Lease Agreement. I conclude that Mr. and Mrs. Wilson were joint owners of the Porsche lease and they leased it for their joint property management business.

[41] Despite the agreement of the parties a car lease is not an asset and cannot be included in the equalisation of family property calculation. In fact the car lease is a debt and debts do not constitute either property or assets under the Family Law Act and cannot be included, as such, in the equalisation of family property calculation: Powers v. Naston-Powers 1990 CanLII 12243 (ON SC), 28 R.F.L. (3d) 69 (Ont.H.C.J.). I would have reached a different conclusion if the parties provided evidence that the nature of the thing leased was such that the possession of the lease itself creates some monetary value for the lessee.

[42] Mercedes 2008: Mrs. Wilson drives a 2008 Mercedes which she testified is leased and paid for by her daughter, Lily Wilson. The monthly lease is $528. No documentation was provided but the value was unchallenged by Mr. Wilson. The 2008 Mercedes is excluded from calculation.

[43] TV Sets, DVD Players, Game Console, Phones, and Computers: Mrs. Wilson said she took one TV and one DVD player from the matrimonial home. Three TV sets were left for Mr. Wilson. Mrs. Wilson estimates the value of these items was $3,000. Mr. Wilson estimates the value of these items at $5,000. No documentary evidence was filed in support of these values. These items are valued at $4,000. $2,000 each attributed to Mrs. Wilson and Mr. Wilson.

[44] Tools including the Bosch heavy duty jack hammer: Mrs. Wilson said she is not familiar with these tools. The implication is that they are not hers. The tools were left at the matrimonial home. Mr. Wilson estimates the value of the tools to be $5,000. Mrs. Wilson did not provide her own estimated value. The tools are valued at $5,000 and attributed to Mr. Wilson.

[45] On the valuation date the total value of general household items and vehicles for Mrs. Wilson is $10,500 and for Mr. Wilson the value is $62,840.

Bank Accounts and Savings, Securities and Pensions

[46] Mrs. Wilson has a personal chequing account at the Royal Bank of Canada balance on valuation date was $100. Mrs. Wilson has an ING (Credit Account) with a negative balance. Mr. Wilson filed a copy of Mrs. Wilson’s ING bank account for a period after the valuation date showing a balance of $4,322.80 in a Credit account and a balance of $202.21 in an investment savings account. Since these figures refer to balances after the valuation date they are not included in the equalization calculation.

[47] Mr. Wilson did not challenge the following account balance attributed to him by Mrs. Wilson: Royal Bank - $500, Canadian Imperial Bank of Commerce - $300; Bank of Montreal - $800; Registered Retirement Savings Account with Sun Life Financial - $40,000.

[48] On the valuation date the total value of accounts and savings for Mrs. Wilson was $100. The total value of accounts and savings for Mr. Wilson was $41,000.

[49] On the valuation date the couple had no business interests; money owed to them or other property. The total value of property owned by the couple on valuation date is the total of all their respective property values computed above.

[50] For Mrs. Wilson the total value of property owned on the valuation date is $270,000 + $10,500 + $100 = $280,700.

[51] For Mr. Wilson $327,300 + $62,840 + $41,000 = $431,140.

Debts and Other Liabilities

[52] Mr. Wilson has listed the mortgage on the matrimonial home as $437,858.50. There is no indication that this was the amount owing on the valuation date. No documentary evidence was provided. Mrs. Wilson has listed the mortgage on the matrimonial home, on the valuation date, as $391,000. No documentary evidence to prove this was provided.

[53] Exhibit 22 is a mortgage statement from the Bank of Montreal indicating that the mortgage owing, as of December 31, 2011, a date after the valuation date, was $396,012.91. This statement shows that sometime between January 2011, and December 2011, $8,000 was withdrawn from the revolving portion of the mortgage. Mrs. Wilson said that Mr. Wilson made this withdrawal after the date of separation. Given the state of the record, I find that the mortgage on the matrimonial home, on the valuation date, was $395,000.

[54] The couple had a joint RBC line of credit. Mr. Wilson lists the valuation date amount owing as $33,000: Exhibit 34. Mrs. Wilson lists the valuation date amount owing as $32,000: Exhibit 35. Exhibit 1, is a RBC statement which lists the balance owing as of November 1, 2011 as $32,932.69. The valuation date is September 27, 2011. Given the state of the record, I find the RBC line of credit amount owing on the valuation date to be $33,000.

[55] Mrs. Wilson has the following debts and liabilities: Matrimonial Home Mortgage with Bank of Montreal $197,750; Royal Bank Line of Credit $16,500; ING Line of Credit $2,400; MBNA MasterCard $5,250; Porsche loan $60,000; Royal Bank Visa $8,683.

[56] Total debts and liabilities for Mrs. Wilson on the valuation date is $290,333.

[57] Mr. Wilson testified that he paid immigration expenses for sponsoring some members of Mrs. Wilson’s family to Canada. Mrs. Wilson disputed this. Mr. Wilson did not produce any documentation to support this. Therefore, I cannot determine whether these expenses were ever incurred. It is therefore unnecessary to determine whether these types of expenses constitute a gift or loan or whether such expenses can be included in equalization calculations.

[58] Mr. Wilson testified that during the marriage, he provided services towards the proper care and maintenance of the matrimonial home. He requested that court assign a value of $75,000 to these services and include this dollar amount in the equalization calculations.

[59] The activities Mr. Wilson has described fall into the category of activities performed by a spouse during a marriage which are designed to contribute to the enhancement, sustenance and enjoyment of the marital union and family life. In my view such activity cannot be quantified and even if they could be quantified, it is doubtful that the quantified value would be included in an equalization calculation.

[60] Mr. Wilson filed exhibit 34. Mr. Wilson stated that this represented his list of debts and liabilities on the valuation date. Mrs. Wilson filed a Net Family Property Statement, exhibit 35. Therefore, where the figures provided in exhibit 34 conflict with the debt and liabilities figures for Mr. Wilson, as listed in exhibit 35, I will accept the figures presented by Mr. Wilson; presumably he should know what his own debts and liabilities were on the valuation date.

[61] Mr. Wilson has the following debts and liabilities – Bank of Montreal Mortgage on the matrimonial home - $197,500; Royal Bank Line of Credit – $16,500; CIBC Line of Credit $18,000; Bank of Montreal Credit Card $10,000; CIBC credit card $8,000; HSBC loan 8000; Porsche loan $60,000; Chase Best Buy card $2,000, 2005 Mercedes E-320CDI $25,659; 2006 Mercedes C-230 $31,227.37; Home Depot $3,500.

[62] Mr. Wilson and Mrs. Wilson agreed that the value of the condominium, which was in Mr. Wilson’s possession, would be $57,300. Mrs. Wilson disputed Mr. Wilson’s claim that there is a mortgage of $382,000 on the condominium property. Mr. Wilson did not provide any documentary evidence to support this assertion and, therefore, this amount is not included in the equalization calculations.

[63] The total debts and liabilities of Mr. Wilson, on valuation date, were $380,386.37.

Property, debts and other liabilities on the date of marriage and excluded property

[64] The couples had no other property, debt and other liabilities on the date of marriage and no excluded property under s. 4(2) of the Family Law Act. Therefore, the total debt and liabilities of Mrs. Wilson and Mr. Wilson remain unchanged at $290,333 and $380,386.37 respectively.

The Net Family Property

[65] The net family property of each spouse is determined by subtracting the total value of debts and liabilities on valuation day from the total value of the property owned on the valuation date.

[66] The net family property for Mrs. Wilson is $280,700 - $290,333 = -$9,633. Since Mrs. Wilson’s net family property is less than zero it is deemed to be zero: s. 4(5) Family Law Act. The net family property for Mr. Wilson is $431,140 - $380,386.37= $50,753.63.

Preliminary Equalization Payment Figure

[67] The difference in the net family property between Mr. Wilson and Mrs. Wilson is $50,753.63 – 0.00 = $50,753.63. Mr. Wilson shall make an equalization payment of half this amount, $25,376.82, to Mrs. Wilson. The final figure shall be adjusted by some credits and additions described below.

[68] Mr. Wilson concedes that he withdrew an additional $8,000 from the joint line of credit, after the date of separation. The Royal Bank Line of Credit is a joint account. $4,800 was withdrawn after the valuation date. Mrs. Wilson says it was Mr. Wilson. Mr. Wilson said they both had access to the account and he does not recall withdrawing $4,800 from the account. Mrs. Wilson has made a total of $5,078 in payments towards that account since the valuation date. The total of all these amounts is $17,878.

[69] Mrs. Wilson suggests the $17,878 should be divided in half and Mr. Wilson should be ordered to pay her half of the total. I agree. Mr. Wilson did not oppose this suggestion.

[70] Half of $17,878 is $8,939. Mr. Wilson shall pay Mrs. Wilson this amount as an equalization payment. The figure of $8,939 is added to the previous equalization payment figure of $25,376.82, the total is $34,315.82. This figure shall be adjusted by some credits to Mr. Wilson as described below.

[71] Section 5(6) of the Family Law Act provides for a reduction in the calculated equalization payment amount where it will be unconscionable to order the payment of the full amount.

[72] I have concluded that Mr. Wilson has contributed disproportionately to the maintenance and preservation of the matrimonial home since the date of separation (valuation date) and, therefore, it will be unconscionable to pay Mrs. Wilson one half of the difference in their net family property values. Mr. Wilson shall receive credits for payments he has made to maintain and preserve the property since the valuation date.

[73] As a result of a domestic incident investigation by the Police, Mr. Wilson left the matrimonial home on September 27, 2011. Mrs. Wilson remained in the home until November 2011, when she left the home with her two daughters. Mr. Wilson remained outside the home during this time; however, he continued to pay the mortgage and taxes on the home. Mr. Wilson is seeking credit for mortgage payments made from September 27, 2011, to April 2015, 49 months at a rate of $438 per month. A total of $36,162. Mr. Wilson shall be credited half of this amount i.e. $18,081.

[74] Mr. Wilson has paid for property taxes for the years 2011, 2012, 2013 as follows: 2011 - $3,685.54; 2012 - $3,790.80; 2013 - $3,843.40; 2014 estimated to be $3,843.40 a total of $15,163.14. Mr. Wilson shall receive the credit for half of this amount i.e. $7,581.57.

[75] Mr. Wilson submits that he should be credited for paying to repair the boiler and mold damages in the home. By boiler it would seem Mr. Wilson means the hot water tank. An inspection report dated March 28, 2013, confirms that the hot water tank was replaced. There is no receipt or invoice indicating the cost of the replacement.

[76] The March 28, 2013, inspection report is filed as exhibit 10 at this trial. The report is dated March 28, 2013, and prepared by Lorne Park interiors limited. It states that the purpose of the report was to determine if there was mold at the matrimonial home. The home inspection report did not find any mold damage; did not confirm that there had previously been mold damage; and there is no receipt or invoice indicating the cost of repairing any mold damage.

[77] Also attached, as exhibit 10, is an inspection report prepared for clients who are not either Mr. Wilson or Mrs. Wilson. At an address that is not the matrimonial home address. The matrimonial home address is 2201 Shady Glen Road, Oakville, Ontario.

[78] Mr. Wilson seeks credit of $15,000 for utilities, boiler and repair of mold, and his time invested in maintaining the matrimonial home. There is no evidence that there was ever mold in the matrimonial home. Even if there was mold in the matrimonial home there is no evidence of what portion of the $15,000 was used to pay for the repair.

[79] Mr. Wilson did not tell the court what portion of the $15,000 was used to replace the broiler.

[80] Mr. Wilson does not indicate which portion of the $15,000 figure is related to the work he performed on the matrimonial home. Mr. Wilson did not articulate why he should be compensated for his labor to maintain his own home.

[81] Mr. Wilson should receive credit for payments of utility bills for the matrimonial home, in particular while he was outside the home; however, he has provided no evidence to indicate what portion of these expenses is captured in the global $15,000 figure he provided. Given the state of the record, I will fix that amount at $1,200. Mr. Wilson will receive credit for half that amount i.e. $600.

[82] Mr. Wilson shall receive credit for half of the total of these payments he made from the valuation date to April 15, 2015: mortgage - $18,081; property taxes – $7,581.57; utilities - $600. The total amount of credits is $26,262. This figure is subtracted from the previous equalization payment figure of $34,315.82: $34,315.82 – $26,262 = $8,053.25 which is the final equalization payment Mr. Wilson must make to Mrs. Wilson.

SPOUSAL SUPPORT

[83] Mr. Wilson seeks an order that Mrs. Wilson pay him spousal support. Mrs. Wilson has withdrawn her application seeking a spousal support claim from Mr. Wilson.

[84] I have determined that Mrs. Wilson shall not pay Mr. Wilson any spousal support.

[85] Section 15.2 (4), (5), (6) of the Divorce Act set out the factors and spousal support objectives to be considered in determining entitlement to spousal support:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

a. (a) the length of time the spouses cohabited;

b. (b) the functions performed by each spouse during cohabitation; and

c. (c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

d. (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

e. (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

f. (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

g. (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[86] In Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14. The Supreme Court set out three conceptual bases for assessing entitlement to spousal support:

(1) The compensatory basis – this seeks to compensate the Applicant spouse for foregoing careers opportunities as a result of the marital or cohabitation union;

(2) Contractual – this is grounded in s. 15.2(4)(c) of the Divorce Act which requires the court to include “any order, agreement on arrangement relating to the support of either spouse” in the factors to be considered in determining whether the requesting spouse is entitled to support; and

(3) Non-Compensatory – Entitlement arises from the fact that a person who was entitled to spousal support during the marriage is deprived of that support due to the breakdown of the marriage. Under this framework a spouse may be entitled to spousal support for an event not necessarily tied to the marriage or its break down. For example: ill health or economic down turn.

[87] Mr. Wilson submits that he is entitled to spousal support on the basis that his income has dropped significantly since separation. Mr. Wilson filed no financial statement, Notice of Assessment or other financial documentation to indicate his income. Mr. Wilson testified that he has borne the brunt of the couple’s debts and filed a consumer proposal but has not declared bankruptcy.

[88] Mr. Wilson testified that there is a discrepancy between Mrs. Wilson’s income and expenses as she has listed them in her financial statement.

[89] Mr. Wilson submits that Mrs. Wilson has not declared all of her income. He said Mrs. Wilson is employed by City Scape and has been paid as much as $45,000 to $65,000 each year. Mr. Wilson explained that in addition to working for City Scape Mrs. Wilson has a private cleaning business. He explained that Mrs. Wilson was under reporting her income.

[90] Mr. Wilson submits that Mrs. Wilson income for 2013 was $48,993.36. Mrs. Wilson explained that this amount represents her gross income before expenses. In her financial statement Mrs. Wilson lists her income at $19,210.

[91] In the consumer credit application for the purpose of leasing the Porsche, Mrs. Wilson listed her income as $65,000 and Mr. Wilson listed his income as $50,980.

[92] In support of that application, City Scape General Manager Adnan Bashir wrote a letter, dated May 15, 2011, stating that Mrs. Wilson was a full time employee of City Scape earning $65,000 per annum. Mr. Bashir wrote another letter dated May 15, 2010, stating that Mrs. Wilson’s salary was $45,000. Mr. Bashir would not confirm these incomes whilst on the witness stand. It is clear from Mr. Bashir testimony that the income he provided in these letters was false.

[93] Mrs. Wilson explained that she currently lives in a town house rented by her adult daughter Lily Wilson. Lily Wilson pays the monthly rent of $1,500. Mrs. Wilson drives a 2008 Mercedes which is leased by her daughter Lily Wilson. Lily Wilson pays $528 per month on the lease.

[94] Mrs. Wilson filed an updated Financial Statement. Mrs. Wilson filed Notices of Assessment which indicate that her income for 2010 was 0; 2011 - $9,920; No information was provided by Mrs. Wilson for 2012 and her 2013 income is listed as $19,210. This is the extent of financial information filed by either party describing their respective incomes. Given the state of the record, I find Mrs. Wilson’s 2013 income to be $19,210.

[95] On the basis of the record, before me there is no basis for me to conclude that Mr. Wilson is entitled to spousal support on any of the Bracklow criteria. Therefore, Mrs. Wilson shall not pay Mr. Wilson any spousal support.

SALE OF THE MATRIMONIAL HOME

[96] Mrs. Wilson seeks the sale of the matrimonial home. I have concluded the matrimonial home shall be listed and sold and the proceeds divided in accordance with the terms set by this court.

[97] In circumstances where the couple, as joint tenants, cannot agree on whether full interest of matrimonial home should be transferred, to either of them, an order for sale of the home should be made; the spouses are entitled to seek the highest value (fair market value) for their interest in the home. This is aptly described by Granger J in Batler v. Batler (1989), 1988 CanLII 4726 (ON SC), 67 O.R. (2d) 355 (H.C.J.) at 356:

A joint tenant is entitled to the highest price for his or her interest which may be more than the appraised value of the property. In today’s real estate market, the appraised value of the property may not reflect the fair market value. The true test of the fair market value is to sell the property in an open market. Unless the parties agree to a transfer of the property at an agreed price, the property should be listed for sale and sold to ensure that fair market value is obtained.

Quoted with approval in Buttar v. Buttar, 2013 ONCA 517; Grace v. Draper [2013] O.J. No. 5504.

[98] Mr. Wilson and Mrs. Wilson have had discussions about the sale of the matrimonial home. This issue has been the subject of at least two motions prior to trial. Efforts by Mr. Wilson to purchase Mrs. Wilson’s interest in the Matrimonial Home have been unsuccessful.

[99] Mr. Wilson concedes he has been aware, since August 2012 that Mrs. Wilson no longer wished to sell him her interest in the Matrimonial Home. Mr. Wilson has also known since that date that Mrs. Wilson wanted the home be put up for sale. Mr. Wilson explained that he opposed listing the house for sale because repairs needed to be done to prepare it for sale and also it was his intention to purchase Mrs. Wilson’s interest in the matrimonial home.

[100] I am satisfied that Mr. Wilson wishes to purchase Mrs. Wilson’s interest in the matrimonial home, Mrs. Wilson is not interested, she wants to sell the home on the open market and she is entitled to do so.

[101] Mrs. Wilson as a joint tenant is entitled to the highest price that she can get for her interest in the property.

[102] This court orders that the property shall be listed and sold. The most optimum circumstance would have been one where the spouses could cooperate in all aspects of the listing and sale of the matrimonial home. Under other circumstances, this would have been the fairest approach since the spouses, as joint tenants, are entitled to the highest price the market will offer for their interest in the home.

[103] Unfortunately in these specific circumstances, Mr. Wilson is reluctant to sell the home. Mr. Wilson has maintained this position since August 2012. On August 12, 2012, Mrs. Wilson made it clear that she would not sell her interest in the house to him and she wished to have the house listed for sale. Therefore, albeit reluctantly, my order to sell the home will dispense with the need for Mr. Wilson’s consent and signature for all components of the sale process.

CONCLUSION

[104] I have previously described all additional and related orders. Should the parties be unable to agree on costs, a two page cost outline shall be filed with the court no later than 15 days from the date of these reasons.

Barnes, J.

Released: April 20, 2015

CORRECTION NOTICE

Corrected decision: the text of the original judgment was corrected on April 29, 2015, and the description of the correction is appended:

Paragraphs 97 – 99 have been deleted

CITATION: Wilson v. Wilson, 2015 ONSC 2543

COURT FILE NO.: 3508/12

DATE: 2015-04-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ILIANA DIPES WILSON

Applicant

• and –

NICK JUNIOR WILSON

Respondent

AMENDED REASONS FOR JUDGMENT

Barnes, J.

Released: April 20, 2015