ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Budd v. Budd, 2015 ONSC 346
COURT FILE NO.: 541/10
DATE: 2015/01/16
B E T W E E N:
Jane Eleanor Budd
Gloria Nardi-Bell, for the Applicant
Applicant
- and -
Peter Budd
Richard G. Startek, for the Respondent
Respondent
HEARD at St. Catharines, Ontario: February 13, 18, 19, 20 & 21, 2014, September 2, 3, 4 & 5, 2014
THE HONOURABLE JUSTICE C. A. TUCKER
JUDGMENT
Issues
[1] The main issue in this case for the court to decide centres in land valuation of properties owned by the parties on date of marriage and on the date of separation. Until the court makes this finding, the quantum of the equalization payment cannot be determined by the parties. There is also the valuation of and payment for certain chattels which the applicant claims were removed and sold by the respondent from the matrimonial home and an unresolved value of their wedding rings. Finally, there are the issues of the use of the matrimonial home for business purposes and some collateral procedural issues such as indexing of and security for spousal support.
[2] Immediately prior to the commencement of trial the parties were able to resolve the balance of their issues and a consent order was signed by the court to that effect on February 21, 2014. The first matter dealt with at the trial on consent was evidence relating to a divorce for the parties. I granted the divorce February 13, 2014 to take effect 31 days from that date.
Background
[3] Jane and Peter Budd began living together in 1991, were married on March 13, 1992 and separated on November 11, 2008. The applicant is 62 and the respondent now is 66. No children were born of the marriage, although the applicant had two children from her prior marriage and Mr. Budd adopted Jane’s daughter during their marriage. He paid for this child’s post-secondary education for a number of years outside Canada.
[4] Mr. Budd is a land developer and the question for the court to determine is the value of his corporately-owned land holdings at the date of marriage and at the date of separation. The applicant had retained the services of a Mr. Pat Del Sordo to complete a land valuation report in 2012 (“the Del Sordo report”), for the date of marriage properties and for the date of separation properties. The respondent had a similar report done in 2013 by Mr. Alastair Kermack (“the Kermack report”). In the fall of 2013 Mr. Budd retained a Mr. Jacob Ellens to critique both the Del Sordo and the Kermack reports (“the Ellens report”). Mr. Budd had previously provided opinions of value for the date of marriage properties completed by two of his former land investment partners and a “valuation” done by a certified appraiser who was not qualified to provide opinions of value of certain of the lands that were appraised. He was criticized for not providing full appraisals immediately upon separation but suggested that hopeful of a negotiated settlement he submitted these values to try to achieve this result without incurring a lot of expense and I find no negative view of that proposition.
The Evidence of the Parties
[5] Jane Budd has a grade 10 education and has never worked outside the home during her two marriages. She commenced this application in July of 2010. Once she was living with Mr. Budd, together with her daughter Sarah, the child support received from her first husband was directly deposited to the couple’s joint account which was used to support the child, and was their only personal account. Her role in the marriage was to cook, clean, garden, and assist with the cleaning and decorating of the open/model houses of her husband’s company. She said she even managed the trades on the jobsite, which her husband denied. In her submissions she suggested that upon separation Mr. Budd “faked” reconciliation to avoid a proper equalization and that he declared “war” on her to avoid his responsibilities to her as a result of the marriage. I have no evidence of the bases for the former accusation other than her testimony that he asked her during the resumption of the relationship not to “go” after his property. However, I find no evidence of any “war”. Mr. Budd paid her support from separation and in addition allowed her to use his credit card to assist her. I find this was not a “battle” engineered by the respondent but a positive attempt to deal with a very difficult situation. Property valuations are difficult and, given the development nature of the lands and the retrospective analysis required, it is not surprising that resolution of the larger issues was not achieved.
[6] Mrs. Budd was paid for the work in connection with the model houses by her husband’s company. The applicant continues to do decorating work for other people and earns approximately $3,600 a year doing this work at the time of the trial. Although health issues were mentioned in terms of Mr. Budd’s “callous” treatment of her cancer problems, no suggestion was made as to why she could not earn at least minimum wage notwithstanding her age and education. She received spousal support from Peter Budd from the time of separation in the $2,000 to $3,000 range until the time of trial. Ongoing spousal support has been resolved by the parties with Mr. Budd agreeing to pay $1,822 a month based upon his income of approximately $65,000 and her income of $3,000.
[7] Mrs. Budd discussed the use of the matrimonial home for business purposes. The 7,600 square foot home contained a basement office used by Mr. Budd for business purposes and a separate cupboard which contained numerous file boxes of business related documents, together with filing cabinets and a desk. Mr. Budd had an assistant who used the office to prepare the books and accounts of the respondent’s corporations. According to the applicant, most of the entertaining and business dealings done by her husband in the house took place in the kitchen and rarely in the office. She argued that the bulk of her husband’s business records were kept in his home office and that the office was used mostly for his banking, accounting, and drafting, although she said there was some personal use of the area. She denied that two upstairs rooms were also used for business purposes, pointing out that one had been their daughter’s bedroom and the other a “catch-all” room in which odd items had been stored. She did say that the latter room had had some shelves installed where bankers boxes were stored shortly before she left the matrimonial home. When questioned about the business use of part of the garage, she denied any work took place there and pointed out that her husband had an office and work area in the Town of Smithville during the marriage. She denied that any furniture from any model home was ever stored in the garage. She said her car was parked in that area of the garage during the winter months.
[8] Mr. Budd testified that not only was his office used for business, but the “heated” section of the garage and the two upstairs bedrooms were also used for work. He said “model home” furniture was stored in one bedroom until his wife took the furniture upon separation. Bankers boxes of business files were stored in another. All of his tools were kept in the garage he said because the jobsites were not secure and he took only what he required for each day from the garage. The “garage” area he claims as business had a door to separate it from the other three car garage. The closed area had a heater in it so that work projects could be completed during inclement weather. He said that very little client work occurred in the home at all and that Mrs. Budd did not do much in the way of entertaining customers in the home. He also said that most of his current and past work files were stored in the home with only the jobs he was working on being left at the jobsite. According to Mrs. Budd, no model furniture was ever kept in their house but such furniture was moved from one model home to the next and she did not remove any such items from the matrimonial home for her use upon separation. Mr. Budd denied that his wife did the landscaping or decorating at their home, or performed any service in terms of dealing with the trades in connection with his work, saying she was paid for any decorating work done on the model homes.
[9] Mrs. Budd testified that when she toured the matrimonial home with her appraiser she noted that all of the furnishings of the master bedroom were gone, including the bedroom suite, the wardrobe, armoire and TV, and even the custom drapery. In addition, she noted an exercise machine in that room was no longer there together with the exercise equipment that had been stored in her husband’s office. Prior to leaving the residence in 2008 she took pictures of every room in the house to create a record for her lawyer. She reported that her daughter saw the master bedroom suite online for sale. She acknowledged that other than these chattels the contents of the home had been divided to the parties’ satisfaction. She has no valuation for any of these “lost” items, yet she is seeking $10,000 from her husband as compensation for their removal and alleged sale. Her husband said he gave away the exercise equipment and sold the bed from their bedroom for $500 and is willing to reimburse her for one half that value. I cannot attribute any values to the “exercise” equipment or other furniture without valuations. I will not spend any further time in this decision on these chattels. If the respondent wishes to pay the applicant $250 to settle that issue, that is up to them. There is no possible cost effective basis or evidence for me to deal with this claim at all.
[10] Mrs. Budd acknowledged that she did sign her husband’s name on cheques on his bank account without his authority, but said these cheques were related to her husband’s business and not her personal use or for her decorating “business”. Mrs. Budd said she purchased items on a wholesale basis for model homes through her business operation and the impugned cheques were used to pay the taxes owing as a result of such purchases. Although both parties agreed that Mrs. Budd used Mr. Budd’s Visa card after separation, I am unaware of Mr. Budd making any claim for return of these funds other than submissions after trial which I will deal with later in my decision, nor did he deny her evidence as to the use of the bank account for business purposes during his testimony.
[11] Jane Budd said her work as a decorator was done as a hobby because she enjoyed doing it and that it was never set up as a business nor did she keep books for it, even though she was paid for doing such work. When she was shown a typewritten invoice for $13,000 from her “business” to her husband’s company, she said she did not recall it at all, indicating that at one point she signed everything that her husband or his lawyer put in front of her and that she trusted the respondent. She also said any invoices she did were in handwriting. Mr. Budd was never asked about this invoice during his testimony. I conclude that nothing turns on this evidence in terms of financial issues.
[12] Jane Budd acknowledged that she received an $8,450 refund from Revenue Canada, which she spent, after her husband refiled her income tax in 2008. Mrs. Budd acknowledged that in that year a contribution of $56,600 was made into her RSP by her husband. It was the position of the respondent that the contribution gave rise to the refund and, accordingly, the funds belonged to him. Given that the applicant had no source of income, the argument of the respondent is accepted by the court.
[13] Mrs. Budd also agreed that she not only received monthly spousal support after separation in 2008 on a regular basis, which amounted to some $138,000 by February 2014, but also, as noted above, she had the use of her husband’s credit card after separation. There were complaints about tardy cheques but no real issue that she received support from the date of separation. Mrs. Budd said the support she received from her husband was insufficient for her needs. She spent over $10,000 on Mr. Budd’s charge card for items to furnish her new residence. She acknowledged that during the marriage Mr. Budd paid all of the bills of the family, including that of the child Sarah and, as such, her child support could properly be used by him.
[14] A lot of trial time was spent in going over the parties’ financial statements with a detailed examination of their income and expenses, although I do not understand how this is relevant given that the issue of spousal support has been resolved. Mrs. Budd was questioned about monies spent on her car and her hair and the income from her “business”. Her expenses far exceeded her income and she said her parents make up the shortfall. She agreed that upon the death of her parents she and her sister will benefit from their estate, but she was unable to describe that source as substantial, nor is it relevant at this point in time.
[15] During Mr. Budd’s cross-examination, a similar detailed examination of his financial statements and net family property filings was undertaken. Mr. Budd’s explanation for deficiencies or inaccuracies in his financial statements was his lack of counsel initially or attempts to resolve issues without litigation. Other than to potentially attack the credibility of the person, I did not see any purpose to such examination. The forms are difficult to understand with counsel, even more so without. The net family property statements basically will turn on the property valuations which are at the heart of this decision, and which will be based upon my assessment of their experts’ evaluations. I see little purpose in the critique of values of assets or property or income and expenses in either of the couple’s statements. To ask the court to determine credibility based on the completion of family law forms as presently structured is a nonstarter to me. The parties are neither accountants nor valuators. At best they complete the complex forms based on their “best guess” or estimates, neither of which affect credibility in my opinion, given the reality that a very small percentage of the population, if any, would be able to provide accurate answers to such questions.
[16] The net family property statements were also reviewed in part with a lengthy inquiry about the valuation of her wedding ring for which Mr. Budd provided an appraisal showing a $33,000 replacement value but Mrs. Budd claimed she was told by a valuator’s opinion it was worth one-third of that. She had no evidence to support that claim, saying the jeweler had retired. The purchase price for her ring was $12,844.35 and for his $2,354.62. Mr. Budd said that for insurance purposes they both had their wedding rings valued every year, but these yearly valuations were not filed by either party as exhibits on the trial. Again, I cannot determine why trial time was spent on matters without such evidentiary bases, or valuations.
[17] Jane Budd said that she agreed her appraiser did not mention any deficiencies in the matrimonial home, which Mr. Budd’s did, testifying that as a couple they took very good care of the home and dismissing any such issues as minor in nature or repaired. Mr. Budd said the home needed over $100,000 in repairs, including leaking issues and a new roof. Mrs. Budd did not want her valuator Mr. Del Sordo to speak to the respondent because she said he is not always honest. Again, the value of the matrimonial home having been agreed upon, this is not an issue for the court.
[18] Before Mrs. Budd left her husband she went through his papers and copied those items she thought would be useful for her lawyer. One item she copied was a real estate opinion of value for a Lot 6 dated April 22, 1994, showing the value at $250,000. A second letter for the same lot by the same appraiser dated the same date was produced and its value was $300,000. She testified the second letter was not in Mr. Budd’s file or she would have copied it. Mr. Budd said the second letter was done at the request of his bank and was rendered as a result of more comparables being used to value the property. He denied the letter was “altered” in any way. Given the court will make its decision based on property values by accredited appraisers, I question the relevance of this evidence other than as a collateral attack on Mr. Budd’s credibility in a case where the factual determination does not centre in or touch upon the parties’ individual integrity. It may explain from her perspective Mrs. Budd’s reluctance in part to have her appraiser speak to the respondent, but even that I find to be a guess on my part.
[19] Mrs. Budd testified that the respondent told her that the “Griffin Street” property was going to be a “gold mine in a short time” and that he planned to build a commercial building on the land with a parking lot and four condominiums above. Mr. Budd did not tell her when the work was to commence as he was at that time extremely busy on the “Station Meadows” subdivision. On cross-examination she acknowledged that Mr. Budd had never developed that type of property but she reported that he was excited about trying such work. She agreed that Mr. Budd told her that there could be oil tanks underground, which would have to be removed. This would support her evidence that he planned to do some type of development on the property, otherwise it would not be an area of concern for him. In his testimony the respondent said that the property had been a gas station and that he purchased it only to display signs for his subdivision in the area. He did not seriously consider developing it commercially, he said, recognizing that he would have to bear the costs of upgrading the adjoining streetscape for the Region in order to do so.
The Properties
[20] The parties were married on March 13, 1992 and at the time of marriage Mr. Budd through his company owned two parcels of land; one in Grimsby known as “8 Admiral Circle”, being Lot 6 on the subdivision plan, and the other, a plot of land in Smithville which had draft plan approval at the time, referred to as “Blue Ribbon Estates”. At the date of separation the respondent owned two corporations; one being P. Budd Developments Inc. (“Budd Developments”) and the other 2082347 Ontario Limited (“208”). The only asset owned by 208 was an airplane the value of which the parties have agreed upon. The date of separation occurred on November 11, 2008 and on that day Mr. Budd through his corporation Budd Developments owned five pieces of property. They are described in this decision as follows:
(1) “Station Meadows” Phase 3 Smithville
(2) “Station Meadows” Phase 4 Smithville and the “RVL Lands”
(3) the “Smithville Lot”
(4) the “Griffin Street property”
[21] The Del Sordo and the Kermack reports, as well as the Ellens critique provided values for the properties held on the valuation date and on date of marriage. Each of the properties will be examined taking into account some of the evidence of each appraiser about such property in my decision.
[22] All of the experts who testified were qualified on consent as experts on the valuation of development land. The experts’ reports were also filed as exhibits. Mr. Del Sordo has completed real estate appraisals for 23 years. After he completed his Bachelor of Commerce in 1988, he did all courses necessary for full accreditation with the Appraisal Institute of Canada. Mr. Del Sordo did not speak to Mr. Budd about the appraisals at all. I note through his companies Mr. Budd was not only the owner of the lands, but the developer of the land and I suggest in the best position to comment on them and provide information about them. Although I curtailed Mr. Budd giving “opinions” of value during his testimony, given his lack of qualifications as an expert appraiser, I recognize his firsthand knowledge is relevant. It is a concern to the court that Mr. Del Sordo may have lacked important information in making his decisions. An example of this would be the RVL confusion discussed below.
[23] Mr. Kermack is a senior appraiser at Penwarden Appraisals. He has an MBA which he obtained in 2003 and he attended University of British Columbia in 2010 to attain his credentials. His comparables were mainly from the Niagara Region.
[24] Mr. Ellens obtained his accreditation in 1983 and has testified a number of times in court. From his testimony I learned that he did not agree that independent research would have been better than speaking to the owner Mr. Budd. He said if he was told not to speak to the owner he would be “handcuffed” and that he would either not take the retainer or he would include a major disclaimer in the report. Although he acknowledged that he had no obligation to interview the owner, he would have disclosed in his report that he had not done so. He said that the “label” attached to an appraisal such as a “short narrative” is not significant. In fact, he described it not as short, but as a summary. The Kermack report should have included data pages but these could be produced by bringing the same information to court. Mr. Ellens said that the Kermack report and his own critique were appropriate for court purposes. Given his qualifications, I accept his opinion in that regard.
[25] Mr. Ellens pointed out that the appraiser requires the skills of research math and writing together with good judgment and good common sense. He opined that values can vary 5% to 10% but not much more than that or it is a cause to question the valuations.
[26] Mr. Del Sordo, through his company Humphrey Appraisals, prepared a multi-property narrative report designed to prevent duplication and reduce costs. Unfortunately, I found the method used made the report very difficult to read and to follow his analysis.
[27] Mr. Del Sordo noted that in 1992 real estate values were on a decline with a reduction in property values with low interest rates and high unemployment. He said it was one of the worst declines in” history” for real estate.
[28] It is the position of the applicant that the only true valuations appropriate for court purposes was that of Mr. Del Sordo and for that reason his valuations should be preferred. I have difficulty accepting this premise for a number of reasons. Firstly, all three appraisers were accepted on consent as experts in their areas. Secondly, the Kermack report lacked only backup in the report but this material was available during his testimony in court. All three of the appraisers were credible and qualified and, I find, tried to the best of their ability to assist the court. It is Mr. Ellens’ opinion, which I accept, that the Kermack valuation and his critique are appropriate for such purposes. It is, of course, interesting to note the applicant’s values are lower by almost a half million dollars than the respondent’s on the date of marriage and the reverse is true on the date of separation value, notwithstanding the “independence” of the appraisers from their clients. The discrepancies of course to a large extent arise from different philosophical approaches to certain properties and their uses. This reinforces the “gatekeeper” function I need to maintain in terms of experts’ opinions and underlines that real estate valuation is not a science.
8 Admiral Circle, Grimsby, Ontario
[29] Mr. Del Sordo noted that this property consists of one lot contained as a nice lakefront property within a cluster of upscale homes and was a desirable lot zoned as a single family home piece of land. The valuation technique he used throughout his appraisals was the “direct comparison” assessment indicating that the other approaches would be inappropriate given the type of property. The other methods used in appraisals were not appropriate for most of the properties valued, a fact not disputed by the parties or their appraisers.
[30] Mr. Del Sordo was criticized by the respondent’s appraiser and Mr. Ellens for using Hamilton-based values rather than Niagara. Most, if not all, of his comparables were from the Hamilton area and his “20%” factor used to adjust the prices to Niagara was provided without any statistical bases for the same. I find that the Niagara market would be quite different than Hamilton, given its difficult economy, population, and rate of development. As well, it seems logical to compare “apples with apples” - similar properties in a similar market rather than confusing the process by introducing land from a different marketplace. Accordingly, I concur with Mr. Kermack and Mr. Ellens that these elements provide a basis for a valid critique of Mr. Del Sordo’s figures.
[31] Mr. Del Sordo’s comparisons also did not compare the property to a similar “shoreline protected, riparian right” piece of land, so it is difficult for the court to find correctness in his assessment. I acknowledge that exact comparables might have been difficult given the economic times and that similar properties are the basis for formulating opinions of value, but, without such direct comparables, I find the value of the expert advice is reduced. This is compounded by the failure to consider another home lot that sold in the same court, being 10 Admiral Circle, within six months of the valuation date. Both Kermack and Ellens point out that it is the most comparable property, and I would agree.
[32] Mrs. Budd believed the value of 10 Admiral was skewed but did not provide any evidence to support her concerns. She suggested that the value was not useful as Mr. Budd was the builder so the lot value was wrapped up in the price of the whole package and, as such, may not be an appropriate indication of the true price.
[33] In his evidence Mr. Budd took issue with the suggested drop in property value by Mr. Del Sordo, specifically as it related to 8 Admiral Court. He testified that in his experience, “high end” properties are not affected by the market as much or at all as ordinary properties. Peter Budd notes that this lakeside property with shoreline protection, riparian rights with a good beach, and the size of the property would attract those with money, notwithstanding the economy. Although he provided no statistical date to support his theory to me, it makes common sense to me. A large lot with real beach access in Niagara with excellent shoreline protection as described by Mr. Budd is a desirable commodity and I take judicial notice of that fact. Of course, I must consider that evidence along with that of the opinions of the proffered experts in coming to my final decision.
[34] Each party wished me to discount the others’ valuations based either upon the reports, the comparables, the timing of their comparables, the expertise or lack thereof, their failure to speak with the developer Mr. Budd or to their speaking with Mr. Budd, among other things. All were qualified as experts so I will not reject any of them totally but consider each on their merits while reaching my own conclusions as to value based on the information they provided for me and keeping in mind the overall principle of equity between the parties as a premise for equalization upon the dissolution of the marriage partnership.
[35] Mr. Del Sordo valued the vacant lot at $205,000. Although he acknowledged that lakefront properties are desirable, as did the two other appraisers, he based his calculations on street front measurements rather than lakefront. Mr. Kermack did lakefront and is criticized by the applicant for this analysis because of the change in the moveable boundary that is touched by the lake and also because he already attributed a greater value to the land because it was lakefront. From a logical point of view, I agree with the Kermack report on this point. Although the boundary may change slightly, it is the sandy beach lakefront that makes this lot special and desirable. Although there were comparables in the Grimsby area, Mr. Del Sordo used only two, and of those only one was waterfront.
[36] I find that the experts agreed that Grimsby is a vibrant and growing community with many desirable amenities, and it has been so since the 1980’s at least. It is an area that would be sought after by purchasers and the beachfront would only enhance that value. 10 Admiral Circle, a lot in the same subdivision in the same vibrant community, with the same waterfront amenity, sold on August 2, 1991 for $300,000. Mr. Del Sordo did not use that property as a comparable at all but I find he should have done so. It sold just months before the parties married on March 13, 1992. The fact that Mr. Budd was also to build the home on 10 Admiral Court was argued to raise suspicion about the value allocated to the land. I find that that is all it is - suspicion. As Mr. Ellens pointed out the same would be true for many of the comparables and, as such, is not in itself a valid complaint. Although there may be some adjustment incorporated between land and building values, the total value of the consideration has to be appropriate for Land Transfer Tax purposes and as such I reject the allegation as being without an evidentiary basis or validity.
[37] Mr. Kermack valued the same lands at $335,000 using 10 Admiral as a comparable. That property was a larger lot. Mr. Ellens criticized the comparables used by Mr. Del Sordo as being outside of reasonable timeframe to the relevant date sometimes seven years old. He also supported 10 Admiral as an appropriate comparable and concluded that $310,000 was the best estimate of value that he would attach to the property.
[38] In his submissions the respondent does not propound the values arrived at by Mr. Ellens, perhaps because his role was to “critique” valuation, “not create a value”. However, I found the analyses and critiques of Mr. Ellens to be of great assistance to the court. Although all three of the appraisers had excellent credentials, I found his experience and most clearly independent approach to be the most helpful to the court, and as his information was provided as part of the evidence on the trial both by way of filing his critiques and his giving viva voce testimony, I conclude that I can use the information contained in any of the reports to base my findings upon. I also note that he provided numerous comparables that were more appropriate than either of the others.
[39] Mr. Del Sordo used an adjusted unit of $3,000 per front foot to arrive at a market value of $206,700 rounded down to $205,000. His comparable lot value ranged in value from a low of $160,000 to a high of $280,000 or $1,400 front foot to $4,356 per front foot on his secondary sales, sales which, as noted, Mr. Ellens said fell outside of a comparable range in time. Although Mr. Del Sordo selected $3,000 as the front foot rate I am unclear as to how he determined this. The desirability of the lot and the location I would find would push it to the upper range which would be $4,167 or $4,200. At $4,200 times the amount he calculates as frontage of 68.90, the price would be $289,380 or rounded out to be $290,000. I acknowledge Mr. Del Sordo said in his testimony that he did not seek out an average of the prices of the comparables rather looked to similarities of the lots with the subject property. He was not aware that the property had a sandy beach. The water foot frontage was 98.27. At $3,000 per front foot the value of the land would be $294,810. I note, of course, that Mr. Del Sordo was using “street front footage” to comparable street front footages and not lakefront footages.
[40] 10 Admiral Circle had 83.35 feet of water frontage and the lot size per square foot was 12,980 compared to 12,960 of 8 Admiral Circle. Mr. Kermack’s comparables, all in Grimsby, and many on the waterfront, ranging in time from 1990 to 1992, ranged in values from $225,000 to $340,000 or an unadjusted waterfront value of $2,487 to $4,873. After adjustment he adopted a value of $3,300 to $3,500, or $3,400 average, which he found to be supported by the 10 Admiral Circle sale. Multiplied by the waterfront footage the valuation placed the property value at $335,000.
[41] Mr. Ellens placed the value of the property at $310,000. He points out that sales comparisons should be prior to the subject date and within a six month range of such time. He found 142 Lakeside Drive $340,000 as a good comparable without adjustment required. 8 Admiral Circle having more lake frontage would indicate a higher sale price than 10 Admiral Circle. Mr. Ellens pointed out that the Lakeside comparable, although assessed as a vacant lot, in fact had at the time of sale and in 2013 a 1971 house on it. Although it may have been purchased for demolition, it has not been and accordingly the land must be treated as improved, and I concur.
[42] I note again it is clear that although methodology is used by appraisers, it is far from an exact science. Here it is made obvious by the wide range of values given by the appraisers.
[43] I find the most accurate indicator of value is a sale to a purchaser of the open market of an almost exactly similar piece of property which is 10 Admiral Circle. It sold for $300,000 and I conclude that the subject property would sell for at least that amount. I attach a premium to the additional frontage on Lake Ontario and I conclude that $315,000 is the proper value for this property on the date of marriage.
Blue Ribbon Estates - Smithville
[44] The other date of marriage property to be valued was a single parcel of land that had draft subdivision plan with “mixed density residential development” approval.
[45] The plan was to build single family homes and townhouses on the property. Mr. Del Sordo compared this property to other single family residential while the other two appraisers compared it to other mixed townhouse and single family properties. The applicant argues that this is a major flaw in their analyses because the lands were one piece of property at the time and without Planning Act (the “Act”) approval the lands could not be severed. I would point out that the purpose of a registered plan of a subdivision is to comply with that Act and that draft plan approval is a major step down that path. Further, until the plan was registered, no single family lots could be sold as “single” properties nor could “townhouses” be sold as such, and as such the argument is without validity in law.
[46] Mr. Del Sordo valued these lands at $1,205,000 at the date of marriage while Mr. Kermack valued the property at $1,860,000 using the direct comparison approach and $1,825,000 using the income approach.
[47] Mr. Del Sordo used only the direct comparison approach to reach his estimate of value and used Hamilton, Ancaster, and Dundas comparables, all of which had draft plan approval and most of which were prior to the relevant date. Using a 20% premium in connection with the Hamilton area properties as compared to Smithville he made a downward adjustment in that amount to the lands in question. The adjustment he said is based on his personal experience as noted above, no statistical data was provided to support this percentage. He compared the subject land to other mixed development lands without separately analyzing the “single family” value and the “townhouse” land value. He concluded that a range of $65,000 to $75,000 per acre or average $70,000 which multiplied by the net developable land area of 17.19 acres resulted in his value of $1,203,300 rounded to $1,205,000.
[48] Mr. Kermack concluded that the highest and best use of the property would be that of a holding nature with development occurring when economic conditions would warrant. The development would be in accordance with the Site Plan Agreement. At the applicable time there were services available along the main streets, but the land itself was not serviced, and there were no internal roadways or individual lots. In the direct comparison approach Mr. Kermack considered “bulk sales” of the townhouse “property” since such would be developed by one builder given the nature of their construction, with other sales being developed for single family lots. Given the depressed market at the time in question, sales from outside Smithville area were used for comparison. In his analysis the single family component would result in a value of $985,000 in the direct comparison approach while the balance of the lands being “townhouse” would account for $875,000, resulting in the $1,860,000 total. In Mr. Kermack’s development approach “single family” “parcels” would be $52,500 per lot and the townhouses $32,500. After adjustments Mr. Kermack concluded the total value of the lands on this type of analysis would be $1,825,000.
[49] Mr. Ellens in his critique suggested the value of the single family and townhouse components should be considered separately, attributing $801,000 based upon $70,000 per acre and 11.443 acres to the single family homes, and $1,148,600 to the townhouse component based upon 5.743 acres valued at $200,000 per acre. Accordingly, his total estimate of value was $1,949,600. He suggests that the lands be surveyed to get exact dimensions. In his review appraisal report he pointed out that the acreage used by Mr. Del Sordo was incorrect; the total acreage was 18.097 of net developable land and not 17.19 acres. He said that only two sales used by Mr. Del Sordo contained mixed density residential with the balance being single family homes. Further, he did not disagree with Mr. Del Sordo’s values on the assumption that the lands were developed as single family residential only, so that the $70,000 value per acre is appropriate but only for the single family portion, but concluded that a reasonable appraiser, especially given the existence of a bylaw permitting mixed development, should have taken the townhouse component into account in reaching his value. Mr. Ellens noted the same issues with the timing of some comparables and attributes a lower value to the single family homes than Mr. Kermack, but generally agrees with him.
[50] I agree that the separation of values between the townhouse and single family is the most accurate assessment in the circumstances of this property. Accordingly, I find the value attributed by Mr. Kermack in his direct comparison approach, preferring it over the income approach given the stage of development of the property, would be the most appropriate value, being $1,860,000.
The Smithville Lot
[51] This parcel was owned by the respondent on the date of separation and continues to be held by him at the date of trial. The main “problem” with the property is that it is presently zoned agricultural and it was on the day that Peter Budd purchased it in 2003. However, it is bordered by the urban boundary and, as such, the argument is put forth that it would one day be included within the boundaries and as a result be worth a substantial amount more.
[52] There are a number of problems with the argument that the land should be valued in anticipation of its potential increase in price, although I agree that on an objective level this “gain” should be quantified if it in fact exists. The concerns centre in the following: It is improper to use speculation in valuing a property as I was advised during the trial from an accredited appraiser Mr. Kermack? Yet Mr. Del Sordo did so, and so did Mr. Ellens in his critique and argues that “speculation” can be used to increase land value. Secondly, the parties separated in 2008 and seven years later the land is still zoned agricultural. Thirdly, neither in the appraisals nor in the critique is there any evidence that when Peter Budd bought the property initially he paid a premium for it “betting” on its potential value in the future, albeit from the purchase price paid by him it appears to me that he did so. This evidence would have been useful to the court.
[53] The Del Sordo report took the position that the lands should be valued as development lands, which the Kermack report held that the lands are agricultural and should be valued as farmland. Mr. Ellens, in his critique, pointed out that the lands could possibly be developed and based upon that premise selected a halfway between the two other appraisers.
[54] Mrs. Budd included in her submissions Mr. Budd’s recent covert attempts to do a “land swap” which would allow him to provide land to the town within the urban boundaries in exchange for the lands in question. In this way the Smithville lands could be developed. I agree this shows that in part the lands may have been purchased in speculation but would point out that in over seven years from that date, and 12 years from its purchase, the zoning of the lands has not changed. However, at the valuation date the lands were zoned agricultural. I acknowledge that the “delay” could be Mr. Budd’s reluctance to having the property valued at a higher rate while accepting that in that time period the urban boundaries have not changed. Again, a positive and negative view which, of course, underlay the appraisals and resulted in a wide variance in the values attributed to the property by the appraisers. To be fair, the variation of values also centres in the different analytical approaches used by the valuators - for example, the property that is outside the urban boundary but arguably one day might be inside, which would increase its value, or the “split” development townhouse/single residential property which again was valued based upon the individual expert’s view of the best way to do so. It is not simple “bias” that created the value discrepancies.
[55] According to the Planning Department of the Township of West Lincoln, as at the valuation date there was no consideration of the urban boundary being expanded to include this property; albeit, subsequent to that date the Township has indicated an interest in expanding the urban boundary to create more housing units. This, according to Mr. Ellens’ report, is not usual and is complex. At any rate, it was not slated to be available for development in 2008.
[56] Mr. Del Sordo valued this land at $365,000 using the direct comparison approach. The property was acquired on October 31, 2003 for $300,000 by the “respondent”. He found the highest and best use for this property would be holding for long term future development. He decided its location adjacent to the existing built up urban boundary gave it “speculative advantages” over a purely agricultural land holding which would cause a purchaser to pay a premium for it compared to lands that are only agricultural without development potential. Of course, that assumes the “willing” buyer is a developer, but given the land is not and has not been used for farming for many years it would be unlikely to attract many farmers as buyers. I could not, however, exclude the possibility that a farmer might want to expand his holdings up to the urban boundary of Smithville.
[57] Mr. Del Sordo used for comparisons agricultural lands having long term development potential based upon the sale per acre of land area. Ultimately, he decided the lands could be valued at $10,000 per acre and given the total acreage of 36.65 found a market value of $366,500 rounded down to $365,000.
[58] Mr. Kermack valued the same lands at $170,000. I note there is a mortgage in favour of Effort Trust registered against the property in the amount of $225,000 as at October 31, 2003.
[59] Mr. Ellens found the value to be $255,000 with a conclusion that $7,000 per acre would be the appropriate price. He acknowledged upon examination that he chose a midpoint between Mr. Kermack’s and Mr. Del Sordo’s values. He disputes that the Planning Department of West Lincoln had any initiative to expand the urban boundary but certain studies were undertaken as part of a wider provincial initiative. He acknowledges that there may be some merit at the present time to suggest the lands may be considered for further urban boundary expansion, but that was not the reality at the date of separation. However, Mr. Ellens suggests that there is some possibility and argues that “holding for long term development” is optimistic and a more realistic estimate is “agricultural with speculative development”. This requires valuation of the lands as “agricultural with an adjustment for the speculative nature of the land”.
[60] Mr. Ellens argues that agricultural land is properly valued by Mr. Kermack in a range of $2,327 to $4,040 but with the upward adjustment to account for the “speculative nature” of the site he concludes the value per acre to be $7,000. This resulted in $256,550 rounded down to a value of $255,000 in his critique.
[61] In the end result, after considering all the information provided, I would concur with the philosophy of Mr. Ellens, if not his conclusion. If I had hard evidence that the purchase was for speculation in 2003 I could agree with such being used to increase the appropriate agricultural value of the land. This information is lacking so I am left with the assumption, perhaps validly so – given that Mr. Budd is a developer and not a farmer – that he would not acquire lands without a purpose, which would be to develop. His purchase price of $300,000 in 2003 supports the concept to me that the lands were purchased for holding long term for development. The possibility of development then and now is a very large question. There was no evidence to support an economic decrease in the value of agricultural lands between 2003 and 2008, albeit there were issues in the fall of 2008. As such, I would determine that the lands should be valued as agricultural with a premium attached short of attaching a complete speculative value. To value it as developable property when it is not now, and was not in 2008, would be wrong. I find that the appropriate value is that of $170,000 plus 25%, or $212,500 rounded up to $215,000. This reflects the possibility that the lands may never be developed with the probability that it could be developed in 2008.
[62] Unfortunately, there was no evidence of the value of similar lands where the potential for development attracts a premium. However, the process I have used to reach the conclusion above makes logical sense in all the circumstances, especially in light of the value Mr. Budd attached to it when he paid $300,000 for it.
Station Meadows Phase III
[63] On the date of separation Mr. Budd, through his company, was in the midst of developing an upscale subdivision and owned eight lots still within that plan. Mr. Del Sordo valued these lots at $838,000 on the date in question, again using the direct comparison approach. He does a complete analysis and opines that the appropriate front foot rate would be $2,000 per foot and attaches a premium to the rectangular lots. It is the applicant’s view that Mr. Del Sordo’s appraisal should be the one I accept, that Mr. Ellens was critical of Mr. Kermack’s comparables as out of time in two instances, and that as a critique and not an appraisal I should reject Mr. Ellens’ calculations in their entirety. She also suggests there is no factual foundation for Mr. Ellens’ numbers. I have previously provided my view of such submissions.
[64] Mr. Kermack valued the lands separately and arrived at a total of $665,000 using comparables from Niagara Region with two being in the same community. The respondent points out that Mr. Del Sordo’ comparables were from outside the Region, a fact that Mr. Ellens criticizes in his review.
[65] Mr. Ellens separately valued each of the lots. He was of the opinion that the value of the rectangular lots was approximately $1,650 per front foot and arrived at a total price for the property of $715,000. He agreed with both appraisers that pie-shaped lots attract a premium and acknowledged that it is difficult to determine that amount. He also noted that although often valued individually on a front foot basis often a builder will buy a group of lots together in a subdivision without individually valuing each separate lot.
[66] In his report Mr. Del Sordo’s comparables ranged in selling price from a low of $70,000 per lot (for a 30 foot lot) to a high of $143,000. The individual unit rates varied from $1,017 to $3,351 per front foot concluding that the subject properties should be valued at $2,000 per front foot with a premium attached for the pie-shaped lots, of which there were two, and which he valued at $110,000 each.
[67] Mr. Kermack’s comparables ranged for the rectangular lots from a low of $55,000 to a high of $150,000 per lot. He placed emphasis, and I agree, upon the comparable #11 which was a multiple lot purchase in the same community of Smithville which occurred just weeks prior to the date of separation. Mr. Ellens agrees that it is a very good comparable but points out that adjustments should be imposed since comparable #11 had more pie-shaped lots and generally the lots were larger with approximately ten foot greater frontage. Accordingly, a downward adjustment should be applied. Mr. Ellens also put forth two other comparables in nearby communities and within an acceptable timeframe where the lots average $103,000 and $92,000 respectively. He concludes that $1,650 per front foot is therefore appropriate. I agree that the Beamsville comparable would be of great assistance helping the court to determine the appropriate value.
[68] Mr. Kermack concludes that $80,000, being the midrange between $75,000 and $85,000, should be the price attached to each of the rectangular lots without consideration of the size of the lots which range in frontage from 49 feet to 63 feet. It may simply be averaging over the entire property but common sense would dictate that a purchaser would pay more for a larger lot. I acknowledge he adds $5,000 for Lot 1, being the largest, for that reason. However, using that principle, the size of the other lots should also have been considered to be consistent, i.e. if a larger lot is worth more, the size of the lots is relevant to their price. It also makes it difficult for the court to compare the two valuations as different approaches were taken. Using Smithville comparables as the bases for his conclusion, he attributed a value of $85,000 for one pie-shaped lot and $95,000 for the other without really explaining why. Mr. Del Sordo picks $2,000 as the front foot value but indicates a range of $1,017 to $3,351 per front foot and then selects the average of the two to be the proper value, $2,184 rounded to $2,000 but I am unclear if this is the appropriate number for these lots in this subdivision.
[69] I find the only equitable way to conclude this matter is to accept that both appraisers make some valid points in their valuations and arrive at very different conclusions. Mr. Ellens appears to have used the most appropriate comparables.
[70] The only equitable way given the large discrepancy on the figures and the application of discretion of each appraiser is to take Mr. Del Sordo’s value of $838,000, Mr. Kermack’s value of $665,000 and Mr. Ellens’ value of $715,000 and arrive at an average of $739,333 rounded up to $740,000. There is merit in each of their arguments, they are experts and Mr. Ellens had the best comparables. Accordingly I find that the value of Station Meadows III as at the date of separation was $740,000.
Station Meadows IV and RVL Lands
[71] There was some confusion about these lands given that a certain part of the lands were transferred to RVL, and Mr. Del Sordo believed it to be a separate parcel and valued it separately as an addendum to his original valuation. The original lands had been draft plan approved and in 2012 became Station Meadows IV with 17 residential lots, with the balance of the lands being part 1 on Plan 30R-1319 and which was sold to RVL Contracting Inc. in January 2012. However, on the day in question the lands were not a separate parcel and could not be sold separately. It is the position of the applicant that the respondent brought about this confusion, but I disagree. The fact that the lands had not been severed would have been obvious from the title to the property. Whether or not a premium might be attached as a result of having the RVL lands is a different question.
[72] Mr. Del Sordo valued the lands at $615,000 but he revised that value to $540,000 during his examination. His original valuation was $490,000 for the residential lots and $125,000 for the RVL lands. The $125,000 was based upon the $145,000 sale price on the RVL transfer which occurred four years after the valuation date. On examination Mr. Del Sordo agreed that the RVL lands could not be separately valued and attached the same value to those lands as to the balance of the plan lands and arrived at $540,000 as a value.
[73] Mr. Kermack valued the land as one parcel and determined the proper amount to be $460,000 for the direct comparison approach and the development approach to valuation.
[74] In his evidence Mr. Kermack suggested $440,000 as the value giving more weight to the direct comparison approach. It is Mr. Budd’s position that the “price” that was agreed for the RVL lands was $20,000 and the price paid was $145,000 with the difference in the consideration arising as a result of the development costs he had incurred in relation to that parcel of land for which RVL reimbursed him. No one testified from RVL and we know from the deed the total consideration was $145,000.
[75] Mr. Del Sordo originally viewed the lands as valuable to RVL as it could not have developed its property without them. However, Mr. Kermack and Mr. Ellens expressed the view that both parties would have benefitted from the transaction and, as such, neither would have extracted a premium, and I concur.
[76] Mr. Ellens held the value of the subject property was $125,000 per acre which given its 3.77 acre size amounts to $471,250 rounded down to $470,000. To this figure he adds the “value” of the RVL lands being $20,000 resulting in an appraised value of $490,000 for Station Meadows IV and the RVL lands.
[77] Mr. Ellens’ critique of the Del Sordo report indicates that the RVL lands are not effective developable area but part of the over land storm drainage system as outlined in the Smithville North Master Drainage System. He points out the only two of the six comparables used were in the West Lincoln area with the balance being in Hamilton within areas he deems as superior which would therefore require “significant” adjustments. Mr. Ellens provided four other sales, two in Fenwick and two in Grimsby.
[78] Mr. Ellens is critical of Mr. Kermack including the “storm sewer land” in his valuation in terms of total acreage as it is not developable land. I agree that different parts of property can be valued differently without severance having occurred. However, where it is clear that a piece of land is not “developable” a development value should not, I find, be attached to it. If one half of a property has a lake on it, those lands could not be valued as potentially developable for single family homes. Here, the proposed comparables are of developable subdivision lands for single family residences. Houses cannot be built on a storm sewer system and therefore I agree the RVL lands should be separately assessed and valued, and that Mr. Kermack failed to do so.
[79] Mr. Ellens is critical of a number of comparables used by Mr. Kermack. Of the eight used, three were outside the time period being the effective date range. Some of the balance of the properties were in Niagara Falls and Welland, which would be considered superior and should, accordingly, be adjusted downward in terms of comparisons. The best comparable he finds is sale #8 which had a price per acre of $128,479 leading him to conclude a $125,000 per acre price.
[80] Mr. Kermack based upon his comparables as adjusted and finds a range of $105,000 to $115,000 and establishes $110,000 given the “shape and density potential of the property”. Multiplied against the total acreage of the lands, being 4.16, he reaches a price of $460,000 for the lands. It can be argued that by taking the lower figure of $110,000, the fact the RVL lands could not be developed has already accounted for that problem in his appraisal.
[81] In summary, Mr. Del Sordo suggests $540,000 as the value of the lands; Mr. Kermack $460,000, and Mr. Ellens $490,000. Given that Mr. Ellens based his value on the most direct comparables I am prepared to accept his suggested price per acre of $125,000. Although the applicant is skeptical of the “$20,000” value of the RVL lands, it appears that this was the agreed value at the relevant time between a willing vendor and purchaser, and I accept it. I conclude, therefore, that $490,000 is the value of Station Meadows IV and the RVL Lands as at the date of separation.
The Griffin Street Property
[82] Mr. Kermack valued these lands at $100,000. According to Mr. Budd the lands were acquired to place a billboard upon it directing people to his subdivision. The lands consisted of two lots containing .525 of an acre and is designated under the Official Plan as general commercial and is zoned commercial C1.
[83] There is some concern that there are gas tanks located on the property but none of the valuators estimated the costs of removal or the impact upon the value of the lands of these tanks. There were no comparative sales available in Grimsby. Based on his adjusted comparables, Mr. Kermack determined a range of $185,000 to $200,000 and selected $190,000 as the value per acre given the lot shape, underground easements, and accessibility issues. This times the area of .525 acre is $99,750 or $100,000.
[84] Mr. Ellens valued the lands at $105,000 less any necessary remediation based on a value per acre of $200,000. Mr. Ellens is critical of Mr. Kermack’s failing to provide backup for his comparables and rejects sale #3 as a proper comparable. Even Mr. Kermack acknowledges that it would require a substantial adjustment to be used properly.
[85] Mr. Del Sordo values Griffin Street at $205,000. His comparables ranged from $4.52 per square foot to $14.58 per square foot. Given the size of the property and its location “in the central business district of a small community in the rural section of the Region, he relied on his two comparables in the Hamilton Region and determined the appropriate range for price to be $8.00 to $10.00 per square foot and arrives at $9.00 per square foot or $204,876 or $205,000 in total, given the square footage is 22,764.
[86] Mr. Del Sordo incorrectly asserts that the purchase price for the lands was $170,000 suggesting that the two municipal street numbers for the property represented two lots each valued at $85,000. In fact, Mr. Budd’s company purchased both lots for $85,000 in total. Mr. Ellens did locate one sale in Smithville where the consideration was $47,500 for a .263 acre parcel which would amount to a price per acre of $180,608. He also provides comparables within the Niagara community and one from Jarvis and one from Simcoe with a range of prices per acre of $168,602 to $242,990. Again, he is critical of Mr. Del Sordo using comparables from the Hamilton area, Fort Erie, and Niagara Falls. I agree that the community of Smithville is much more comparable to Beamsville or Jarvis than Ancaster or Hamilton. I acknowledge it is difficult to find sales but the number of adjustments that would be required, to me, result in a loss of validity.
[87] The Kermack report, as supported by the Ellens comparables and his critique and value, is the one I find to be most appropriate and I find the value to be $100,000.
Other Issues
[88] It is the respondent’s position that approximately 20% of the couple’s home was “non-matrimonial”. I admit I find this an unusual suggestion. It would, I suggest, only be appropriate to do such an allocation where the “matrimonial home” had a mixed use, i.e. where the dentist carried on business in the two front rooms and the home was purchased knowing that it could not only accommodate the living space of the parties but also was the sole office of the family business. Everyone does some of their work in their home. Mrs. Budd did her “decorating” business from the home. The books were kept in the home and his bookkeeper used his “home office”. Mr. Budd also had an office at a different location. There was no area of the home that was used exclusively for his business. Even his office area contained exercise equipment. The use of the bedrooms was reported to change over time, one being used by their daughter until she left home. Is it the proportion of the house of the date of separation used for business that is determinative or how the property was used throughout the marriage? The garage portion that was heated and closed off according to Mrs. Budd was used to store her vehicle in the winter. Mr. Budd said he did winter projects in that portion and stored his tools there. Again, I have difficulty with the concept. If a lawyer works at home at the dining room table every night, does the room lose its description as a dining room and become a business area? If it is so used for two hours a day, is that time factor to be calculated into the equation?
[89] The applicant says that the one room claimed to have model furniture in it never did and the pictures of it show the room as empty. The undisputed evidence of Mrs. Budd is that although shelves were being installed in the second bedroom at the time of separation, it was not used to store business-related papers during the marriage. The pictures of the garage show it as a garage – even with oil stains on the floor and tire tracks.
[90] Prima facie the property was a residential home occupied by the parties as their matrimonial home and, as such, they are equally entitled to its value.
[91] At its best, therefore, the business use of the premises would amount to the “office” being 417 square feet and even this area was not an exclusive use. I find therefore that 417 square feet of the 7,679 square foot home could be asserted to be business use or just over 5%. Again, using the de minimis rule, I do not find it worth pursuing in this analysis and I attribute no business value nor do I find any space of consequence within the home to be considered non-matrimonial both in law and in fact. I find this is not a case where the home was a business venture, unlike the cases cited by the respondent in his submissions. It was a matrimonial home and the respondent did some business work there.
[92] Accordingly, I find that there is no non-matrimonial use of the matrimonial home in this case.
[93] I agree that the parties should provide annual disclosure of their incomes on an ongoing basis. Although I acknowledge Mr. Budd can to an extent determine his yearly income, it is important both for annual updates and a possible spousal support review that the parties are aware of each other’s income.
[94] In her closing submissions the applicant submits that the purchase price of the rings were $12,844.35 and $2,354.62 as at the date of marriage, as indicated at Exhibit 6, Tabs 22 and 23. Mr. Budd claims the replacement value of the rings pursuant to Exhibit 21, Tabs 9 and 10. The rings have not been lost, so I find replacement value is not appropriate. A used ring, unless it has some unique characteristic, is like all used chattels, worth less than the original price. I find, therefore, that Mrs. Budd’s ring should be valued at $8,000 and Mr. Budd’s at $800 for date of separation, and at the respective purchase prices of $12,000 and $2,000 for the date of marriage as they were acquired a short time before that. Without any expert assistance in this regard, I can only apply common sense and I have done so.
[95] The respondent’s closing submissions make reference to a Visa debt. However, I fully agree with the applicant that there was no evidence raised on this issue at trial at all and, as such, I do not deal with this “claim” at all in my decision.
[96] The applicant seeks indexing to her support, however we have no evidence that Mr. Budd’s income will be increased. I acknowledge Mr. Budd can vary his income by drawing the amount he wishes from his company but this could also reduce his income. For that reason, and given that the support was settled by the parties based upon an agreed amount of income, I will not further adjust the amount without any evidentiary basis to do so.
[97] In the case of Mrs. Budd, the respondent is of the opinion that upon inheritance from her parents “she will no longer require support”. The applicant asserts that the respondent has land assets that he may dispose of, again, giving rise to a potential review of support which could be deemed to be a material change in circumstances.
[98] I can find no reason for a “step down” for the respondent of spousal support in these circumstances just as I cannot find a basis for a cost of living clause for the applicant. If their circumstances change, it will be shown by their exchange of financial information which will, if necessary, reveal a material change of circumstances and/or trigger a review.
[99] Security for payment of support and equalization is used where the payor has dissipated assets, mismanaged money, is at risk of leaving the jurisdiction, has a poor employment history or has failed to pay support. None of these factors are the case in this situation. Accordingly, notwithstanding the applicant’s attempt to suggest that Mr. Budd was “mean spirited” or that he declared “war” on her, I find no factual basis to order such security. Mr. Budd has connections to the jurisdiction and as we have learned substantial land holdings within it to ensure Mrs. Budd’s payment of any equalization or support obligations.
[100] If the parties are unable to agree upon costs, the matter may be referred to the trial coordinator who will provide a Superior Court Judge to make such determination.
Tucker J.
Released: January 16, 2015
CITATION: Budd v. Budd, 2015 ONSC 346
COURT FILE NO.: 541/10
DATE: 2015/01/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jane Eleanor Budd
Applicant
- and –
Peter Budd
Respondent
JUDGMENT
Tucker J.
Released: January 16, 2015