ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Tyner v. Tyner, 2015 ONSC 3475

COURT FILE NO.: 238/12

DATE: 20150529

BETWEEN:

Ryan Thomas Tyner

John Mastorakos, for the Applicant

Applicant

• and -

Jessica Marie Tyner, Robert Pollard and

Judy Pollard

Lucienne MacLauchlan, for the Respondents

Respondents

Heard November 24, 25, 27, 28, December 2, 3, 2014

Trousdale J.

REASONS FOR JUDGMENT

[1] This trial arose out of a dispute following the breakdown of the marriage between Mr. Tyner and Ms. Tyner in November/December 2011. Between Mr. Tyner and Ms. Tyner it involved the issues of equalization of net family property and whether Ms. Tyner is entitled to spousal support.

[2] Between Mr. Tyner and Mr. and Mrs. Pollard, the owners of the property on which Mr. Tyner and Ms. Tyner resided, it involved a claim by Mr. Tyner for damages for unjust enrichment for work and money Mr. Tyner claims he contributed to the improvement of Mr. and Mrs. Pollard’s property from 2007 to 2011.

Background

[3] Mr. Tyner and Ms. Tyner met in the summer of 2006.

[4] Mr. Tyner and Ms. Tyner commenced cohabitation in January 2007 when Mr. Tyner moved in with Ms. Tyner and her mother at a house on a farm property in Selby, Ontario, which farm property is owned by Ms. Tyner’s maternal grandparents, Mr. and Mrs. Pollard who are also Respondents in this Application along with Ms. Tyner. At that time, Ms. Tyner was 18 years old and Mr. Tyner was 25 years old.

[5] The aforesaid farm property (herein “Selby farm property”) had been purchased by Mr. and Mrs. Pollard in 2005 for $185,000.00. Mr. and Mrs. Pollard financed the purchase of the property through a line of credit on their home in Sharbot Lake, Ontario. Mr. and Mrs. Pollard did some renovations to the old house on the Selby farm property to make it livable. Subsequently, Ms. Tyner and her mother rented the house from Mr. and Mrs. Pollard.

[6] Ms. Tyner and her grandfather, Mr. Pollard began operating a partnership on the Selby farm property, under the registered business name of Selby Creek Stables. Mr. Pollard looked after the financial end of the partnership while Ms. Tyner looked after the horse training, horse boarding, and riding lesson aspects of the partnership.

[7] At the time Mr. Tyner and Ms. Tyner commenced cohabitation in or about January, 2007, Mr. Tyner was building up his solely owned construction business which he had started in 2006.

[8] At some point, Ms. Tyner’s mother moved out of the Selby farm property. Mr. Tyner and Ms. Tyner became engaged in the fall of 2008.

[9] In the fall of 2008, Mr. Pollard purchased a building kit worth approximately $90,000.00 to build an indoor riding arena on the Selby farm property. This arena was completed by the spring of 2009, with the assistance of Mr. Pollard, Mr. Tyner, Mr. Tyner’s father, some of Mr. Tyner’s friends and local hired help.

[10] The parties married on July 25, 2009. There are no children born of the marriage.

[11] Over the years, both before and subsequent to the marriage, Mr. Tyner made a number of other improvements to the Selby farm property.

[12] Ms. Tyner had a riding accident in June 2011 and suffered a fractured back. By that time the parties were having matrimonial difficulties.

[13] In the fall of 2011, Mr. Tyner purchased the materials for and started building a garage/heated workshop on the back of the house on the Selby farm property.

[14] In November, 2011, Mr. and Mrs. Pollard and Mr. and Ms. Tyner entered into an Agreement of Purchase dated November 14, 2011 for the Selby farm property.

[15] There was an incident between the parties on November 29, 2011 which resulted in Mr. Tyner leaving the Selby farm property.

[16] By the date of separation, Mr. Tyner had done the footings for the garage and had finished the cement floor and one wall of the garage. Mr. Tyner had expended $22,827.90 on materials for the building of the garage. After the separation, Mr. Pollard told Mr. Tyner that if he left the construction materials for the garage at the Selby farm property, Mr. Pollard would reimburse Mr. Tyner for the cost of those materials.

Issues

(1) Whether the Applicant has made contributions of labour and money to the Selby farm property, and if so whether the Respondents, Robert Pollard and Judy Pollard have been unjustly enriched, and whether any compensation is owing by Mr. and Mrs. Pollard to the Applicant;

(2) Whether there is any equalization payment owing by either Mr. Tyner or Ms. Tyner to the other;

(3) Whether Ms. Tyner’s claim for damages against Mr. Tyner should succeed, and if so, what amount of damages should Ms. Tyner be awarded;

(4) Whether the Respondent, Ms. Tyner is entitled to spousal support;

(5) Whether there should be pre-judgment and/or post-judgment interest on any amount found owing to Mr. Tyner or to Ms. Tyner; and

(6) Costs.

Applicant’s Claim for Unjust Enrichment

[17] The Applicant claims that he is entitled to monetary damages in the sum of $51,917.90 for the financial contributions and contributions of labour which he made to the buildings and land at the Selby farm property from January 2007 to November, 2011. He is not seeking to be awarded an interest in the property, nor is he seeking to enforce the Agreement of Purchase and Sale entered into between himself and Ms. Tyner, and Mr. and Mrs. Pollard in November, 2011.

[18] Mr. Tyner states that he became aware shortly after commencing cohabitation with Ms. Tyner that the Selby Creek farm property which was owned by Ms. Tyner’s grandparents, Mr. and Mrs. Pollard, would someday be Ms. Tyner’s property as the intent was she could purchase it from her grandparents when she was financially able to do so.

[19] Mr. Pollard’s position in his evidence at trial (and I assume Mrs. Pollard’s position as well as she did not testify at the trial) is that there was never any agreement between Mr. Tyner and himself that Mr. Tyner would be paid for any of the work that he did on various projects at the farm property, other than the garage materials left at the farm. Mr. Pollard claims that it was “friends helping friends, family helping family”. Mr. Pollard points to work that he helped with at the home of Mr. Tyner’s parents, at the aggregate pits owned by Mr. Tyner’s parents, and at the home of Mr. Tyner’s sister, all for which he did not seek nor expect payment.

[20] As part of the sum of $51,917.90 claimed by Mr. Tyner, it is acknowledged by the Respondents that the Respondent, Mr. Pollard promised Mr. Tyner to reimburse him for payment of the materials that Mr. Tyner had purchased for construction of the garage in the sum of $22,827.90 if Mr. Tyner left them at the farm property to be used for completion of the garage. On the basis of that promise, Mr. Tyner did leave the materials at the farm property. The aforesaid sum did not include labour, traded labour, and gravel provided by Mr. Tyner for the garage and driveway, which Mr. Tyner states had a value of an additional $6,690.00. Mr. Pollard accepts some of those additional expenses but disputes others.

[21] Mr. Pollard testified that he agreed to pay Mr. Tyner for the materials left at the Selby farm property, although he went on to say that he had told Mr. Tyner that he would pay him as soon as he sold his Sharbot Lake home. Mr. Pollard then testified that his home in Sharbot Lake had been for sale for five years, but the sale was only completed in October, 2014.

[22] Mr. Pollard’s present position according to his testimony seems to be that he should not have to pay Mr. Tyner for the garage materials as it cost Mr. Pollard an additional $8,000.00 to $10,000.00 to construct the garage and there is still further work to be done to complete it. He also complained that he would never have built such a large garage, which he claims Mr. Tyner built as his own personal workshop and for the purpose of storing Mr. Tyner’s heavy equipment. Mr. Pollard also complains that his taxes and insurance on the farm will increase substantially because of the size of the garage.

[23] Mr. Tyner disputes that there was any condition put on payment by Mr. Pollard. However, Mr. Tyner argues that even if there were, Mr. Pollard has now sold his Sharbot Lake home and the payment of $22, 827.90 is due and owing for the garage materials, as well as an additional $6,690.00 for his labour and other materials for the garage.

[24] I find that Mr. Pollard did promise to pay Mr. Tyner for the garage materials in the sum of $22,827.90 and that Mr. Pollard and Mrs. Pollard shall be required to pay Mr. Tyner the sum of $22,827.90 for those materials.

[25] I now turn to the other items regarding which Mr. Tyner claims that Mr. and Mrs. Pollard have been unjustly enriched. There are numerous items, some of which include installing new hardwood flooring with wood Mr. Tyner already had, demolishing the old woodshed, excavating for an addition to the home, building and contributing to the addition on the home, preparing the site and excavating and creating driveways for the indoor riding arena, excavating and installing water and hydro lines to the indoor arena, assisting with the assembly of the indoor arena, various landscaping on the Selby farm property including provision of gravel, installing water lines and drinkers to two barns and all paddocks, and the additional $6,690.00 Mr. Tyner claims regarding garage and driveway expenses.

[26] The test for unjust enrichment is the finding of enrichment, a corresponding deprivation, and the absence of a juristic reason. If a finding of unjust enrichment is made, will monetary damages suffice to address the unjust enrichment? (See Kerr v. Baranow, 2011 SCC 10, 2011 SCC10, [2011] 1 S.C.R. 269)

[27] On the evidence before me, I find that there is no doubt that Mr. Tyner personally did a lot of work on the Selby farm property from shortly after he moved into the property until the date of separation. This was in the form of Mr. Tyner providing many hours of personal labour on his heavy construction equipment, for which he was not compensated by Mr. and Mrs. Pollard, or at most $500.00 for diesel fuel and $1,300.00 for trucking. Mr. Tyner denied ever receiving these payments and they were not proven by Mr. Pollard who said he had the cheques but never produced them. Mr. Tyner also traded his own work for the use of equipment belonging to another man which was needed for a couple of the projects on the Selby farm property. Mr. Tyner also paid for some materials such as tiles and cement.

[28] In particular, Mr. Tyner was very instrumental in the considerable work which he contributed to the erection of the indoor riding arena which is a very large building, being 80 feet by 140 feet and which was delivered by a tractor trailer in pieces. The preparation of the site by Mr. Tyner and Mr. Tyner’s assistance with the installation of this indoor riding arena was of benefit to Mr. and Mrs. Pollard as it increased the value of their property. I appreciate that Mr. Pollard paid approximately $90,00.00 for the building itself, but the erection of the building would have cost considerably more money if Mr. Tyner had not been greatly involved in that installation. It also benefitted both Mr. Pollard and Ms. Tyner as Ms. Tyner was able to make more money in the riding business as a result of having the indoor riding arena, thereby increasing the potential income for the Selby Creek Farms joint partnership owned by Mr. Pollard and Ms. Tyner.

[29] I find that Mr. Tyner made a number of other improvements to the Selby farm property during cohabitation and marriage as claimed by Mr. Tyner. Some of these were done at the initiative of Mr. Tyner because he wished to do them, while others were encouraged by Mr. Pollard. Although Mr. Pollard sometimes helped out members of Mr. Tyner’s family with work projects, and Mr. Tyner’s father, Mr. John Tyner also helped out Mr. Pollard with work projects as families and friends do, I find that some of the work done by Mr. Tyner, who is a contractor, was substantially more than just “friends helping friends, family helping family”.

[30] I find that Mr. and Mrs. Pollard were enriched by the considerable work and some money that Mr. Tyner put into the Selby farm property owned by them. I find that Mr. Tyner made these contributions with the understanding that the Selby farm property would someday belong to Ms. Tyner and himself, after payment of certain sums of money such as outstanding mortgages. As a result of the breakdown of the marriage, Mr. Tyner has been deprived of the considerable work and some money which he put into the Selby farm property.

[31] I find that there is no juristic reason for the enrichment and corresponding deprivation.

[32] Having found that there is unjust enrichment, the next question is whether monetary damages will suffice to address the unjust enrichment. Mr. Tyner is prepared to accept monetary damages for the unjust enrichment and is not now seeking an interest in the Selby farm property owned by Mr. and Mrs. Pollard.

[33] On the evidence before me, it is difficult to quantify the exact value of the more significant work and materials provided by Mr. Tyner towards the improvement of the Selby farm property.

[34] Mr. Pollard in his testimony and/or in documentation filed by Mr. Tyner at trial has acknowledged the value of some of the work and materials for which Mr. Tyner claims unjust enrichment.

[35] On the evidence before me and on reviewing the pictures of some of the work done on the Selby farm property, I find it reasonable to value the damages for unjust enrichment, for materials and labour in the total sum of $50,000.00, which includes the sum of $22,827.90 promised by Mr. Pollard for the garage materials.

[36] I find that Mr. and Mrs. Pollard shall pay to Mr. Tyner the sum of $50,000.00 for damages for unjust enrichment. Thereafter, Mr. Tyner shall have no legal or other interest in the Selby farm property municipally known as 57 Pleasant Drive, Selby, Ontario owned by Mr. and Mrs. Pollard.

Equalization of Net Family Property

[37] The parties have agreed on many of the figures in their Net Family Property Statements filed with their closing submissions. I will only deal with the items which are not agreed. The valuation date is either November 29, 2011 or December, 6, 2011, which makes no difference to the calculations.

(a) The value of Mr. Tyner’s construction equipment

[38] Mr. Tyner purchased a backhoe on June 30, 2006 for the sum of $101,115.00. Mr. Tyner claims that at the date of marriage on July 25, 2009, the backhoe had a value of $80,000.00 which is agreed to by Ms. Tyner.

[39] Mr. Tyner claims that the value of the backhoe at the valuation date is $38,000.00. In support of that value Mr. Tyner has submitted a document which purports to be an appraisal of the value of the backhoe on January 25, 2012. Mr. Tyner’s evidence is that the appraisal was done by the salesman at the farm equipment dealership where he originally purchased the backhoe.

[40] Ms. Tyner points out that the depreciation claimed by Mr. Tyner over the first three years of owning the equipment was approximately $21,000.00 or $7,000.00 per year from the date of Mr. Tyner’s purchase of the equipment to the date of marriage. Ms. Tyner accepts this estimate of value. However, over the next two years and four months, Mr. Tyner claims that the backhoe depreciated by $42,000.00 or close to $21,000.00 per year.

[41] There is a similar dispute regarding the valuation of Mr. Tyner’s bulldozer which he purchased in September 2007 for $101,500.00. At the date of marriage 22 months later, Mr. Tyner estimates the value of the bulldozer to be $90,000.00, which is a rate of depreciation of approximately $5,750.00 per year. On the basis of the alleged appraisal referred to above, Mr. Tyner claims that the bulldozer has a value of $39,000.00 at the valuation date which is 2 years and 2 months later. This would be a depreciation of $51,000.00 over that period, or roughly $25,500.00 per year.

[42] Ms. Tyner submits that based on the same level of depreciation claimed by Mr. Tyner for the period from date of purchase to the date of marriage as from date of marriage to the valuation date, the backhoe would have a value of $66,000.00 and the bulldozer would have a value of $78,500.00.

[43] Mr. Tyner did not call the person who wrote the alleged appraisal to give evidence regarding his appraisal of these two pieces of heavy equipment. There is no letterhead of the dealership or of any business entity on the document. There is no indication on the document of who the person signing the document is, nor what his qualifications are to prepare an appraisal. The comparable sales are for equipment some of which had much greater hours. There is no evidence of how many hours were put on Mr. Tyner’s equipment prior to the marriage and subsequent to the marriage. The person producing the alleged appraisal document did not personally see the equipment at the time of appraisal to verify hours or comment on condition. The evidence is that all of the interaction took place between Mr. Tyner and this person over the telephone. Based on the aforesaid concerns I do not accept this document as a valid appraisal or as reliable evidence of the value of the equipment as at the valuation date.

[44] The onus is on Mr. Tyner to prove the value of his equipment at the date of marriage and at the date of separation. I am not satisfied on the evidence before me that the two pieces of equipment would have depreciated so greatly over the period of the marriage. I find that the fairest way to deal with this issue, in the absence of a valid appraisal of value of the two vehicles at the valuation date, should be that the same level of depreciation used by Mr. Tyner for the period prior to marriage be utilized for the period subsequent to marriage.

[45] With respect to the backhoe, it is agreed that it depreciated $21,115.00 from June 30, 2006 to July 25, 2009 (a period of roughly 37 months) which is $570.67 per month. Over the 28 months from the date of marriage to the valuation date, I find that the backhoe decreased a further $15,978.76. I find that the backhoe had a value of $64,021.24 at the valuation date.

[46] With respect to the bulldozer, it is agreed that it depreciated $$11,500.00 from September 10, 2007 to July 25, 2009 (a period of roughly 22 months) which is $522.73 per month. Over the 28 months from the date of marriage to the valuation date, I find that the bulldozer decreased a further $14,636.44. I find that the bulldozer had a value of $75,363.56 at the valuation date.

(b) The ownership and value of the New Holland Tractor N70

[47] On January 14, 2007, in the same month in which Mr. Tyner and Ms. Tyner commenced cohabitation, they purchased a used New Holland tractor for the sum of $15,250.00 plus taxes of $915.00 for a total of $16,165.00. The evidence is that Mr. Tyner paid the cash down payment of $5,250.00, while Ms. Tyner made the monthly payments to New Holland Credit Company on the outstanding sum of $10,915.00. The only exception to that is that after separation, Mr. Tyner made the final two payments plus fees and interest for non-payment in the total sum of $477.61.

[48] The Retail Sales Agreement filed in evidence shows that the tractor was sold to Jessica Seifried (Ms. Tyner’s maiden name) and to Ryan Tyner.

[49] It is Mr. Tyner’s position that the tractor had a value of $10,000.00 at the valuation date, and he shows it as a jointly owned asset with $5,000.00 on each spouse’s side of the ledger. Similarly, he shows the last two loan payments owing on the tractor as a joint debt owed equally by each spouse in the sum of $238.80 each.

[50] Ms. Tyner’s position is that the tractor had a value of $12,500.00 at the valuation date which she shows as being solely under Mr. Tyner’s assets at the valuation date. Ms. Tyner shows the last payment for the tractor in the sum of $477.61 as a debt on Mr. Tyner’s side at the valuation date.

[51] The evidence of Mr. Tyner is that the tractor was bought with the intention of using it in Ms. Tyner’s farming business so he could use it to cut hay for her, as well as he could use it in his business for grading laneways. He testified that it actually ended up being used by him about 95% of the time.

[52] Ms. Tyner’s evidence is that the tractor was bought primarily for her farming business.

[53] At the date of separation, the tractor was located at the home of Mr. Tyner’s parents, and Mr. Tyner has refused to return it to Ms. Tyner for her work at the Selby farm property, thereby necessitating her buying another tractor subsequent to separation.

[54] I note that in 2007, Mr. Tyner showed a capital addition in his business statement for purchase of a UT250 tractor for the sum of $15,250.00. Similarly, in the 2007 statements for Selby Creek Stables for 2007 a capital addition is shown for a New Holland TN70 for the sum of $15,352.00.

[55] On the evidence before me, I find that when the parties purchased the tractor the sales agreement was put in both their names. I find that both parties contributed various amounts to the purchase of the tractor, with Mr. Tyner putting down the down payment and Ms. Tyner making almost all of the monthly payments. I find that the tractor is a jointly owned asset and that the debt was a joint debt.

[56] At the valuation date, Mr. Tyner relies on the same valuation put forward for his backhoe and bulldozer which included a valuation for the tractor at $10,000.00. I have the same difficulties with this valuation as I had with respect to the valuation of those pieces of equipment as detailed above. In addition, regarding the tractor, there are no comparable sales shown at all. I note that the valuation is based on the tractor reportedly having 2900 hours at January, 2012. At the date that the parties purchased the tractor, there were 2583 hours as per the sales agreement. Accordingly, it appears that only 317 hours were put on the tractor from January 2007 to January 2012 which is negligible.

[57] Ms. Tyner claims in her sworn Financial Statement that the tractor had a value of $15,000.00 at the valuation date but in her net Family Property Statement she claims that the tractor had a value of $12,500.00 at the valuation date.

[58] I do not find Ms. Tyner’s valuation of $15,000.00 to be reasonable as the parties paid only $15,250.00 plus taxes in 2007.

[59] On the evidence before me, I find it reasonable to find that the tractor had a value at the valuation date of $11,250.00 which is the average of the value of $12,500.00 put forward by Ms. Tyner and the value of $10,000.00 put forward by Mr. Tyner. Mr. Tyner and Mrs. Tyner shall each show a value of $5,625.00 at the valuation date.

[60] I find that each party shall show a debt relating to the tractor at the valuation date in the sum of $238.80 which is 50% of the financing debt owed to pay off the tractor debt.

[61] Neither party has provided a valuation for the tractor for the date of marriage. I have found that the tractor depreciated $4915.00 from the date of purchase to the date of separation which is a period of approximately 58 months or $85.00 per month. From the date of purchase to the date of marriage is approximately 30 months which would be depreciation of approximately $2,550.00. I find that each party shall show an asset at the date of marriage in the sum of $6807.50 being 50% of the value of the tractor at that date in the sum of $13,615.00.

[62] I find on the evidence produced from the finance company that Mr. Tyner and Mrs. Tyner should each show a debt owing on the New Holland tractor in the sum of $2,931.93 (50% of $5,863.86) as at the date of marriage.

(c) The value of Ms. Tyner’s Ford Truck at date of marriage and at valuation date

[63] Ms. Tyner testified that her 2003 Ford truck was purchased in 2008 and had a value of $19,000.00 at the date of marriage. There does not appear to be a dispute about that value.

[64] Ms. Tyner claims that at the date of separation the Ford truck was worth $10,000.00 as she drove it a great deal for her business and for horse shows. Ms. Tyner did not provide a professional valuation for that truck.

[65] Mr. Tyner’s evidence is that he thinks the truck was worth more than $10,000.00 at the date of separation. He claims that the truck was worth $15,000.00 at that date. Mr. Tyner did not provide a professional valuation for the truck.

[66] In the absence of evidence of the value of the truck at the date of separation other than the estimate of the parties, I find it reasonable to determine that the truck had a value of $12,500.00 which is midway between Ms. Tyner’s valuation and Mr. Tyner’s valuation.

(d) The amount of Ms. Tyner’s loan to PELA at the valuation date

[67] The evidence of Ms. Tyner in her sworn Financial Statement is that the amount owing to Prince Edward Lennox and Addington Community Futures Development regarding her business at the valuation date was $17,749.00. However, the only documentation filed in evidence regarding this loan was documentation regarding a loan taken by Ms. Tyner on October 27, 2011 for $4,000.00 which had a balance of $3,846.26 owing at the valuation date. Ms. Tyner testified that she had another loan with PELA but no proof was provided.

[68] The onus is on Ms. Tyner to prove the amount of the debt that she has at the valuation day. I find that the amount of debt owing to PELA that has been proven by Ms. Tyner is $3,846.26 at the valuation date which shall be shown in the Net Family Property Statement.

(e) The Sundowner Horse Trailer valuation and debt

[69] In January, 2011, Ms. Tyner and Mr. Tyner purchased a 2011 Sundowner horse trailer. It was apparently registered in Ms. Tyner’s name alone, although the loan was in the name of both of the parties. The amount financed was $22,064.85 with the National Bank of Canada and both Mr. Tyner and Ms. Tyner were co-applicants on that loan.

[70] The parties agree that the trailer had a value of $18,800.00 at the valuation date and that this should be shown as an asset of Ms. Tyner at the valuation date.

[71] The parties agree that the amount of the trailer loan to the National Bank at the valuation date was $20,000.00 but disagree as to how that debt should be shown at the valuation date. Ms. Tyner claims the whole of the debt as her debt at the valuation date because she claims that although the debt was joint, she has been paying the debt.

[72] Mr. Tyner allocates a debt of $10,000.00 to each party regarding the National Bank debt at the valuation date, as he was jointly liable on the loan at the valuation date, and he has been called on to make some of the payments since separation as Ms. Tyner has not made all of the payments.

[73] It became evident for the first time at trial during the evidence of Ms. Tyner that she had sold the Sundowner trailer in the spring of 2014 for approximately $11,000.00 cash and a bumper pole stock trailer worth about $3,000.00. The Sundowner trailer was sold without Mr. Tyner’s knowledge or consent. Further, Ms. Tyner used the cash she received to pay off a debt she owed for hay, rather than applying the proceeds to the National Bank loan owing in respect of the Sundowner horse trailer.

[74] I frankly do not know how Ms. Tyner was able to sell this trailer without the National Bank being involved in the sale. It appears to me from the documents filed at trial that the trailer was security for the loan and that there was a PPSA registration.

[75] Subsequent to Mr. Tyner finding out at trial that the trailer had been sold, he obtained further documentation from National Bank regarding the loan. For the first time, Mr. Tyner raised the issue that it is not his signature on the National Bank loan application.

[76] I do not know whether it is or isn’t Mr. Tyner’s signature on the loan application. However, on the evidence before me, I find that Mr. Tyner has always known that he was jointly liable with Ms. Tyner on the National Bank loan. He showed one half of the loan as owing by him in his sworn Financial Statement sworn October 24, 2014.

[77] I find that the Sundowner horse trailer loan should be shown as a debt for each party in the sum of $10,000.00 each at the valuation date.

(f) The Pit Licences

[78] Mr. Tyner’s paternal grandfather purchased a property containing a pit for the removal of aggregates known as the Tyendinaga pit in or about 1955 and another pit property known as the Stone Mills pit (also called Erinsville pit) in or about the middle 1960’s. When Mr. Tyner’s paternal grandfather died, Mr. Tyner’s father, Mr. John Tyner inherited the Stone Mills pit, while Mr. John Tyner’s brother, Mr. Albert Tyner inherited the Tyendinaga pit. Mr. John Tyner and his brother, Mr. Albert Tyner were in business together removing gravel and aggregates from both pits from in or about 1983 to in or about 2002 when Mr. Albert Tyner died.

[79] The evidence is that at some point it became required for a person removing aggregates from a property to obtain a licence to do so from the Province of Ontario. A report needs to be filed by the licence holder in each year as there is a limit to how much aggregate can be removed each year, and the Province also requires remediation to be done to the property. A fee must be paid each year to the Province which is calculated in accordance with the amount of aggregate removed.

[80] Mr. Tyner’s father obtained a licence for the Stone Mills pit in or about 2005. He registered the licence in the joint names of Mr. Tyner and himself as he and Mr. Tyner were working together at that time. Mr. Tyner did not pay his father anything to be registered on the licence with his father. Mr. Tyner’s father and mother continued to be the owners of the property.

[81] In or about 2011, Mr. John Tyner purchased the Tyendinaga pit for $100,000.00 from his sister-in-law who had inherited it from her husband, Mr. Albert Tyner. At the time of purchasing the pit, Mr. John Tyner put the licence in the name of himself and his son, Mr. Tyner as they were doing business together. Mr. Tyner did not pay his father anything for the licence. Ownership of the Tyendinaga pit property was registered in the names of Mr. John Tyner and his wife.

[82] It is the position of Mr. Tyner that the licences (of which he is shown jointly with his father in each case) are not property within the meaning of Section 4 of the Family Law Act, R.S.O. 1990, c. F.3, as am. He argues that it is no different than a licence issued by the Province which permits you to drive a car. The driver’s licence would not be considered to be property. The driver’s licence allows you to drive a car, but you would still require the permission of the owner of the car to drive that particular car. He submits that he can only remove aggregate with the consent of his parents as they own the property.

[83] In the alternative, if it is found that the licences are property within the meaning of Section 4, Mr. Tyner argues that he received the interest in the Stone Mills licence prior to marriage, and that the value of the licence has decreased since the date of marriage as there is less aggregate in the pit now than there was at the date of marriage due to the removal of aggregate from the pit by his father and himself subsequent to the date of marriage.

[84] With respect to the licence for the Tyendinaga pit, Mr. Tyner argues that the licence was a gift to him from his parents during the marriage and that it would be excluded property pursuant to Section 4 of the Family Law Act.

[85] Mr. Tyner also relies on the provisions of Section 5(6) of the Family Law Act which permits the court to award an amount that is more or less than half the difference between the net family properties under certain circumstances if the court is of the view that equalizing the net family properties would be unconscionable.

[86] Ms. Tyner’s position is that the pit licences are property within the meaning of Section 4 and that there is a value to the pit licences.

[87] Ms. Tyner retained an expert, Mr. Sandhu for the purpose of assessing the quantum of aggregate in the two pits. She then obtained a valuation of the licences on the two pits by a business valuator, Mr. Deacon.

[88] At the end of trial, Ms. Tyner conceded that the value of the Stone Mills pit licence is irrelevant as Mr. Tyner owned the pit licence at the date of marriage. She disputes that there would have been any decrease in value of the pit licence between the date of marriage and the date of separation as there was minimal aggregate removed from that pit during the course of the marriage.

[89] Based on Mr. Sandhu’s report, Mr. Deacon valued the licence on the Tyendinaga pit at the valuation date in the sum of $202,800.00. In his opinion, Mr. Tyner’s one half interest in the licence would have a value of $101,400.00 at the valuation date, although Mr. Deacon acknowledged certain limitations to his opinion.

[90] Neither counsel were able to provide me with any case law on whether such a licence would be considered to be “property” within the meaning of Section 4 of the Family Law Act.

[91] I find that it is not necessary for me to determine whether or not the pit licences are property within the meaning of Section 4, for the purpose of determining this case. If they are not property, they would be excluded from Mr. Tyner’s net family property calculation.

[92] Even if the pit licence for the Stone Mills pit is property, I find that Mr. Tyner’s joint interest in the Stone Mills property was gifted to him by his parents prior to marriage and would be a pre-marriage deduction from his net family property. Taking into account the short term of the marriage and the minimal amount of aggregate removed from the Stone Mills pit during the marriage, I find that the value of that pit licence would be the same on the date of marriage and on the valuation date, and that it would not affect the calculation of the net family property. Accordingly, in my calculation of net family property, I have excluded this pit licence entirely.

[93] Even if the pit licence for the Tyendinaga pit is property, I find that Mr. Tyner received his 50% interest in the pit licence on the Tyendinaga pit as a gift from his parents during the marriage. Mr. Tyner paid no consideration for the licence. I find that this gifted licence shall be excluded property for the purposes of equalization of net family property. In my calculation of net family property, I have excluded this pit entirely.

(g) Mr. Tyner’s guns and gun cabinet purchased during the marriage

[94] Mr. Tyner purchased two guns during the marriage for a total cost of $510.00 ($150.00 and $360.00).

[95] In addition, Mr. Tyner received one gun and a gun cabinet as gifts from Ms. Tyner during the marriage. He estimated the cost of the gun was $500.00 to $600.00. Ms. Tyner’s evidence was that the gun cost $1,200.00 all in. She testified that she and Mr. Tyner went and picked it out at the store together and she went back and bought it for him later. As neither party has proof of the value of the gifted gun at the separation date, I find it reasonable to determine the value of the gifted gun at the valuation date to be $900.00, which is the mid-range value between the parties. It appears that both parties agree that the gun cabinet cost $800.00.

[96] Accordingly, I find that Mr. Tyner’s guns and cabinet should be shown as an asset at the valuation date at a value of $2,210.00.

(h) Horses purchased during marriage and left with Ms. Tyner

[97] Mr. Tyner claims that Ms. Tyner has three horses acquired during marriage which should be shown as an asset of hers at the valuation date as they were left with her. These horses are Glory, which Mr. Tyner states he purchased for $5,000.00, Dawson, which Mr. Tyner values at $5,000.00 and Prairie, which Mr. Tyner values at $500.00 for a total of $10,500.00.

[98] Ms. Tyner already shows a value of $18,000.00 for personal horses at the valuation date, which value is shown to be agreed-upon by the parties. I have no information as to whether this figure includes these horses or not. Mrs. Tyner’s evidence is that Glory had serious health problems resulting in large vet bills and almost died. Dawson was born of Glory on the farm. Ms. Tyner was principally responsible for feeding, caring for and providing veterinary care for these horses.

[99] It was only at trial that Mr. Tyner first raised the issue of these horses. He gave evidence that he offered to leave the horses with Ms. Tyner in return for him keeping the tractor. He states that Ms. Tyner agreed to this deal, although Ms. Tyner denies that there was ever such an arrangement. She points to the fact that she had her lawyer request the return of the tractor as she needed it at the farm.

[100] I am not satisfied on the evidence before me that there should be an additional amount for horses shown as an asset at the valuation date on Ms. Tyner’s side and I have not included that item in the net family property statement.

Net Family Property Statement

[101] On the basis of the aforesaid findings that I have made on the disputed items regarding equalization of net family property, I find that Mr. Tyner owes the sum of $36,118.09 to Ms. Tyner to equalize the net family property of the parties. I have attached as Schedule “A” hereto my calculation of the net family property.

Adjustments to the Equalization Payment

[102] As Mr. Tyner has retained the jointly owned tractor and as he paid the whole of the payments due after separation, there will have to be an adjustment to the equalization payment. It is my understanding that at this time, Ms. Tyner does not object to Mr. Tyner retaining the tractor provided it is included in the equalization of net family property, which I have done.

[103] There will need, however, to be an adjustment of Ms. Tyner’s share of the jointly-owned tractor. Mr. Tyner will owe Ms. Tyner the sum of $5,625.00 for her 50% interest in the tractor and Ms. Tyner will owe Mr. Tyner $238.80 for the payment made by him on her behalf on the loan for the tractor after separation, for a net payment owing by Mr. Tyner to Ms. Tyner regarding the tractor in the sum of $5,386.20, which shall be added to the equalization payment and paid as part thereof for a total of $41,504.29.

[104] There remains as well the issue of the outstanding joint loan to the National Bank of Canada with respect to the Sundowner horse trailer. Mr. Tyner is justifiably concerned that his credit rating is being affected by Ms. Tyner falling behind on the payments on the National Bank loan which was incurred to finance the purchase of the trailer. By the time of trial, Mr. Tyner had had to make four payments on the loan.

[105] One half of any payments made on that loan by either Mr. Tyner or Ms. Tyner since December 6, 2011 shall upon proof of the payment having being made, be credited or debited to the equalization payment owing by Mr. Tyner to Ms. Tyner pursuant to these Reasons for Judgment.

[106] Mr. Tyner is seeking as part of a Final Order that each party shall pay out one half of the current amount of the loan with National Bank within 30 days of the date of the Final Order. Further, he is seeking an order that if a party does not pay out his or her half of the National Bank debt within 30 days, the other party shall be entitled to retire the entire debt, in which case the party retiring the full debt shall be entitled to obtain a further order/judgment by motion on notice against the non-paying party for the non-paying party’s portion of the debt. Given Ms. Tyner’s disposition of the Sundowner trailer securing this loan without the consent or knowledge of Mr. Tyner, I find that it is reasonable that this order shall be made.

Ms. Tyner’s Claim for General Damages

[107] Ms. Tyner claims general damages in the range of $15,000.00 to $20,000.00 from Mr. Tyner based on Mr. Tyner’s alleged controlling, threatening and abusive behaviour towards her throughout the relationship, and especially during the last six months of the marriage. At trial, she testified about Mr. Tyner walking around the house at night with a gun in his hands. She stated that she would wake up in the night and find Mr. Tyner beside the bed staring at her. She claims she was fearful of Mr. Tyner and at times slept in a different bedroom with a female housemate for security. Ms. Tyner alleges that Mr. Tyner threatened to hang himself in the barn on November 29, 2015 and that he also threatened to shoot her and himself.

[108] A friend of Ms. Tyner, Ms. Langford testified that she resided at the matrimonial home from August, 2011 to January, 2012 and that she observed Mr. Tyner taking out guns and walking around the house with them. She also testified that from mid-September, 2011 Mr. Tyner would periodically come into the room where she and Ms. Tyner were sleeping and would sit in the corner and watch them for over an hour at a time. I note there was a conflict in Ms. Langford’s testimony from her prior statement as to the duration of these alleged night-time visits.

[109] Mr. Tyner denies all of the aforesaid allegations of Ms. Tyner or Ms. Langford.

[110] I find on the evidence before me that during the summer and fall of 2011, Mr. Tyner and Ms. Tyner were not getting along. Ms. Tyner testified that she was depressed and withdrew from everyone, including other members of her family. There was some type of incident on November, 29, 2011 which brought the separation to a head and Ms. Tyner insisted Mr. Tyner move out that day.

[111] Mr. Tyner’s counsel argues this is a tort claim for intentional infliction of mental suffering which cannot be brought in a family law proceeding. He relies on the case of Holden v. Gagne, 2013, ONSC 1423 which followed the case of Lo v. Lo, 70 R.F.L. (6th) 309 (Ont. Sup. Ct.). In the Lo case, it was found that the tort of intentional infliction of mental suffering is not permitted in the family law context. In making that finding, Justice Nelson relied on the Supreme Court of Canada case of Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2S.C.R. 99 (S.C.C.) which set out the wider policy reasons why the tort claim of intentional infliction of mental suffering should not be extended to the family law context.

[112] I find that the elements of Ms. Tyner’s claim are for damages for intentional infliction of mental suffering. Based on the aforesaid case law, I find that the Respondent, Ms. Tyner’s claim for general damages for intentional infliction of mental suffering should be dismissed as it is not permitted in the family law context.

Spousal Support Claimed by Ms. Tyner

[113] In her Answer, Ms. Tyner claims short term compensatory spousal support from Mr. Tyner. At the conclusion of the trial, Ms. Tyner appeared to be also seeking need-based support. Ms. Tyner submits that if spousal support is ordered, she would prefer that it be lump sum spousal support in the sum of $30,000.00.

[114] Mr. Tyner had just started his construction business in the summer of 2006. Ms. Tyner claims that she primarily supported the couple during the early years that the parties were together and that this allowed Mr. Tyner to develop his business much more quickly that he might have as he was able to live for free in her fully furnished home.

[115] Ms. Tyner testified that in the last year or so that she and Mr. Tyner were together, his business took off while her business has remained about the same throughout the relationship. Her position is that she should be entitled to some of the increased income from Mr. Tyner’s business as she helped him develop his business.

[116] In Subsection 15.2(4) of the Divorce Act, the court is directed to take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

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

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

[117] Subsection 15.2(6) of the Divorce Act sets out the objectives of a spousal support order as follows:

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

(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;

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

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

[118] I will now review the factors and objectives as applied to the case before me.

[119] Mr. Tyner and Ms. Tyner lived together for a period of just short of 5 years, and were married for just under half of that period. That is a relatively short period of time and the parties were quite young at the time. There were no children born of the relationship.

[120] Each party ran a business during the relationship. Mr. Tyner ran a construction business and Ms. Tyner ran a farming business including teaching riding lessons and boarding horses. Both parties were involved in cooking and working around the house. The parties had a cleaning lady during some of their relationship.

[121] Ms. Tyner did have a riding accident during the last year of the marriage which affected her for the short term. However, she continues to be able to run the same horse riding business she ran during the relationship and is a skilled barrel jumping competitor in international barrel jumping competitions.

[122] There is no order, agreement or arrangement relating to support of either spouse. Although the parties separated in late November/ early December, 2011, Ms. Tyner never brought a motion for temporary spousal support.

[123] Mr. Tyner is now married to a high school principal who earns $100,000.00 per year. Mr. Tyner continues to run his construction business and in 2013 he made a net income of $65,587.00.

[124] Ms. Tyner has a partner who has resided with her for the last year and who contributes $600.00 per month towards the household expenses, which is the same amount Ms. Tyner requested Mr. Tyner to contribute towards household expenses when Mr. Tyner initially moved into the home to live with Ms. Tyner.

[125] On the evidence I am not satisfied that Ms. Tyner assisted Mr. Tyner in any significant way in building up his business. I do not find that because Mr. Tyner was able to park his construction vehicles some of the time on the Selby farm property, this assisted in building up his business as claimed by Ms. Tyner.

[126] I am unable to find that Ms. Tyner supported Mr. Tyner in the early years of their cohabitation and marriage, as her own income during the years of cohabitation never exceeded $10,000.00 per year. On the evidence, Mr. Tyner’s income exceeded Ms. Tyner’s income in each year they resided together.

[127] For the most part, Mr. Tyner paid to Ms. Tyner what amount she requested from him as contribution to the household expenses. I do find, however, that Mr. Tyner was able to very aggressively pay off his large loans on his construction equipment during the course of the marriage, as well as to accumulate funds in his business account. However, these assets will be shared with Ms. Tyner in the course of the equalization of net family property.

[128] I found that Ms. Tyner in her testimony demonstrated little knowledge or understanding of her personal and business finances, which appear to be primarily directed by her grandfather, Mr. Pollard, with whom she is a joint partner in her business.

[129] In her Financial Statement sworn November 21, 2014, Ms. Tyner claims that she has a total gross annual income of $9,298.44 with total annual expenses of $70,501.58. However, in spite of this alleged annual deficit in expenses, Ms. Tyner’s debts have decreased rather than increased since the date of separation in November/December 2011. I find that Ms. Tyner’s Financial Statement was inaccurate in other respects such as showing assets which she had sold prior to swearing the Financial Statement.

[130] Looking at the condition, means, needs and other circumstances of the parties, I find that Mr. Tyner and Ms. Tyner are each self-employed and are able to support himself and herself respectively. Mr. Tyner continues to run the same business which she ran during cohabitation and marriage to Ms. Tyner, and Ms. Tyner continues to run the same business which she ran during cohabitation and marriage to Mr. Tyner.

[131] I find that Ms. Tyner was not economically disadvantaged from the marriage or the breakdown of the marriage.

[132] Taking into account the provisions of Section 15 of the Divorce Act, I find that Ms. Tyner’s claim for spousal support has not been proven and that she is not entitled to spousal support.

[133] Ms. Tyner’s claim for spousal support is dismissed.

Prejudgment and Postjudgment Interest

[134] Mr. Tyner claims prejudgment interest on any amount found owing to him by Mr. and Mrs. Pollard. Ms. Tyner has claimed prejudgment interest from Mr. Tyner.

[135] Mr. Tyner shall pay to Ms. Tyner pre-judgment interest owing to Ms. Tyner on the equalization payment of $41,504.29 owing by him to her herein prior to any further adjustment to payments made on the National Bank loan, at the rate of 1.3%, in accordance with the Courts of Justice Act for the period from December 6, 2011 to the date of this order.

[136] Mr. and Mrs. Pollard shall pay to Mr. Tyner pre-judgment interest at the rate of 1.3% on the amount of $50,000.00 owing to Mr. Tyner, in accordance with the Courts of Justice Act for the period from May 30, 2012 to the date of this Order.

[137] The Order shall also contain the usual paragraph regarding post-judgment interest in accordance with the Courts of Justice Act.

Costs

[138] If the parties are unable to resolve the issue of costs between themselves, and one or both parties wishes to make submissions regarding costs, the Applicant and the Respondent may make written submissions regarding costs plus a copy of any Offers to Settle and a Bill of Costs, with the Applicant to serve and file such submissions by June 25, 2015, the Respondents to serve and file such submissions by July 23, 2015, and any Reply to be served and filed by August 13, 2015. If no submissions regarding costs are received within the aforesaid timelines, there shall be deemed to be no order as to costs.

Order

[139] Counsel for the three Respondents has proposed that any judgment found owing by Mr. and Mrs. Pollard to Mr. Tyner be set off against any judgment found owing by Mr. Tyner to Ms. Tyner. Order to go that if the three Respondents consent in writing to a set-off, the Judgment owing by Mr. Tyner to Ms. Tyner shall be set off against the Judgment owing by Mr. Robert Pollard and Mrs. Judy Pollard to Mr. Tyner.

[140] A Final Order shall issue in accordance with these reasons for Judgment.

[141] If I have made a mathematical error in this Judgment, I shall remain seized of this matter for the purpose of correcting any mathematical errors.

Justice A.C. Trousdale

Released: May 29, 2015

CITATION: Tyner v. Tyner, 2015 ONSC 3475

COURT FILE NO.: 238/12

DATE: 20150529

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ryan Thomas Tyner

Applicant

• and -

Jessica Marie Tyner, Robert Pollard

and Judy Pollard

Respondents

REASONS FOR JUDGMENT

Trousdale J.

Released: May 29, 2015