CITATION: Keresturi v. Keresturi, 2015 ONSC 3565

COURT FILE NO.: FS-11-13354

DATE: 2015Jun26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LINDA GAYE KERESTURI

C. Lugosi, for the Applicant

Applicant

and -

LEWIS WILLIAM KERESTURI

P. Amey, for the Respondent

Respondent

HEARD: June 16, 17, 18, 19, 20, August 18, 19, 22, September 2 and November 10, 2014

The Hon. Mr. Justice R. J. Harper

Issues

[1] The issues in this case are:

a) Equalization

b) Different Positions on Values regarding:

Matrimonial Home, 11 George Street, Burford, Ontario
Respondent’s Farm Equipment
Household contents

c) Unequal division of the assets pursuant to the Family Law Act, R.S.O. 1990, chapter F.3, section 5(6)

d) Amount, if any, owing on a loan between Linda and Lewis. Whether an action to recover and amount owing is statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Sched. B.

Background

[2] The Applicant (Linda) and the Respondent (Lewis) were married for over 40 years. Their date of marriage was June 21, 1969 and they separated in May 2009. Linda is 66 and Lewis is 67 years old.

[3] A litigation guardian, Sylvia Davidson, was appointed for Linda. Her counsel Mr. Lugosi advised the court that she has a litigation guardian due to her diagnosis of disorganized thought disorder and that at times, she is not responsive to questions. He suggested that the evidence would show that she is not able to work.

[4] There was no evidence to find that Linda needed a litigation guardian. Her memory and thoughts were not deficient at trial. Other than her statements relative to having a difficulty with memory from time to time, she appeared throughout her testimony to recall events with clarity on all material issues. She did not call any medical evidence to allow the court to make a determination or draw any inferences that her functioning was limited in any way.

Litigation Chronology

[5] When this matter was first brought to court, Linda did not claim spousal support. The matter went to a case conference before Justice Arrell on July 5, 2011, at a time when Linda was self-represented. At that time, the parties entered into a consent order. As a part of the consent order, Linda waived her right to spousal support. By the time this matter came to trial, no motion had been brought to amend the pleadings or to set aside Justice Arrell’s consent order.

[6] Linda thought that she would not need support given the property agreement. Her counsel claimed that she was vulnerable and she did not appreciate the consequences of waiving her right to support. This waiver was an oral motion with no supporting affidavit evidence. There were no draft pleadings placed before the court and it was not possible to weigh any prejudice to Lewis in allowing an amendment. As a result of the potential consequences to both parties, I adjourned the issue of support to allow Linda to bring the issue back before the court on proper notice with proper pleadings.

Background of the Parties

[7] At the time of marriage, Linda had just graduated from teachers college. She stated that she did not want to teach and she never sought employment as a teacher. She went to school to learn how to drive a tractor, however, she rarely worked on the farm or drove the tractor according to Lewis. Lewis was a farmer and owned the farm that Linda and Lewis lived on. They had three children: Jeffery, Jennifer, and Paul.

[8] When Linda was 40 years old, she went to nursing school. She obtained her nursing degree in May of 1987. Five years later she got her American Nursing Board certification. Linda testified that before she went into nursing school she looked after the children and also helped with work around the farm.

[9] Lewis and Linda bought and sold at least three farms. They began having financial troubles with their farm in Harrisburg. In the mid-1980s, the crop that was planted by Lewis was devastated by bad weather. The farming operation lost approximately $1,000,000 and Lewis and Linda started a lengthy battle with their bank, Royal Bank of Canada (RBC).

[10] Linda worked for a short period of time in the kitchen at the Brantford General Hospital. She also worked part time at the school for the blind. However, the parties mostly lived off of the income through the farming operations. Linda worked, for a brief period of time, in Brantford, at the Credit Valley Hospital in 1988 and at the Victoria Hospital in London Ontario in 1989. In or about 1993, Linda obtained a nursing position in Florida where she would work for six months of the year and then do some nursing in Ontario for the rest of the year.

[11] Linda and Lewis were hit by the tragic death of their eldest child Jeffery in 1989. After his death, she was on disability for a period of time due to depression.

[12] Lewis was a farmer throughout the marriage and continues to farm to this day. After Lewis lost his farm in late 1989, he rented acreage in order to grow and sell crops. When he owned the farms, Lewis worked with the assistance of at least one hired helper. One such long time helper was Bruce Cruikshank. Bruce testified with respect to his knowledge and observations of the work, if any, Linda did on the farm. This testimony will be dealt with later in these reasons as it relates to whether or not Linda is entitled to any equitable interest in the farm equipment owned by Lewis.

The RBC Litigation

[13] Lewis was involved in a long and devastating litigation with the Royal Bank of Canada. This litigation is relevant to the issue of whether Linda is entitled to an unequal division of the assets. It also goes to assessing their credibility. The crop disaster in the 1980s devastated Lewis’ farming operation. He could not keep up the payments of his operating loans with the bank. As a result, he was sued and the law suit was settled when Lewis transferred the interest in his farm to the bank. The bank was also to get the tools and equipment. However, no security was put in place for this equipment and what followed was an attempt by the bank to collect on the settlement of the debt.

[14] After the settlement was reached, the federal government paid farmers a subsidy to help them with loses incurred by the bad weather. Lewis received a subsidy of approximately $140,000. At trial, Lewis took the position that that payment did not form part of the settlement with the RBC because it was paid after the settlement. He did not disclose the subsidy, at first, to the bank or the court. Instead, he and his wife took a trip to the Bahamas and put the money in a joint bank account.

[15] According to Lewis, as a result of the stress of losing his farm and the continued pressure that was being exerted by the RBC, he became depressed to the point of being suicidal. He was admitted the Brantford General Hospital for severe depression.

[16] While Lewis was in the hospital, Linda went on another trip to the Bahamas with her friend. Linda testified that she withdrew all of the money from the joint account and sewed the cash into her coat. She then travelled from the Bahamas to Florida where she and her friend stayed for a short period before flying back to Canada. All the while, the $140,000 was inside the lining of her coat. She did not declare the money at any border crossing.

[17] When Linda arrived back to Canada, she put her coat with the cash in it in a freezer at her sister’s home.

[18] The RBC continued to pursue the collection of the money owed to them. They obtained an order of the Superior Court that required Lewis to pay the money he had received from the federal government otherwise, Lewis was going to be held in contempt of court. The money was eventually paid as a result of a further settlement and Lewis was allowed to purge his contempt.

The Farm Equipment

[19] A lot of time at this trial was devoted to Linda trying to establish that Lewis surreptitiously removed a lot of the equipment in order place it out of the reach of both the bank and Linda. Lewis denied this allegation. I find that Linda did not provide this court with any evidence that would allow me to find, on the balance of probabilities, that Lewis surreptitiously removed any of the farm equipment in order to place them out of the valuation calculation.

The Chattel Valuation Evidence

[20] Both Linda and Lewis called their own valuators with respect to the farm equipment and tools. I qualified both valuators as experts in order to give their opinion as to such values.

Linda’s Expert Mr. Baxter

[21] I have serious concerns about Mr. Baxter’s neutrality. Mr. Baxter admitted that he was engaged by the RBC at the time that the bank was pursuing collecting on their judgment against Lewis. Although he stated that his former role with the bank did not affect his opinions as to values, I do not agree. The perception of bias is one factor that I consider when assessing his evidence along with the other issues. Another concern relative to objectivity Mr. Baxter’s objectivity is his partnership with a man named Al Davidson. Mr. Davidson is Linda’s brother-in-law. His wife, Linda’s sister, is Linda’s litigation guardian in these proceedings.

[22] It is my view that neutrality and objectivity of expert witnesses is extremely important in assessing the weight to be given expert testimony, Berta v. Berta, (2014) ONSC 3919.

[23] The Supreme Court of Canada provided an extremely helpful review of the law relative to the importance of experts being objective, neutral and impartial. In White Burgess Langille Inmanv and Haliburton v Abbot and Haliburton, 2015 S.C.C., Cromwell J. stated commencing at para 12:

[12] Recent experience has only exacerbated these concerns; we are now all too aware that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 52. As observed by Beveridge J.A. in this case, The Commission on Proceedings Involving Guy Paul Morin: Report (1998) authored by the Honourable Fred Kaufman and the Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008) conducted by the Honourable Stephen T. Goudge provide two striking examples where “[s]eemingly solid and impartial, but flawed, forensic scientific opinion has played a prominent role in miscarriages of justiceˮ : para. 105. Other reports outline the critical need for impartial and independent expert evidence in civil litigation: ibid., at para. 106; see the Right Honourable Lord Woolf, Access to Justice: Final Report (1996); the Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (2007).

[13] To decide how our law of evidence should best respond to these concerns, we must confront several questions: Should concerns about potentially biased expert opinion go to admissibility or only to weight?; If to admissibility, should these concerns be addressed by a threshold requirement for admissibility, by a judicial discretion to exclude, or both?; At what point do these concerns justify exclusion of the evidence?; And finally, how is our response to these concerns integrated into the existing legal framework governing the admissibility of expert opinion evidence? To answer these questions, we must first consider the existing legal framework governing admissibility, identify the duties that an expert witness has to the court and then turn to how those duties are best reflected in that legal framework and objective assistance.

[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76.

[1] [40] I conclude that the dominant approach in Canadian common law is to treat independence and impartiality as bearing not just on the weight but also on the admissibility of the evidence. I note that while the shareholders submit that issues regarding expert independence should go only to weight, they rely on cases such as INCO that specifically accept that a finding of lack of independence or impartiality can lead to inadmissibility in certain circumstances: R.F., at paras. 52-53.

[49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

[50] As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having an interest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court In my opinion, concerns related to the expert’s duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the “qualified expert” element of the Mohan framework: S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 2, at s. 12:30.20.50; see also Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600, 92 O.R. (3d) 97, at para. 21; Lederman, Bryant and Fuerst, at pp. 826-27; Halsbury’s Laws of Canada: Evidence, at para. HEV-152 “Partiality”; The Canadian Encyclopedic Digest (Ont. 4th ed. (loose-leaf)), vol. 24, Title 62 ― Evidence, at §469. A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert. Situating this concern in the “properly qualified expert” ensures that the courts will focus expressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, at s. 12:30.20.50; Paciocco, “Jukebox”

[24] The little weight I give to Mr. Baxter’s opinions is also due to the following evidence:

a) Although the CV filed in support of Mr. Baxter’s expertise stated that he retained the qualification of “Member: Certified Appraiser Guild of America,” he admitted in cross examination that he no longer retained that qualification. He stated that he simply did not remove it from the 2011 and 2014 versions of his CV

b) He admitted that he assumed all of the equipment that he valued was in good condition

c) He did not make any effort to talk to Lewis about the equipment

d) He did not see the equipment himself. He only had photographs of two of Lewis’ tractors. He admitted that the large differences in his opinion as to value could be due to the condition of the equipment

e) He did not know the “working hours” of the tractors; and

f) When Mr. Baxter did not have photos of the equipment and the pieces were not found within his guide book, Mr. Baxter used the insurance replacement value and the internet for at least six pieces of equipment.

Lewis’ Expert Mr. Fitch

[25] In stark contrast to Mr. Baxter, Mr. Fitch gave a thorough and reasoned explanation for all of his value analysis for each piece of equipment. Some of his analysis included the following:

a) He had the working hours of engines (tractors). He stated that the generally accepted working hours of a tractor was 6,700 hours before problems would develop. That applied to well-maintained equipment. Mr Fitch stated that equipment would start to deteriorate after 4,000-5,000 hours and when equipment reaches 12 to 13 years of age, there is not a lot of value left.

b) He was well aware of certain pieces of equipment because he had sold Lewis five of the items such as, the 1997 JD 7600 tractor (used); 1995 JD 8400 tractor (new); 1985 JD 7720 combine (used); and a picket bean combine.

c) Mr. Fitch had actually seen some of the tractors as he would stop by the farms that Lewis was working on four or five times per year. He was aware that on the JD 8400, the tires were bald and it would cost approximately $15,000 to replace the tires alone.

d) Many of the individual items that Mr. Fitch appraised had very similar characteristics. Many were stored outside, old, and/or deficient in their maintenance.

e) Mr. Fitch classified most of the items in the range of 4 to 5 out of 10 rating. Some of the older tractors were described as “money pits” due to the condition as set out above.

[26] Mr. Fitch took a comparative and item by item approach in assessing the values of each item. In his calculations, he considered the insurance and the actual retail values of each item when making final determinations. I accept Mr Fitches opinions as to value and give Mr Baxter’s opinion no weight.

Linda’s Claim of Lewis’ unpaid loan

[27] Linda claims that Lewis owes her $25,000 on an original loan she gave him in the total amount of $50,000. She claims that Lewis only re-paid a total of $22,000 in two payments. Her evidence on this point was the production of two cheques that had the caption noted as “mortgage” on the memo line.

[28] Lewis provided bank records that demonstrated that there were two sums of money advanced from Linda. The first amount was advanced in June 2001, for the sum of $30,000 and the second was in December 2001 for $24,000. Lewis testified that he asked for this money in order to operate the farming business. According to Lewis, they never discussed interest or terms of repayment.

[29] Lewis also produced a cheque in the amount of $53,500 which he gave to his wife sometime between 2002 and 2003. Although Linda acknowledged its receipt but claimed that the money was given to her for other reasons and not as repayment of the loan. However, she could not recall the reasons what those reasons were. Linda did not fulfill her undertaking given on discovery to produce any records of the loan details or repayment. She did not produce any records for the trial.

[30] I accept Lewis’ testimony that he repaid all but $500 of the loan received from Linda. I also agree with Mr. Amey’s submission on behalf of Lewis that the Limitations Act, 2002, applies to this situation and any action to collect on any balance owing is statute barred.

Unjust Enrichments/Joint Family Venture

[31] Linda claimed that the farming operations were joint ventures. She asserts that she worked on the farm droving the tractor and assisting in plowing the fields. If she is successful in her claim, she wants an equal share of the value of the farming equipment as set out in Mr. Baxter’s report. I have already rejected Mr. Baxter’s opinion and accepted Mr. Fitch’s opinion as to value.

The Law and Analysis Relative to Joint Family Venture

[32] The Ontario Court of Appeal in Martin v. Sansome, 2014 ONCA 14 considered the law of unjust enrichment as applied to family law cases. Hoy A.C.J.O. commented on the concept of unjust enrichment and joint family venture commencing at para 46:

[33] [46] The FLA is a detailed statutory scheme for resolving issues arising out of marital breakdown. Section 10(1) provides for the determination of questions of title between married spouses. This consideration of any beneficial interest in property arising pursuant to the imposition of a remedial constructive trust:

A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of the net family properties under section 5.

[34] The Court of Appeal confirmed that the statutory scheme for equalization of spouses’ property does not completely supersede the remedial constructive trust. Before property can be equalized under the Family Law Act, a court must first determine the “net family property of each spouse. This exercise requires that all questions of title be determined.

[35] With respect to unjust enrichment, the Ontario Court of Appeal reviewed the concepts set out by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. Martin v Sansome paraphrased Kerr at para 48:

[48] “…in the context of a dispute between unmarried persons in a domestic relationship. Kerr reaffirmed that where unjust enrichment is established, the first remedy to consider is always a monetary award. A court will impress a proprietary remedy – normally a constructive trust on property – only if the plaintiff satisfies it that a monetary award would be insufficient in the circumstances and that there is a sufficient substantial and direct link between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property.

[36] In Kerr, Justice Cromwell explained the new approach to quantifying damages where unjust enrichment occurs at para 87:

[87] My view is that when the parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions. In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture.

[37] At para 100, Justice Cromwell stated:

[100] I conclude:

The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for service approach.
Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the bases of the share of those assets proportionate to the claimant’s contributions.
To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

[38] In Martin v Sansome, Hoy A.C.J.O. stated at para 52:

In this way, the framework established in Kerr requires the court to ask the following questions:

Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out?
If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;
If the answer to 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis: and;
If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest.

[39] In my view, Linda has not established that she acted to her detriment with a corresponding benefit given to Lewis, with no juristic reason.

[40] It is common ground between the parties that they had three children and Linda stayed at home to care for the children. She was their primary care giver and I accept the evidence that she spent long hours caring for the children and managing the household while he spent long hours farming. Linda agreed to that characterization of their roles.

[41] Linda is the only one who testified that she worked on the farm riding the tractor and other chores. Lewis denied that she worked in the farming operations. Linda admitted that Lewis often had the help of a hired hand. One of the hands was Mr. Cruikshanks. He testified that he often assisted Lewis but never saw Linda doing any of the farm chores.

[42] Linda was employed as a nurse from the late 1980s and spent half of the year working in Florida. After his bankruptcy in the 1980s, Lewis started a self-employed farming operation. He would rent land and grow various bean products. Linda did not assist him in these operations.

[43] In addition to the lack of evidence that Linda made a contribution to the farming operations, she provided no evidence of the value of any of the contributions that she said she made.

[44] I agree with Mr. Amey’s submissions o that the fact that Linda loaned Lewis $54,000 in order for him to continue the farming operations in 2001 confirms the actual intent of the parties was that the farming operations were not a joint family venture.

[45] Linda’s claim for unjust enrichment is dismissed for the reasons set out above.

Unequal Division

[46] Linda claims an unequal division of the net family property pursuant to the Family Law Act s 5(6). In order to establish such a claim she must show that an equal division would be unconscionable to the point of “shocking” the conscience of the Court.

[47] Linda asserts that Lewis recklessly depleted his net family property. She claims that his bankruptcy in the late 1980s represents a major factor in this reckless depletion. She also claims that his post separation sale of farm equipment was at fire sale prices. I reject both claims.

[48] I agree with the submissions of Mr. Amey. The Court is not in a position, 30 years later, to undertake a meaningful inquiry as to Lewis’ actions in the 1980s and second guess the reasonableness of those actions. Lewis did not intentionally cause the farming loss. A substantial part of the loss was the devastating crop failure due to the weather in or about 1982. This was followed by a number of years of stressful litigation with the RBC. During this period, Lewis ended up in the hospital with major depression and suicidal intentions.

[49] Mr. Lugosi submitted that Linda should be given credit for preserving approximately $170,000 by taking the money with her to the Bahamas which was then used to pay RBC. I do not agree that the evidence demonstrates that Linda acted honorably by bringing that sum of money back from the Bahamas. I find that Linda went to the Bahamas without Lewis’ knowledge and at a time when Lewis was in a serious state of depression. Linda surreptitiously hid the money and went to the extreme lengths of sewing the money into her coat, passing through the borders of two different countries and then hid the money in her sister’s freezer. This demonstrates the extent that Linda would go in achieving her perceived goals.

[50] The matrimonial home in Burford was purchased in 1997. The title to that home was placed in Linda’s name alone. Linda testified that “it never crossed her mind to share title with her husband as an owner.” I find that it is reasonable to infer that Linda placed the matrimonial home in her name in order to protect the home from creditors given the past history of the serious challenges Lewis had with the farming operations.

[51] I find that Linda and Lewis conducted themselves within somewhat of a traditional marriage financial structure. Linda contributed to the family living costs by paying the monthly mortgage payments and Lewis paid for many of the daily living expenses such as hydro and other utilities, grocery, and car expenses. I find that there is no evidence that would justify an unequal division of the net family property. Serra v. Serra, 2009 ONCA 395sets out the circumstances for an unequal division of the net family property as “exceptional” where the threshold is “exceptionally high.” If the evidence rises only to “unfair,” ”harsh” or “unjust” that is not sufficient to meet the test. At para 48 of Serra, the Court referred to the conduct of meeting the test as “repugnant to anyone’s sense of justice.” The test is not met on the evidence in this case.

Occupation Rent

[52] Linda claims that she is owed occupation rent in the amount of $33,678 for the 28 months from June 2009 to and including October 2012, when Lewis and their adult son left the home.

[53] Linda left the matrimonial home in June 1, 2009. She never made a demand for occupation rent until two years later when she brought her application in February 2011.

[54] Lewis stayed in the home for nine months after Linda made a demand for occupation rent. He remained in the home with their adult son, who is not self-supporting and is diagnosed with schizophrenia.

[55] Linda obtained possession of the home in November 2011. She sold the home in a private sale , without commission, in 2012.

The Law and Analysis/Occupation Rent

[56] Quinn J in Higgins v. Higgins, 2001 CanLII 28223 (ONSC) describes the origins of occupation rent at para 44:

[44]…Occupation rent had its origins in the agricultural and commercial world. But it is now recognized as an available remedy between spouses who are co-tenants or co-owners of a matrimonial home.

[57] At para 53 Quinn J makes the following statements:

[53] From the cases I have reviewed. I note that the following may be relevant considerations when determining the appropriateness of an order for occupation rent:

(a) the conduct of the non-occupying spouse, including the failure to pay support;

(b) The conduct of the occupying spouse, including the failure to pay support;

(d) The extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e) Whether the non-occupying spouse moved for the sale of the home and, if not. why not;

(f) Whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g) Whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h) Whether the occupying spouse has increased the selling value of the property;

(i) Ouster is not required, as once was thought in some early decisions.

[54] Put briefly, it seems to me that the courts are attempting to balance the equities when dealing with a claim for occupation rent. Thus, occupation rent is merely a tool used to achieve justice in the circumstances of each case.

[58] I agree with Justice Quinn’s statement of relevant factors to consider. In applying these factors to this case, I find that financial fairness can be achieved by considering the following:

a) Linda delayed two years before making any request for rent

b) It was Linda who left the home and left Lewis in the home with their son who, although an adult, has special mental health needs

c) Lewis maintained the home in reasonable condition

d) Linda did not provide any evidence of what would be the appropriate market rent for the home

[59] In my view occupation rent should be awarded to Linda from the date she made her first demand, February 1, 2011, until Lewis moved out of the home in October 2011. The only evidence that I can use to draw a reasonable inference of rent is the evidence of that Lewis paid $900 per month in rent once he moved out. There shall be an order that Lewis shall pay occupation rent in the amount of $9,000 to Linda.

Date of Marriage Assets

[60] I accept Lewis’ evidence regarding the value of his date of marriage assets. He purchased the farm in Burford in 1968. At that time, it had a value net equity of $25,000. He then built a bushel bin to store corn at a cost of $25,000. The bin was completed in November of 1968. The marriage was in June of 1969.

[61] In addition to the farm, he had farming equipment for which he had receipts showing the purchase price, a corn crop, and a 1967 Camaro that he purchased for $5,500.

[62] With respect to the farm equipment owned at the date of marriage, Lewis entered into an agreement with his brother Joe Keresturi in 1968. That agreement set out the price paid for the equipment in payment of the splitting of the farming partnership between the two of them. I accept Joe’s evidence that corroborated the prices.

[63] Linda alleges that she had $3,600 worth of furniture at the date of marriage. She provided no proof of value and stated it was only a guess. I do not accept that amount. Parties have a duty to provide evidence of ownership of the asset they are claiming and a reasonable estimate of value. Guessing is not a reasonable estimate of value.

[64] I accept that at the date of separation, Lewis owed income tax in the amount of $26,535. Linda did not refute this and it is corroborated by the 2008 tax return and Notice of Assessment.

Soy Bean Crop

[65] I accept Lewis’ evidence that he did not start to plant the soy bean crop until June 2009. He testified that he planted the crop after his wife left the home. Linda admitted in cross examination that she did not see a crop planted before she left the home. I assign no value to the soy bean crop as I find it was not planted until after separation.

Land and Barn Rental

[66] I accept Lewis’ evidence relative to the land and barn rental owed at the date of separation. Lewis provided evidence that showed the payments that he made prior to and after separation. The calculations properly amount to $15,800 owing for rent at the date of separation.

[67] Net Family Property Statement and Equalization

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership (State percentage interest)

Address of Property

APPLICANT

RESPONDENT

Matrimonial Home

11 George St., Burford, Ontario

$285,000.00

Totals: Value of Land

$285,000.00

$0.00

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

APPLICANT

RESPONDENT

Household goods

Contents

$950.00

& furniture

Tools

$205.00

Cars, boats,

1992 pick up

$500.00

Vehicles

2002 Chevrolet pick up truck

$3,000.00

Motor vehicle (Exhibit 4)

$2,000.00

Jewellery (Exhibit 4)

$800.00

Tools

Misc tools

$500.00

2 water tanks

$1,500.00

2 Cultivators

$1,000.00

Snow blower

$400.00

Pressure washer

$250.00

Equipment:

Date of Separation:

as appraised

Tractors

1995 JD 8400 (sold in November 2010 to B. Nelson for $20,000.00)

$23,000.00

1996 JD 7600 (sold in October 2009 to B. Cruckshank for $23,500.00)

$17,000.00

1965 JD 4020 (sold in January 2011 to B. Cruckshank for $7,000.00)

$5,500.00

Combines/Harvesters

1985 JD 7720 (sold October 2008 to Knight for $13,000.00)

$0.00

Pickett Rower (sold in August 2010 to Lloyd for $10,500.00)

$7,800.00

1996 John Deere 6500

$8,000.00

Planter

White 6800 Corn Planter

$7,500.00

Weed Control

2004 Rod Weeder (scrap)

$0.00

1996 JD 6500

$8,000.00

New Holland swather (sold in October 2009 at auction)

$1,530.00

Totals: Value of General Household Items and Vehicles

$2,800.00

$86,635.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

Category (Savings, Checking, GIC, RRSP, Pensions, etc.)

Institution

Account Number

APPLICANT

RESPONDENT

RRSP

TFSA

$28,005.00

Bank Account

TD Canada Trust (Exhibit 15, Tab 1)

0301353

$11,192.41

Totals: Value of Accounts And Savings

$28,005.00

$11,192.41

PART 4(d): LIFE AND DISABILITY INSURANCE

Company, Type & Policy No.

Owner

Beneficiary

Face Amount ($)

APPLICANT

RESPONDENT

Totals: Cash Surrender Value Of Insurance Policies

$0.00

PART 4(e): BUSINESS INTERESTS

Name of Firm or Company

Interests

APPLICANT

RESPONDENT

Totals: Value Of Business Interests

$0.00

PART 4(f): MONEY OWED TO YOU

Details

APPLICANT

RESPONDENT

2001 loan to Respondent – balance outstanding $534.00 (subject to Limitations Act defence)

$0.00

Totals: Money Owed To You

$0.00

PART 4(g): OTHER PROPERTY

Keresturi v. Keresturi, 2015 ONSC 3565

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 4

Legislation 2