Galla v. Galla, 2015 ONSC 37

OTTAWA COURT FILE NO.: FC-10-2947

DATE: 2015/01/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHEN FRANCIS GALLA

Applicant

– and –

HELGA ELIZABETH GALLA

Respondent

Self-represented

K. Kilongozi, for the Respondent

HEARD: February 3-8, April 4, September 15, and November 10, 2014, at Ottawa

JUDGMENT

KERSHMAN J.

OVERVIEW

1A number of the parties' issues in this action were dealt by way of an endorsement, dated February 13, 2014. A copy of that endorsement is attached hereto as Appendix “A.” This decision deals with the remaining issues.

Factual Background

2The Husband and Wife started living together on March 1, 1994. They were married on October 11, 2000, and separated in 2009. Mr. Galla had a child from a previous common-law relationship, Lisa Marie Galla, who is independent. Ms. Galla had a child from a previous common-law relationship, Rebecca Lukowski. The parties had one child together, Paige Galla, who, together with Rebecca Lukowski, has resided with the Mother since the couple’s separation.

3The parties ran a restaurant called Galla Heritage Ristorante. At some point the Husband left the business. The Wife ran it by herself until the landlord locked the doors in 2010.

4The Wife resided in the matrimonial home from October 2009 to October 2012. The matrimonial home was sold in June 2013.

Issues

5The remaining issues to be decided are:

1. What is the date of separation?

2. Should the Husband be responsible for the $50,000.00 he removed from the joint line of credit?

3. Is the Wife’s inheritance a joint asset by virtue of it being deposited to the parties’ joint account?

4. Is the Husband entitled to a resulting trust or a constructive trust over the rental property at 6892 Notre Dame Street?

5. Who is the proper owner of 6890 Notre Dame Street?

6. Who owes how much for the MBNA credit card as of the date of separation?

7. What is the amount of the equalized Net Family Property?

8. What post-separation adjustments should be made to the equalization payment?

ISSUE #1: WHAT IS THE DATE OF SEPARATION?

Husband’s Position

6The Husband argues that the date of separation was in March 2009 when he returned from a trip to the Bahamas. He says that, although he gave his wife expensive jewelry as a gift when he returned from the trip, the gift was given out of guilt because they were going to be separating. He submits that the gift is not evidence that the parties were staying together.

Wife’s Position

7The Wife asserts that the parties did not separate until July 2009 after she had spoken to Mr. Shawn McDonald. Mr. McDonald testified that he worked for the LCBO. When the Wife came into the LCBO in July 2009 to pick up an order, Mr. McDonald told her that he thought his wife and Mr. Galla were having an affair. Ms. Galla testified that she was shocked when she heard this.

8The Wife argues that the parties did not separate in March 2009. She notes that, in March, when the Husband returned from a holiday, he gave her an expensive gift of a diamond and sapphire bracelet. She submits that he would not have intended to separate from her at the same time as bringing her such an expensive gift.

9Both parties acknowledged that, during their marriage, they slept in separate rooms when the Husband was drinking.

Analysis

10The Court prefers the evidence of the Wife that the parties separated in July 2009. In the Court’s view, Mr. Galla would not have spent money on expensive jewelry if the parties were separating. While Court accepts the fact that the parties were sleeping in separate bedrooms, that does not mean they had separated. Based on the evidence the Court finds that the parties’ separation occurred in July 2009, when the Wife found out about the Husband’s affair from Mr. McDonald.

ISSUE #2: Is the $50,000 removed by the Husband from the joint line of credit an amount that only he should be responsible for?

Wife’s Position

11The parties had a joint account at TD Bank. Around 2002, the Husband, who at that time was a day trader, used $50,000 from the line of credit for day trading. The Wife argues that the Husband alone should be responsible for the full re-payment of the $50,000. She relies on the case of Khamis v. Noormohamed, 2011 ONCA 127, 91 R.F.L. (6th) 1.

Husband’s Position

12The Husband argues that both parties should be responsible for the $50,000 from the joint line of credit. He submits that he was the only one working in the household at the time, and that those funds were required as an investment for day trading.

Analysis

13The evidence is that the Husband day-traded from at least 2002 to 2006. At that time, his un-contradicted evidence is that he split his income equally between himself and his Wife. The Wife acknowledges that in 2002, the Husband was a day trader and he was the sole income earner.

14The Court finds that when the money was used in 2002, the Husband was the sole income earner in the family, as the Wife was a stay-at-home mother. There was no evidence that, at that time, the Wife objected to the Husband using the $50,000 for day trading.

15The case of Khamis cited by the Wife is distinguishable from the case at bar because in that case, the Court found that the Husband was reckless in depleting $216,000 from the parties’ joint account. In the present case, there is no evidence that the Husband was reckless with his use of the funds. He used the $50,000 to generate income for the family.

16The Court finds that the $50,000 is a joint debt because it came from the joint account and it helped to generate income for the family.

ISSUE #3: Did the Wife’s inheritance become a joint asset by virtue of its deposit to the joint account?

Wife’s Position

17The Wife’s evidence is that the inheritance came from her parents, which she received it over a period of time as follows:

Date

Amount

March 31, 2004

$41,146.44

July 31, 2004

$80,000.00

April 30, 2005

$40,000.00

Total

$161,146.44

18The Wife argues that the Husband suggested that the inheritance be deposited into their joint line of credit account to reduce the amount of interest payable on the joint line of credit. The Wife testified that she deposited the monies to the joint line of credit for the purpose of reducing the interest payable. Her evidence was that these monies were always intended to be used for building a rental property at 6892 Notre Dame Street (“92”), which was in her name alone. She signed a building contract with Home Worth Building to build 92. A review of the contract shows that the building contract was in the Wife’s name and signed by her alone.

19The Wife’s evidence is that she used the monies from the joint account to pay for the building contract. The cost of the contract was approximately $160,000, being similar in amount to the amount of the inheritance. Exhibits #51 and #51A are listings of the monies that she paid for the construction of the building.

20The Wife argues that the inheritance is her property, notwithstanding it was deposited to the joint account.

Husband’s Position

21The Husband argues that the Wife depositing her inheritance in the joint account had the effect of changing the character of the monies from her property to their property. He relies on several cases including Townshend v. Townshend, [2012] 113 O.R. (3d) 371 (Ont C.A.), and Belgiorgio v. Belgiorgio, 2000 ON SC 22733, [2000] O.J. No. 3246 (Ont S.C).

22The Husband argues that the Wife was free to do what she wanted to with her inheritance money, including depositing it in an account of her own. He denies that he suggested she put the money in the joint account to reduce the interest payable on the line of credit. He submits that she chose to put it in the joint account of her own free will.

23The Husband acknowledged that he did not oppose the building of the rental property, as hoped that it would benefit the both of them in the future.

Analysis

24There is no dispute that approximately $161,000 of inheritance money was deposited to the joint account.

25In Townshend v. Townshend, the Husband claimed an exclusion of $25,000 for an inter vivos gift which he received from his mother in 2001. He claimed that his mother deposited the monies into his joint account against his instructions. The trial judge accepted that the funds were paid to the Husband alone. However, the judge found that the gift lost its exclusionary character when the funds were initially deposited in a TD bank joint account, and subsequently transferred to a Scotia McLeod joint account. At trial, the judge denied the Husband’s claim for a deduction for the amount of the gift.

26On appeal, the Court stated the following at paras. 30 to 33:

While s. 14 of the Family Law Act creates certain presumptions with respect to the ownership of property, it does not address how each party's net family property is to be calculated. Rather, it is s. 4(2) that stipulates the exclusions from net family property.

In relation to gifts, s. 4(2) states that, "[p]roperty, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage" is to be excluded. Similarly, "[p]roperty other than a matrimonial home, into which [a gift] can be traced" is excluded.

Given that the legislature made clear its intention that gifts used to purchase a matrimonial home lose their excluded character, but did not do the same in relation to monies deposited into a joint account, I discern no legislative intent that the entire amount of the gift should lose its excluded character when deposited into a joint bank account. See also: Brubacher v. Brubacher, [1996] O.J. No. 2730 (Gen. Div.), at para. 34; LeCouteur v. LeCouteur (2005), 2005 ON SC 8726, 18 R.F.L. (6th) 386 (Ont. S.C.), at paras. 50-51; Cartier, at paras. 2, 33-36.

In my view, therefore, the trial judge in this case erred in concluding that all of the gift monies lost their excluded character when deposited into a joint account.

27In Belgiorgio v. Belgiorgio, 2000 ON SC 22733 (Ont. S.C.), the Husband claimed an exclusion of property valued at $27,600, traceable from an inheritance received during the marriage. The Court held that Mr. Belgiorgio failed to rebut the presumption of advancement under section 14 of the Family Law Act. The Court found that his inheritance lost its exclusionary nature when deposited into the bank account. This decision was upheld by the Court of Appeal (2001 ON CA 32756 (Ont. C.A.)).

28To decide the status of the Wife’s inheritance, this Court must determine her intention at the time that the inheritance monies were deposited to the joint account. This view is set out in the Ontario Court of Appeal decision of Berdette v. Berdette (1991), 1991 ON CA 7061, 3 O.R. (3d) 513, at para. 11, where Galligan J.A. stated:

…However, the task of the court was not to correct a possible mistake of judgment on the appellant's part, but to ascertain the appellant's intention at the time of the transactions with which we are concerned…

29The inheritance monies were deposited to the joint account; however, the evidence of the parties as to why the monies were deposited in the joint account is diametrically opposed.

30A summary of the account activity is as follows:

I. In March 31, 2004, the balance owing on the TD joint line of credit was $111,039.14.

II. On July 30, 2004, the balance owing on the TD joint line of credit was $109,489.24.

III. On April 30, 2005, the balance owing on the TD joint line of credit was $233,997.93.

31The Court finds the Wife’s version of why the inheritance monies were deposited into the joint account more credible and plausible than the Husband’s explanation. The income of the parties was not particularly high at the relevant point in time. In the Court’s view, it is reasonable that the monies were deposited in the joint account to reduce the amount of interest payable on the line of credit. The Court finds the Wife deposited the inheritance monies in the joint account in order to reduce the amount of interest payable on the line of credit.

32The inheritance monies were subsequently used to build the rental property, 92. This property cost approximately $161,000—similar to the amounts the Wife inherited. The Court notes that when 92 was built, the property was in the Wife’s name alone, as was the building contract with Home Worth.

33Because the deposited monies were used to build 92, a property belonging to the Wife only, the monies did not lose their character as inheritance monies. The Court finds that the Wife has rebutted the presumption of advancement under Section 14 of the Family Law Act.

34The Husband’s claim of a resulting or constructive trust in relation to 92 will be dealt with later on in the judgment.

ISSUE #4: Is the Husband entitled to a resulting trust or a constructive trust over the rental property at 92?

(i) Husband’s Position

35The Husband argues that he is entitled to either a resulting or a constructive trust in his favour over 92, the rental property. The basis of this claim is that he hired and paid a friend to do the framing of the home and to build a deck at 92. The Husband was unable to provide any receipts for the labour and/or materials for this work.

(ii) Wife’s Position

36The Wife’s evidence is that 92 was in her name alone, as was the building contract with Home Worth Building. The framing of the house was within the scope of the building contract. Her evidence is that she paid the building contract using the monies that were originally inheritance monies.

37The Wife agrees that the Husband’s friend built the deck about one year after the house was completed; however, she asserts that she paid for the material and labour.

(iii) The Law

(a) Resulting Trusts

38The Supreme Court of Canada discussed the concept of resulting trusts in Pecore v. Pecore, 2007 SCC 17, Kerr v. Baranow, 2011 SCC 10, and Nishi v. Rascal Trucking Ltd., 2013 SCC 33. In Kerr the Court refers to its reasoning in Pecore and establishes that the doctrine of resulting trusts by “common intention” has no application. A resulting trust is presumed when one person makes a “gratuitous transfer” of property to another person. This means that the first person financially contributes to or purchases the property in the recipient’s name, without receiving any consideration. Equity presumes, in most cases, that the transferor intended to retain a beneficial interest in the property, and not to make a gift. The recipient bears the onus of proving, on a balance of probabilities that the transferor’s intention was not to retain a resulting trust, but to make a gift.

39At common law, the presumption of a resulting trust did not apply to a transfer from a Husband to a Wife. Instead, the presumption of “advancement” applies, and the Courts presume that the gratuitous transfer was intended as a gift to advance the Wife’s situation. Section 14 of the Family Law Act, R.S.O. 1990, c. C-F.3 (FLA), now provides that the common law presumption of resulting trusts applies to questions of ownership of property between spouses. There are some exceptions to the presumption’s application. Section 14 of the Family Law Act states:

The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,

(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and

(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). R.S.O. 1990, c. F.3, s. 14; 2005, c. 5, s. 27 (3).

Constructive Trusts

40The law of constructive trusts was clarified by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10. The Court held that, in order to establish a constructive trust, the claimant must demonstrate:

1. The defendant has been enriched;
2. The claimant has suffered a corresponding detriment; and,
3. There is no juristic reason for the enrichment.

(b) Enrichment and Corresponding Deprivation

41The Court took a “straightforward economic approach” to the elements of enrichment and corresponding deprivation. The Court held that a plaintiff must show that he/she has given a tangible benefit to the defendant, which the defendant has received and retained. Furthermore, the enrichment must correspond to a deprivation that the claimant has suffered. The provision of domestic services may support a claim for unjust enrichment.

(c) No Juristic Reason

42There are two steps to the juristic reason analysis. First, the established categories of juristic reasons are considered, such as: the provision of a benefit by way of a gift or through a legal obligation. In the absence of an established juristic reason, the Court considers the reasonable expectations of the parties and public policy considerations to determine whether the particular enrichment is unjust.

(d) Remedy

43Once unjust enrichment is established, the Court must consider the appropriate remedy. There are two types of remedies: monetary remedies and proprietary remedies. In most cases, a monetary remedy will be sufficient to remedy the unjust enrichment. However, a proprietary remedy can be awarded where the claimant can establish: (1) a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property; and, (2) that a monetary award would be insufficient.

(e) Monetary Remedy - Determining Quantum

44If a monetary remedy is imposed, the next step is to determine quantum. The question is whether to award a quantum in accordance with a fee-for-service accounting commensurate with the claimant’s contribution, or whether to award a monetary order based on the value surviving from the property.

(f) Joint Family Venture

45If the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of a “joint family venture” to which both partners have contributed, the monetary remedy should be calculated in accordance with the value-survived method.

46Whether or not the parties have been engaged in a joint family venture is a question of fact for the trial judge. The issue must be assessed by having regard to all of the circumstances, including factors relating to mutual effort, economic integration, the parties’ actual intentions and the priority that the parties have given to the family; including whether one party has detrimentally relied on the relationship for the sake of the family (i.e. leaving the workforce to raise children).

47If the parties have not been engaged in a joint family venture, then a fee-for-service approach is more appropriate. Such an approach should take account of the mutual conferral of benefits between the parties.

(g) Analysis

4892 was sold subsequent to the parties’ separation on March 31, 2011, for $320,000. The Wife reviewed the net proceeds of $298,858.00. The Husband claims that he paid for the framing of the house and the installation of a deck at 92. He is unable to provide receipts for payments of the materials or the labour.

49The Court does not accept the Husband’s evidence; rather the Court accepts the evidence of the Wife. The framing of the building was specifically included in the Home Worth Building contract as part of the scope of work for 92. Based on the building contract, the Court finds that the framing was part of the contract, which was in the Wife’s name and paid for by the Wife from her inheritance monies.

50The Husband’s version of events lacks credibility. It is not reasonable that a separate contractor would do the framing of a house, when there was a building contract in place for the construction of a complete house, including framing.

51As for the building of the deck, the evidence was that it was built approximately one year after the home was completed. The Wife testified that the Husband’s friend built the deck but that she paid for the materials and labour. The Husband testified he paid his friend for the materials and the labour of approximately $12,000. No receipts were provided by either party for the labour or materials for the deck.

52The Court finds that the deck was built after 92 had been completed. The Court has difficulty with the Wife’s assertion that she paid for the materials and the labour for the deck out of the inheritance monies because the building of the house, excluding the deck, cost approximately the same as the inheritance monies.

53Therefore, any monies that the Wife would have used to pay for the deck would have come out of non-inheritance monies. As such, the Court finds that the deck was built and paid for out of non-inheritance monies. The Husband valued the work at $12,000. The Court finds that he should receive a monetary remedy of a credit of $6,000 for this work.

54Other than this credit, the Court does not find any evidence of either a resulting trust or a constructive trust. Therefore, the Husband’s claims with respect to a resulting trust or a constructive trust for 92 are dismissed.

ISSUE #5: Who is the proper owner of 6890 Notre Dame Street (90)?

55Originally, the whole of the Notre Dame property was one parcel, consisting of 90, 92, and another lot owned by the Wife’s sister, Dolly. This whole property was formerly owned by the Wife’s parents, Anna Lukowski and Karl Lukowski. The property was transferred by the parents to the three children, Dolly, Norbert, and the Wife, for the sum of $60,000, on November 18, 1991. At that time, a mortgage back was taken by the Wife’s mother for $30,000, which was discharged on October 9, 1993. The un-contradicted evidence of the Wife is that this property was a gift and that no monies were paid by the three siblings to the parents.

56On that basis, the Court finds that the Notre Dame property was a gift to the three children, notwithstanding the fact that the Property Parcel Register indicates that consideration was paid and there was a mortgage back.

57Dolly wanted to build a house on the property and needed financing. The property had not been severed and in order to get the financing, the property was required to be her name. Accordingly, the three siblings transferred the property to Dolly’s name alone in October 1993, for $2.00. The land transfer tax affidavit says: “transfer between brother and sisters to sister.” She then arranged financing with the Bank of Montreal for $100,000, as set out in the Property Abstract and the Property Parcel Register.

58Sometime later, the three siblings applied for and obtained a severance to sever 90 and 92 from Dolly’s home.

59Dolly transferred 92, the future rental property, to the Wife on April 10, 2003. The land transfer tax affidavit reads: “transfer given to effect terms of severance sister to sister - $1.00” (i.e. transfer from Dolly to the Wife).

6090 belonged to Norbert, the Wife’s brother. The un-contradicted evidence was that Norbert needed money and did not want the property.

61The Wife bought Norbert’s property for approximately $25,000 in 2003. 90 was never put into Norbert’s name. Instead, it was transferred from Dolly directly to the Husband and the Wife on April 22, 2003. The land transfer tax affidavit reads: “transfer from sister to sister and brother-in-law for natural love and affection.” The Wife’s explanation for this transfer was because 90 and 92 had been severed from Dolly’s property and from each other, it was necessary for 90 to be owned by a different owner than 92—otherwise the severance would have been negated and the property ownerships would have merged.

Wife’s Position

62The Wife argues that the property was put into her name and the Husband’s name in trust, so that she would be the sole owner of the property.

Husband’s Position

63The Husband argues that he never held 90 in trust for the Wife, but rather both he and the Wife owned it together; as reflected in the deed.

64The Husband argues that no monies were paid to Norbert and that there was no evidence as to where the monies came from to pay Norbert.

Analysis

65The land transfer tax affidavit for 90 says: “Transfer to sister and brother-in-law for natural love and affection.” The Court finds that this meant the land was transferred from Dolly to the Husband and the Wife.

66The transfer of 90 and 92 took place during the marriage in April 2003, several years prior to separation.

67The Court notes that the severance and transfers of the property were done by lawyers, not lay people. No trust declaration or reporting letter was produced to show that the Husband held his share of 90 in trust for the Wife. Furthermore the wording of the transfer does not reflect that the Husband’s share of the property was held for the Wife.

68Therefore, the Court finds that 90 was owned in the names of both parties as absolute owners. The Court does not find that the Husband held his share of 90 in trust for the Wife. The evidence at trial is that subsequent to separation, 90 was sold and the net proceeds were divided equally between the parties.

ISSUE #6: Who owes how much for the MBNA Credit Card as of the date of separation?

69On February 21, 2014, the Court made an endorsement seeking clarification in relation to certain matters including an MBNA credit card. Both parties have filed documentation in relation thereto.

70In the Wife’s affidavit, sworn March 25, 2014, she states that the reason why the MBNA credit card account number changed was because her card was either lost or stolen. A new card was issued with a new account number.

71Furthermore, the Wife acknowledges that in looking at the June and July 2009 statements, the Husband did not use his supplementary new MBNA credit card at that time or thereafter.

Wife’s Position

72The Wife argues that since the date of separation was in July 2009, the balance on the MBNA credit card at that date should be used.

Husband’s Position

73The Husband originally argued that since the date of separation was in March 2009, the balance on the MBNA credit card at that date should be used.

74On the last day of trial, the Husband agreed that the balance on the MBNA card as of July 2009 was $21,172.22, and that this amount should be divided equally between the parties.

Analysis

75The Court has found that the date of separation was in July 2009. The Court finds that the balance owing on the MBNA credit card as of July 2009 was $21,172.22. In closing argument, in November 2014, the Husband acknowledged that he was responsible for one half of this amount. Therefore the Court finds that $10,586.11 shall be placed on each party’s side of the Net Family Statement (“NFP”) for the MBNA credit card debt.

ISSUE #7: What is the amount of the equalized NFP?

76The Court has received NFP statements from both parties and has heard what was agreed upon by the parties either at trial, in correspondence, or at subsequent Court appearances on April 4^th, September 15^th, and November 10^th, 2014.

77The following is the analysis of the NFP statements filed by the parties and their reconciliation by the Court. The Court will review each of the items and will make findings for each.

Land:

78The matrimonial home on Leo Lane was jointly owned by the parties. No evidence was provided as to the value of the home at the date of separation. The property was sold in June 2013, for $630,000. The value has been put into the NFP statement as the sale price of $630,000, half of which has been attributed to each party.

796890 Notre Dame St., Orleans, Ontario, was owned jointly by the parties as found previously in this decision. No value was provided for the property as of the date of separation. The property was sold subsequent to the date of separation, for $90,000. Each party has been attributed with one half of the sale price of the property. When the property was sold, each party received one half of the net proceeds.

HOUSEHOLD GOODS AND FURNITURE:

Husband's Position:

80The Husband argues that his share of household goods and furniture was $1000, while the Wife’s share was $10,000.

Wife's Position:

81The Wife argues that the Husband’s share was valued at $10,000, and that her share was valued at $3,000.

Analysis

82The Court was not provided with any documentary evidence as to the value of household goods and furniture claimed by either party as of the date of separation. Both parties provided verbal estimates regarding these values.

83The Court does not accept the values provided by the parties. The Court finds that the value of the household goods and furniture is $5,000. The Court finds that each party contributed equally to these items. Therefore, $2,500 should be placed on each party’s side of the NFP statement.

CARS AND VEHICLES:

Husband’s Position:

84The Husband argues that the value of his vehicle was $1,500, and the value of her vehicle was $800. No documentary evidence with respect to these values was provided.

Wife's Position:

85The Wife argues that she took the value of the vehicles or at least one of them from the internet. The value shown for the Jeep based on the internet printout was approximately $3,000.

86On her NFP statement she lists the Husband’s value at $750 and her value at $400.

Analysis:

87The Court was only provided with a printout by the Wife for the internet value of a Jeep, which was approximately $3,000. Notwithstanding the internet printout, the Court is of the opinion that it has insufficient information rely on this valuation of the vehicle. The true value of a vehicle is dependent on many factors not taken into account through an internet print-out.

88The Wife claims that the value of the vehicles was $750 for Mr. Galla and $400 for herself. The Court is persuaded by that evidence and finds that $750 will be placed on the Husband’s side and $400 on the Wife's side of the NFP statement.

Crownline Boat

Husband’s Position

89The Husband’s position is that the value of the 1998, Crownline 21 foot boat was nil due to engine problems as well as damage to the hull. The Husband took the boat to Orléans Boat World and Sports, where a written estimate was obtained from Bill Essex. Mr. Essex stated that the boat had no trade in value due to damage to the hull.

90The Husband’s evidence is that he received a telephone call from the Wife who said that he should pick up the boat at Orleans Boat World and that she did not want to see it again. He testified that he picked up the boat and had the boat serviced, for which he paid $205.

91Both the Husband and his father, Frank Galla, testified that the boat had damage to the hull and motor problems. It did not work.

The Husband acknowledged that there was a boat trailer which had some value. The boat and trailer were sold privately by the Husband for $1,000.

Wife’s Position

92The Wife’s position is that the boat was worth between $5,000 and $8,000. Her supporting evidence consisted of two internet print‑outs for similar boats that were up for auction in the United States. No evidence was provided about the condition of those boats or their actual sale prices.

Analysis

93The Court finds that the boat and trailer were sold privately by the Husband for a fair market value of $1,000, based on their condition. The evidence provided by the Wife was of little value, considering that both boats were up for auction, and thus the actual sale price of the boats was not provided. Moreover, those boats were for sale in the United States.

94Since the boat and the trailer were sold for $1,000, each party should be entitled to one half of the value. Therefore, $500 will be placed on each party’s side of the net family property statement. There was a servicing cost of $205 incurred on November 22, 2010, which will be shared equally between the parties. Each party shall be responsible for $102.50 as a post-separation adjustment.

JEWELRY, ART, ELECTRONICS, TOOLS, ETC.:

Husband’s Position:

95The Husband argues that the value of these items was $100 for himself and $15,000 for Mrs. Gala.

Wife's Position:

96The Wife argues that the value of these items was $3,200 each.

Analysis:

97Neither party provided any documentary evidence with respect to this category of items. The oral evidence provided was minimal. Therefore, the Court places a value of $4,000 on these items, which is to be divided equally between the two parties on the NFP statement.

BANK ACCOUNT, SAVINGS, SECURITIES AND PENSIONS:

a) TD Waterhouse Direct Trading:

98The Wife’s evidence is that she put some of her inheritance monies into the TD Waterhouse Direct Trading account, which subsequently became Canada Life Shares.

99Both parties set out in their NFP statements that the Wife should be credited with the sum of $6,158.08 in relation to this account.

100Based on the information set out by the parties in their respective NFP statements, the Wife should be credited with the sum of $6,158.08 on the NFP statement.

b) RBC Direct Trading:

101The Husband stated that he had no documentary evidence with respect to the amount claimed of $451.97.

102The Wife had no evidence with respect to this matter.

103The Court finds that sufficient evidence has not been presented to uphold this claim. Therefore this amount is excluded.

c) CIBC Account

104Both parties indicated on their respective NFP statements the sum of $123.74 as a credit to the Wife. As such the credit will be allowed.

d) TD Canada Trust:

105Both parties agreed that the amount of $3.85 should be credited to each of them on the NFP statement. Therefore the amount of $3.85 is allowed for each party on the NFP statement.

e) US Bank Account:

Husband’s Position:

106The Husband argues that there was $1,632.61 in this account. The Husband did not provide written evidence of this amount.

Wife’s Position:

107The Wife argues that there was no such amount in the account.

Analysis:

108The Court is not persuaded that this amount actually existed as of the date of separation, and accordingly disallows the amount.

f) TD Canada Trust Joint Saving Account:

109Both parties have included this account in their respective NFP statements, each with a value of $249.36 on their side. The Court therefore makes a finding to this effect.

g) 2133599 Ontario Inc.:

Husband’s Position:

110The Husband argues that the Wife should be credited with $46,120, as she was 100% owner of the restaurant, Galla Heritage, which operated under this company name. The items in the restaurant included furnishings, equipment, wine and liquor. The Husband provided a listing of assets which was prepared by the Wife.

Wife’s Position:

111The Wife argues that she should receive a credit of $50,000 for this amount, which includes $25,000 being held in court in relation to an action against 1043019 Ontario Inc.

112The Wife provided no documentary evidence, save and except for the listing that she made, as to her estimate of the value of the items in the restaurant in 2010 (after the landlord closed the restaurant).

Analysis:

113No documentary evidence was provided to substantiate the amount claimed by either the Husband or the Wife. The landlord locked the company out of the premises post-separation, sometime in 2010.

114The only evidence of the value of the equipment is the list prepared by the Wife in 2010, after the landlord had locked her out of the restaurant. There is some evidence that there is $25,000 being held in court, however, the evidence before the Court was that this amount was paid from the proceeds of the sale of 6890 Notre Dame Street on February 6, 2012.

115The evidence before the Court is not sufficient enough for the Court to accept the figure of either $46,120, as claimed by the Husband, or $50,000 as claimed by the Wife. The Court has no hard evidence as to the value of the assets or liabilities in relation to this corporation.

116Accordingly, the Court sets the value at zero.

MONEY OWED TO YOU:

Wife’s Position:

117The Wife argues that she is entitled to a $25,000 credit for an account receivable of Mr. Galla’s and for a further $12,500 credit for an account receivable from Mr. Galla, which is being held in court.

Husband’s Position:

118According to the Court’s record, the Husband did not take any position on this. Nothing was included in his NFP statement with respect to this item.

Analysis:

119An action (Court file No. CV-10-44862) was started in 2010 by both parties in this matter against third parties in relation to Galla Heritage Ristorante. As between the two parties, the claim is being made as a contingency in that ongoing litigation. Therefore, the claim, as made, will be dealt with in that litigation. The Court finds that there is no need to deal with this claim in the family law litigation, and disallows the claim made by the Wife.

OTHER PROPERTY:

a) 6892 Notre Dame Street – Rental Property

Husband’s Position:

120The Husband claims that the Wife should be given credit for $298,858, which is the net amount available after the sale of the property.

Wife’s Position:

121The Wife argues that she should be credited with $320,000, which is the sale price of the property.

Analysis:

122The Court finds that the property was sold for $320,000. The net proceeds received by the Wife after expenses was $298,858.00. The Court finds that no amount should be included for this item because: (1) the lot was owned by the Wife with her siblings prior to marriage; (2) the monies used to build the rental property were monies inherited by the Wife from her parents; (3) the Court has already held that the inheritance monies were not joint property; and (4) since 6892 Notre Dame Street is excluded property, the appreciation in the value of the property should also be excluded. For those reasons the Court will exclude this item under this heading.

b) 6890 Notre Dame Street

Husband’s Position:

123The Husband argues that he should be credited with $45,000 for this property, as the property was sold for $90,000.

Wife’s Position:

124The Wife argues that she should be credited with $90,000, which is the sale price of the property, and that the Husband should receive no credit. She submits that the Husband owned the property in trust for the Wife.

Analysis:

125The Court found previously that the property was owned by both parties, and accordingly, each party should receive a credit for $45,000 in the NFP statement.

VALUE OF DEBTS AND OTHER LIABILITIES ON VALUATION DATE:

126Both parties, in their NFP statements, agreed to the following values for their shared debts and liabilities: (1) TD Line of Credit - $148,703.59 for each party; (2) the Home Trust Visa - $45,908.26 for each party; and, (3) property taxes for the matrimonial home - $19,754 for each party. These amounts will be placed in both sides of the NFP statement.

CHARGE OF FAVOUR OF 2018511 ONTARIO INC. ON 6890 NOTRE DAME STREET:

Husband’s Position:

127The Husband argues that the mortgage on this property was for $25,000 in favour of 2018511 Ontario Inc., and that it should be divided equally between the parties at $12,500 each.

Wife’s Position:

128The Wife did not take a position on this charge, rather she indicated that she had already taken a position about it under the heading “Money Owed to You”.

Analysis:

The mortgage in favour of 2018511 Ontario Inc. was registered against the property on April 18, 2007, for $25,000. The mortgage was discharged on February 9, 2012, when the property was sold for $90,000. The Court understands that this amount was paid into court in action No. CV-10-48862, which is another action and counterclaim between the two parties in the present litigation. This claim will not be dealt with here; it will be dealt with in the CV-10-48862 litigation.

HAROLD BYERS LOAN:

Husband’s Position:

129The Husband argues that he should receive a credit of $25,700 in relation to the Harold Byers Loan.

Wife’s Position:

130The Wife argues that the Husband should receive a credit of $28,000 for the loan, and that she should receive a credit of $25,000.

Analysis:

131The Byers loan was made during the marriage on October 27, 2007, to the Husband alone, as evidenced by the promissory note. The Court made a finding on February 13, 2014, in relation to this loan. Paragraph 4 of the endorsement reads as follows:

In closing submissions, the Applicant Husband acknowledged that the promissory note to Harold Byers was his sole responsibility. Accordingly, the Court finds that there will be an adjustment in favour of the Wife for monies paid on her behalf in relation to this promissory note.

132The Byers Loan became a writ of seizure and sale that was paid out of the sale proceeds of 6890 Notre Dame Street. The Court previously found, in its oral decision dated February 13, 2014, that Mr. Galla was solely responsible for this loan. Notwithstanding the various credits claimed by each party in their respective NFP statements, the Court finds that the Husband should be credited with the sum of $25,000 on the NFP statement, as of the date of separation.

133The Husband seeks a reassessment of Paragraph 4 of the February 13, 2014, endorsement in relation to the Byers loan. On September 15, 2014, the parties clarified to the Court that the $25,000 Byers loan had been paid out of the Husband’s share of the proceeds of the sale of 90. Therefore, as acknowledged by the Husband, that this loan was his responsibility and it was paid out of his share of the proceeds of 90. There will be no further adjustment for it.

MBNA CREDIT CARD:

134The Court finds, on the consent of the parties and the analysis previously set out in these reasons, that $10,585.86 should be placed on each party’s side of the NFP statement.

CREDIT CARDS – SEARS AND THE BAY:

Husband’s Position:

135The Husband argues that the Wife owed $250 on the credit cards.

Wife’s Position:

136The Wife argues that she owed $100 on the credit cards.

Analysis:

137Neither party provided any documentary evidence as to the amount owing on the credit cards. The Court finds that the amount owing on the credit cards is $175, which shall be placed on the Wife’s side of the NFP statement.

PROPANE, HYDRO & CABLE:

138The Court accepts that the sum of $700 for propane, hydro and cable should be placed on the Wife’s side of the NFP statement, as she remained in the property as of the date of separation.

BELL CABLE & PHONE:

139The Court accepts that the sum of $700 for Bell cable and phone should be placed on the Wife’s side of the NFP statement, as she was living in the home as of the date of separation.

GALLA HERITAGE DEBTS:

Wife’s Position:

140The Wife argues that she should receive a credit for $50,000 because the Galla Heritage debts were the debts of the restaurant, an incorporated company, at the time of separation. As evidence of this debt, she provided an internally generated balance sheet for the restaurant, dated August 31, 2009, and a request to pay issued by the Canada Revenue, dated October 23, 2012, for $21,317.71.

Husband’s Position:

141The Husband argued that this claim should be disallowed because there was no evidence of this debt.

Analysis:

142A review of the Canada Revenue Agency requirement to pay is dated approximately three years after the date of separation. This is a debt for GST/HST. There are no particulars included as to when this debt was incurred. On that basis that evidence is not considered relevant to the issue.

143The internally generated balance sheet shows total assets of $21,495.57, total liabilities of $26,822.28, with total equity of $5,326. The Court does not find that this statement is sufficient proof to allow the amount claimed by the Wife in this category. Therefore, the Court will place the number at zero.

HOUSEHOLD BILLS:

Wife’s Position:

144The Wife argues that there was about $2,000 worth of household bills owing as of the date of separation.

Husband’s Position:

145No evidence was provided by the Husband in relation to this item.

Analysis:

146The Court accepts the Wife’s evidence that there were $2,000 worth of household bills owing as at the date of separation. This amount will be placed on her side of the NFP statements.

NET VALUE OF PROPERTY AND DEBTS ON THE DATE OF MARRIAGE:

1. 4170 Boundary Road

Husband’s Position:

147The Husband claims that there should be a $75,000 credit on each side of the NFP statement for this property.

Wife’s Position:

148The Wife takes no position with respect to this matter.

Analysis:

149No evidence whatsoever was provided by either party in relation to this property. Therefore, the Court values the amount at zero on each side of the NFP statement.

GENERAL & HOUSEHOLD ITEMS AND VEHICLES:

Husband’s Position:

150The Husband argues that $2,000 should be placed on each party’s side of the NFP statement.

Wife’s Position:

151The Wife argues that the Husband should be given credit for $1,000, and that she should be given credit for $3,500.

Analysis:

152The evidence is that both parties came into the relationship with assets from previous relationships. Their relationship began six years prior to marriage. No documentary evidence was provided as to the values of the amounts that were brought into the marriage.

153The Court finds that each party came into the marriage with $2,000 worth of items. This amount will be placed on each party’s side of the NFP statement.

BANK ACCOUNT, SAVINGS AND SECURITIES:

Husband’s Position:

154The Husband argues that he came into the marriage with a bank account containing $86,982.22 USD as of October 11, 2000. He said that the Canadian equivalent of this amount is $131,209.08. The Husband provided documentary evidence of this amount, by way of a bank statement.

Wife’s Position:

155The Wife agrees that this was the value of the bank account as of the date of marriage. However, she argues that because the Husband was a day trader, the value of the account could fluctuate greatly from day to day.

Analysis:

156Based on the consent of the parties, the Court finds that the amount of this bank account was $131,209.08 CDN.

ANNA & FRANK GALLA:

Wife’s Position:

157The Wife’s position is that there should be a negative credit of $50,000 placed on the Husband’s side of the NFP statement (Court emphasis). The evidence she provided is a letter dated November 24, 2010, entitled “To Whom it May Concern.” The letter states that in 1999, Mr. Galla borrowed the sum of $50,000 from his parents for day trading.

Husband’s Position:

158The Husband took no position with respect to this claim. The Husband did not submit any evidence with respect to the monies owed to his parents, nor did he make a claim in relation to it on the NFP statement.

Analysis:

159The Court has reviewed the letter dated November 24, 2010. The letter is purportedly signed by Frank Galla and Anna Galla. The letter does not say whether the money had ever been repaid, whether the profit sharing arrangement set out therein had been complied with, or what the value of the debt was as of the date of marriage.

160The Court does not find that this letter is evidence of any indebtedness by Mr. Galla to his parents. There is no evidence as to whether the amount was repaid or the valuation as of the date of the marriage. Therefore, the Court disallows the negative credit of $50,000 to the Husband, as claimed by the Wife.

EMPTY LOT AT 6890 NOTRE DAME STREET:

Husband’s Position:

161The Husband argues that the Wife should receive a $25,000 credit for the lot because that was its value as of the date of marriage.

Wife’s Position:

162The Wife did not take a position with respect to this matter.

Analysis:

163This property was sold/gifted by the parents, Mr. & Mrs. Lukowski, to their children on November 18, 1991, for $60,000. The Court has previously found that, while there was a $30,000 mortgage back, this property was a gift. No value for the property has been established as of the date of marriage. The best evidence is that in 2003, approximately three years after the marriage, Norbert’s share was worth approximately $25,000. Based on the best evidence, the Court finds that in 2000, the Wife’s share of 90 was worth $20,000. This amount will be placed on Wife’s side of the NFP statement.

TD BANK MORTGAGE:

Husband’s Position:

164The Husband argues that this mortgage, as of the date of marriage, was $120,000.

Wife’s Position:

165The Wife took no position with respect to this matter.

Analysis:

166The Court did not see any documentary evidence in relation to this debt. Notwithstanding that, as of the date of marriage, there was a mortgage of the TD Bank. As such, the Court finds that the amount of mortgage as of the date of marriage was $120,000; $60,000 should be credited to each party on the NFP statement.

VALUE OF PROPERTY EXCLUDED UNDER s. 4(2) of the Family Law Act

Wife’s Position:

167The Wife claims that the property at 6890 and 6892 Notre Dame Street should be considered excluded property. She claims a value of $320,000 for 6892 Notre Dame, and $90,000 for 6890 Notre Dame; with both amounts being placed on her side of the NFP statement.

Husband’s Position:

168The Husband did not take any position with respect to these items.

Analysis:

169Section 4(2) of the Family Law Act reads as follows:

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

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

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

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

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

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

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

170Based on the reading of s. 4(2) of the FLA, various properties are excluded. In the Court’s view, this would include the Wife’s inheritance of $161,000, which was previously discussed.

171Based on the finding that the $161,000 was an inheritance (not converted into jointly owned property), the Court finds that the $161,000 is an exclusion that should be placed on the Wife’s side of the NFP statement.

172The property at 6890 Notre Dame was owned by both parties as at the date of separation. For reasons set out previously, the Court did not find that the Husband held his share of this property in trust for the Wife.

173As such the Court finds that 6890 is not excluded property.

174The property at 6892 Notre Dame was owned by the Wife prior to marriage. Her inheritance monies went into building that property. The Court has made findings previously that this is the Wife’s property alone. Any appreciation in the value of the property is also excluded property. Based on the sale of $320,000, with net proceeds of $298,858 after expenses, the Court finds that the appreciation in value of $117,858 ($298,858 - $20,000 (value of the property) -$161,000 (inheritance)) is excluded property.

175Based on the findings made, and the Court has prepared a Net Family Property Statement which is attached hereto as Appendix “B.” This Court finds that the Husband owes the Wife an equalization payment of $21,421.08.

ISSUE #8: What Post-Separation Adjustments Should be made to the Equalization Payment?

176The sum of $134,144.46 is being held in trust by Marc Nadon as of February 2014, after a $5,000 payment for the tuition of Paige Galla was made on consent of the parties. This represents the net proceeds from the sale of the family owned matrimonial home.

177The calculation for adjustments 1, 2, and 3 in the post-separation adjustment table, set out later on in this decision, are calculated in Appendix “A.”

COSTS ORDERED BY BLISHEN J. ON December 13, 2013

178The Wife was ordered to pay costs of $100 by Blishen J. on December 13, 2013. These have not been paid. There will be a post-separation adjustment for this amount.

EXPENSES FOR THE MATRIMONIAL HOME:

Husband’s Position:

179The Husband argues that the housing expenses from October 2009 to October 2012 should not be divided between the parties because he had to find alternate accommodation and was paying approximately $1,800 per month for it. The Court notes that there is no claim by the Husband in his pleadings for occupation rent.

Wife’s Position:

180The Wife argues that the expenses from October 2009 to October 2012 should be divided evenly between the parties, as they relate to the matrimonial home.

Analysis

181The parties agreed that the Wife resided in the house after separation and paid all of the expenses for the house until October 2012 until she moved out at that time. After that, the house was empty, and the Husband started paying the expenses for the house from November 2012 until it was sold in June 2013.

182The parties agreed that the Husband paid the expenses with respect to the matrimonial home from October 2012 to June 2013, inclusive of approximately $18,307.52. On February 13, 2014, Toscano Roccamo, J. ordered that the $18,307.52 was to be divided equally between the two parties. As such, each party is responsible for $9,150.72 as a post-separation adjustment.

183The Wife did not have actual figures for the home expenses incurred from October 2009 to October 2012, for hydro, gas and other expenses. She estimated these expenses based on the Husband’s expenses for the period from November 2012 to June 2013. According to the Court’s calculations, the total amount for the period of October 2009 to October 2012 (for hydro, propane and insurance) is $24,480 ($680 x 36 months). The Court finds that the Wife’s cost estimate is in line with those amounts as claimed by the Husband, and is satisfactory. The Court finds $24,480 in housing expenses excluding any encumbrances.

184The Court notes that the Husband agrees that the expenses from November 2012 to June 2013 should be divided between the parties. However, he argues that the expenses from the date of separation to October 12, 2012 should not be divided by the parties; he was in alternate accommodation from November 2012 to June 2013.

185The Court does not accept the Husband’s argument that only the Wife should have to pay for the expenses for this period of time because she was living in the home with her new partner and the children while the Husband had alternate accommodation. The Wife’s expenses are related to the matrimonial home and were required to be expended in order for the home retain its value. The Husband's argument is not persuasive and fails.

186The Court finds that the expenses from October 2009 to October 2012, of $24,480, should be shared equally between the parties as a post-separation adjustment.

HOMETRUST AND TD LINES OF CREDIT:

Husband's Position:

187The Husband argues that there was an oral agreement between the parties that he would pay the HomeTrust line of credit and that Mrs. Galla would pay the TD line of credit.

Wife's Position:

188The Wife argues that there was no such agreement. She argues that the total of the monies paid for these two accounts should be divided equally between the parties.

Analysis:

189Both of these credit facilities were secured against the jointly owned matrimonial home. The Court prefers the evidence of the Wife; there was no arrangement as claimed by the Husband.

190Therefore, the Court finds that that the amounts paid post-separation for the TD line of credit and the Home Trust Visa should be divided equally between the parties.

191According to the Wife’s evidence, she paid $36,142.97 on the TD line of credit. The Court has reviewed these figures and accepts them. As such, the Court finds that each party is responsible for half of this amount, being $18,071.48. Since the Wife has paid the sums of $36,142.97, the Husband owes her $18,071.48, which shall be a post-separation adjustment.

192As to the Home Trust Visa, the Husband claims to have paid $29,659.54 from the date of separation and provided evidence of the same. The Court has reviewed the figures and accepts them. The Court finds that each party is responsible for half of this amount, being $14,829.77. Since the Husband has paid the sum of $29,659.54, the Wife owes the Husband $14,829.52, which shall be a post-separation adjustment.

193The following is a summary of the post-separation adjustments that the Court has determined is owed by one party to the other:

Items

Wife Owes Husband

Husband Owes Wife

1. Surgenor Leasing Writ of Seizure and Sale. See Appendix “A”.

$3,759.90

2. Child support arrears of $19,165*, less any amounts paid. See Appendix “A”.

$19,165.00

3. Renovations made to the house including flooring. See Appendix “A”.

$12,000.00

4. $100 for Costs ordered by Blishen J. on December 18, 2013, payable by the Wife to the Husband.

$100.00

5. 92 – Deck Adjustment

$6,000.00

6. Payments made by Wife for house from October 2009 to October 2012, for which Husband is responsible for half.

$12,240.00

7. Home Trust Visa paid by the Husband, which is the Wife’s share

$14,829.77

8. TD Line of Credit paid by the Wife, which is the Husband’s share

$18,071.48

9. Boat servicing cost $205.

$102.50

10. Payments made by the Husband for the house from October 24, 2012, until June 2013 when the house was sold, for which Wife is responsible for half.

$9,150.72

TOTAL

$33,942.89

$42,311.48**

*$19,165.00 from the Husband’s share of the house proceeds is to be held in trust pending the resolution of the child support arrears in relation to this judgment for the period of September 2009 to February 2014.

**This total does not include the $19,165.00 held in trust in relation to the child support as set out in *above.

194Based on aforesaid post-separation adjustment table:

Husband owes Wife

$42,311.48

Wife owes Husband

$33,942.89

Husband owes Wife Net

$8,368.59

195The following table sets out how much money is owed to each party taking into account the funds held in trust, the equalization payment, and the post-separation adjustment:

Total Monies Held in Trust

$134,144.46

Husband’s Share

$67,072.23

Less child support arrears holdback

($19,165.00)***

Subtotal:

$47,907.23

Less what Husband owes to Wife for NFP

($21,421.08)

Subtotal:

$26,486.15

Less what Husband owes to Wife for Post-Separation Adjustments

($8,368.59)

Net Amount Payable to Husband from Proceeds in Trust

$18,117.56

***$19,165.00 to be held in Trust from the Husband’s share of the sale of the matrimonial home pending the resolution of the child support arrears in relation to this judgment for the period September 2009 to February 2014.

Total Monies Held in Trust

$134,144.46

Wife’s Share

$67,072.23

Plus payment by Husband of NFP

$21,421.08

Subtotal:

$88,493.31

Plus what Husband owes to Wife for Post-Separation Adjustments

$8,368.59

Net Amount Payable to Wife from Proceeds in Trust

$96,861.90

ORDER OF TOSCANO ROCCAMO J. DATED OCTOBER 24, 2012

196Paragraph 3 and 4 of the aforesaid order dealt with adjustments to be made when a final accounting was completed. The Court has reviewed these two paragraphs and advises the parties that these two items have been taken into account in the analysis made by the Court in this decision. No further adjustment for these two paragraphs will be made.

ADDITIONAL RELIEF SOUGHT BY THE WIFE

197At paragraph 8 of her affidavit, dated March 25, 2014, the Wife asks for child support for the two children until April 30, 2012, and for one child from then on. She states that Rebecca Lukowski was at home during until April 30, 2012. She is seeking child support and a payment towards Rebecca’s second year of university (2011-2012) from the monies held in trust.

198Child support was dealt with in the endorsement of February 13, 2014. The Court will not revisit the matter of child support in this endorsement. Furthermore, the issue of the student loan was not raised in the pleadings. As such, the Court declines to deal with that issue.

199Therefore, the Court will not consider the claim by the Wife for child support for the two children, or the payment of the student loan for Rebecca Lukowski as sought by the Wife.

CONCLUSIONS:

200The following are the findings of the Court in response to the issues dealt with at trial:

1. An equalization payment of $21,421.08 is to be paid by the Husband to the Wife.

2. In the endorsement of February 13, 2014, the Court found child support arrears owing by the Husband from September 2009 to February 2014 to be $19,165.00. The Husband has paid monies on account of these arrears, however, the Court has been unable to determine how much. In order to move this matter forward, the Court has withheld the amount of $19,165 from the Husband’s share of the sale proceeds of the matrimonial home, which will remain in trust pending that determination. That issue can be dealt with on consent, or, failing that, returned to court.

3. The net amount of post-separation adjustments in favour of the Wife is $8,368.59, subject to 2) aforesaid.

4. Based on the aforesaid, the Husband will receive $18,117.56 out of the funds held in trust, and the Wife will receive $96,861.90 out of the funds held in trust.

PRE-JUDGMENT INTEREST:

201In the relation to the issue of prejudgment interest, the Court does not find that either party unusually delayed this matter. The litigation took its usual course. There were complications with this case, particularly in light of post-separation adjustments as well as debts and credits in relation to the Net Family Property statement. However, the Court uses its discretion: there will be no payment of prejudgment interest in this matter.

TAX CONSEQUENCES

202Neither party made any representations or provided any evidence about tax implications in relation to any of the property in issue. A party seeking a deduction has the onus of proving the deduction on a balance of probabilities (s. 4(3) FLA). Neither party has done so. The Court is not prepared to speculate and has not attributed any amount of income tax as a debt of either party, either on the date of marriage or on the valuation date.

COSTS

203The parties are encouraged to settle the issue of costs. If they are unable to do so within 14 days of the release of this decision, the parties shall contact the Trial Coordinator and arrange for a date at 9:30 a.m. to argue the issue of costs. The parties will provide Costs Outlines at the hearing and will each have 10 minutes to argue their position.

204Order accordingly.

Mr. Justice Stanley J. Kershman

Date: January 5, 2015

CITATION: Galla v. Galla, 2015 ONSC 37

COURT FILE NO.: FC-10-2947

DATE: 2015/01/05

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Stephen Francis Galla, Applicant

AND

Helga Elizabeth Galla, Respondent