CITATION: Silver v. Silver, 2015 ONSC 4641

COURT FILE NO.: FC-11-927

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephen Silver, Applicant

AND:

Simi Silver, Respondent

BEFORE: Master P. E. Roger

COUNSEL: T. Sullivan for the Applicant at the hearing of the reference Richard P. Bowles currently for the Applicant M. Rappaport for the Respondent

HEARD: June 9, 2015

Endorsement on a Reference

[1] The parties attended on June 9, 2015, to continue a reference dealing with jointly owned properties and related accounting issues arising from the division of the proceeds of sale of jointly owned properties, as ordered at paragraph ten of the order of Justice McLean, dated June 3, 2013, and as ordered at paragraph six of the consent order dated October 23, 2014. This endorsement is to be read together with my previous endorsements made on this reference, particularly my endorsements dated May 8, May 29, June 10 and July 2, 2015.

[2] The order of Justice McLean provides, at paragraph ten: “The Net Family Property adjustment of $493,000 is payable by Respondent to the Applicant, payable within ten years and joint property which cannot be agreed to be divided or transfer in kind, otherwise it shall be sold in the normal course with directions to be given by the master”. An order made on consent on October 23, 2014, provides that any issue regarding jointly owned properties or issues relating to the division of the proceeds of sale of jointly owned properties would be dealt with as part of this reference. Particularly, paragraph 5 of that order provides: “Any issue regarding any jointly owned property or any issue arising from the division of the proceeds of sale of any jointly owned property shall be brought before me for resolution as ordered at paragraph 10 of the order of Justice McLean dated June 3, 2013.”

[3] As indicated at paragraph ten of my endorsement dated May 8, 2015, the parties have raised, from the outset of their appearing before me, a number of issues that they wish to address on this reference. However, not all issues raised by the parties are issues properly before this court on this reference; some are not related to jointly owned property or not arising from the division of the proceeds of sale of jointly owned property – and this will be addressed later in this endorsement. Indeed, my jurisdiction on this reference, as a referee, is limited to that conferred by paragraph ten of the order of Justice McLean.

[4] For ease of reference, these are the issues outlined by the parties in their respective briefs (as indicated in my earlier endorsement):

a. accounting for amounts paid by the Applicant relating to 38 Charing or whether the Applicant should be solely responsible for the carrying costs paid by the Applicant relating to this property based on the argument of the Respondent that he had de facto exclusive possession of that property since December 2010 and as the Respondent had waived a claim for occupational rent of that property;

b. amounts owing to the parenting coordinator;

c. accounting for amounts paid by the Applicant relating to the Aerolite trailer;

d. amounts owing to Steve Pittman and budget to prepare an updated report on the value of 2160255 Ontario Ltd.;

e. accounting for amounts paid by the Applicant relating to the rooming house at 9 Birchview;

f. other credits sought by the Applicant as outlined at tabs 17 to 21 of his disclosure brief dated March 20, 2015;

g. claim of the Respondent that the sale of 38 Charing Rd. was a distressed sale and claim for a related credit of $78,500.00;

h. appropriate credit for the legal fees charged by the mortgagee for legal proceedings re 38 Charing Rd., deducted from the net proceeds of sale ($7,640.07);

i. credit for the liens and executions placed on the matrimonial home ($5,039.42);

j. credit for amounts paid to Gowlings, in trust, to satisfy execution ($41,105.38);

k. credit for additional 1% commission charged by Mr. Rutowski ($3,347.67);

l. credit for child support arrears from June 3, 2013 to May 1, 2015 at $1,750.00 per month plus 3% interest (over $41,479.96);

m. credit for section 7 expenses arrears from June 3, 2013 to May 3, 2015 of over $70,497.76;

n. credit or payments by the Applicant of outstanding costs orders of $3,000.00 as per the order of January 27, 2015 and $10,000.00 as per the Order of justice Ratushny dated March 31, 2015;

o. tuition amounts owed to the Ottawa Jewish Community School ($41,500.00);

p. joint lines of credit and car payments ($18,315.00);

q. litigation expenses for mediation and assessment costs, as outlined at page 7 of the Respondent’s disclosure brief filed with the court on April 22, 2015;

r. division in kind or sale of other jointly owned properties;

s. division of the proceeds of sale of 38 Charing Rd (and of the proceeds of other jointly owned properties, yet to be divided in kind or sold) after accounting for the above.

[5] I will address these issues in the order that they appear above. However, firstly, I will address the jurisdiction of this Court and the possible effect of res judicata.

[6] I raised the issue of res judicata with the parties in my endorsement of May 29, 2015, and asked them to make written submissions. Submissions have been received from Mr. Silver but not from Dr. Silver.

[7] Res judicata aims to prevent litigation of claims a party could have or should have raised, arising from events that were the subject of an earlier proceeding. This is a matter of public policy. It is designed to ensure that, barring exceptions – such as, for example, explicitly carving out an issue to be decided at a later date or via a different process, parties bring their case forward in a single action and are prevented from bringing forward, at a later date, parts of the case which might have been brought forward but were not due to inadvertence. It ensures binding and determinative resolution of issues that were or could have been decided in an earlier proceeding.

[8] Counsel for the Applicant agrees, in his submissions dated July 7, 2015, that matters of adjustments which do not relate to the sale and disposition of the proceeds of sale of jointly owned properties are caught by the doctrine of res judicata. He then argues that paragraph ten of the order of Justice McLean empowers the referee to not only oversee the sale of jointly owned properties but also to adjudicate claims and adjustments with respect to the costs incurred by one or the other to preserve, maintain and carry joint assets, whether those costs were incurred before or after trial.

[9] I agree with the above interpretation of paragraph ten, but only for claims and adjustments incurred after trial.

[10] I agree that the order of Justice McLean empowers the referee to not only oversee the sale of jointly owned properties but also to adjudicate claims and adjustments with respect to the costs incurred by one or the other to preserve, maintain and carry joint assets incurred after trial. The parties have also agreed that the referee will resolve issues arising from the division of the proceeds of sale of jointly owned properties.

[11] My reasons for not agreeing with the arguments of the Applicant that my jurisdiction should as well apply to costs incurred for joint assets before trial are as follows.

[12] Post-separation adjustments, if any are required as part of a family matter, are typically decided at trial, see for example, from amongst many, Lazarevic v. Lazarevic, 2014 ONSC 7348 at paras. 121 – 143 and Laing v. Mahmound, 2011 ONSC 4047 at paras. 65 – 69.

[13] To preserve post-separation adjustments for expenses incurred prior to trial, to be determined after a trial of all issues was conducted (this Application was the subject of an eight day highly contested trial of all issues in 2013) through an additional process, by someone other than the trial judge (who would have heard relevant evidence at trial), such as following a reference, would be an exception to the ongoing practice that post-separation adjustments incurred prior to trial are dealt with at trial. Consequently, clear language would be required at paragraph ten or elsewhere in the order of Justice McLean to preserve post-separation adjustments incurred prior to trial and allow these to be dealt with by someone other than the trial judge through another process to occur at a later date, such as this reference.

[14] Paragraph ten of the order of Justice McLean (and his order) does not contain any language that preserves post-separation adjustments incurred prior to trial.

[15] On the other hand, post-separation adjustments incurred after trial would not require such a clear exception (in the order), for these to be dealt with via a reference after trial as these, by definition, would be incurred after trial.

[16] Consequently, I agree with that part of the argument of the Applicant that paragraph ten of the order of Justice McLean allows the referee to deal with post-separation adjustments with respect to jointly owned properties for costs that were incurred after trial.

[17] This is because, in order to be effective, the power to give directions, provided explicitly in the order of Justice McLean, should include the power to deal with post-separation adjustments incurred after trial on jointly owned properties sold by the master (or referee). Such an interpretation flows directly from language such as “shall be sold in the normal course with directions to be given by the master”.

[18] On the other hand, one would not generally expect a master or referee to deal with issues between parties in existence at trial as this is generally what the trial should have dealt with. Therefore, if any such issues were to be carved out of the issues resolved at trial this should be made clear in the order. This is what was done be Justice McLean when he carved out of the trial the sale of jointly owned properties if the parties could not agree to be divided or transfer in kind. He did not carve out post-separation adjustment incurred prior to the trial.

[19] Clearer language would have been required to carve out post-separation adjustment incurred prior to trial.

[20] Indeed, if a joint owner pays an unequal share of a loan or of other expenses associated with a jointly owned property, that owner should raise this at trial and seek the appropriate credit or adjustment to whatever NFP adjustment is ordered at trial. All of the evidence was or could have been available at the time of trial and this should have been raised during trial. Pre-trial issues between parties involved in a family application should be decided at trial or it should be clearly indicated what pre-trial issues are left to be decided (as was done by Justice McLean at paragraph ten of his order). This is important in all matters but particularly in family matters when one considers the very high cost to the parties associated with a long trial. To decide this differently would send the wrong message (that issues associated with issues raised or which could have been raised at a trial can be raised later) and should not be encouraged.

[21] To conclude on this issue, considering all of the above and subject to what follows, I find that post-separation adjustments for costs incurred prior to trial (prior to June 3, 2013) are subject to res judicata. Counsel for the Applicant recently suggested, in his submissions of July 7, 2015, that he could bring the matter back before Justice McLean to seek clarification of his order on this point. This seems a request made quite late but one that I will not prevent. Consequently, if any party wishes to seek such clarification from Justice McLean on the issue of res judicata and its possible application to post-separation adjustments incurred prior to trial, they may do so provided they do so expeditiously. Therefore my findings on the issue of res judicata are made subject to whatever clarifications are issued, if any, on this point by Justice McLean. If no clarification is issued by Justice McLean within the next four months or if the clarifications issued support my findings, then my findings on that issue shall be final.

[22] A word of caution to any party seeking such clarifications. Firstly, consider my findings on other issues. Indeed, as will be seen later in my reasons, my findings on res judicata have a rather limited impact on the overall result. Secondly, time remaining to give a decision in what was heard as a master is limited by section 123 of the Courts of Justice Act to 90 days from being appointed or until September 17, 2015.

[23] Turning now to addressing the issues, in the order they appear above, here is my analysis.

a. Accounting for amounts paid by the Applicant relating to 38 Charing or whether the Applicant should be solely responsible for the carrying costs paid by the Applicant relating to this property based on the argument of the Respondent that he had de facto exclusive possession of that property since December 2010 and as the Respondent had waived a claim for occupational rent of that property

[24] Even if I concluded that post-separation adjustments for expenses incurred prior to trial are subject to res judicata, subject to the parties moving for clarifications before Justice McLean, the following factual background is important and relevant for two reasons: (1) in deciding how to deal with these carrying costs generally and (2) in indicating how I would have decided these adjustments had res judicata not been applicable.

[25] The parties separated on June 6, 2010, and have five children. They lived separate and apart under the same roof until Dr. Silver moved out of the matrimonial home with the children on July 1, 2011. Mr. Silver then stayed in the matrimonial home until it was sold by this court (that transaction closed on January 29, 2015). Mr. Silver then moved into the jointly owned rooming house, at 9 Birchview, where he still resides.

[26] Mr. Silver paid all occupational expenses related to the matrimonial home until May 2014 when his lawyer sent a letter dated June 6, 2014, in which he advises that Mr. Silver would cease making payments on the mortgage for the jointly owned home effective June 2014. As a result and not surprisingly, by letter dated August 26, 2014, counsel for the mortgagee wrote to the parties indicating that legal proceedings were being brought by the bank as a result of the mortgage defaults accruing at the rate of $1,084.00 since June 1, 2014, together with amounts owing on the Scotia lines of credit of the parties, secured on title.

[27] Mr. Silver did bring a pre-emptive motion returnable on April 24, 2014, seeking the sale of the matrimonial home as he had lost his job and stated he could no longer afford the mortgage. The order of Justice McLean had not yet been finalised (although dated June 3, 2013, it was signed on June 20, 2014 as the parties could not agree and required many appointments to finalize the order) and Mr. Silver’s motion was dismissed with the parties ordered to appear before Justice McLean to finalize his order. This nonetheless supports Mr. Silver’s arguments on this reference that he wanted to sell the matrimonial home as early as April 2014. The dismissal of this motion and the delay in finalizing the order also explains why my involvement in the sale of the property was not sought before October 2014.

[28] Mr. Silver is not claiming any of the occupational expenses such as hydro, cable, gas or utilities, as he was occupying the matrimonial home and admitted responsibility for these at the reference. He is however claiming for insurance, mortgage payments and municipal taxes (he hesitated on municipal taxes), arguing that these should be shared equally with the Respondent as the matrimonial home was a jointly owned property.

[29] The parties agree that Dr. Silver paid the Enbridge accounts for the matrimonial home by error on occasion from 2011 onward, and that she needs to be reimbursed for all of these payments. They disagree on the amount. Dr. Silver claims $6,712.58 but Mr. Silver, at the reference, only agreed that Dr. Silver had paid $1,497.73 to Enbridge by error and admitted that she is owed that amount by him. He claimed to be unable to account for the full amount she is claiming. I therefore gave the parties until July 10, 2015, to exchange and provide to the court additional submissions on this point. The documents originally provided by Dr. Silver on this issue are un-intelligible and she did not provide any additional documents on this issue by July 10 (or at any time up to now). The documents attached to the email of her counsel, dated June 23, 2015, do not particularize which payments are at issue; it is impossible for this Court, by looking at those documents, to understand what she has allegedly overpaid for the Enbridge accounts for the matrimonial home. As the onus is on the party seeking a reimbursement, the Respondent has not met her onus and, therefore, I will only allow the amount agreed upon by Mr. Silver. In his additional submissions, dated July 8, 2015, Mr. Silver provided extensive documents and performed an exhaustive reconciliation. He admits, at paragraph one of his review, that the Respondent paid a total of $3,492.24 in Enbridge gas bills (and that he should have paid $1,647.5 up to December 2012 plus $1,844.74 up to 2105). As he agreed to repay such amounts at the reference, I am not applying res judicata. To account for this, the full amount of $3,492.24 shall be added to the half share of the proceeds of sale of the Respondent of the balance left in trust. All of that amount is added as all of it was paid by Dr. Silver and all of it should have been paid by Mr. Silver.

[30] In an email, dated June 23, 2015, counsel for Mr. Silver admits that $621.93 is still owing to Enbridge for 38 Charing. He suggests that Ms. Huggan, the real estate lawyer appointed by the court to deal with the sale of the property, be authorized to pay that amount. I agree and hereby allow Ms. Huggan to pay that amount to Enbridge from the funds held in trust. However, as that amount should have been paid by Mr. Silver, to account for this, half of that amount or $310.97 shall be added to the half share of the proceeds of sale of the Respondent of the balance left in trust. Only half is added to the share of Dr. Silver as it will be paid from the funds held in trust and, consequently, as such all of it (his share plus that added to Dr. Silver) will be paid by Mr. Silver.

[31] The property (38 Charing) was listed for sale by order of this Court in October 2014 for $489,999. It eventually sold for $427,500 on January 29, 2015. The property was appraised in February 2013 as being worth $510,000 but the listing agent retained by the court recommended a listing price of $449,990 with a $25,000 margin or about $425,000. These numbers, at their minimum, do not contradict the arguments of the Respondent, that the Applicant might not have reasonably maintained the matrimonial home – or, at least, the numbers do not show an increase in the value of the matrimonial home while it was occupied by the Applicant.

[32] The Applicant, with one exception (outlined at paragraph 21 of my endorsement of June 10, 2015), has not paid child support or section 7 expenses; the Respondent has paid significant amounts for children’s expenses. The children reside primarily with the Respondent. The court file is replete with affidavits of the Respondent detailing how she claims to have struggled financially in the post-trial period. She claims to have refrained from making any demand for occupational rent on the basis of her understanding that the Applicant was paying for all expenses related to the matrimonial home. Indeed, the Applicant was covering expenses associated with the matrimonial home until about the end of May 2014.

[33] As indicated above, Mr. Silver stopped paying the mortgage June 1, 2014 and the bank shortly thereafter started proceedings which in turn prompted the Respondent to bring a motion seeking the sale of the matrimonial home. This in part supports the argument of the Respondent as to why she refrained from seeking occupational rent as she reacted somewhat promptly with a motion seeking to sell the property following the Applicant’s ceasing to pay the mortgage. Why both parties had to independently seek the sale of this property and on both occasions were unable to agree on a consent order is one of the many indicia of the high conflict nature of this matter.

[34] In his submissions, Mr. Silver alleges that Dr. Silver deliberately never paid the mortgage, even after he defaulted in June 2014, to pressure him financially and to force the sale of the matrimonial home (although he had moved in April for the sale of the property). He alleges that she should be responsible for the carrying costs once he moved in April 2014 to sell the home and for the lawyers’ fees incurred by the bank, as he alleges she financially could have supported the mortgage from June 2014 until the parties sold the matrimonial home.

[35] What follows is my analysis of the issues outlined at (a) above.

[36] The factors outlined in Rezel v. Rezel, 2007 CanLII 12716 (ON SC), [2007] O.J. No. 1460, are relevant in determining occupational rent. I find that by analogy these factors are applicable and support the position of the Respondent; that the Applicant is not entitled to a credit for post-separation adjustments for the carrying costs sought in relation to the matrimonial home from the time the Respondent left the matrimonial home on July 1, 2011 (mortgage, insurance and municipal taxes). The Scotia Lines of credit (512 and 731) are exempted from this and are dealt with below.

[37] My analysis of relevant factors is as follows.

[38] I have not been provided with an explanation for why the Respondent eventually moved out of the matrimonial home, but considering the high conflict nature of this file, it is most likely that the parties both contributed to their no longer being able to live separate and under the same roof. Consequently, this is a neutral factor.

[39] The Applicant, subject to one exception, did not pay any child support to date and only recently brought a motion to change. The children have lived primarily with the Respondent since 2011. The Respondent has, to date, been essentially solely responsible for their financial support. This factor favours the Respondent.

[40] Although the Respondent never sought occupational rent, I accept her explanation that she did not do so on the basis that it would have been offset by the costs incurred by the Applicant husband related to the matrimonial home. Although the order of June 3, 2013 (signed only on June 20, 2014), provides that joint property which cannot be divided or transfer in kind shall be sold, nothing was brought to the masters for direction until the Respondent’s motion on October 3, 2014, seeking an order directing the sale of the property. This triggered my involvement to date. This motion was brought as a result of a new urgency created by the bank starting power of sale proceedings because the Applicant stopped paying the mortgage as of June 1, 2014. It appears, from the above, that both parties contributed to the delay in selling the matrimonial home. The Applicant also brought a motion in April for the sale of this property, which, as described above, was dismissed. Overall, these two motions even themselves out and this factor (who sought the court’s assistance first) is neutral.

[41] The Respondent argues that the Applicant delayed selling the matrimonial home and deliberately supplied “awful photos” to the realtor. I have no convincing evidence to support this and make no such finding. Similarly, the Applicant argues that he wanted to sell the matrimonial home as early as October 2013, but the Respondent would not cooperate. Again, I am not convinced that one of the parties was more unreasonable than the other on this point. I make no such finding.

[42] The children resided primarily with the non-occupying spouse (the Respondent) and, as indicated above, the occupying spouse did not pay child support. This is an important factor which favours the Respondent and to which I attribute slightly more weight.

[43] This is not a factor directly relevant on this analysis but here the Applicant raises issues of access as impacting his legal costs, his financial resources and his energy to deal with other issues. On this point, the Respondent has, on occasion, been difficult with access and this has resulted in motions brought by the Applicant seeking to enforce access. Further, the Respondent has not been cooperative with the court appointed parenting coordinator, frustrating that process. All of this, although not directly relevant, impacted the Applicant by increasing his legal costs, further limiting his available financial resources to deal with other issue. Overall, in the recent past, this increase in litigation expenses to some extent favours the Applicant.

[44] Finally, and much more importantly, the occupying spouse (the Applicant) did not increase the re-sale value of the property. The matrimonial home sold for much less than the value suggested in any of the appraisals obtained in 2013 for purposes of trial. This is an important factor to which I attribute slightly more weight, considering that the Applicant resided in the matrimonial home throughout and seeks adjustments as described above.

[45] Considering all factors, analysed above, even assuming that they are given equal weight, they favour the Respondent. Once weight is attributed to factors, identified above, the scale tips even more strongly in favour of the Respondent.

[46] Recognizing that occupational rent is exceptional relief, analysing the parties’ circumstances and financial context, I conclude that the Respondent would most likely have been successful in seeking occupational rent. The Respondent did not seek occupational rent and occupational rent was not paid in lieu of the Applicant paying all expenses related to 38 Charing.

[47] Consequently, considering the factors outlined above and Lazarevic v. Lazarevic, 2014 ONSC 7348 at para. 123, I am not persuaded that the Respondent owes anything on account of the carrying costs in relation to the matrimonial home post-separation. The Applicant was in possession of the matrimonial home and the Respondent, with the children, had expenses of living elsewhere. As stated in Lazarevic: “As I see it, all those costs and expenses essentially offset one another, including any claim by the husband (in this case the Respondent wife) for occupational rent” [comments added].

[48] The Respondent’s living expenses are outlined in her last sworn financial statement. She advised on this reference that she lives in a townhome with the children for whom she is financially responsible and for whom she has incurred significant section 7 expenses in the alleged range of about $70,000.00; the Applicant’s share of these would be 26%, as per the order of Justice McLean. To claim occupational rent, she usually would have paid half of the mortgage, taxes and insurance. It seems, in the circumstances, reasonable to offset these (now sought by Mr. Silver) by a similar amount of occupational rent she never received, as she never moved for it on the assumption that Mr. Silver was paying for these as he lived in the matrimonial home. This seems reasonable when looking at her costs, outlined in her last financial statement, and the costs associated with the matrimonial home. This seems to be what was done by Justice Mesbur in Lazarevic.

[49] The Court notes that Lazarevic appears even more reasonable in this instance, considering that this is a family reference.

[50] A reference in family matters, by default, is conducted under rule 55 of the Rules of Civil Procedure. Rule 55.01 provides explicitly that a referee shall devise and adopt the simplest, least expensive and most expeditious manner of conducting the reference, even adopting a procedure different from that ordinarily taken (in a trial). The similarity between rule 55.01 and rule 2 of the Family Law Rules is obvious but unlike rule 2, rule 55 is directed at the conduct of the reference.

[51] I have not accepted the argument of Mr. Silver that the Respondent should at least be responsible for adjustments as of April 2014, when he brought his motion for sale of the matrimonial home or as of June 2014, when he stopped paying the mortgage, as he continued to reside in the matrimonial home until it was sold by this court.

[52] Other adjustments with regards to the matrimonial home are however required to fairly account between the parties. This is addressed next.

[53] The reporting letter from Ms. Huggan, the real estate lawyer who acted on the sale of the matrimonial home, dated March 19, 2015, is attached at Tab 8 of the Applicant’s Disclosure Brief dated March 20, 2015. Ms. Huggan accounts for taxes, mortgage, real estate commission and other amounts paid by her from the proceeds of sale (in order to provide a clear title to the purchasers). These amounts paid by Ms. Huggan from the proceeds of sale are outlined in her trust ledger statement as follows:

• $27,855.01 to the City of Ottawa for tax arrears;
• $206,479.59 to Hamilton Appotive, in trust ($165,373.23 on the mortgage plus $16.55 interest = $165,389.78 and $33,129.71 on Scotialine no. 4538160770512 plus $3.63 interest = $33,133.34; $7,640.07 in legal fees and $316.40 in property management fees);
• $343.06 additional per diem interest paid to Hamilton Appotive;
• $41,105.81 to Gowlings in trust;
• $3,824.85 to SullivanLaw;
• $1,214.47 to SullivanLaw to satisfy execution;
• $537.73 credit to the purchasers for property taxes;
• $16,738.38 for real estate commission;
• $2,153.21 for Ms. Huggan’s legal fees;
• $122,247.27 was left in trust as of January 29, 2015.

[54] It is important to consider and adjust these amounts as required as they have been paid from the proceeds of the sale and, unless adjusted, will be attributed equally to both parties (as the parties will, subject to additional orders, eventually share in the proceeds of sale).

[55] $27,855.01 was paid from the proceeds of sale of the matrimonial home to the City of Ottawa for municipal tax arrears for the period from 2011 to the date the matrimonial home was sold. I found pre-trial, post-separation adjustments to be subject to res judicata and found, in any event, that the Applicant is not entitled to a credit for post-separation adjustments for the carrying costs sought by the Applicant in relation to the matrimonial home from the time the Respondent left the matrimonial home in July 2011. Consequently, this amount must be adjusted, as otherwise it is shared equally between the parties which would not factor my earlier findings. To simplify calculations, particularly those of interest and penalty, I will allow all of the 2011 amounts to be shared equally between the parties despite the fact that the Respondent moved out in 2011: $4,447.81. Half the difference ($27,855.01 - $4,447.81 = $23,407.20), or $11,703.60 will be added to the half-share of the proceeds of sale of the Respondent of the balance left in trust, to account for my findings above. Half is added to the Respondent’s side as this will ensure that all of it is paid by the Applicant.

[56] For the mortgage, it is not disputed that the Applicant paid $52,076.46 from June 6, 2010 until May 31, 2014. The same analysis as above is applicable. Allowing the full amount paid for 2010 of $7,632.46 and half the amount paid in 2011 or $6,504 (half of $13,008 for 2011 as the Respondent left in July 2011), leaves a total of $14,136.46 to be shared equally between the parties for the period when both resided in the matrimonial home. Half the difference ($52,076.46 - $14,136.46 = $37,940), or $18,970 will be added to the half-share of the proceeds of sale of the Respondent of the balance left in trust, to account for my findings above. The amount sought by the Respondent, at page 5 of her brief ($8,672), for the period that the Applicant did not pay the mortgage (June 2014 to January 2015) undercuts the required adjustment, as the full amount owing to the mortgagee was deducted from the proceeds of sale. I am also adjusting for half the $343.06 ($171.53) additional per diem interest paid to Hamilton Appotive – with $171.53 to be added to the half-share of the proceeds of sale of the Respondent of the balance left in trust, to account for my findings above.

[57] The amount paid to Gowlings ($41,105.81) was to discharge a writ of execution filed by Gowlings in relation to unpaid legal fees of Mr. Silver owing to his former lawyer, Ms. Crawford. Similarly, the amounts of $3,824.85 and $1,214.47 paid to SullivanLaw were owing by Mr. Silver to his lawyer. These amounts should not be deducted from the 50% share of Dr. Silver of the proceeds of sale. Consequently, half of these amounts ($23,072.57) shall be added to the 50% share of Dr. Silver of the balance left in trust.

[58] Similarly, half of the $537.73 credit to the purchasers for property taxes ($268.87) is to be added to the 50% share of Dr. Silver of the balance left in trust from the proceeds of sale, as the municipal taxes for this period were payable by Mr. Silver.

[59] Line of credit no. 4538160770512 (line 512), was the only line of credit registered on title as per the letter from Hamilton Appotive (the lawyers for the mortgagee) dated January 26, 2015. This letter shows the line had a balance of $33,129.71 as of January 15, 2015 with interest accruing at $3.63 per day. At closing it totalled $33,133.34. This amount was paid by Ms. Huggan from the proceeds of sale of the matrimonial home. The parties also had another line with Scotia, line 731, which was not registered on title and not paid from the proceeds of sale. I note that the parties agreed at the hearing of this reference on June 9th that the Applicant paid $2,137.81 for line 731 and the Respondent paid $2,239.21 for line 731, relatively similar amounts. They agreed regarding the Scotia line registered on title, line 512, that the Applicant had paid $2,915.14 and the Respondent $4,157.37. The Applicant prepared a chart for these lines of credit, found at tab 5 of the Applicant`s Disclosure Brief of March 20, 2015, which outlines the payments made by the parties. As indicated, the parties agree with these numbers. I have reviewed the chart prepared by the Applicant and agree with the content of that chart showing that the Applicant owes the Respondent $671.82. Consequently, $671.82 will be added to the 50% share of Dr. Silver of the balance left in trust from the proceeds of sale.

[60] The real estate commission of $16,738.38 and the legal fees of Ms. Huggan of $2,153.21 are payable equally by the parties, as joint owner, and therefore no adjustment is required. These are costs that they would have shared as joint owners to sell the matrimonial home. Similarly, the $7,640.07 in legal fees from Hamilton Appotive and the $316.40 in property management fees charged by Hamilton Appotive are to be shared equally by the parties as joint owners. I find that both share responsibility for the mortgage defaults and resulting proceedings by the bank. Dr. Silver was warned by Mr. Silver that he was going to stop paying the mortgage. Mr. Silver stopped paying the mortgage despite residing in the matrimonial home and paying no child support. Dr. Silver made no efforts to pay the mortgage pending the sale of the property. Both parties sought an order to sell the matrimonial home and yet the parties could not agree to this relief until after each brought a motion, opposed by the other and I ordered it sold, essentially on consent of the parties. Consequently, there is no adjustment for these amounts.

b. Amounts owing to the parenting coordinator

[61] As indicated at paragraph three of my endorsement dated May 8, 2015, amounts owing to the parenting coordinator are not part of this reference (as ordered by Justice McLean, and even as agreed to by the parties in the order of October 23, 2014).

[62] Although I initially attempted to help the parties in their dealings with the parenting coordinator, it appears that this Court cannot pursue such efforts on this point as part of this reference. The Respondent is not cooperating with the parenting coordinator and the parties are in the process of bringing a motion to change and are or should seek other relief to deal with various issues raised by the Respondent concerning the parenting coordinator. Consequently, item (b) above will not be dealt with by this reference as it is not part of what has been ordered at paragraph ten of the order of Justice McLean, dated June 3, 2013.

[63] Moreover, I note that a clearly defined process is available to the parties to deal with any issues relating to the parenting coordinator and leave was recently granted to the parties to bring motions to deal with this issue (see paragraph 20 of my endorsement dated June 10, 2015).

c. Accounting relating to the Aerolite trailer

[64] The Aerolite trailer is currently in the process of being sold (see paragraph four of my endorsement dated June 10 – subject to a recent stay, ordered on consent of the parties). Subject to the recent stay, Mr. Silvers is to proceed as quickly as possible with the sale of the trailer as previously ordered. Ms. Huggan, the real estate lawyer, has paid the amount owing to the Royal Bank on the trailer ($11,147.48) on May 15, 2015 and any lien registered on the trailer should be discharged and proof of same should be obtained as quickly as possible in order to expeditiously proceed with the sale of the trailer.

[65] No additional submissions have been provided to the Court by Dr. Silver relating to the use of the trailer described by Mr. Silver during the hearing of the reference. It should be noted that counsel for Dr. Silver indicated to the Court, at the hearing of the reference, that Dr. Silver was prevented from attending due to commitments at work but wished to proceed nonetheless.

[66] In her motion of October 3, 2014 (found at tab 6 of volume 7 of the continuing record), the Respondent sought an order directing the sale of the Aerolite Cub trailer and an order that the proceeds of sale of the trailer be used to pay off the bank loan registered against the trailer.

[67] At paragraph 54 of her affidavit sworn on December 1, 2014 (found at tab 1 of volume 8 of the continuing record), the Respondent indicates “… my name needs to be removed immediately from the trailer loan. The trailer does not need to be sold to do this. Proceeds from the sale of the home can cover the outstanding loan.” This is exactly what has occurred: the trailer loan has been fully paid from the net proceeds resulting from the sale of the matrimonial home.

[68] The trailer has, during this reference and until recently, always been referred to by the parties, either explicitly or implicitly, as a jointly owned asset. Indeed, as indicated above, the Respondent brought a motion seeking the sale of the trailer and in her Disclosure Brief, filed with the Court on April 22, 2015, the Respondent only indicates the following with regards to the trailer (at page 11):

In the Endorsement of Master Roger dated January 27, 2015, the trailer was ordered to be sold. The Applicant has yet to list the trailer for sale with the dealer as ordered five months ago.

The trailer loan should be immediately paid from the Applicant’s share of the proceeds of sale of the matrimonial home or the rooming house to protect the Respondent and the children.

[69] However, in a recent email to my registrar dated July 3, 2015, the Respondent indicates “again, the trailer NEVER had my name on it; I never had to transfer it in kind. He has always been the sole owner.”

[70] Upon receipt of this email I asked my registrar, on July 6, 2015, to require the parties to provide proof of ownership of the trailer by July 8. Only Mr. Silver provided responding documents. Although the trailer was plated only in the name of Mr. Silver, both the conditional sale contract and the loan with RBC are in the name of Mr. and Dr. Silver. The conditional sale contract is the determinative document and, as indicated above, it lists both Mr. and Dr. Silver as buyers. I can only assume that this is why Dr. Silver sought, earlier, the sale of the trailer.

[71] Consequently, I find that the trailer is a jointly owned property of the parties.

[72] As indicated above, considering my finding on res judicata, all amounts paid on the trailer prior to June 3, 2013 should have been dealt with before Justice McLean. These were post-separation accounting issues that as a matter of course should have been dealt with at the time of trial by the parties seeking appropriate adjustments for amounts paid unequally on jointly owned assets prior to trial. If a joint owner pays an unequal share of the loan or the expenses associated with a jointly owned property: then that owner should raise the issue at trial and seek the appropriate adjustment. All of the evidence on this issue was or could have been available at the time of trial; it should have been raised during the 2013 trial. Issues related to issues decided at trial (as were these post-separation adjustments related to payments ordered at trial, such as any NFP adjustment) should be decided at trial or else be clearly preserved.

[73] The payments made for the trailer by the Applicant are outlined at tabs 10 and 11 of the Applicant’s Disclosure Brief, dated March 20, 2015. These amounts are not in dispute (i.e. the Respondent does not dispute the fact that these amounts were paid by the Applicant for the trailer). The Respondent argues that such payments made prior to trial are res judicata and, moreover, argues that the trailer was used exclusively by the Applicant post separation, as such that only the Applicant should be responsible for costs associated with the trailer. I disagree with the later for reasons that follow.

[74] Dealing with only the amounts incurred after trial, the following amounts are sought by the Applicant for the trailer for payments made by the Applicant after June 3, 2013:

• $1,480.74 paid on the loan by Mr. Silver for 2013 (7/12 of $2,553 – from June 3);

• $2,553 paid on the loan by Mr. Silver for 2014;

• $638.25 paid on the loan by Mr. Silver for January to March 2015;

• $212.75 paid on the loan by Mr. Silver for April 2015;

• $212.75 paid on the loan by Mr. Silver for May 2015; and

• $46.44 paid for insurance by Mr. Silver in 2013.

$5,143.93 total (half = $2,571.97)

[75] At the hearing of this reference, the Applicant explained that the parties would use their Ford Expedition to tow the trailer. Early on after the separation, this vehicle was in the possession of the Applicant who, he explained, would tow the trailer to the campsite for both his use and, as well, for the use of the Respondent. However, in about June 2012, Dr. Silver took possession of the Ford Expedition and Mr. Silver lost his ability to tow the trailer from that time until July 2014, when he purchased a vehicle with sufficient towing capacity. He explained that the trailer was stored and not used from June 2012 until July 2014, and that he did not prevent Dr. Silver from using the trailer. Dr. Silver was allowed an opportunity to make any responding submissions (see para. 16 of my endorsement dated June 10, 2015, which allowed her until June 19 to provide brief written reply to the oral submissions of Mr. Silver) but chose not to do so.

[76] Considering the information provided on this reference regarding the trailer, there is not enough evidence to establish that the Applicant had exclusive use of the trailer post separation. The only information provided by Dr. Silver is outlined above and it does not support her allegation that the Applicant had exclusive use of the trailer. In other documents Dr. Silver has alleged that Mr. Silver had exclusive use of the trailer, but she has never provided factual information that, in any way, rebuts what Mr. Silver indicated above.

[77] Mr. Silver might have been the only one using the trailer but there is no evidence that he prevented the Respondent from using the trailer. Similarly, the Respondent might have decided that she did not wish to use the trailer or could not use the trailer post-separation, but deciding not to use a jointly owned asset or not using a jointly owned asset does not per se entitle a joint owner to stop paying the loan and other amounts owing on the jointly owned asset.

[78] Consequently, the amount of $2,571.97 (half of the amounts paid by Mr. Silver on the trailer after trial) shall be subtracted from the 50% share of Dr. Silver of the balance left in trust.

d. Mr. Pittman

[79] Amounts owing to Mr. Pittman, in relation to the 2013 trial ($8,500.00), have been paid by Ms. Huggan, by letter dated May 15, 2015 (see paragraph 11 of my endorsement of May 8, 2015). This was an item covered by paragraph 11 of the order of Justice McLean (shall be divided equally between the parties). The amount of $8,500.00 paid to Mr. Pittman has been divided equally between the parties, as it has been subtracted from their respective share of the proceeds of the sale of the jointly owned properties. Consequently, no adjustment is required for the payment of that amount. (See as well (f) below as it also seeks a credit for amounts owing to Mr. Pitman).

[80] This Court will not ask Mr. Pittman to prepare an updated report on the value of 2160255 Ontario Ltd., as such interest is not jointly owned property and, consequently, not part of this reference (see paragraph 13 of my endorsement dated of June 10, 2015). The 10% interest of Mr. Silver in 2160255 Ontario Ltd. is to be dealt with by the parties or the Court at a later date as it is not part of this reference.

e. Accounting for amounts paid by the Applicant relating to the rooming house at 9 Birchview

[81] This property, known as the rooming house, has been ordered sold by this court. It has not yet been sold, in part as that order was recently stayed, on consent of the parties, to allow time for additional settlement discussions.

[82] As its name suggests, this property is a rooming house owned by the parties but essentially managed by Mr. Silver and where he resides since the matrimonial home was sold.

[83] The same analysis is applicable regarding res judicata and post-separation adjustments sought by the Applicant for the period from the date of separation to the date of trial.

[84] As indicated, an order has been made for the sale of this property with a listing price based primarily on an appraisal obtained by the Respondent in April 2013. This follows recommendations made by the listing real estate agent. Interestingly, another appraisal dated January 15, 2013, suggests market values as a single-family dwelling between $460,000-$470,000 but as a rooming house between $350,000 and $365,000. Another appraisal dated May 9, 2013, suggests market values between $365,000 and $385,000, with a probable sale price estimated at $375,000. I have not yet been advised of any offer received on the rooming house and will likely be asked to intervene as and when required.

[85] The Applicant seeks adjustments for various amounts paid for the rooming house.

[86] I find from information provided on this reference that the Applicant essentially had exclusive possession of the rooming house since the date of separation and has managed the rooming house without accounting to the Respondent.

[87] The Applicant indicates that he generated the following amounts in rental income from the rooming house:

• $44,281.84 projected in 2015 ($16,643.78 net is projected);

• $40,916.01 in 2014 ($8,760.92 net is projected);

• $43,347 .14 in 2013 ($12,134.42 net); and

• $46,406.13 gross in 2012 ($7,591.28 net);

• The net amounts indicated above are arrived at by the Applicant subtracting the following expenses: hydro, gas, water, municipal taxes, internet, tv, telephone, maintenance, grass cutting, pool maintenance, cleaning, advertising, pool liner loan, mortgage interest and principal, and insurance.

[88] Since the date of separation, the Applicant has grossed, on average, slightly more than $43,000 in rental income. The average net rental income is about $11,282.

[89] Considering the finding of Justice Heeney, of the Divisional Court (see para. 33 of his reasons released June 12, 2015, in an appeal heard recently in this matter: Silver v. Silver 2015 ONSC 3816), that: “Rent of $5,000 from the rental property is already accounted for in the annual income figure of $60,000, so no additional income should be attributed to that asset in fixing support as of the date of trial,” it certainly seems fair and reasonable, in the circumstances of this matter, as outlined above, that all post-separation expenses associated with the rooming house be paid by the Applicant.

[90] The Applicant was the de facto manager of the rooming house, paid all expenses (or should have paid all expenses from rental income generated) and kept all income (even that exceeding his attributed income for purposes of spousal support) without accounting to the Respondent. Moreover, the Applicant resides in the rooming house, rent free, since the matrimonial home sold. Consequently, subject to my finding on res judicata, the Applicant, Mr. Silver, should pay or be responsible to pay all post-separation expenses of the rooming house.

[91] It is alleged by the Respondent that $44,724.80 is currently owed in municipal taxes for the rooming house, plus possibly an additional $3,103.05 as of June 18, 2015. I have been provided no evidence but this will eventually be confirmed by the real estate lawyer. If any municipal taxes are actually owing on the rooming house they may be paid by the real estate lawyer from the proceeds of sale of the rooming house, however, any such payment will then be accounted for or adjusted by this court to reflect the above findings and any and all such payment will be attributed by this court only to Mr. Silver with 50% of any amount paid from the proceeds of sale of the rooming house for any outstanding municipal taxes to be added to Dr. Silver’s 50% share of the proceeds of sale of the rooming house. Municipal taxes for the rooming house should have been paid by Mr. Silver from the rental income generated by the rooming house. This adjustment, to be made if such taxes are paid from the proceed of sale of the rooming house, will ensure that these taxes, if any, are actually only paid by Mr. Silver.

[92] It’s not clear that this property has been properly maintained. Certainly the roof needs to be re-shingled at a cost currently estimated to be between $9,000 and $10,000. As ordered at paragraph 11 of my endorsement of June 10, 2015, if this property has to be sold by the court then Ms. Huggan may pay the cost of re-shingling and repairing the roof from the funds held in trust. However, any and all amounts paid for the repair of the roof will be allocated only to Mr. Silver, as this cost should have been part of the maintenance of the rooming house and should have been paid for from the income generated by the rooming house. Consequently, if any such payment is made by Ms. Huggan for repairs to the roof then 50% of that amount shall be added to the share of Dr. Silver of the proceeds of sale to ensure that all of this is paid by Mr. Silver.

[93] As Mr. Silver is managing the rooming house and keeping whatever is the net income, it is only fair and reasonable that, as between the two owners, he pays for such repairs (particularly when the net income exceeds what was allocated to him when calculating income for spousal support purposes – leaving sufficiently over the years to more than cover such repairs). Consequently, if the costs to repair the roof of the rooming house are paid by Ms. Huggan from the funds held in trust, then either when this court is dealing with the division of the proceeds of sale of the rooming house (after its sale) or when this court or its successor is next dealing with the division of funds held in trust, half of the total cost of these repairs shall be added to Dr. Silver’s 50% share of the proceeds of sale to ensure that these repairs are paid for only by Mr. Silver.

[94] The rooming house, at 9 Birchview, was appraised for the Respondent in April 2013 at $430,000. At the time of trial, the value of the mortgage remaining to be paid was $201,646. The Applicant’s NFP worksheet agrees with these assessments, indicating similar values for the asset and debts as of the date of trial. The real estate agent suggested by the Respondent, Mr. Lorne Scott, recently recommended a listing price between $430,000 and $470,000. Mr. Scott had not yet seen the inside of the property at the time of my previous endorsement. He should have seen it by now and he and may factor this in his assessment when setting the appropriate listing price.

[95] Dr. Silver has argued that all rental income, pending the sale of the rooming house, should be paid to the real estate lawyer in trust to be used to pay expenses related to the rooming house. I find that this is not required nor in the best interest of the parties. Considering that I will account for these and allocate all such expenses to Mr. Silver, when dealing with any final distribution of the funds held in trust, it seems best to have Mr. Silver continue to manage the rooming house and for the Court to deal with accounting issues after it is sold (or as a part of any agreement yet to be reached between the parties).

[96] Consequently, Mr. Silver shall continue to manage the rooming house, pending its sale, and shall pay for all costs related to the rooming house from rental income. Any failure to have done so or to do so will be dealt with by this court (or its successor) after the property is sold by making all required adjustments from the funds held in trust (half of any required payment made from the funds held in trust will be added to the 50% share of Dr. Silver) to ensure that all such costs are paid only by Mr. Silver.

f. Other credits sought by the Applicant tabs 17 to 21 of his brief

[97] Justice McLean, at paragraph 11 of his order, ordered that all mediation, assessment and litigation expenses paid to third parties for reports used in and during the litigation process leading up to trial to be divided equally between the parties.

[98] All amounts sought by the Applicant at tab 17 of his brief of March 20, 2015, with the exception of the $1,127.39 amount sought for the Toyota Sienna, fall within paragraph 11 of the order of Justice McLean and are to be divided equally between the parties.

[99] The amounts incurred by Mr. Silver for repairs to the Toyota Sienna ($1,127.39) were incurred prior to trial and, consequently, as held above are subject to res judicata and hereby dismissed. These amounts should have been sought at trial.

[100] The other amounts (Pittman, Goldstein and Leonoff) are agreed upon by the parties and accurately described at tab 17 of the Applicant’s Brief. Removing the amount of $1,127.39 sought for the Sienna, I arrive at $2,675.00 owed by Dr. Silver to Mr. Silver for these items (attributing to each what he or she paid, as indicated at tab 17). Consequently, the amount of $2,675 is to be subtracted from the 50% share of Dr. Silver of the balance left in trust.

g. Claim of the Respondent that the sale of 38 Charing Rd. was a distressed sale and claim for a related credit of $78,500.00

[101] I have considered the Respondent’s arguments in support of paragraph (g) above and, for the following reasons, this request is dismissed.

[102] The sale of 38 Charing was made by court order, which is a full answer to this argument. Reference should be made to paragraphs eight and nine of my endorsement dated May 8, 2015, for an overview of the sale of this property and to my endorsements dated: October 23, 2014; October 28, 2014; November 18, 2014; November 20, 2014; November 24, 2014; and December 2, 2014.

[103] Although not required to dismiss this claim, reference should also be made to the consent of the Respondent confirmed by the email from her lawyer, dated November 24, 2014 (a copy of which is found in the endorsement book), regarding the selling price of $431,500.00. The selling price was then allowed, by the court, to be reduced very slightly to account for issues raised by the purchasers following the home inspection. This resulted in the property being sold for $427,500 and the net proceeds of sale held in trust by the real estate lawyer.

[104] Consequently, there is no legal or factual basis to claim that this sale was in any way a distressed sale.

h. Credit for legal fees charged by the mortgagee for legal proceedings 38 Charing

[105] This has been dealt with under (a) above.

[106] As indicated, I found that the $7,640.07 in legal fees from Hamilton Appotive and the $316.40 in property management fees charged by Hamilton Appotive are to be shared equally by the parties as joint owners. They both share responsibility for the mortgage defaults and resulting proceedings by the bank.

i. Credit for liens and executions

[107] This has been dealt with under (a) above. Credits have been given to the Respondent as these were amounts owing only by the Applicant – see the analysis at (a).

j. Credit for amounts paid to Gowlings to satisfy execution

[108] Dealt with under (a) above. As indicated, credit is given to the Respondent as these amounts should have been paid by the Applicant.

k. Credit for additional 1% commission charged by Mr. Rutowski

[109] The request made by the Respondent at (k) is dismissed. The commission charged by Mr. Rutowski for the sale of 38 Charing Rd. is in full compliance with the relevant listing agreement and the orders of this Court. The Respondent, in her submissions, makes reference to an earlier listing agreement, which was never accepted by the parties and which is not the listing agreement under which this Court proceeded to sell 38 Charing.

l. Credit for child support arrears

[110] The Applicant has recently brought a motion to change, seeking to terminate his child support obligations and to fix the outstanding amount of child support owing at $8,750.00, as of April 30, 2015. Permission was given to the Respondent to bring a motion seeking security for child support amounts. Credit for child support arrears will not be dealt with by this reference as it is not part of the reference as mandated by the orders referred to above.

m. Credit for section 7 expenses arrears

[111] The parenting coordinator is addressing or attempting to address the issue of section 7 expenses by way of arbitration. Further, leave has been granted to the Respondent to bring a motion seeking available security for the payment of these amounts. Consequently, this issue is left to be dealt with either by the parenting coordinator as part of a scheduled arbitration or, alternatively, by the Court at a later date.

[112] In any event, this issue will not be dealt with by this reference as it is not part of this reference as mandated by the orders referred to above.

n. Credit for outstanding costs orders

[113] Outstanding costs orders, dealt with in my endorsement of May 8, 2015, are dealt with below under the title “Ongoing Accounting.”

o. Tuition owed to the Ottawa Jewish Community School

[114] This is not part of this reference, as per the orders outlined above, and consequently will not be dealt with by this reference.

p. Joint line of credit and car payments

[115] The Respondent seeks reimbursement or a credit of $18,840 for payments allegedly made on the joint line of credit registered against the matrimonial home. She provided, as proof of same, copies of her PC Financial Bank statements (found at tab 13 of the Respondent’s Disclosure Brief). All of these payments were made prior to the trial. Consequently, as held above, all are subject to res judicata and the credit sought by the Respondent for these amounts is dismissed as it should have been sought at trial.

[116] The Respondent also seeks $18,315.00 for payments for the Toyota Sienna loan that she paid at the rate of $555.00 per month for 7 months in 2010, 12 months in 2011, 12 months in 2012 and two months in 2013. It is understood by this Court that this vehicle was used exclusively by Dr. Silver post-separation. Further, all of these expenses were incurred prior to the trial with Justice McLean and are subject to res judicata. Consequently, the credit sought by the Respondent for these amounts is dismissed.

[117] At paragraph 17 of my endorsement, dated June 10, 2015, I allowed Dr. Silver until June 19 to provide particulars of these amounts. Nothing was received. I note that the amount of $6,396.58, agreed to by Mr. Silver in his brief of March 20, 2015, and referred to in that endorsement, has already been accounted for under (a) above (see the paragraph dealing with the line of credit and the credit of $671.81 allowed to Dr. Silver).

q. Litigation expenses for mediation and assessment costs - page 7 of the Respondent’s Disclosure Brief

[118] Justice McLean, at paragraph 11 of his order, ordered all mediation, assessment and litigation expenses paid to third parties for reports used in and during the litigation process leading up to trial to be divided equally between the parties.

[119] The Respondent has sought various adjustments at pages seven and nine of the Respondent’s Disclosure Brief. The following adjustments are allowed as they were either a mediation or an assessment or litigation expense paid to a third party for reports used in and during the litigation process leading up to trial (and as the fact that the amount has been incurred was not disputed by the Applicant – he argued that it was not claimable as the product of the expense was not introduced at trial): $2,203.75 for D’Artois; $1,575 for Nandi; and $1,530 for Yegendorf.

[120] I do not accept the very narrow interpretation of the Applicant that these amounts should not be claimable as the product was not introduced at trial, as this interpretation is contrary to what was ordered.

[121] The Applicant questioned the amount of $1,445 for Yangendorf and I asked for back-up documents to be provided by the Respondent in support of that payment. No back-up documents were provided by the Respondent. Therefore that amount ($1,445 for Yangendorf) is not allowed.

[122] The amount sought for Dr. Leonoff has been dealt with above (see the analysis at (f) above).

[123] Consequently, half of these amounts ($2,203.75 plus $1,575. plus $1,530 = $5,308.75) or $2,654.38 is to be added to 50% share of Dr. Silver of the balance left in trust to account for.

r. and s. Division in kind or sale of other jointly owned properties and division of the proceeds of sale after accounting for the above

[124] Jointly owned properties that the parties cannot agree to deal with otherwise (to be divided or transfer in kind) have been ordered to be sold (see paragraph 10 of the order of Justice McLean dated June 3, 2013).

Aerolite trailer

[125] The parties have not yet reached an agreement on a transfer in kind or purchase of the trailer. The sale of the trailer is dealt with in my endorsements dated June 10 and July 2, 2015. As indicated, the parties are strongly encouraged to resolve the sale of this item, considering the amounts involved and the likely costs associated with selling the trailer. The parties have scheduled settlement discussions which hopefully will resolve this issue. In the meantime, on consent of the parties, the sale of this trailer has been stayed to allow the parties a further opportunity to attempt to resolve this.

9 Birchview – the rooming house

[126] The parties have, to date, been unable to arrive at a resolution regarding this property. This is unfortunate. Pending any agreement between the parties, the sale of this property has been ordered (see my endorsement dated July 2, 2015). However, this sale is temporarily subject to a stay, recently granted on consent of the parties, in order to allow the parties time to attempt to resolve this and other related issues.

Ongoing Accounting

[127] As previously ordered at paragraph 14 of my endorsement, dated May 8, 2015, costs awards then outstanding against the Applicant are to be credited or subtracted from the NFP adjustment effective, for purposes of interest calculations, on the date that the order for costs was made. In addition, I note that at paragraph nine of her endorsement, dated March 31, 2015, Justice Ratushny provides that the amount of $10,000 she ordered for costs is payable by the moving party to the responding party from the moving party’s net family property adjustment; this makes it clear that she wanted this amount of costs dealt with by way of a credit to the NFP adjustment. Consequently:

a) $3,000.00, as per my order of costs made against the Applicant dated and effective for purposes of interest calculations on January 29, 2015, is to be credited or subtracted from the NFP adjustment otherwise owing to the Applicant, in full payment of that costs order; and

b) $10,000.00, as per the order of Justice Ratushny dated an effective for purposes of interest calculations on March 31, 2015, is to be credited or subtracted from the NFP adjustment otherwise owing to the Applicant, in full payment of that costs order.

[128] In my endorsement, dated June 2, 2015, I ordered costs for the motion in the all-inclusive amount of $850 in favour of the Applicant, with the payment to be dealt with on this reference. Since this amount is payable by the Respondent to the Applicant, it shall be added to the NFP adjustment effective for purposes of interest calculations on the date that the order for costs was made (June 2, 2015), consequently:

a) $850.00, as per my costs order made against the Respondent on June 2, 2015, is to be added to the NFP adjustment otherwise owing effective for purposes of interest calculations on June 2, 2015, in full payment of that costs order.

[129] As previously ordered on June 9, 2015 (see my handwritten endorsement of June 9 and paragraph 21 of my endorsement of June 10, 2015), on consent of the Applicant, $8,750 was to be paid forthwith to the Respondent, by Ms. Huggan, from the proceeds held in trust in reimbursement of five months of child support for the period June to October 2013. On the assumption that that amount has indeed been paid, then half of the amount of $8,750 or $4,375 shall be added to the share of Dr. Silver to the proceeds held in trust to ensure that the amount paid for child support is paid by Mr. Silver.

[130] By way of summary of the adjustments ordered above, the following are to be added to Dr. Silver`s 50% share of the proceeds of sale:

a. $3,492.24 to account for the Enbridge gas bills;

b. $310.97 to account for the amounts still owing to Enbridge;

c. $11,703.60 to account for the amount paid for taxes;

d. $18,970 to account for mortgage payments;

e. $171.53 to account for per diem interest;

f. $23,072.57 to account for legal expenses;

g. $268.87 to account for municipal taxes;

h. $671.82 to account for amounts paid on lines of credit;

i. If any amount is paid from the proceeds of sale of the rooming house for outstanding municipal taxes on the rooming house, 50% of any amount paid shall be added to Dr. Silver`s 50% share of the proceeds of sale to ensure that any such taxes are paid by Mr. Silver;

j. Half of the total cost to re-shingle or repair the roof of the rooming house (if such repairs are paid for from the funds held in trust) to ensure that these repairs are paid for only by Mr. Silver;

k. Adjustments in the event that expenses for the rooming house are not paid by Mr. Silver (as per paragraph 96); and

l. $2,654.38 to account for mediation and assessment costs.

[131] By way of summary of the adjustments ordered above, the following are to be subtracted from Dr. Silver`s 50% share of the proceeds of sale:

a. $2,571.97 for amounts paid for the Aerolite trailer; and

b. $2,675 for half of litigation expenses paid by the Applicant.

[132] If costs are sought for this reference, either for the appearance of June 9 or for any of the many appearances before me after October 23, 2014 (where costs were reserved), then detailed written submissions with a costs outline, broken down by appearance or event, shall be served and filed with my registrar by both parties within the next 10 days, with any required reply to be served and filed with my registrar within 5 days thereafter.

[133] This endorsement is made pursuant to section 123 of the Courts of Justice Act.

Master Pierre E. Roger

Date: July 17, 2015