Court File and Parties

COURT FILE NO.: FS-13-389839-0000 DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DUONG XUAN BUI Applicant – and – THU ANH THI NGUYEN Respondent

COUNSEL: Lorne Wolfson & Sandra Jackson, for the Applicant Eugene Bhattacharya, for the Respondent

HEARD: September 20 – 23, 26 – 27, 2016 & February 27 – 28, 2017

Hood j.

Reasons for Decision

Overview

[1] In 2013, the applicant Duong Xuan Bui and respondent Thu Anh Thi Nguyen separated after a 20-year marriage.

[2] At trial, the parties argued primarily over their property and what should or should not be included in their net family property for equalization purposes under the Family Law Act, R.S.O. 1990, c. F.3. While there were a multitude of property disputes at the commencement of trial, including disputes over properties in Montreal and Vietnam, by the closing submissions the number of property disputes had been reduced to the following:

a) the ownership of diamond rings, at the date of separation; b) the attribution of funds held in a Bank of America bank account, at the date of separation; c) whether there was a debt owing to the applicant’s sister with respect to a jointly owned property in California, at the date of separation; d) whether the respondent had a number of personal debts owing, at the date of separation; e) the value of a Honda automobile owned by the respondent, at the date of marriage; and f) the value of RRSPs owned by the respondent, at the date of marriage.

[3] During closing arguments, the respondent asked for a right of first refusal on one of the jointly-owned properties, which the parties had agreed should be sold. This was opposed by the applicant.

[4] There was no disagreement over the respondent’s entitlement to spousal support. The parties, however, disagreed as to the amount of spousal support, based primarily on their disagreement as to the applicant’s income.

[5] There was no argument over child support, but s. 7 expenses under the Federal Child Support Guidelines, S.O.R./97-175 remained an issue between the parties and the proportion to be paid by each.

Facts

[6] Certain facts were agreed upon by the parties as follows:

(a) the parties were married in April, 1993. It was a first marriage for both of them; (b) the parties separated on August 31, 2013. Since that date, they have continued to live separate and apart under the same roof in the matrimonial home on Laurel Avenue, Toronto; (c) there are four children of the marriage, namely Eileen Bui, born July, 1993; Alan Bui, born December 1995; Edward Bui, born May 1998; and Albert Bui, born June, 2000; (d) Eileen is currently attending university in the United States. She is in her 2nd year studying Medicine. Alan is currently attending University of Toronto. He is in his 4th year, studying Life Science. Edward is currently attending Waterloo University. He is in his 1st year, studying Computer Engineering. Albert is currently attending high school, in Grade 11; (e) Alan and Albert reside with Dr. Bui and Ms. Nguyen in the matrimonial home, as does Eileen and Edward when they are home from university; (f) both parties have been very involved in raising the children and are both closely bonded with the children; (g) Dr. Bui was born and raised in Vietnam; (h) Dr. Bui studied for and obtained his license to practice medicine in Vietnam; (i) Dr. Bui moved to Ottawa in 1980. He attended Ottawa University where he studied microbiology in the Master’s program; (j) in 1984, Dr. Bui received an internship at the University of Alberta. While in Alberta, he was successful in becoming accredited to practice medicine; (k) in 1987, Dr. Bui moved to Ontario. He was able to obtain his license to practice medicine in Ontario. He has practiced general medicine in Ontario ever since; (l) at the valuation date, the parties owned the following properties: a) the matrimonial home located on Laurel Avenue, Etobicoke, which title is registered in the name of Dr. Bui; b) a cottage property located on Fothergill Island, R.R. #1, Peterborough, which is jointly owned by the parties; c) a commercial building located on Gerrard Street East, Toronto, which is registered in Dr. Bui’s name and which is the location of his medical practice; d) an investment property located on Stanley Avenue, Mimico, which is registered in the names of both parties; and e) an investment property located on Gardenia Avenue in California that was jointly owned by the parties. In June, 2016, the property was sold and the net proceeds equally divided between the parties. (m) the parties’ line 150 incomes as represented on their 2010 to 2015 personal tax returns and Dr. Bui’s net income before taxes as shown on his corporate tax returns are as follows:

	2010	2011	2012	2013	2014	2015
Applicant’s Line 150 Income	$100,975.05	$140,780.08	$143,215.35	$129,196.58	$49,635.82	$46,406.89
Applicant’s Corporate Net Income Before Taxes	$0.00	$0.00	$0.00	$0.00	$66,145.00	$47,616.00
Respondent’s Line 150 Income	$17,302.17	($10,884.82)	$2,672.22	$15,244.14	$25,553.00	nil

Equalization Issues

Diamond Rings

[7] The parties agree that the diamond rings are to be valued at $8,000, as part of the equalization. Based upon this, I take it that the parties agree the rings did exist. They cannot agree as to where the rings were at the date of separation. The applicant’s position is that he does not know where the rings were or where they currently are. The respondent’s position is that the applicant took the rings. Each says the agreed value of $8,000, should form part of the other’s assets owned on valuation day.

[8] With no evidence from either party as to the rings’ location on the date of separation, I am unable to resolve this dispute. Accordingly, their value should not be attributed to either party. This results in the value of the general household items and vehicles on valuation day being $92,022.50, for the applicant and $24,181.25, for the respondent.

Bank of America Joint Bank Account

[9] The parties agree that the amount in this account as at the date of separation was $19,222.69. They disagree over how this should be attributed for equalization purposes. The applicant’s position is that it should be divided equally with each party being credited with $9,611.34. The respondent’s position is that the total amount should be credited to the applicant.

[10] Of the two positions presented, it should be attributed to the applicant, rather than be divided equally between the parties.

[11] This account was opened in the name of the applicant, the respondent and the applicant’s sister, Kiem Thi Bui. While purportedly originally opened for the purposes of managing the jointly owned property in California, over time its use changed. Eventually, it was also used by the applicant to send money to his mother, who was living in Florida, for her support. To do this, the applicant wired money from one of his personal accounts in Canada as needed—anywhere from $2,000 to $5,000 to $10,000, apparently. Following separation, the applicant continued to use the account in this manner but also started using it to send money to the parties’ daughter Eileen who was then going to school in the United States.

[12] While the respondent may have been on the account as one of the owners, from the evidence, the account was controlled by the applicant and his sister. While used to pay expenses related to the California property, such as insurance, taxes and the mortgage, it was also used to pay for the applicant and his sister’s mother’s support and her living expenses. It was also funded, to a great extent, by the applicant from his personal accounts. For all intents and purposes it was the applicant’s account and should be credited to him.

California Property

[13] The parties bought a house on Gardenia Avenue, Fountain Valley, California, as joint tenants in March, 1994 for US$235,000. They sold it in June, 2016, for US$736,000.

[14] The applicant alleges that he and his wife used US$25,000 from his sister, Kiem Thi Bui (“Kiem”), in order to purchase the house and agreed to repay her and her husband when it was sold based upon a share of the profits and a “management fee” based upon the selling price. Based upon the alleged agreement the applicant says he owes Kiem US$98,550 or $126,115.75, which should be a debt for him on separation.

[15] The respondent denies any such agreement.

[16] I accept the respondent’s position. I am not satisfied that there was an agreement between the parties and Kiem and her husband as alleged.

[17] Kiem is the applicant’s older sister. She currently works as a pharmacist and lives in the United States, although, she did live and work in Canada for a time between 1998 and 2000.

[18] Kiem’s evidence is that when she arrived in the United States from Vietnam in 1993, she had a lot of cash on her. She initially testified that she gave US$31,000 of this to the respondent to keep for her. This number later changed to US$37,000. Ultimately, Kiem could not remember which amount it was. She testified that she gave the money to the applicant. Then she testified that she gave it to both the applicant and respondent together. There was no record supporting this testimony, either that she had these funds or that she gave some amount to the applicant or to both of them to keep for her.

[19] According to Kiem, the parties visited her and her husband in California in October, 1993. She was living in a rental and was looking for a house to own. She initially testified that she found the Gardenia property and made an offer on it without the parties’ knowledge. She then changed her testimony and said that the four of them, her, her husband and the parties found the Gardenia property.

[20] Kiem testified that the four of them agreed that the applicant and the respondent would finance the purchase, she would contribute US$ 25,000, towards the downpayment, her family would live there or rent it out, she would pay $1,000 per month regardless of whether her family used it or not and she would manage and repair the property as needed. In return, when the property was sold, she and her husband would be paid a “management fee” and a proportionate share of the profits.

[21] The agreement was allegedly put into writing by Kiem, signed by her and sent to the applicant in March, 1994, following a telephone conversation between herself and the respondent, who Kiem testified agreed to its terms. A copy of the document and its translation, by the applicant, was marked as Exhibit A3, Tab 6C.

[22] The applicant testified that he initialed the agreement and it then sat on a table in their house for a long time. He testified that he thought the respondent initialed it too. The exhibit does not have the respondent’s initials on it.

[23] The respondent testified that: she was never given any money by Kiem, she was never part of a discussion about Kiem and her husband having any sort of interest in the Gardenia property, she never had the telephone conversation with Kiem about the document, she never saw the document in 1994, and the first time she saw the alleged agreement was during the course of the current litigation and just prior to trial. I note that the exhibit indicates it was faxed on April 13, 2016. The respondent did testify that Kiem at one point had wanted to buy half of the Gardenia property, but she had no money to do so as the money she did have was needed by her for her studies and in trying to become licensed as a pharmacist in the United States.

[24] Having considered all of the evidence about the California property, I have considerable difficulty in accepting much of Kiem’s evidence as reliable. For example, her evidence constantly changed both during her examination in chief and in cross-examination. She could not remember how much money she handed over to whom, yet she was able to remember telephone conversations that took place in 1994. She gave answers to questions that were not asked of her and refused to answer straightforward questions with straightforward answers.

[25] Although allegedly managing the property, she had no records of leases, tenants, rents or maintenance repairs. There was no evidence as to how much rent she collected or where it went. There were no lease documents. There was no accounting from 1994 to 2016 with respect to the property. She knew nothing about comparable or market rent in California. She knew nothing about the landlord and tenant laws in California. Her dates as to when the property was occupied by her family constantly changed as did who was there and at what times and the number of tenants, what the rent was and when tenants were there. Although she lived in Canada for two years, she allegedly still managed the property. When she was in Florida, she allegedly still managed the property. As she flippantly responded, she was a pharmacist, so managing the property was easy.

[26] The applicant’s evidence regarding the California property was also problematic and unreliable. If Kiem was paying $1,000 per month, the applicant never accounted for this on his tax returns. He still claimed all the maintenance costs on his tax returns. He attempted to explain this by saying Kiem was to cover small maintenance items and he was to cover large maintenance items. The alleged agreement does not say this. The alleged agreement was never signed by the respondent. The applicant, in turn, only initialed it. As he explained, he had different signatures depending upon the importance of the document. If important, he signed it with his full signature. The applicant testified that the alleged agreement was only 5 out of 10 in importance, so he chose to only initial it.

[27] Whatever the agreement may have been between Kiem and the applicant, I am unable to find that there was an agreement which entitled Kiem to US$98,550 or $126,115.75, as argued by the applicant. I find that there is no debt owing to Kiem by the applicant or by the applicant and the respondent. Nor is half of this amount owing to Kiem by the applicant, as was argued in closing submissions by the applicant.

Personal Loans to Respondent

[28] The respondent claims that as at the date of separation, August 31, 2013, she owed her sister, Thao Nguyen, $15,000, her brother, Minh Nguyen, $50,000, her mother, Von Tran, $13,500 and her neighbor, Maria Manicone, $15,000.

[29] In support of this she produced copies of a number of cheques from her sister that pre-dated August 31, 2013, a copy of a charge dated April 29, 1991 in the amount of $26,000 in her brother’s name on a property in Mississauga which she says was then lent to her so that she could buy the Stanley property on April 29, 1991, a copy of a cheque from her neighbour and a copy of a cheque to her neighbor that both pre-dated August 31, 2013. She also produced copies of a number of cheques from her sister that were all subsequent to the date of separation.

[30] The respondent had the onus to prove that these were debts owing. She failed to do so.

[31] There was no evidence beyond copies of the various cheques and the charge. There were no loan documents, no letter or even an email supporting a loan for any of the alleged loans. There was no evidence of any demands. There was no accounting or calculation as to how the loan amounts were arrived at. None of the creditors were called as witnesses. There was no evidence that they could not be called as witnesses. While the respondent claimed she had repaid some of the loans, other than the copy of the one cheque to her neighbor, there was no evidence that the respondent even acknowledged these loans.

[32] The evidence produced to substantiate the loans was insufficient. I find that the personal loans for the purposes of equalization should be zero dollars.

Honda Prelude

[33] At the date of marriage in April, 1993, the parties agree that the respondent owned a 1988 Honda Prelude. They disagree over its value. The applicant argues that it was worth $10,000. The respondent argues it was worth $26,000.

[34] There was no evidence presented by the respondent as to the value of a 1988 Honda Prelude in 1993 nor was there evidence as to the value of her specific vehicle. It was her onus to do so if she was seeking a valuation greater than the $10,000 admitted by the applicant. Accordingly, the valuation of $10,000 is appropriate.

RRSP

[35] At the date of marriage in April, 1993, the respondent claims that she owned an RRSP worth $37,500. The applicant argues that there is no evidence of this, so the value should be $0.

[36] There is no evidence on this. The respondent argues that the evidence of this was either destroyed by the applicant or was lost when her car, containing her financial records, was stolen and never recovered. She alleges that funds from her RRSP were used to purchase the cottage property on Fothergill Island, which is jointly held.

[37] The cottage was bought in June, 1992 for $166,100 and the parties took out a mortgage for $120,000. While she may have used money from her RRSP to help purchase the cottage in June, 1992, there is no evidence to substantiate the amount of her RRSP in April, 1993. I am not prepared, without more in support, to simply accept the respondent’s statement that she had $37,500 in April, 1993, in an RRSP.

Income and Spousal Support

[38] The applicant submits that I should impute an income of $20,000 to the respondent for support purposes. This is less than minimum wage.

[39] The respondent is currently 56 years old. She is an intelligent individual. She arrived in Canada in 1980. She obtained her Grade 13 diploma and soon after obtained a diploma in engineering from Sheridan College after three years. She worked in a number of jobs and by 1987 was working for a computer company in Ottawa. She left it in June, 1991 to live with the applicant. They married April, 1993. She worked for a number of years as a bookkeeper in the applicant’s practice. She is currently enrolled in a one-year accounting and payroll administrator program at the Canadian Business College, which will qualify her to be a bookkeeper. Upon graduation, the College will assist her in finding employment. She expects to earn $11 to $12 per hour.

[40] An imputed income of $20,000 was not seriously challenged by the respondent. In fact, she provided SSAG calculations where she inputted an income of $24,000 for herself. Based upon the time she has been out of the workforce, her anticipated hourly wage and her age, I find $20,000 to be an appropriate number for her, as suggested by the applicant.

[41] The applicant works as a general practitioner. He has a solo practice. In 2013 he set up a professional corporation for the purposes of running his practice. He started using his corporation in 2014.

[42] Up until 2010, when the respondent was fired from the applicant’s medical practice, the parties aggressively income split in order to minimize the overall tax liability for the family. This changed in 2011 when the applicant started splitting income by allegedly employing his children although Eileen, in giving her evidence, stated that she did not know how much she was paid, how she was paid or where her alleged employment income went. The applicant claimed that his children were tasked not only with clerical duties such as filing and charting and the scanning and shredding of old files and charts but also with reviewing patients’ charts and providing treatment diagnoses. In his view his children had received training for the provision of medical diagnoses through talks at home. In recent years the payment to his children averaged between $30,000 - $31,000 per year.

[43] As well, over the years the respondent has been able to minimize his reported line 150 income through rental losses arising from the cottage property, the Stanley property and the California property, by claiming expenses over and above the income generated by them and setting this off against his professional income.

[44] He also testified that his income had decreased over the years as he was getting older and couldn’t see as many patients. Currently he is 64 years old. He listed a variety of medical ailments that he claimed to have, which he said prevented him from working as much as he had in the past. There was no independent evidence of any of this. He also claimed that he was suffering from sleep deprivation, due to him sleeping in a hammock in the basement of the matrimonial home, rather than a bed, which resulted in a loss of energy. Again, there was no independent evidence of him suffering from sleep deprivation. He claimed that he had been sleeping this way and suffering since separation. Why he continued to do so since August, 2013, rather than buying himself a bed, to alleviate his alleged sleep problems, if they did actually exist, was unexplained.

[45] The applicant’s line 150 income bears little relationship to the family lifestyle. The matrimonial home has over $1,000,000 in equity. The parties own a cottage with no debt, and a rental property with minimal debt. They owned a California property for over 20 years which was sold for US$736,000. He owns an office property with no debt. The applicant has sizeable RRSPs. In 2013 he bought a luxury car for $79,000, although he described it as an average car. It is financed. The parties have three children in university. The applicant obtained lines of credit totaling $300,000, with apparently little problem, to finance Eileen’s medical school. He prepared a list of expenses for his children for 2013 and 2014 which was put in as an exhibit at trial. His grand total of children’s expenses alone, for these two years, came to almost $188,000, whereas his claimed line 150 income for 2013 was $129,196 and in 2014 was $49,635 along with a net corporate income of $66,145 for a total of $115,780.

[46] The applicant argues that I should impute an income of $140,808 for support purposes by adding back the salaries allegedly paid to his children to his 2015 income of $94,022 and then rounding the figure up.

[47] At the commencement of trial the respondent submitted that I should impute an income of $140,000 to $180,000 to the applicant for 2015. By the conclusion of the trial the respondent submitted that I should impute an income of $247,000 for 2015 by adding together $60,000 paid to his children, equity in his corporation of $98,806, rent for the Gerrard St. East property of $27,000 and wages to himself of $62,000. I cannot accept an imputed income figure of $247,000.

[48] Other than the issue of rent and the children’s salaries none of this was put to the applicant in cross-examination. Moreover, there was no explanation by the respondent as to where the wage figure of $62,000 for the applicant came from or why it differed from the agreed upon income for 2015, which was in fact higher. Nor was there evidence as to why the equity in the corporation should be imputed as income. If the respondent was seeking to impute an income of $247,000 to the applicant, this should have been done.

[49] As well, the wages attributed to his children were $31,000 not $60,000. There was no evidence of $60,000. While the rent amount, which in 2015 was $30,846 and not $27,000, was acknowledged by the applicant to be an imaginary number, as it was not actually paid, there was no evidence from the respondent to suggest that it was not based upon market rent. If not occupying his own building the applicant would have had to pay someone else rent, which would have been a valid expense.

[50] If a party wishes to impute an income figure to another party it is incumbent upon them to provide evidence in support, especially in a situation such as this where an individual is using a corporation to apparently attempt to minimize his income. This can be done through expert evidence or at the very least put as propositions to the other side.

[51] However, in my view I am able, on the evidence before me, to impute an income to the applicant. It differs from the suggested figures of $140,808 or $247,000. In doing so I have considered the criteria set out in sections 17 to 19 of the Ontario Child Support Guidelines, O. Reg. 391/97.

[52] From the applicant’s tax returns filed in evidence the applicant’s revenue from OHIP from 2011 to 2013 was $321,858, $320,702 and $331,521. I have not considered 2014 as this was the first year of incorporation which had the effect of dramatically and artificially reducing his income although his revenue from OHIP was still high at $309,528. This is also the case for 2015. There was also no credible explanation from the applicant as to why his OHIP revenue for 2015 was reduced. As mentioned previously I do not accept his evidence of medical ailments or lack of energy. I find the figures for 2014 and 2015 to be irrelevant for the calculation of the applicant’s income. The three years from 2011 to 2013 average $324,693 in revenue.

[53] These billings and revenue from OHIP generated a professional income of $154,482, $153,101 and $144,271 for an average of $150,618. I consider the professional income to be a more appropriate figure to use than the applicant’s line 150 income as the line 150 income includes his claimed rental losses from the cottage, the Stanley property and the California property. Of these the Stanley property is the only true rental property. Moreover, these properties have either been sold or will soon be sold and will no longer be a consideration.

[54] In arriving at the applicant’s professional income for these three years I believe that the applicant has made unreasonable deductions. He has deducted alleged wages to his children, of $15,944, $36,504 and $36,504 for an average of $29,651. For these years only Eileen was claimed as an employee. Eileen testified that she did in fact work for her father although, as mentioned previously, she did not know how much she was paid, how she was paid or where her pay went. While no questions were asked of her as to when she worked or how much she worked, being a student at McGill during these years meant she could only work during the summer. Assuming 16 weeks of work at 35 hours per week and a generous wage of $15 per hour for clerical work, this amounts to $8,400. I consider the average deduction of $29,651 to be unreasonable and excessive and I add back $21,000 to the applicant’s average professional income of $150,618.

[55] I also question the applicant’s deductions of expenses for meals and entertainment and his claimed automobile expenses. His meals and entertainment expenses for 2011 to 2013 were $5,505, $7,287, and $9,579, respectively. In cross-examination when questioned about his meal expenses for 2014 and why the claimed number of $11,174 was so high the applicant answered that he required a lot of corporate meetings, and needed to meet weekly to review the work of the corporation with the other directors of the corporation – his two children, Eileen and Alan. Eileen was at McGill in 2014 so weekly meetings with her would have been impossible. Alan was in Toronto and living at home. While this was for 2014, following incorporation of the applicant’s practice, I believe that this response represents the applicant’s approach to his tax filings and his claiming of deductions in general and for the years 2011 to 2013. His auto expenses for these three years were $15,732, $11,631 and $14,221. Being a busy sole practitioner working at one location it is difficult to imagine how his auto expenses could be so high when travel between his business and his house is not claimable as an expense. For the purposes of imputing income I add a further $10,000 to his average professional income, in relation to unreasonable deductions for meals, entertainment and auto expenses for a total of $181,618 which I will round up to $182,000.

[56] The applicant is not seeking child support from the respondent for Albert. Nor will he be seeking child support for Albert in the future on the assumption that Albert will be living with him. Albert will soon be 17. He can decide where he wishes to live. The applicant is to have exclusive possession at Laurel Avenue, where Albert currently resides, as he is the sole owner of the matrimonial home and once the divorce is granted, which divorce the respondent agreed to during her closing argument, the respondent’s rights to possession of the matrimonial home will end. The respondent made no claim to the matrimonial home.

[57] The parties agree that the respondent is entitled to spousal support. They also agree that no retroactive support is owing. They further agree that the mid-point of the Spousal Support Advisory Guidelines is appropriate. The parties are to use the income figures of $182,000 for the applicant and $20,000 for the respondent. Support is to commence on the first day of the month following the month in which my reasons are released. The parties shall calculate the spousal support based upon the above inputs and incorporate that number in a draft order.

[58] A support deduction order is to issue.

Section 7 Expenses

[59] The parties shall share s. 7 expenses proportionate to their incomes. The only expenses which are at issue are the education costs for Alan, Edward and Albert. Neither party seeks any s. 7 expenses in relation to Eileen.

[60] The parties have a RESP account for the children. Its current value is approximately $158,345. The applicant’s evidence was that Alan’s current educational costs are about $20,000 per year, Edward’s about $22,000 to $23,000 per year and Albert’s, because he is in high school, are currently nothing. None of this was contradicted by the respondent. All of the children are academically gifted. In all likelihood they will all be in post-graduate studies of some sort. Both parents want to assist their children as much as they can.

[61] The applicant seeks an order that Alan’s, Edward’s and Albert’s annual post-secondary education costs be paid with the first $15,000 for each being paid from the RESP and the balance being shared 78% and 22% by the applicant and respondent. There was no explanation as to how these percentages were arrived at.

[62] The respondent did not provide a draft order with her suggestion as to the s. 7 expenses. She did argue that s. 7 expenses do not exist as not only is there the RESP, the children also receive scholarships. Her evidence was that Edward received an $8,500 scholarship in his first year at Waterloo. This was not disputed. There was no evidence about Alan obtaining a scholarship.

[63] If any of Alan, Edward or Albert receives a scholarship that is to be deducted from their post-secondary school education costs. Thereafter, the education costs are to be paid up to a maximum of $15,000 per year, for each boy, as required, from the RESP. If there are any education costs remaining they are to be paid, for the time being, until further adjustment, proportionally based upon the parties’ incomes, with the applicant paying 90% of the balance and the respondent 10% of the balance based upon their respective incomes of $182,000 and $20,000.

[64] The applicant shall provide the respondent with a complete written accounting for each of the boys setting out their respective educational costs, any scholarships received, the RESP withdrawals and the proportional share outstanding for each of the parties, with appropriate back up documentation, before any amount is due and payable by the respondent.

[65] A support deduction order is to issue.

Right of First Refusal for the Stanley Avenue Property

[66] The Stanley Avenue property in Mimico was bought in April, 1991 by the respondent. In September, 1994 after their marriage in April, 1993, it was transferred to the applicant and respondent as joint tenants. The consideration was for natural love and affection. It was done, according to the respondent, at the suggestion of the applicant’s brother as well as their joint accountant.

[67] At the commencement of trial the respondent took the position that it should not be sold and should be placed in her name alone, for equalization purposes. By the end of the trial she acknowledged that it was held jointly and should be sold.

[68] However, during closing arguments the respondent asked for an order that she have a right of first refusal on any offer for Stanley. This was opposed by the applicant.

[69] Stanley has three rental units. The respondent wishes to live in one of the units and to rent out the other two. Because she is familiar with the property and its maintenance she would rather purchase Stanley than some other rental property where she could have the same sort of arrangement.

[70] I am not prepared to grant a right of first refusal to the respondent. It is unfair to raise this during closing argument. The parties agreed to a valuation process for Stanley before Justice Horkins in April, 2014 for the purposes of determining the value of the properties for each party’s net family property calculation. They each obtained an appraisal. The appraisals were filed as part of the trial record. A right of first refusal was not considered by either appraiser. Each appraiser appraised Stanley on the basis of its market value. Market value is a defined term. Among other things, it assumes a competitive and open market, with the buyer acting knowledgeably and being well informed.

[71] The parties, in reliance upon the two appraisals, agreed to value Stanley at the midpoint between them. If the respondent wanted a right of first refusal it should have been part of the appraisals.

[72] In my view, any right of first refusal would have a negative impact upon the sale price of Stanley on the open market. It creates uncertainty for any potential buyer. Uncertainty impacts price. A potential buyer may be unwilling to put forward his or her best offer knowing that it could be trumped by the respondent. There could also be less potential buyers as they might not wish to incur the costs associated with putting together an offer and valuing a rental property, again knowing that it could be readily trumped.

[73] The respondent is free, if she wishes, to make her own offer or offers for Stanley once listed for sale.

Costs

[74] I encourage the parties to try to reach an agreement on costs.

[75] If unable to do so, any party seeking costs may file brief written submissions, not to exceed three typed, double spaced pages, together with a Bill of Costs and any necessary documents, such as dockets and offers to settle, on or before June 6, 2017. Any reply submissions subject to the same directions are to be filed within three weeks of service of the initial submissions. In addition to filing their submissions as part of the continuing record the parties are also directed to provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.

Conclusion

[76] Based upon the foregoing and the position of the parties:

1. The parties shall continue to have joint custody of Albert Bui, born May 26, 2000. Albert may reside with either parent as and when he wishes.
2. The parties shall immediately list for sale the properties located at 157 Stanley Avenue, Mimico, Ontario and 322 Fothergill Isle, R.R. #1, Peterborough. Subject to paragraph 3 below, the net proceeds (after payment of all registered encumbrances and usual costs of disposition) shall be equally divided between the parties.
3. Until the closing of the sale of each of the properties referred to in paragraph 2 above, the parties shall share equally all mortgage, realty tax, insurance, utilities, repairs and maintenance expenses and rental income relating to each of those properties.
4. Concurrent with the closing of sale of the first to sell of the properties referred to in paragraph 2 above, the Applicant shall pay to the Respondent an equalization payment. The amount of the payment shall be calculated in accordance with these reasons and the six equalization issues decided by me.
5. Except as provided in this Order, each party shall retain all assets currently registered in that party’s possession.
6. The Applicant shall have exclusive possession of 31 Laurel Avenue, Etobicoke, Ontario.
7. Assuming that all of the children’s primary residence (when not living away from home to attend school) will be with the Applicant, there shall be no table child support payable by either party.
8. Commencing on the first day of the month following the month in which this Order is made, the Applicant shall pay to the Respondent spousal support based on the Applicant’s imputed income of $182,000 and the Respondent’s imputed income of $20,000.
9. Alan’s, Edward’s and Albert’s respective yearly post-secondary education costs shall be provided as follows: (a) Any scholarship received by Alan, Edward or Albert shall be applied against their respective post-secondary education costs; (b) Up to the next $15,000 shall be paid from the children’s RESP account; (c) The Applicant shall provide the Respondent with a written accounting of the education costs, scholarships and RESP withdrawals, all with appropriate backup documentation; and (d) The balance shall be shared by the Applicant and by the Respondent in proportion to their respective incomes of $182,000 and $20,000 or 90% and 10%, respectively.
10. A divorce shall issue on an uncontested basis.
11. Unless this Support Order is withdrawn from the office of the Director for the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
12. The parties shall attempt to reach an agreement on costs. If unable to do so, any party seeking costs may file brief written submissions, not to exceed three typed, double spaced pages, together with a Bill of Costs and any necessary documents, such as dockets and offers to settle, on or before June 6, 2017. Any reply submissions subject to the same directions are to be filed within three weeks of service of the initial submissions. In addition to filing their submissions as part of the continuing record the parties are also directed to provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.

[77] I am not prepared to make the order sought by the Applicant in his draft order at paragraph 10 regarding material change and variation. There was no argument on this. Moreover, the order sought is hypothetical and presupposes too much. The parties have their rights under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act.

Hood J.

Released: May 16, 2017