Jones v. Jones, 2017 ONSC 6496

CITATION: Jones v. Jones, 2017 ONSC 6496

COURT FILE NO.: 16-D-202

DATE: 2017/10/31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bonnie Jean Jones, Applicant

-and-

Jeffrey Orville Jones, Respondent

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: Victoria Legris, Counsel for Applicant

Respondent, Self-Represented

HEARD: October 23, 2017, in Pembroke

REASONS FOR DECISION

1The trial of this application was heard over three hours on Monday, October 23, 2017.

2The only issues raised by the pleadings and at trial, subject to the legal arguments of the respondent, are property issues.

3The parties were married on September 17, 1994 in Pembroke, Ontario. They have two children who are now adults and no claim is made for child support.

4The parties separated on May 20, 2015, when the applicant left the matrimonial home situated at 31 Popkie Rd., Pembroke, Ontario.

5The respondent holds title to the matrimonial home, which is mortgage-free. He has continued to live in the matrimonial home since separation and he refuses to equalize the value of that property. The respondent self-identifies as an Algonquin and claims that the matrimonial home is titled land protected by the Royal Proclamation of 1763. He relies upon the Supreme Court of Canada decision Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2016 SCC 12, and upon the Royal Proclamation of 1763. The respondent claims that the matrimonial home is exempt from the application of provincial laws because of his indigenous status.

6The issues raised by this trial are the following:

(1) Whether the matrimonial home is exempt from the application of the Family Law Act because the respondent self-identifies as an Algonquin?

(2) Otherwise, how to equalize the net family properties of the separated spouses.

Impact of the respondent’s Algonquin status

7The Daniels decision and the Royal Proclamation of 1763 do not support the arguments of the respondent. The matrimonial home is not situated on a reserve; its address is in Pembroke and it is subject to municipal taxes which the respondent now refuses to pay. As an Indigenous person, as a Métis, or as an Indian, as this term is referred to in the Daniels decision, it does not follow that provincial legislation such as the Family Law Act is inapplicable to the respondent or to the matrimonial home; the respondent has provided no other authority in support of this position. In the words of the Royal Proclamation, the Family Law Act is not beyond the bound of the provincial government (see also para. 51 of Daniels). The respondent’s argument that the Family Law Act is inapplicable is therefore dismissed.

How to equalize the net family property of the parties

8The applicant, in her opening and closing submissions, seeks an order that the respondent obtain financing within 30 days of this order to pay out the joint debts and to satisfy the applicant's equalization payment, and if he does not secure financing within 30 days, an order that the matrimonial home be listed for sale.

9The applicant provided no authority for the above relief.

10Section 9 of the Family Law Act, the Partition Act, and the decision of the Court of Appeal in Buttar v. Buttar, 2013 ONCA 517, none of which were referred to me by any of the parties, do not support the relief sought by the applicant. In the circumstances of this case, I can find no jurisdiction for this Court to make these orders.

11Section 9 of the Family Law Act provides a limited power to order a property sold; that power is to be exercised if appropriate to satisfy an obligation imposed by the order. Although the evidence of the respondent is that he will not voluntarily sell the matrimonial home, there is no evidence that such an order is appropriate to satisfy an obligation imposed by an equalization payment order because it is not known at this time (on the evidence presented) whether the respondent will refuse to make an equalization payment should such an order be made or otherwise whether such an order is appropriate to satisfy an obligation imposed by an equalization order. Furthermore, the applicant may seek to enforce an equalization order by all legal means otherwise available and at some point the matrimonial home may as a result be sold without my making, at this time, an order that it be sold. The parties could have agreed to any of the above orders in the course of a settlement but at trial the jurisdiction of this Court is provided at s. 9 of the Family Law Act.

12The only evidence relating to the value of the matrimonial home is an appraisal obtained by the respondent. That appraisal provides that the market value of the matrimonial home, as of June 15, 2016, is $228,000. No evidence was provided of its value as of the date of separation. The respondent strongly disagrees with this appraisal, claiming that it is too high, but he provided no other appraisal. The applicant provided no evidence about how the value of real estate in Pembroke might have varied between May 2015 and June 2016.

13The Family Law Rules impose on parties the obligation to make financial disclosure. The respondent made extremely limited financial disclosure and did not disclose any assessment by the Municipal Property Assessment Corporation (contrary to Rule 13 (3.3)). He did however disclose the June 15, 2016 appraisal.

14As the owner of the matrimonial home, the respondent had obligations under the Family Law Rules to disclose information relating to its value on the valuation date. He provided no such information. It therefore seems fair and reasonable to use the best evidence available – the appraisal of its value obtained by the respondent as of June 15, 2016: $228,000. This appraisal was obtained at the request of the respondent, and it is sufficiently proximate to the separation date to provide probative evidence of the value of the matrimonial home as of the date of separation. Moreover, any prejudice to the respondent resulting from the absence of evidence at the date of separation results primarily from his failure to provide such evidence.

15The evidence of the applicant relating to the market value of the household goods and furniture was not convincing. She did not remember when these were bought and had no information relating to their market value. The amount sought by the applicant of $10,000 for these items is at best a guesstimate. The respondent indicated that the appliances and remaining furniture were old and of limited value; that at most they are worth $2,000. I accepted this evidence and attribute $2,000 to the value of the household goods and furniture remaining with the respondent. I do accept the evidence of the applicant that the two sofas and the chest in her procession had a value of $300 at the separation date.

16Similarly, the evidence of the applicant relating to various items of property still with the respondent was not convincing. She had little to no information about the value of these items and the amounts that she provided are again at best a guesstimate. I prefer the evidence of the respondent on the value of these items because he provided more accurate information about their age and condition, and provided better evidence relating to their value. I therefore accept his evidence on the market value, at the time of separation, of the household goods and furniture and I accept as well his evidence that he was not the owner of an ATV. I therefore find that the respective value, as of the date of separation, of the following items is: $500 for the boat; $475 for the riding lawnmower; $1,000 for the snowmobile; $1,500 for the GMC truck; $700 for the Rocket Richard jersey; and $400 for the respondent’s tools.

17The applicant provided convincing evidence about her savings and about the parties’ debts and other liabilities, which I accept. However, with regards to the parties’ joint debts, as explained above, I have no jurisdiction to make the order sought that these be paid within 30 days.

18The applicant submitted that the respondent was entitled to a deduction of $15,000 for the value at the date of marriage of the vacant land on which the matrimonial home was built (the lot is approximately two acres). The evidence given by the parties on this point is somewhat counter-intuitive. The applicant testified that this was the value that she attributed to the vacant lot but she provided no evidence in support of that amount and no explanation about how it was calculated. Her evidence was that the matrimonial home was not completed by the time of their marriage, on September 17, 1994, and that they only moved in the matrimonial home shortly before Christmas 1994. The evidence of the respondent was that the matrimonial home was significantly completed by the time of marriage and that they and some guests attending the marriage resided in the matrimonial home at the time of the marriage.

19Under s. 4(3) of the Family Law Act, the onus of proving a marriage date deduction is on the person claiming it. Section 4(1)(b) of the Family Law Act specifically excludes a matrimonial home from the value of property owned on the date of marriage that may be deducted from net family property. A matrimonial home is defined to mean a property in which a person has an interest and that was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence and includes property that is a matrimonial home at the time of separation (ss. 4 and 18 of the Family Law Act; see also Folga v. Folga (1986), 1986 6331 (ON SC), 2 R.F.L. (3d) 358 (Ont. H.C.) - a property ceases to be a matrimonial home when it is no longer the family home).

20Once a home is a matrimonial home, the Family Law Act provisions relating to matrimonial homes (and its property division provisions under Part I) become operative. Since this land was part of the matrimonial home at the date of separation, irrespective of the state of completion of the house at the date of marriage, the net value of the land or of the respondent’s interest in the matrimonial home at the date of marriage may not be deducted under s. 4(1)(b) of the Family Law Act. This interpretation finds support in Michalofsky v. Michalofsky (1989), 1989 8766 (ON SCDC), 25 R.F.L. (3d) 316 (Ont. Div. Ct.), aff’d (1992) 1992 14023 (ON CA), 39 R.F.L. (3d) 356 (Ont. C.A.).

21In Michalofsky, the husband owned a home at date of marriage which was then torn down and another was built on the same property (the matrimonial home at the date of separation). The Court indicates that real property itself can be a matrimonial home and non-deductible:

6 In my respectful opinion, the learned judge erred in not treating the property which was owned prior to the marriage by the husband as the matrimonial home at the date of separation. In my view, the fact that the dwelling at the date of marriage was not the dwelling at the date of separation makes no difference. The matrimonial home at the time of separation was the real property comprising the three-acre parcel of land. It was ordinarily occupied by the parties as their family residence. It was the same real property that was owned by the husband prior to marriage. In my opinion, the statute is incapable of any other interpretation. [emphasis added]

22Michalofsky was confirmed by the Court of Appeal, has not been overturned, and has been cited in at least three cases. This particular ratio was followed in Szuflita v. Szuflita Estate (2000), 2000 22556 (ON SC), 4 R.F.L. (5th) 313 (S.C.), at paras. 11-12.

23Therefore, the $15,000 deduction for the value of the land at marriage, ironically deducted by the applicant, is not allowed.

24The respondent testified that he inherited funds from his father. He provided a document allegedly signed by his mother and dated December 17, 2016, which indicates that a total of $25,800 was given to the respondent towards his inheritance to help with his home (he later claimed that it could have been as high as $38,000). When testifying, the respondent indicated that all amounts received as inheritance or gifts were invested in the matrimonial home; he stated that his father's inheritance helped pay the mortgage.

25Under s. 4(2) of the Family Law Act, property other than a matrimonial home that was acquired by gift or inheritance is excluded from a spouse’s net family property. However, in this case, the evidence of the respondent is clear that whatever amount he received by way of gift or inheritance he invested in the matrimonial home. Such amounts are therefore not excluded property.

26As a result, here is my calculation of the equalization payment:

Applicant

Respondent

Matrimonial Home

$ 228,000.00

Household Goods and Furniture

$ 300.00

$ 2,000.00

Boat

$ 500.00

Riding Lawnmower

$ 475.00

ATV

$0.00

Snowmobile

$ 1,000.00

GMC truck

$ 1,500.00

Rocket Richard Jersey

$ 700.00

Tools

$ 400.00

$ 300.00

$ 6,575.00

Savings

$ 0.00

$ 0.00

TFSA

$ 2,833.06

$ 2,833.06

$ 0.00

Property at Separation

$ 3,133.06

$ 234,575.00

Debts and other liabilities

Credit Line

$ 18,970.95

$ 18,970.95

HBC credit card

$ 7,850.46

$ 0.00

Overdraft

$ 1,100.00

$ 1,100.00

$27,921.41

$ 20,070.95

Net Family Property

$ 0

$ 214,504.05

Equalization Payments

$ 0

$ 107,252.03

27Accordingly, the respondent owes the applicant $107,252.03 to equalize the net family property.

Mr. Justice Pierre. E. Roger

Date: 2017/10/31

• These reasons make reference to: Family Law Act, R.S.O. 1990, c. F.3; Family Law Rules, O. Reg. 114/99; Partition Act, R.S.O. 1990, c. P.4; and Royal Proclamation, 1763 (UK), reprinted in R.S.C. 1985, App. II, No. 1