COURT FILE NO.: FS-10-357734
DATE: 20180412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gayle Margaret Rzadki
Applicant
– and –
Peter Edward Rzadki
Respondent
On her own Behalf
Ines Gotal for the Respondent
HEARD: February 20 and 21, 2018
C. Gilmore, J.
TRIAL JUDGMENT
Overview
[1] Despite being separated for almost eight years, these parties have been unable to resolve the division of their personal property. By way of various consent orders and a trial in January 2015, all other issues related to the breakdown of their marriage have been dealt with. After 1.5 days of trial on the personal property issues, the parties were requested to provide written submissions which have now been received.
[2] Following the 2015 trial the parties signed a separation agreement (“the agreement”) dated September 22, 2015. That agreement dealt with a number of issues which had not been dealt with in the trial judgment including child support for the parties’ child Michael, division of chattels and the division of the applicant’s (Peter’s) pension. A supplementary separation agreement was signed by the parties in November 2015 (“the supplementary agreement”). The parties had independent legal advice on both agreements. The supplementary agreement expanded upon the original agreement and dealt with the division of the parties’ chattels and accumulated credit card, Airmiles and Aeroplan points (“the point cards”).
[3] The supplementary agreement set out a very specific procedure for dealing with the chattels and point cards. Each party took the position at this trial that the other had not complied with the procedure in the supplementary agreement. As a result, a list of approximately 20 items of personal property remained in dispute.
[4] Most importantly, the supplementary agreement provided that if the division of chattels was not resolved by way of the specific procedures set out in that agreement, either party could apply to the court without notice and obtain an order for delivery of items to the moving party. The order could be enforced by the Sheriff and full costs could be sought.
[5] Peter took the position that he had scrupulously followed the provisions of the supplementary agreement. When the applicant/wife (“Gayle”) did not respond after several years, he became frustrated and brought a motion without notice to Gayle in early September 2017. He sought the return of certain items listed in his Notice of Motion, assistance from the Sheriff if necessary, costs and a penalty of $100 per day for every day the items were not returned.
[6] The court was not prepared to entertain Peter’s motion without service on Gayle and set a special appointment in order to resolve the issues. When it became clear after two conferences that the chattel division could not be resolved, a one day trial was set to deal with only the disputed items.
[7] While in many cases, the court will simply order any disputed items to be sold and the proceeds divided, these parties accumulated certain artwork and furniture during their marriage which was important to them and to their children. A sale of all of these items was not what either party wanted. Given the years of litigation since separation, these parties were no longer able to reach any agreement between themselves. Further, mediation was not an option according to Gayle due to a power balance which she alleged existed between her and Peter.
Factual Background
[8] Some factual background must be provided in order to fully understand the context of the dispute between these parties.
[9] The parties separated in March 2010 after a 21 year marriage. They have three adult children, Cameron aged 25, Kathryn (“Kate”) aged 24, and Michael aged 20.
[10] During the marriage the parties owned two homes, a farm north of Toronto (“the farm”) and a home in the west end of Toronto. The Toronto home contained the higher value furniture and artwork. The farm was furnished with used furniture, gifts and lower quality items.
[11] In 2011 the Toronto home was sold. By consent order, Gayle was to organize the sale and packing up of the Toronto home. By this time Peter had moved out and was living with his parents. The parties leased a home on Leland Crescent (“Leland”) in Toronto. At that time the parties decided to try a reconciliation. By May 2013 it was clear that reconciliation would not work so Peter began to look for his own home in Toronto and decided to rent a condominium. The parties exchanged emails between May and July 2013 with respect to what furniture Peter could take from Leland for his new condo.
[12] It is clear from a review of these email exchanges that the problems with chattel division began early on (See Exhibit “B” to Peter’s affidavit sworn September 6, 2017). The pattern repeats itself throughout the years to follow. Peter provides a list of specific items he would like to have. Gayle responds but mostly with questions and comments so no real agreement can be reached. Peter becomes frustrated with what he perceives as Gayle’s lack of response “it’s been eight weeks and I haven’t seen a list from you…” (email from Peter dated July 13, 2013). Gayle then becomes resentful and sarcastic about being given deadlines, “Thank you so much for giving me till Friday. You had 28 years….You have your freedom and now you need stuff...” (email from Gayle dated July 14, 2013). Peter furnished his condo mostly with items from the farm given the impasse with Gayle about the items still at Leland.
[13] When it was clear that no agreement could be reached about the division of chattels, the parties began to work on a more formal process. In early 2014 Peter prepared several lists including lists of pre-marriage property, joint property and gifts. At a Case Conference in April 2014 the parties were encouraged to continue with this process and obtain appraisals for the more valuable items.
[14] In October 2014 Peter bought out Gayle’s interest in the farm. Shortly before the transfer took place Gayle went to the farm with some family members without notice to Peter and removed various items of furniture and other miscellaneous items. Peter did not really have an issue with Gayle taking items from the farm other than joint items which had not yet been agreed upon. Gayle’s evidence was that she only took one joint item which was a set of bunk beds. Peter’s evidence was that Gayle took many joint items. He was upset about the manner in which the removal of items took place. He wanted to negotiate the division of joint items. It was clear from both party’s evidence that this event rankled. Gayle was adamant that she had to attend the farm when Peter was not there and with the protection of family members. Peter was offended by this attitude and was confused about why a proper negotiation could not have taken place. This event added to an undercurrent of increasing resentment which both parties experienced about the division of chattels.
[15] Gayle was required to move out of Leland in June 2015. It was clear that a deadline was looming with respect to dividing the items at Leland. The parties agreed to go to mediation in early January 2015. Peter thought the mediation was very productive and told the court that they agreed on “90%” of the items in dispute. Peter made notes of the mediation and sent them to Gayle. Gayle did not make notes of the mediation. She did not agree that 90% of the items had been agreed upon. She was insistent at trial that these were Peter’s notes and views of what happened which were entirely different from her recollection of how the mediation went.
[16] The time leading up to Gayle leaving Leland added to the already strained relationship between the parties. Emails exchanged between the parties during this time (Exhibit 2) make it clear that Peter was trying to obtain an agreement to obtain certain basic items from the Leland move for his condo (and more particularly to make it more comfortable for the children when they were there) but Gayle would not respond. She advised Peter by email dated June 9, 2015 that certain of his personal items were in the garage at Leland available for him to pick up. Peter asked for a list of the items so he would know how to transport them. No response. The following day Peter asked for 12 items to be put in the garage for him and they would deal with the “hundreds” of other items another time. Gayle’s response was that she did not want Peter to contact her anymore unless it was about the children (email from Gayle dated June 27, 2015).
[17] This type of exchange is also typical of a pattern of communication about the chattels which developed over the years between the parties. Gayle would provide information about certain chattels she agreed to give Peter. Peter would ask for clarification or more information. Gayle would either not respond or answer a different question. Gayle would then proclaim that she was cooperating but Peter was not. Peter would retreat in exasperation.
[18] In August 2015 the parties entered into the agreement. Part of the purpose of this agreement was to deal with the division of chattels. This clearly needed to be addressed since the parties had been separated for five years and Gayle had now moved out of Leland without addressing Peter’s requests for a return of various chattels. One of the purposes of the agreement is succinctly stated as “a procedure to divide the jointly acquired chattels belonging to the parties.”
[19] Paragraph four of the agreement sets out as follows:
Chattel Division
4.1 Peter shall make a master list of all chattels acquired by the parties during their cohabitation which list shall not include any chattels belong to or primarily used by any of their children or any gifts given to either party during the marriage by a third party. That list shall be submitted to Gayle who, within 20 days, must either confirm that it is an accurate list or indicate which listed items do not qualify and/or add items that Peter has omitted.
4.2 Peter will then take the master list, as amended by Gayle, and divide the contents into two lists and send those lists to Gayle. She shall have 30 days to decide which list of contents she wishes to have.
4.4 If the parties cannot resolve this, the either party will be at liberty to apply without notice to the court for an order regarding the division of their chattels.
[20] It should be noted that due to a typographical error, the agreement did not contain a paragraph 4.3
[21] Peter then sought further clarification of the process for dividing chattels. That resulted in the supplementary agreement being signed in November 2015. The purpose of the supplementary agreement was to clarify and expand upon the original agreement specifically with respect to the division of chattels and affinity points.
[22] Specifically, the parties agreed to disclose the balance of points they had accumulated on certain cards on the date of separation (for cards in their sole name) and to the date of cancellation for cards in joint names. This issue will be addressed in more detail later as it caused a great deal of grief for Peter. Gayle simply did not comply with the agreement or subsequent court orders in this regard.
[23] The supplementary agreement provided further clarification in the following areas. First, “chattels belonging to the children” was defined as their bedroom furniture, electronic devices and anything in their possession. Second, if there were disputes about whether an item had been gifted to a party or not, the item was to be placed on a “disputed list.” Third, Gayle was to deliver to Peter within 30 days certain items which he had purchased before marriage and after separation. If Gayle disagreed with any item, it was to go on the disputed list. Any other items in dispute on Peter’s master list or Gayle’s reply to his master list were also to be placed on the disputed list. Fourth, the items on the disputed list were to be resolved by mediation. Finally, if no resolution was reached by January 31, 2016 either party could apply to the court without notice for enforcement and seek assistance of the Sheriff if need be. Full costs of the process could be sought.
[24] It should be noted that Gayle insisted on a change to the deadline in the supplementary agreement from November 30, 2015 to January 31, 2016. Peter agreed to this change. There is no doubt that both parties were well aware of the deadline they had mutually imposed.
[25] Gayle submitted that she felt forced to sign the agreement and the supplementary agreement because she was desperate to receive funds from Peter. However, the supplementary agreement deals solely with the affinity points and the division of chattels. No funds were payable to Gayle as a result of that agreement.
[26] Unfortunately, the detailed process in both the agreement and the supplementary agreement did not work. Peter prepared the master list as required. Gayle did not respond until February 27, 2016, well after the deadline agreed to by the parties. Peter’s evidence was that Gayle’s response was entirely unhelpful. According to Peter, Gayle was suddenly questioning things that had never been questioned before. Further, Peter was concerned about some of Gayle’s comments that she did not know where certain items where. In Peter’s view, Gayle had removed about 50% of the previously agreed upon items from the list.
[27] Gayle’s view was that she complied with the agreement. In her view, the fault lay with Peter as he was to provide what she described as “two clean lists” based on her response to him. Gayle would then choose one of the lists and keep those items. Peter’s position was that he could not prepare the two lists that Gayle wanted because too many items were in dispute. This area of conflict is the greatest hurdle in this case. That is, both parties were insistent that they had complied with the agreements and the other was in breach.
[28] Exhibit 3 was emails exchanged between the parties between February and August 2016. Peter sent Gayle his Aeroplan points statement on February 16, 2016. He admitted that he was past the deadline in the supplementary agreement but it was the best he could do given how long it took to obtain the statement.
[29] By this point Peter was beyond frustration. He told Gayle he would have to resort to court action if she did not respond to him. Gayle responded by saying she was still waiting for her two clean lists. In March 2016 Peter sent Gayle another list summarizing the items in dispute. In August 2016 Gayle emailed Peter claiming that she was still waiting for his two lists. She did not address the disputes set out in Peter’s list.
[30] While Peter did threaten to avail himself of the court process set out in the agreements, it was clear that Peter, understandably, wanted to avoid that route if possible. In February 2017 he emailed Gayle and advised that he had submitted an intake form to Mediate 393. He encouraged Gayle to do the same as per their agreed upon process for resolving disputed items. He followed up again in March. Gayle did not respond.
[31] Finally in August 2017 Gayle’s lawyer provided a response to Peter’s list of items he claimed he had owned prior to marriage or were gifted to him by third parties. This list raised more questions than it answered. Peter was concerned that some items Gayle agreed on in mediation were listed in the August 2017 list as no longer in existence. Some valuable items were noted as damaged. Peter was very concerned about what he described in his evidence as the “dissonance” between the August 2017 list and the February 2015 list he had received. Beyond exasperated, Peter instructed his lawyer to bring a motion without notice as per the procedure in the supplementary agreement.
[32] Peter’s motion is what prompted the court to convert his motion into a short trial to deal with the division of chattels and affinity points.
Credibility
[33] Both parties gave evidence. No other witnesses were called. Gayle attempted to introduce signed statements (not affidavits) from the children apparently to support her position. The court declined to allow such statements into evidence. It should be noted that Gayle brought the children to the initial conference in December 2017. The court also requested that the children not be present at the conference.
[34] Overall I found that Peter was a credible and reliable witness. Despite what has clearly been a very difficult and prolonged process to obtain the return of a fraction of his personal items, he remained calm and mostly objective during the trial. It was clear that he was frustrated with Gayle’s lack of responses to him and what he understood to be Gayle’s resistance to engaging in a clearly defined and agreed upon process. Notwithstanding that frustration, he conceded many more items during the trial and did not engage in personal attacks on Gayle.
[35] In contrast, I found Gayle to be an evasive witness who could not resist personal attacks against Peter. She presented herself as a victim while reluctantly conceding (only on my questioning of her) that she had not complied with the supplementary agreement or court orders I had made requiring her to provide certain affinity points statements. She claimed she did not clearly understand her obligations. That was difficult for the court to accept. Rather, it was clear that Gayle very well understood her obligations, she simply chose to ignore them or obfuscate to the point where delay and confusion worked in her favour.
[36] I have reviewed Gayle’s written submissions which were due and received on March 29, 2018. Those submissions were extremely unhelpful. They mostly consisted of personal attacks on Peter going back historically to issues following separation (and unrelated to this trial), criticisms of her former counsel, blaming her personal financial circumstances on Peter and what she characterized as the “deceit, stalking and abusive interaction” she was forced to tolerate from Peter. Unfortunately, I was not able to take much of anything from Gayle’s submissions since they were in large framed as an attempt to give new evidence or were not related to the issues in this case. What her submissions did do, however, was cement this court’s view that Gayle has no intention of cooperating with Peter about the division of chattels unless court ordered to do so.
[37] Overall, I found that Gayle took unreasonable positions so that she could retain items which she knew she was not entitled to retain. She was vicious in her attack on Peter about him only being concerned about his “stuff” and not concerned about the children. On the contrary, I find that Peter was very concerned about the children and part of his reason for wanting a return of some of the items was so that he could make a more welcoming home for them when they visited.
[38] Gayle told the court that Peter was an art collector. He knew much more about these things and appreciated them more than her. Gayle “knew what she liked” but had no art appreciation beyond that. She was critical about Peter buying art to the detriment of the family budget or without telling her. Notwithstanding her minimal knowledge of art and her criticisms of Peter being obsessed by having his “stuff”, she was scrupulous in her demands to keep half of the art.
[39] Overall, I find that where Gayle and Peter’s evidence differs, I prefer that of Peter. Gayle has had the benefit of direct negotiation, mediation, and two agreements. All of those mechanisms allowed Gayle the opportunity to resolve the chattel and points issues without court intervention. Gayle chose not to engage in those processes and will now be bound by this judgment. She was well aware of this, but in keeping with the pattern of communication between these parties insisted that Peter was attempting to control her by demanding a return of personal property. I do not find that Peter was doing any such thing. I have carefully reviewed the emails between the parties. At times, Peter expressed frustration with Gayle which was natural given her lack of responses. Gayle was given a myriad of opportunities to come to a resolution in which she could fully participate. She chose not to do so. Her email responses to Peter were evasive, accusatory and at times sarcastic.
[40] Specifics relating to Gayle’s lack of credibility are as follows:
a. Gayle was unresponsive and evasive about dealing with property issues when Peter was moving to his own condo and when she was moving out of Leland. Peter repeatedly asked for her to directly negotiate with him but she would not. I agree with Peter’s evidence that her attitude was that Peter could furnish his condo with used furniture from the farm and she could have whatever she wanted from Leland.
b. Gayle did not comply with the deadline in the supplementary agreement. Her insistence that Peter provide two clean lists did not make sense. How could he provide such lists when Gayle’s response to his master list had put so many items in dispute? I find that Peter’s response was not unreasonable. Gayle took an untenable position throughout.
c. Gayle refused to return to mediation notwithstanding that she signed an agreement saying she would. She attempted to give hearsay evidence about what she was told by 393 mediate but did not call any witness to substantiate this. It simply does not make sense that the parties would engage in a five hour mediation and then be refused further mediation. If there was a power imbalance as Gayle suggests, the mediation centre was well equipped to deal with this.
d. Gayle was dismissive of Peter’s attempts to divide chattels. Her view throughout the trial was one of disbelief that Peter would take such things so seriously. This was disingenuous on Gayle’s part. She conceded that Peter was an art collector. Of course he was interested. She implied that his interest in chattels took precedence over his interest in the children. This was simply mean spirited and inaccurate.
e. Gayle refused to admit that she had any part in the delay in the division of chattels. All of this was Peter’s fault as she had fully complied with the agreements. Yet, the evidence was clear that the only time Gayle really engaged in the process was between December 6and December 18, 2017 after Peter brought his motion.
f. Gayle would not concede that she had not followed the agreement or the court order requiring her to provide a statement for the Aeroplan points as of May 2011 when Peter’s card was cancelled. It was only after being court ordered to do so that she provided a statement as of the date of separation. While Peter had agreed that the children could use the points for their travel, his agreement was conditional on being provided with a copy of the statement as he had no idea how many points were in issue. Those emails were put to Gayle. She feigned that she did not understand. I find that Gayle knew full well that there were a significant number of valuable Aeroplan points available and she had no intention of letting Peter know that. In support of this finding I rely on Gayle’s own evidence at trial which was that she knew that if she told Peter the value of all of her Aeroplan points, he might insist on a division of them pursuant to the Separation Agreement. She did not want them to be divided.
g. Neither of the parties provided reliable evidence concerning the value of the disputed items. Peter requested that Gayle provide photographs of certain items so that he could use that to obtain appraisals for trial. He received no response. The best he could do was information downloaded from the internet. Gayle provided no reliable evidence of any values for the items in dispute (other than two photocopied receipts produced at trial and never before) even though her charts indicate that she would agree to be paid out half of the value for certain items. She never provided a value although requested to do so many times. Gayle’s response is typical of how the entire matter of chattel division has unfolded. Either Gayle does not understand, does not care or is deliberately avoiding Peter’s requests in order to gain some form of advantage. I agree with Peter that Gayle simply does not respond when she feels it is not in her interest to do so.
[41] Based on all of the above, where Peter and Gayle’s evidence conflicts, I prefer Peter’s evidence.
[42] Schedule “A” to this judgment are the agreed upon items to be retained (if already in his possession) or delivered to Peter. Schedule “B” to this judgment are the agreed upon items to be retained (if already in her possession) or delivered to Gayle. Peter’s counsel helpfully provided a chart with all of the items in dispute. A copy of that chart, the parties’ position on each issue and the value (if known) is attached as Schedule “C” to this judgment. A ruling on each of the disputed items follows below.
Items 1a) and b) – the Rectangular and Oval Dining Room Sets
[43] Gayle may keep the rectangular dining room table and chairs. I accept that she uses this for family events and the children. Gayle may also retain the French provincial bedroom set. Peter may keep the pine table and chairs and the teak bed set and side tables. I accept that the oval dining room table is of no value. Gayle may keep it or dispose of it as she sees fit.
Items 2 and 19 – Corner Cabinets
[44] Each party shall keep the corner cabinets in their possession. I accept that Gayle needs more storage space as she no longer has access to the farm property.
Items 3 and 4 – Various Paintings
[45] Gayle’s position on the paintings is not reasonable. By her own admission she has no real interest in art. Peter may have the Maidment, the Perigard, the Schwartz, the Wilkinson (already agreed) and the painting of a white building behind trees. I accept Peter’s evidence that the J.W. Beatty painting was a gift from Mr. Podkowa and it shall be returned to Peter. Gayle may retain the remainder of the paintings.
Item 5 – 10 Wildflower Prints
[46] Peter shall pay Gayle $2000 for the book and all of the framed prints.
Item 6 a) and b) – John Gould Bird Prints
[47] Gayle to return to Peter the gifted print from Mr. Podkowa. The balance to be divided such that Peter will have half the prints plus one. Peter to decide which ones are to be returned to Gayle.
Item 7 – Tree Lithographs
[48] Peter to pay Gayle $65 for each of the prints in her possession plus $100 for the book. Gayle may retain the four antique fruit prints listed in item #15.
Item 8 – Six Fruit Prints
[49] Peter to give three of these to Gayle. Peter shall choose which prints to return to Gayle.
Item 9 – Garden Furniture
[50] Gayle may retain this. I accept it is weatherworn and replacing it may not be feasible for Gayle.
Item 10 – Farm Equipment
[51] Peter to return to Gayle the post hole auger, the chain saw, and the Husqvarna lawn mower. Peter may retain all other items and pay Gayle $2000 as offered. The building stones to be returned to Peter.
Item 11 – Antique Persian Rug
[52] I accept that this was a gift given to Peter by his mother. It is to be returned to him.
Items 12 & 13 – Wrought Iron Bed and Matching Antique Chair
[53] These items to remain with Kate for as long as she is in school. They are then to be returned to Peter.
Item 15 – 4 Antique Fruit Prints
[54] These are to be returned to Gayle as per Peter’s agreement in #7.
Item 16 – Silver Place Settings
[55] I accept Peter’s evidence that Gayle intended to return these to Peter as per her agreement at mediation. Since she can no longer find them and they were gifted to Peter she will pay Peter $1000 by way of compensation. I accept Peter’s evidence that he has a clear recollection of these items but they went missing during the move to Leland.
Items 17, 19 and 20
[56] Division of these items is resolved and not being pursued by Peter.
Item 21 – Brass Chandeliers
[57] I accept Peter’s evidence that there were four of these in existence and he should have received two. I also accept his evidence that Gayle agreed to give him two chandeliers at the mediation. Gayle is to provide the two chandeliers to Peter. If she no longer has them she shall pay Peter $1000 in compensation.
The Aeroplan Points
[58] While the parties did own other points cards (Optimum and Airmiles), these amounts were nominal and a division of those points was not pursued by Peter.
[59] With respect to the Aeroplan points, Gayle was resistant to producing information about them. It is now clear why. The date of separation statement she provided indicated that she had 513,271 points available to her. This, of course, does not include any additional included points between March 2012 and May 2011 when Peter’s card was cancelled. Gayle gave the court an incomprehensible explanation about why she had not produced this additional statement notwithstanding the explicit provisions of the supplementary agreement, Peter’s repeated requests for it, his lawyer’s requests for it and my court order.
[60] Peter estimated that based on some Visa statements he received as disclosure post separation that Gayle had accumulated another 98,000 points up to April or May 2011. This would mean that some 600,000 points were available to Gayle which were not equalized with Peter.
[61] Gayle’s position at trial was that Peter agreed that the points should be used to benefit the children and to allow them to travel. That is only partly accurate. Peter did agree that the children could use the points but only after he had a statement from Gayle so he could understand how many points were available for their use. That was always a condition of his permission to allow the children to use the points (see Exhibit 12). Gayle did not interpret Peter’s permission as conditional although nothing could have been clearer. She interpreted Peter’s emails as meaning she could allow the children to use all the points without any consultation with Peter. Her position was that they should each retain the Aeroplan points in their possession without any equalization of their value. As can be seen below, this proposal was far from fair.
[62] Peter now seeks compensation for the points. His evidence at trial was that he had 10,000 Aeroplan points which he disclosed to Gayle years ago.
[63] Peter’s evidence was that in discussions with Aeroplan and based on website research, the value of Aeroplan points varies greatly. Those websites, as well as case law provided by Peter’s counsel, demonstrated that point values may range from 2 cents to 9.36 cents per point depending on what the points are used for.[^1] Peter requests that the court assign a value of 4 cents per point. This would mean that Gayle would owe Peter $12,232.56 for his share of the points. Peter’s points were worth $262.
[64] Peter did not have an opportunity to use these points or even participate in how they were being used for the children. It is clear from Gayle’s actions that that is exactly what she intended. However, it is not reasonable for Gayle to pay Peter $12,232.56 for her share of the points as Peter does not disagree that the children benefitted from them. The matter should be resolved in the context of the outstanding and remaining division of personal property. That is, Peter should receive some compensation for this unfairness. This compensation is based on the following:
a. Gayle’s persistent refusal to provide a date of separation and date of cancellation statement for the Aeroplan points despite separation agreements and court orders obligating her to do so.
b. Gayle’s insistence that Peter agreed she could use all of the points for the children while choosing to ignore Peter’s condition that he receive a statement of how many points she had.
c. If Peter had had access to the points, he may have chosen to take a trip with the children or on his own. He never had that opportunity. Only Gayle did.
Final Orders
[65] Peter owes Gayle $1000 for the wildflower prints and book, $2000 for the farm equipment and $425 for the tree lithographs for a total of $3,425. Peter will also owe Gayle for one-half the cost of copying all of the family photographs (amount unknown). The $3,425 plus one-half the cost of the copying all of the family photographs and videos shall be completely set off by the value of the Aeroplan points which should have been equalized with Peter.
[66] There shall be no further division of Aeroplan points.
[67] Gayle owes Peter $1000 for the silverware and $1000 for the chandeliers for a total of $2000. If Gayle is unable to pay Peter this amount, she may elect to return to Peter the balance of paintings under item 3b) and all of the prints in item 6a) and b) in full satisfaction of amounts owed to Peter.
[68] Gayle shall elect within seven days of the date of this order whether she will pay Peter the $2000 set out above or whether she will deliver the art instead. If she elects to pay Peter out, she must provide the certified funds to Peter’s counsel within 14 days of the date of the release of this judgment. If she elects to return the art to Peter instead, she must return it to Peter within 14 days of the date of this judgment, at her expense and at a location in Toronto of Peter’s choosing.
[69] In addition to the delivery of the items set out above (should Gayle decide to return art rather than paying Peter out) and as per the rulings in this judgment, Gayle shall deliver to Peter with 14 days of the date of this judgment the following items:
a. The entire set of wildflower prints and book (Item 5)
b. The entire set of tree lithographs and book (Item 7)
c. The antique Persian rug (Item11)
[70] The agreed upon items in Schedules A and B as well as the three fruit prints (Peter has the sole option of choosing which three of the six) and the farm equipment which Peter has agreed to return to Gayle shall be exchanged on a date and time agreed upon by the parties and in any event no later than May 31, 2018. Gayle shall rent the van required to transport the items and Peter shall reimburse her for half the cost.
[71] Gayle shall arrange for copying of all of the family photographs and videos at her expense as set out herein. The photographs and videos shall be delivered to Peter on the same date as the items in Schedule A and B and in any event no later than May 31, 2018.
[72] The building stones in Gayle’s possession shall be returned to Peter’s farm at Gayle’s sole expense and in any event by June 30, 2018.
[73] In the event that there is any issue concerning enforcement of the return of items, either party may bring a motion before Gilmore, J. on notice. Any party who has not returned an item in accordance with the timing set out in this order may be subject to the payment of costs.
[74] In the event that an item which has been agreed upon or court ordered to be returned is not returned because it has been lost or damaged, the party obligated to return the item shall pay the other party a reasonable replacement cost for that item. In the event that the parties cannot agree on a reasonable replacement cost a motion (in writing and on notice) may be brought before Gilmore, J. Costs may be sought.
Costs
[75] Peter seeks full recovery costs of $30,893.70. He quite rightly points out that none of this litigation was necessary. Gayle failed to comply with the separation agreement and the supplementary separation agreement. He was forced to bring an ex-parte motion to recover his property. He was required to attend at two conferences, nearly two days of trial and have his counsel prepare written submissions.
[76] I accept Peter’s argument on costs. None of this litigation was necessary. I did not accept Gayle’s argument that she was waiting for Peter to prepare a master list. Gayle’s responses to Peter, as is clear in the emails, were a moving target. When Peter prepared a list, Gayle would respond with a list that had some items removed or which indicated that she had changed her position on items which she had previously agreed to give to Peter. Further, Peter was understandably concerned when Gayle’s lists indicated that items which had been intact and available previously were suddenly either damaged or lost.
[77] Gayle’s behavior at the critical point when she was moving from Leland was most telling. This was the time when the major division of property should have occurred but it did not. Gayle kept what she wanted and put the rest of the items in storage or disposed of them. She had no right to do so. It is clear that she knew that many of the items in her possession should go to Peter but she avoided all of the agreed upon processes to return them. Her attitude throughout seemed to be that Peter was putting too much emphasis on chattels and he should just go away.
[78] Peter submits that none of this should have been necessary had Gayle been compliant rather than evasive and non-responsive. Given the findings made by the court with respect to Gayle’s behavior, it is clear that she her deliberate actions, especially with respect to the division of Aeroplan points, are deserving of some sanction. Gayle should be required to pay costs accordingly.
[79] The multiple Offers to settle served by Peter also cannot go without mention. Peter served comprehensive Offers to Settle on December 5 and 17, 2017 as well as on February 16, 2018. Gayle did not accept any of them. Gayle served an Offer to Settle on January 23, 2018 but Peter has done far better at trial than he would have had he accepted that Offer. Further, Gayle’s Offer does not deal with the division of Aeroplan points or offer any compensation to Peter for them.
[80] Peter has clearly done better than any of his Offers as he has received almost all of the disputed items except for the cherry wood corner cabinet and the dining room table. Those items will be dealt with as part of this costs ruling.
[81] It is unlikely that Gayle has the means to pay the amount of costs sought by Peter in cash based on her evidence at trial. However, there are other ways of dealing with the payment of costs. The costs owed by Gayle to Peter are set at $20,000. Gayle is to return the dining room set, chairs, under pad and cherry wood corner cabinet to Peter in substitution for the payment of costs of this trial. These items are to be delivered to Peter’s residence within 14 days of the date of this judgment by Gayle at Gayle’s sole expense. If Gayle fails to deliver the items as ordered, the costs award of $20,000 shall become immediately due and payable with interest.
Gilmore, J.
Released: April 12, 2018
COURT FILE NO.: FS-10-357734
DATE: 20180412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BETWEEN:
Gayle Margaret Rzadki
Applicant
– and –
Peter Edward Rzadki
Respondent
TRIAL JUDGMENT
Gilmore, J.
Released: April 12, 2018
[^1]: See White v. Ritchie, 2009 288998 (ONSC) in which Aeroplan points were assigned a value of 3 cents each and PM v. PEC 2010 QCCS 2239 in which Aerogold points were assigned a value of 4 cents each for the purpose of equalization.