Court File and Parties

NEWMARKET COURT FILE NO.: FC-13-44586-00 DATE: 20180910 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

James Knight Applicant – AND – Monica Knight Respondent

Counsel: D. Simard, Counsel for the Applicant Respondent – Self-represented

HEARD: May 14, 15, 16, 17, 18, 22 and 23, 2018

Judgment

JARVIS J.

[1] The trial in this matter involves property and support issues. The applicant (“the husband”) claims that he has a beneficial interest in the matrimonial home owned by the respondent (“the wife”), that she owes him an equalization payment and that he is entitled to spousal support. The wife seeks an unequal division of the spouses’ net family properties and denies the husband's support entitlement.

Relevant Background

[2] The parties met in 1986 and were married on July 1, 1989. Both were divorced. The husband had two children from prior relationships and the wife had one child. When the parties met, the wife owned a home in Thornhill. That was sold about two years before the marriage and another home was purchased by the wife, this time in Markham Ontario (the “Bronte Road property.”) Title was registered in her name. There is no dispute that the husband did not contribute to the purchase of either property.

[3] The husband worked for a laminating company and also operated a cleaning services business. The wife owned and operated a hair salon. The parties met after the husband dropped off a business card at the salon, and the wife contacted him afterwards for some carpet cleaning. They began dating, infrequently at first then, after some time, the husband moved into the Bronte Road property where the wife and her daughter lived. The parties became engaged. The wife was cautious about remarrying. The pastor at her local church was not supportive of her remarriage and so the parties married elsewhere. The wife paid for her wedding ring. A document purporting to be a domestic contract was signed by the parties on June 15, 1989, two weeks before the marriage.

[4] When the parties met, the husband was earning between $15,000-$20,000 net income annually from his laminating employment, and another $600-$700 monthly from his cleaning services. Although the exact date was not mentioned in evidence, the husband said that he quit his laminating employment at some point after the parties began cohabiting and, as a result of devoting more time to his cleaning services business, he was earning about $40,000 a year. He claimed, and the wife denied, that he gave her $1,000 a month in cash to help pay for the household expenses. In addition he claimed, and the wife denied, that he helped pay for food, contributed to the cost of a perimeter fence to the property and used proceeds from a car sale and a Registered Retirement Savings Plan redemption to renovate the basement of the Bronte Road property into living quarters for two children of his who came from Jamaica to live with the parties for several years in the early to mid-1990s.

[5] The wife said that the husband had no savings when the Bronte Road property was purchased. She would buy cleaning supplies for his business. He never earned enough to materially contribute to the household expenses. He had no money. The wife was embarrassed that the husband was not able to read properly and so she enrolled him in a school and sometimes attended with, and helped, him at the school. She often helped him too with his cleaning business.

[6] In 1997 the wife sold the Bronte Road property and bought a home in Vaughan (“the Astona Blvd property” or “Astona”). This purchase was financed from the net sale proceeds of the Bronte Road property and a mortgage to which the husband consented, and acted as a guarantor. The house was registered in the wife's name. The husband said that he continued to contribute to household expenses for this property as he had its predecessor. This is disputed by the wife. The wife said that at some point in time after Astona was purchased, the mortgage was fully repaid and that she had a “mortgage burning” celebration at her church. A new mortgage was obtained for $100,000 which the wife said was used to help pay expenses which the parties were incurring. The wife said that the husband spent extravagantly and gambled.

[7] In 2001 the husband was injured in a motor vehicle accident while driving the wife’s automobile to a job site. As a result of his injuries, the husband was provided with community care weekly for about two years. It was almost that long before he could walk properly. He saw specialists and also underwent shoulder surgery. As a result of the accident, the husband said that he was not able to do cleaning work any longer and he had to close his business about four months after the accident. He said that he has not worked since then. The husband began receiving income replacement benefits shortly after the accident and, later, CPP disability benefits.

[8] Several years before the husband’s accident, the parties purchased three properties in Jamaica. Both parties had been born there. Titles to the properties were registered in the parties’ names as joint owners. The first property purchased (“Top Road”) was rented out by the parties and the rental payments applied toward a mortgage registered in favour of the Jamaica National Bank. The second property purchased (“Discovery Heights”) was vacant land and the third property (“Lillyfield”) was a three bedroom residence that the parties occupied from time to time before they separated but which the husband has used exclusively since separation. A mortgage was needed to purchase this property and a second mortgage was later registered and the proceeds used to buy a truck in Jamaica for the husband’s use. The husband said that a fourth property (“Egypt”) was purchased shortly after his 2001 accident but a June 17, 2008 letter from a Jamaican attorney to the parties indicated that the purchase transaction was completed in or about that month. Title to Egypt was also registered in the parties’ names as joint tenants.

[9] Although the exact date was unclear, the husband said that about five years before the parties separated (which would suggest that the date was 2006 or 2007) the husband started a lighting supply business in Jamaica called “Knight Lighting & Décor.” The business was not incorporated. The wife opened the business account for the husband. The husband described the business as unprofitable and that he closed it in 2014 as it was losing money. At the time of trial, he still had unsold inventory from 2011.

[10] In mid-2008 the wife sold the Astona property and purchased the matrimonial home (“the Pepperbush property” or “Pepperbush.”) The sale transaction for Astona was completed in mid-August 2008 and the Pepperbush purchase was completed in early October 2008. The husband went to Jamaica and the wife went to live with her daughter before the Pepperbush purchase was completed. In addition to a $10,000 deposit, the balance due on closing was funded from the Astona net sale proceeds and a mortgage. Title to Pepperbush was registered in the name of the wife. The husband was identified as guarantor of the mortgage.

[11] The husband said that the parties had planned to eventually retire to Jamaica, him before the wife. The husband had Canadian and Jamaican Passports. When Astona was sold in 2008, the parties shipped some of its contents to Jamaica. Customs duties on imported chattels were taxed at lower rates for returning Jamaican citizens. The wife said that the husband packed for transfer more of their furniture than she had agreed to ship, some of which were her family heirlooms. Despite her objections though the chattels were sent to Jamaica. On another occasion, a trailer of lighting supplies for the husband’s business was sent to Jamaica. The husband called the wife from Jamaica to pay for the customs duties because he did not have the money to pay.

[12] In February 2009 the wife received $117,917.52 as a settlement for injuries from a fall. She deposited these funds to the parties’ bank account then applied them to pay down her business line of credit ($30,000), a payment toward the mortgage principal on the matrimonial home ($20,000), and the husband’s outstanding Visa account (the exact amount of which she could not recall but thought that it was $15,000). In that month too, the wife’s mother died. The parties went to Jamaica for the funeral where, among other things, the wife purchased supplies for the husband’s business. The wife was a beneficiary of her mother’s estate. In April 2010 the wife received $50,034.93 from the estate which was also deposited to the joint bank account and $32,659.61 then used to pay the wife’s credit card.

[13] The wife said, and the husband disputed, that he began to spend greater amounts of time in Jamaica. Before 2009, the husband said that he travelled to Jamaica about twice a year. He used his Canadian and Jamaican Passports interchangeably. After 2008, the husband said that he visited Jamaica about three times a year, only staying for two to three weeks on average each time. Although the Canadian Passport stamps permitted stays of longer duration, the Jamaican Passport stamps had, of course, no such restriction.

[14] A future retirement to Jamaica was the background context to the husband deciding in 2010 to negotiate a lump sum settlement of his accident benefits entitlement which, according to the parties’ evidence, were payable until age 80 (the husband was 58 years old at the time). In November 2010, the husband was paid $85,000 in full settlement to release his future benefits entitlement. He wanted to transfer these funds to Jamaica but the wife wanted him to contribute to their living expenses. She was so frustrated and angry about always having to pay the husband’s debts, his expenses in Ontario, their living expenses and the property expenses in Jamaica without any meaningful contributions from him that she posted a note to him dated November 10, 2010 on the kitchen refrigerator addressed,

James. This is the way. Half of $85,000 ( word not intelligible ). So you know forty two thousand five hundred dollars. I won’t take less. I am not going to rob you and you are not going to rob me. By the help of God. Thanks, Monica

[15] The husband paid what the wife demanded. Slightly over $42,500 was deposited by the wife to the joint bank account, $20,000 of which she then applied to pay down the Pepperbush mortgage principal.

[16] On September 5, 2011 a friend of the parties, Laura Davy, whom they described as an aunt to the husband, died. She had been ill for several years. Ms. Davy left a Will naming the husband as an Estate Trustee and naming him as one of several beneficiaries. The husband was also named as the beneficiary of Ms. Davy’s work-related policy of life insurance which resulted in his receipt of proceeds of $30,000 on or about October 17, 2011. The wife said that she had assisted in Ms. Davy’s nightly care in the months after she was hospitalized before her death. After Ms. Davy died, the wife and husband attended Ms. Davy’s residence, located her financial documents and took them to Ms. Davy’s bank. The husband said that the estate had a value of about $80,000; the wife said that she noticed that Ms. Davy had one bank account (which the wife also described as being a Registered Retirement Savings Plan) worth around $40,000 and two other bank accounts, one large the second smaller, having a combined value of between $20,000 to $50,000. The wife said that the financial records for the estate “disappeared” after the parties separated. The husband said that he received about $6,000 from the estate as there were other beneficiaries. This would have been in addition to his receipt of the $30,000 of life insurance proceeds. Shortly afterwards the husband left the wife.

[17] The husband claimed that the parties separated on Wednesday, November 8, 2011: the wife claims that they separated on November 10, 2011. The wife was at her church as was her habit on Wednesday evenings when the husband left Pepperbush, not telling her beforehand that he intended to separate. He went to his sister’s residence. The wife discovered that the husband had left after she returned home that evening. She telephoned him. The parties met at a local mall but they never resumed living together. Two days later, the husband flew to Jamaica. As nothing of material value turns on the choice of valuation date, it shall be November 8, 2011. That was the last day that the parties cohabited.

[18] The parties did not dispute the following evidence about post-separation events relevant to the issues in this case, which the court accepts as fact:

(a) the husband never directly contributed to any of the expenses relating to Pepperbush;

(b) the wife never had use of the parties’ Lillyfield residence. The husband changed the locks and used it exclusively, with the exception of the wife’s daughter using a part of the residence for a few days. The husband called the police;

(c) on or about January 3, 2013 the wife deposited a cheque to the parties’ joint bank account in the amount of $6,756.75 that was payable to the husband and related to the Laura Davy Estate. The wife kept these funds;

(d) there were substantial realty tax arrears on all four of the parties’ Jamaican properties. The wife made the last realty tax payment on all of the properties in October 2013. With the exception of Lillyfield, which the husband used, the arrears ranged from three to four years. There was only about one year tax arrears on Lillyfield. The husband did not have the money to pay property taxes;

(e) although Top Road had a tenant, the rent had not been paid since about December 2017 and the husband was not pursuing the tenant for payment. The husband said that no one was managing the Jamaica properties;

(f) the wife remortgaged the matrimonial home after the parties separated for $381,000. The husband did not consent to this transaction. On May 24, 2016 he registered a matrimonial home designation on title to Pepperbush;

(g) the husband brought no motion, and there was no agreement between the parties before trial, for spousal support.

Disclosure and Credibility

[19] Each party complained that the other did not comply with their disclosure obligations whether as required by court Order or pursuant to the Family Law Rules and that, as a consequence, the other’s evidence should be discounted or disregarded entirely on financial issues. Each party invited the court to draw adverse inferences about the other party’s credibility and to prefer their evidence instead. Seemingly lost on the parties was the concept that a party cannot ask the court to make property and income findings favourable to them and contrary to the other party’s interests while at the same time not providing information relevant to the determination of those issues within their possession or ability to obtain.

[20] The following procedural background dealing with the parties’ disclosure obligations is relevant to the court’s assessment of each party’s credibility:

(a) on March 21, 2014, Rogers J. made an Order that directed the parties to exchange disclosure requests by March 31, 2014; the parties were to value the matrimonial home by April 15, 2014; and, (the endorsement is somewhat unclear as no Order was taken out) the husband was to submit to a medical examination. It does not appear that any such examination was performed;

(b) on April 15, 2015, Bennett J. ordered, on consent, that the wife was to respond to a further disclosure request from the husband. The wife had produced a Disclosure Brief but the husband complained that some of the requested disclosure had not been received and that he had some follow-up disclosure requests;

(c) on March 16, 2016, Kaufman J. ordered the husband to reimburse the wife for the cost of an appraisal of the matrimonial home that she had obtained. The husband disputed the opinion of the home’s value so he was granted leave to have his own valuation done. In addition, the parties disputed what the wife said that she had disclosed to the husband and what he acknowledged as having received. Kaufman J. ordered the wife to resend her disclosure;

(d) on February 23, 2017, Corkery J. ruled that the document signed by the parties about two weeks before their marriage was not enforceable as a domestic contract;

(e) on September 25, 2017, Bennett J. made a Settlement Conference Order granting each party leave to bring disclosure and disbursement motions before trial. There is no evidence that any such motion was brought afterwards; and

(f) at the Trial Scheduling Conference held on February 12, 2018, Bennett J. directed that the husband advise the wife of any outstanding disclosure deficiencies by February 26, 2018 and that he answer a Request for Information from her by the end of that month. Both parties were cautioned that inadequate disclosure or non-compliance with outstanding disclosure Orders could result in adverse inferences being drawn by the trial judge. Part 3 of the Trial Scheduling Form set out the particulars of the parties’ disclosure and valuation concerns. As regards the latter, each party sought current valuations of the other’s business interests.

[21] Complicating the assessment of each party’s credibility was the following evidence:

(a) many of the entries in the wife’s trial financial statement stated that the information was not capable of being retrieved due to the passage of time. There was no explanation why, after the parties separated and this Application was started in 2014, the wife did not make inquiries earlier about her assets and debts as of the valuation date. There was no evidence at trial about her efforts to obtain that information in a more timely way. It is clear though, that some of the husband’s complaints about the wife’s non-disclosure related to the parties’ 1989 marriage date and could not be obtained in any event given the passage of time;

(b) there was no explanation from the wife about how she was able to refinance the mortgage on the matrimonial home after the parties separated without the husband’s consent; and

(c) there was no satisfactory explanation from the husband about how in the six and a half years since the parties separated, he had been able to pay his living expenses in Toronto and Jamaica. According to his 2013-2016 Canadian Income Tax Returns his average line 150 income averaged $10,290 and, at least until 2014, his evidence was that his business in Jamaica was losing money. The husband’s April 27, 2018 trial financial statement showed debts on the valuation date of $16,369.63: as of the date of that statement those debts had been reduced to $10,497.29.

[22] In Ouellette v. Uddin, 2018 ONSC 4520 Shelston J. provided a useful summary for guiding a court’s assessment of witness credibility,

(a) assessing credibility is, in every respect, a holistic undertaking incapable of precise formulation;

(b) the trial judge need not believe or disbelieve a witness’s testimony in its entirety;

(c) the trial judge may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence; and

(d) the trial judge can assess credibility by considering different factors that include internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candour from evasive or strategic testimony) and, to a lesser degree, witness demeanour. This list is not exhaustive.

[23] Neither party was a credible witness about their financial worth, earning ability or income although the wife’s narrative of important events dealing with the purchase and sale of the parties’ properties and payment of the parties’ living expenses was more plausible than the husband and, in several instances, supported by third party documentary evidence. For example:

(a) the husband contended that the value of his business interest on the valuation date was very modest, comprising unsold inventory, and that the value of the wife’s business interest then was $50,000. He tendered no valuation of his business inventory or for the value of Knight Lighting and Decor and objected to the wife tendering a report about the valuation of her business interest that was served two weeks before trial. Neither party provided a current value of their business interests although, from a practical standpoint, that omission was not critical;

(b) the husband produced professionally-prepared tax returns for his business in Jamaica which he had filed there and which he said demonstrated its unprofitability. It was clear to the court that he lacked familiarity with the contents of those tax returns. There was no satisfactory evidence about the business hours of operation, its funding, and how much the husband earned or drew from the business. To describe the husband’s evidence as “vague” would be an understatement. The wife claimed that the statements were inaccurate;

(c) The husband challenged the accuracy of the financial statements for the wife’s hair salon business because she was unable to reconcile her professionally-prepared financial statements with her Income Tax Returns and bank accounts. It was clear to the court that the contents of each party’s tax filings with the responsible government authorities did not accurately set out the incomes or cash flow enjoyed by them;

(d) the husband complained that the wife had not produced a value for her Manulife Critical Illness insurance policy as of the valuation date. However, he was unable to produce any independent evidence for the value of a Manulife policy that he owned then and that he said was worth somewhere between $1,000 to $4,000;

(e) the husband claimed that for several years before trial, he earned only a nominal, disability income and that the wife earned $75,000 a year. He claimed that he needed spousal support and that the wife could afford to pay but how he was able to meet his living expenses between the date of the parties’ separation and trial was never satisfactorily explained. Seemingly oblivious to the contradiction in his evidence, the husband said that he never worked after his 2001 accident although the tax returns that he filed for his business in Jamaica from 2011 to 2013 described him as a “Businessman.” He had started this business in 2006 or 2007.

[24] Both parties tailored their evidence about their property and income to suit their claims in these proceedings. Except for those assets and debts whose value can be documented or inferentially corroborated by third party sources, little weight will be given to either party’s estimates about value. Determining value is not a dartboard. The same observation applies to each party’s evidence about their income and, particularly in the husband’s case, their ability to support themselves.

Property

[25] The husband claimed that the wife owed him an equalization payment of $218,023.22 to which should be added $100,000 if his unjust enrichment claim dealing with Pepperbush was successful. Together with a post-separation adjustment of $6,756.75 for the husband’s last inheritance remittance, which the wife deposited to the parties’ joint bank account (before the wife removed the husband’s name from the account) the total amount sought is about $324,779.97.

[26] The wife claimed that no equalization payment was owed to the husband. She maintained that due to jurisdictional issues the parties’ rights in their Jamaican properties had to be addressed in Jamaica. If it was determined that she owed the husband an equalization payment then, without accounting for those properties, the court should award her an unequal division of the parties’ net family properties pursuant to section 5(6) of the Family Law Act because equalization would be unconscionable.

[27] The following analysis will only deal with the identification and value of those assets, debts and claims which the parties dispute.

(a) Land

[28] Title to Pepperbush is registered in the wife’s name. When the trial started, the parties agreed that the property had a $650,000 fair market value on the valuation date. The husband claimed that the wife holds title subject to “a beneficial interest and/or resulting trust” in his favour “equal to a one-half interest” and that any post-valuation date increase in the property’s mortgage indebtedness should be the wife’s sole responsibility. The wife answered that the Pepperbush purchase, like the other three homes in which the parties lived, was enabled by her “sole efforts and contributions” and that the husband not only did not contribute to the purchase of any of those properties but also that any contributions which the husband may have made to the carrying and improvement costs of Pepperbush were minimal at best. There was no unjust enrichment.

[29] In addition, the wife claimed that she should be declared the owner of the Jamaican properties on the basis of “constructive and/or resulting trust.” It was she who, but for a single $500 contribution and occasional and minimal maintenance by the husband, paid for the purchase and carrying costs of the properties. Alternatively, the wife sought an unequal division of the parties’ net family properties pursuant to section 5(6) of the Family Law Act (“the Act”).

[30] The essence of each party’s trust claim is unjust enrichment, the restoring of a conferred benefit whose retention by another cannot be reasonably justified in law or equity. As articulated in Kerr v. Baranow, 2011 SCC 10 there are three elements to an unjust enrichment claim:

(a) an enrichment;

(b) a deprivation;

(c) the absence of a juristic reason for the enrichment.

[31] The claimant has the burden of proving an unjust enrichment claim. Once the claimant has proven enrichment and deprivation and has met the primary burden that the case falls outside of existing, recognized common law, equitable or statutory obligations, the recipient of the benefit must satisfy the court that based on the parties’ reasonable expectations and public policy considerations the recovery claim must fail.

[32] All of the cases upon which the parties rely highlight the evidentiary, and in the case of marriage, statutory burden on a claimant. In Korman v. Korman, 2015 ONCA 578 the issue involved the application of section 14 of the Act dealing with the presumption of resulting trust in determining the ownership of a matrimonial home interest in the context of a gratuitous property transfer. In that case the Court of Appeal held that “even in the absence of the presumption, the evidence at trial does not ground a finding of clear intention to gift.”

[33] In Smith v. Smith, 2017 ONSC 2732 the spousal parties had owned several homes during their marriage except for the last two homes whose title had been registered in the wife’s name. The trial judge inferred that as the earlier homes had been jointly owned, both parties had financially contributed to those properties. Based on evidence that suggested that the parties had lived off the husband’s income and that this income and loans from the husband’s business had financed the home owned when the parties separated, the court followed Korman and held that the wife had failed to rebut the statutory presumption.

[34] In Ajayi v. Oziegbe, 2016 ONSC 1157 the court held that despite title to a home being registered in unequal shares, the parties were declared equal owners. The court carefully reviewed the evidence surrounding the purchase of the property and concluded that without the minority owner’s financial assistance, the majority owner could not have purchased the property on her own.

[35] In Toth v. Grigorescu, 2016 ONSC 8080 a case involving ownership of a home by unmarried parties, the trial judge applied Korman and found that the evidence supported a finding of unjust enrichment. In particular, Gilmore J. found that the claimant had made significantly greater mortgage and household expense payments, that the recipient earned less historically and was periodically unemployed and that the claimant had incurred significant debt to make the parties’ ends meet every month.

[36] The parties’ evidence in this case support the following findings of fact about the various Ontario properties:

(a) titles to all properties in which the parties lived before their marriage and afterwards until their separation were registered in the wife’s name;

(b) there was no evidence that the husband directly contributed to the purchase of any of the properties;

(c) there is no evidence that anyone other than the wife paid the costs associated with the purchase and sale transactions. This was her evidence;

(d) all purchase (and sale) documents, and reporting letters identified the wife as client and owner and were addressed to her;

(e) there is no evidence that the husband directly contributed to the mortgage payments for Bronte Road, Astona and Pepperbush, or that he paid realty taxes or normal occupancy related costs such as utilities, etc. The husband said, and the wife disputed, that he would give her cash to help her pay these expenses. He also said that he would “sometimes” pay “something” but that was irregular and that he used his CPP disability income to pay for gas and his Visa;

(f) mortgage payments for Pepperbush were made from the parties’ joint bank account into which the husband said that he never contributed. The husband said that he did make some cash deposits to this account for the wife on her behalf when asked and there was a short period of time when the wife deposited the husband’s accident benefit cheques into the account because he was in Jamaica. As soon as he returned from Jamaica, the cheques were deposited by the husband into an account that he alone owned, as had been the practice before his departure. The total amount deposited is nominal; and

(g) the husband acted as guarantor of the Astona and Pepperbush mortgages but was never called upon to pay either mortgage.

[37] The husband’s evidence falls far short in proving that he enriched the wife or that he was in any way financially deprived. Consenting to a matrimonial home mortgage and being asked to act as guarantor do not, in the absence of evidence of financial or other contributions of a material nature, give rise to an unjust enrichment claim. The husband’s claim to a beneficial interest in the matrimonial home is dismissed.

[38] As for the properties in Jamaica, the wife’s claim that the husband holds his interest in them for her also fails. The evidence indicates:

(a) titles to all of the properties were registered in the names of the parties as joint owners;

(b) the wife handled the funding arrangements for the purchases. The husband knew little about how much each property cost and how each was purchased;

(c) there was no evidence from the husband which independently confirmed his claims about contributing to any of the property purchases. It is noted though that the first three purchases were made before the husband’s 2001 accident and during the time when he was working and earning about $40,000 a year. The wife did not challenge the husband’s evidence in this regard;

(d) there was some evidence from the wife showing transfers of funds by her to Jamaica relating to the properties;

(e) there was no evidence comparing how much either party contributed to the purchase of any of the properties or how the continuing operating costs of the properties were funded (except for Top Road whose expenses were partially funded from rental payments); and

(f) while there was some evidence as to the values for the properties, the parties disagreed on those values. The husband swore that the properties were collectively worth $571,996 whereas the wife estimated their value as ranging between $463,000 and $472,404. No expert appraisal evidence was led by either party.

[39] No comparative breakdown of contributions by either party to the purchase and funding of the ongoing expenses for the properties was provided to the court. The wife bore the onus of proving her unjust enrichment claim, and she has not met that burden. While the court sympathizes with her and suspects that the husband was benefitted to an unknown degree by her contributions to the properties, it is not possible to determine the extent to which the husband was enriched and the wife deprived. To attempt that assessment given the trial evidence would be guesswork. Accordingly, the wife’s unjust enrichment claim must fail. Her claim to an unequal division of the parties’ net family properties will be separately addressed elsewhere in this decision.

Disputed Values of Assets and Debts on the Valuation Date

(b) Royal Bank accounts ending in *0262 and *5206

[40] While the husband complained that the wife provided no disclosure for these accounts, her trial financial statement suggested that these accounts existed on the date of the parties’ marriage in 1989 and that she was unable to obtain banking documents that far back in time. The wife claimed a $25,000 deduction for the date of marriage value for the account ending in *0262. All of the wife’s five earlier financial statements made no reference to these accounts. It is not unreasonable to infer that these accounts likely existed when the parties married but had been closed before the valuation date. In the banking documents filed as trial exhibits, there is no evidence of intrabank or interbank transfers identifying either of these accounts as open on the valuation date and so no value will be assigned to the wife for them on the date of the parties’ marriage or the valuation date.

(b) Alleged undisclosed accounts

[41] The husband claimed that the wife owned at least five savings accounts on the valuation date whose values she did not disclose and whose values he guessed. These included a Royal Bank account ending in *3368 ($10,000) and four Registered Retirement Savings Plans ($95,000) [7] .

[42] The wife’s evidence is that she was unable to obtain date of marriage and valuation date values for the Royal Bank account due to the year of documentation. There is no reference to this account in any of the wife’s earlier financial statements or any evidence from the banking documents marked as trial exhibits that disclosed the existence of this account on the valuation date. The husband acknowledged to the court that he guessed that there was $10,000 in this account.

[43] For two of the RRSP accounts (i.e. North American Life Assurance Company and Canada Trust), the wife said that she was unable to obtain marriage date values and she suggested, with respect to the Canada Trust RRSP, that it was worth $5,094.17 as of December 31, 1991. The husband acknowledged to the court that he had no documentation that would verify the values that he attributed to the wife for these accounts.

[44] The husband also attributed to the wife a value of $25,000 to an Empire Life RRSP having an unknown account number. This figure was an estimate and was based on payments made from the parties’ Royal Bank account from which a monthly withdrawal was made. It appears that this account was, in fact, a life insurance policy that the husband owned but did not disclose. He said that he had two life insurance policies when the parties separated but was aware of only one policy (likely a Manulife policy) which he later surrendered for somewhere between $1,000 and $4,000. The husband guessed about the wife having a $50,000 RRSP. The wife acknowledged having a RRSP at an institution whose name she could not recall but that account related to a $2,500 contribution made in 1988 and for which the court infers she was claiming a deduction for 1989 being the year that the parties married.

[45] With the exception of the husband’s evidence about the value of the life insurance policy that he surrendered, there is no credible evidence of value for the accounts whose values the husband wants to attribute to the wife so no value will be assigned to them on the date of marriage or valuation date. The value of the husband life insurance policy will be addressed in the next section.

(c) Life insurance

[46] The parties dispute whether the wife owned a Critical Illness insurance policy underwritten by the Manufacturers Life Insurance Company (“Manulife”) on the valuation date and, if such a policy was owned, its value on that date. The husband claimed that the wife owned this policy and that its value was $23,349. In her financial statement sworn May 5, 2018 the wife swore that she surrendered this policy on its March 31, 2017 anniversary date and was paid $37,199.65 on April 17, 2017. She records a “N/A” (presumably meaning “Not Applicable”) as representing the value of her interest in the policy as of the date of marriage, the valuation date and May 5, 2018.

[47] The evidence is that this policy was issued to the wife on February 28, 2003 and that its monthly premium was paid from the parties’ joint Royal Bank account into which deposits were almost exclusively made by the wife from her own funds. The wife gave no satisfactory explanation why she did not provide a valuation date value for her interest in this policy or why she would have recorded its value on that date as “N/A”. The husband calculated the value by pro-rating the amount paid to the wife by the number of years she owned the policy before the parties separated divided by the entirety of her period of ownership. That is a not unreasonable approach in the circumstances of this case. In my view, the appropriate value to attribute to the value of the wife’s interest in the Manulife policy on the valuation date is $23,249. [8]

[48] As referenced in paragraph [44] the husband acknowledged owning two policies of insurance, neither of which he disclosed in his trial financial statement. Despite the court’s reservations about the husband’s credibility on the value of the policy he surrendered, there will be attributed to the husband a mid-range value of $2,500 for the value of this policy on the valuation date.

(d) Business interests

[49] Neither party’s evidence was credible with respect to the value of their business interests.

[50] The husband’s trial financial statement recorded no value for Knight’s Lighting and Décor on the valuation date even though he testified that the business was operating in 2011. A note in his statement about his interest stated that the business “had not been operational for several years” as if that relieved him of his responsibility to bring forward even the semblance of value. According to the husband, he closed the business in 2014 because it was losing money. He did not sell the business and still had inventory worth about $800,000 Jamaican dollars at trial which his lawyer invited the court to value as equivalent to about $8,000 Canadian dollars. There was no evidence as to exchange rates between 2011 and 2018. Despite closing the business about four years before trial, the husband had not taken steps to liquidate the inventory.

[51] In the several financial statements filed by the wife in these proceedings, she attributed a marriage date value to Monica’s Beauty Lounge ranging from $100,000 to $14,010 (her trial statement). All of the wife’s statements recorded a “nil” value for the business as of the valuation date noting that the business had a significant operating debt to its banker averaging $78,000.

[52] The husband pointed to a February 2013 mortgage application by the wife which represented a $40,000 business asset value. Although she initialled the application, the wife disclaimed responsibility for the accuracy of the information contained in it saying that while she provided information to the mortgage broker, it was he who input that figure. The wife said that she would never get $40,000 if she sold the business.

[53] In response to questions from the court, the wife said that the Pepperbush mortgage (which the husband had guaranteed) came due in early 2013. She increased the principal with the mortgagee without the knowledge or approval of the husband. They were not communicating. She used the $86,000 in proceeds to pay different debts, some of which appear from other trial evidence to have existed when the parties separated.

[54] The court does not accept the wife’s disclaimer about her responsibility for the accuracy of the figures represented in her 2013 mortgage application, which was apparently not approved by the lender to whom it was made, but that does not mean that the court must by default assign those values to her net worth in 2011 or to her current income. A review of the March 31, 2012 fiscal year end financial statements for the business shows assets of $5,971 and liabilities of $70,558, principally to a bank ($47,558). Gross revenue was $47,786 and the business reported a net loss of $5,510. These figures were little different from 2011. These statements do not support either a $40,000 value for the business in 2013 or the $50,000 value which the husband estimates should be attributed to the value of the wife’s salon on the valuation date. Given what was owed to the bank by the business, it is likely that even if it was sold, the wife would sustain a net loss.

[55] It is clear that when valuing their business interests, both parties failed to present a credible value either for the valuation date or, in the case of the wife, for the marriage date. Each tailored their evidence to suit their financial interests. In the absence of credible evidence, no marriage or valuation date values to each party’s business interests will be attributed to either party.

Property, Debts and Other Liabilities on Date of Marriage

(e) Bronte Road property

[56] The wife claimed that the value of the Bronte Road property that she had purchased about two years before the parties married for $339,900 was $399,000 on the date of marriage and that the $160,000 mortgage used to fund the purchase had been paid down to $128,000 on that later date too, thereby entitling her to a $271,000 deduction. No corroborative evidence as required by section 4(2) of the Family Law Act was tendered by the wife to support either the increase in the property’s value or the decrease in the amount of the mortgage owed. While it would not be unreasonable to assume some increase in the wife’s net equity in the property between its purchase date and the date of the parties’ marriage, there must be some admissible, credible and, especially, corroborative evidence to support the wife’s deduction claim. There is none in this case.

[57] The best evidence of the value of the property then is its original purchase price less the outstanding mortgage. The husband was prepared to concede notional disposition costs of $20,899.35 comprising a realtor’s commission fee of 5 % on the purchase price and $1,500 for legal fees, plus HST for both services. The wife is therefore entitled to a deduction for the value of her interest in the Bronte Road property on the date of marriage of $159,000. [9]

(f) RRSP

[58] The wife claimed that she owned a Registered Retirement Savings Plan worth $3,650 on the date of marriage. The only evidence in support of that claimed deduction was her 1988 Income Tax Return which recorded a $2,500 RRSP contribution. I am prepared to accept that lower value less a notional 7% contingent tax deduction ($175) for a total deduction of $2,325.

Determination of the Equalization Payment

[59] Based on the foregoing, the net family property statement appended as Schedule “A” to these reasons sets out the parties’ net family properties and the equalization payment owing. Not included is any value for the Jamaican properties. This will be addressed below under “Disposition.”

[60] The wife shall pay to the husband an equalization payment of $81,171.

Wife’s Section 5(6) Family Law Act Claim

[61] The wife claimed that the parties’ net family properties should be unequally divided in her favour. Section 5(6) of the Act permits the court to award a spouse an amount less than half the difference between the parties’ net family properties where equalization would be unconscionable. Relevant to this case are subsections (f) and (h) which state,

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6) .

[62] As observed by the Court of Appeal in Serra v. Serra, 2009 ONCA 105,

…the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”.

[63] The wife relied on two cases in support of her claim. In Macedo v. Macedo (1996), 19 R.F.L. (4th) 65 Beaulieu J. determined that a wife’s assumption of a disproportionately larger amount of debts and liabilities for the support of the parties’ family entitled her to an unequal division of the parties’ net family properties. The husband in that case had not contributed to the operating costs of the jointly owned matrimonial home, failed to pay child support and there were two outstanding costs awards against him. Title to the matrimonial home and its contents were awarded to the wife. An appraisal of the home shortly before trial indicated a $157,000 value. The property was unencumbered.

[64] In Langlois v. Le Capelain, 2016 ONSC 1999 the wife owed the husband an equalization payment of $32,977 mostly as a result of the value of her pension. Kane J. found that the wife “had been left to pay and deal with joint creditors of the parties during the past two to three years on her own.” [13] The parties’ net family properties were adjusted to be equal so that no equalization payment was ordered.

[65] In an Annotation to Macedo the late James G. McLeod questioned whether the facts in that case justified an unequal division and suggested that the case be approached with caution. Evidence of inadequate contribution should not lead to a finding of unconscionability unless there is an abdication of family responsibility. In Langlois , the wife was compelled to pay almost all of the parties’ joint debts which led her to file a proposal to her creditors under the Bankruptcy Act. The husband had failed to file a financial statement and to pay child support.

[66] The evidence in the case before this court is overwhelming that the wife paid most of the parties’ expenses. Even so, the husband did give her $42,500 from his 2010 accident benefits settlement and the court accepts that the husband modestly contributed to the Jamaican properties although, as already noted, it is impossible to calculate the parties’ comparative financial contributions. The evidence supporting the reasons for rejecting the wife’s unjust enrichment claim relating to the Jamaican properties [14] is relevant too. In my view, while equalizing the parties’ net family properties may be a “harsh” or “unfair” outcome, the evidence in this case does not rise to the level of unconscionability. The wife’s claim under section 5 (6) of the Act is dismissed.

Spousal Support

[67] The husband claimed that he needed spousal support from the wife because he was disabled and she worked and so she was able to support him. He sought either a periodic award retroactive to the 2011 separation date or a lump sum. Sections 15.2(1) , (4) and (6) of the Divorce Act set out, respectively, the court’s jurisdiction to make a spousal support Order, the factors which a court is required to consider in making an Order and the objectives of a spousal support Order.

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 1997, c. 1, s. 2.

[68] A number of observations are relevant:

(a) both parties were 59 years old when they separated and were 65 years old at the time of trial;

(b) no independent medical evidence was tendered by the husband to support his claim that he was unable to do anything to contribute to his own support. There was no explanation why, for example, no physician’s records were not produced or, perhaps more importantly, no medical/legal report. Not even records relating to the husband’s 2001 accident and recovery afterwards were provided;

(c) the husband claimed that he was disabled after his accident and never worked again yet he opened and operated his business in Jamaica for anywhere between six to eight years afterwards and described himself in his Jamaica tax filings as a “Businessman.” This inconsistency in his evidence was not apparent to him;

(d) there was no evidence that the husband ever sought a temporary Order for support at any time in the 6 ½ years between the parties’ separation and their trial; and

(e) there was no evidence dealing with how the husband had been able to meet his living expenses in Toronto and Jamaica when his declared Canadian income between 2012 and 2017 averaged about $10,919 a year. He told the court that he closed his business in 2014 and had not sold any of its inventory. The wife testified that she had encountered the husband working at a local gardening centre after they separated. He said that was coincidental because he had only been hired that day and had to quit that job within a few hours afterwards because it was too strenuous.

[69] I am not persuaded that the husband is entitled to spousal support. He was not credible. He did not satisfactorily explain how he was able to live in, pay for and travel between, Toronto and Jamaica. Even his financial statement showed an unexplained, though modest, reduction in debt between separation and trial. The impression left with the court is that the husband was not candid with the court about his financial affairs and that he likely earned income that he chose not to disclose.

[70] There is another reason why the husband’s spousal support claim is dismissed. While it is more apparent for the period after his 2011 accident, it was clear to the court that it was the wife who shouldered the payment responsibility for most of the parties’ living expenses during their cohabitation and, more significantly, the expenses associated with the purchase and ongoing maintenance and operating costs of the Jamaica properties, although the evidence did not permit a more informed, comparative, assessment of each party’s contributions. Given the value of the husband’s interests in the Jamaican properties, he has financially benefited from the parties’ relationship well in excess of his equalization payment entitlement. In addition, the husband benefitted from a second mortgage placed on one (or more) of the Jamaica properties from whose proceeds the husband purchased a truck; the existence and value of which he did not disclose in his financial statement. I am not persuaded either to make the post-separation adjustment of $6,756.66 which the husband requested representing the last remittance relating to Laura Davy’s estate that the wife deposited into the parties’ account in early 2013. I accept the wife’s evidence that she paid realty taxes in 2013 for the Jamaican properties. Whether she used those funds or a combination of those funds and her own to make that payment is irrelevant. The husband paid nothing.

Disposition

[71] The husband and wife are hereby divorced effective as of the date of this Order.

[72] The husband’s claim for spousal support is dismissed.

[73] The wife owes the husband an equalization payment in the amount of $87,171. How that should be paid and under what circumstances involves a consideration of the parties’ claims dealing with the properties in Jamaica.

[74] There was some evidence that the parties had discussed, but could not agree on, what to do with respect to those properties in terms of their sale or interspousal transfer. The wife contended (as reflected in her financial statement) that the court did not have the jurisdiction to deal with the properties. While “ the general rule is that Canadian courts have no jurisdiction to determine title to or an interest in foreign land,” [15] a limited in personam jurisdiction over foreign property may apply provided that four prerequisites are satisfied:

(a) the court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with originating process, or the defendant must submit to the jurisdiction of the court;

(b) there must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it…

An equity between the parties may arise in various contexts. In all cases, however, the relationship between the parties must be such that the defendant’s conscience would be affected if he insisted on his strict legal rights…

(c) the jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment…

(d) finally, the court will not exercise jurisdiction if the order would be of no effect in the situs … The mere fact, however, that the lex situs would not recognize the personal obligation upon which jurisdiction is based will not be a bar to the granting of the order.”

[75] All of these prerequisites apply in this case. Both parties are Canadian (and, in the case of the husband, Jamaican) citizens (in the case of the wife, also Jamaican born); they are spouses; there is no evidence that Jamaica, a common law jurisdiction of which this court takes judicial notice, cannot supervise the execution of this Judgment as it affects the parties’ realty; and, there is good reason to believe that Jamaica as the lex situs would act on the Judgment provided that it was registered in compliance with that jurisdiction’s foreign judgment reciprocity laws.

[76] In Chen v. Lin, 2017 ONSC 7297, a case on which the husband relies, Gilmore J. awarded a husband a one-half beneficial interest in a property in Taiwan owned by the wife in that case, and ordered that the value of the husband’s interest be paid out from the wife’s share of the net proceeds of sale of a jointly-owned home in Toronto. Alternatively, the wife was given the option of electing to sell the Taiwan property and paying the husband from her share of the Toronto sale proceeds.

[77] Even though his court has no power to prefer the interest of one joint owner of realty to the other [17] , there is no reason why the equalization payment owing by the wife to the husband cannot be paid from the value of her share in the Jamaican properties. To order otherwise would leave outstanding the spectre of litigation in Jamaica and would unfairly favour the husband who has had exclusive use of, in particular, the parties’ residence in Jamaica and barred the wife from accessing it since shortly after the parties separated.

[78] The equalization payment owing to the husband shall be paid from the wife’s share of her interests in the Jamaican properties. The following terms shall apply:

(a) the parties shall have until October 31, 2018 to resolve between themselves the sale of, or interspousal transfer of title to, any one or more of the properties located in Jamaica as more particularly identified in Schedule “B’ appended to these Reasons. This Schedule shall be appended to the Judgment issued;

(b) the wife’s equalization payment to the husband shall be taken into account and paid through the sale or transfer of any one or more of the properties identified in Schedule “B”;

(c) without prejudice to the husband’s claim to pre-judgment interest on the equalization payment found owing, which issue shall be addressed when dealing with the costs of these proceedings, the equalization payment shall bear no post-judgment interest; and

(d) in the event that the parties have not resolved their Jamaica property issues as directed in (a) above by the date indicated then the parties are ordered to sell the properties. Payment of the equalization payment, without interest, shall be made from the wife’s share of the net proceeds of sale after taking into account unpaid realty taxes and any other fees associated with the sale transactions.

[79] On or before September 28, 2018, the husband shall register an Application (General) to cancel the matrimonial home designation that he made with respect to Pepperbush. He shall provide satisfactory proof to the wife that he has complied with this direction by no later than October 5, 2018.

[80] The wife shall provide to the husband on or before September 28, 2018 a list identifying those chattels of a family or heirloom provenance which she maintains were removed from Astona and the husband shall forthwith make them available for the wife to obtain at her expense. Until such time as the wife obtains the chattels, the husband shall maintain them in good condition. In the event that the parties require further direction or in the case of dispute with respect to the matter of these chattels, the parties may arrange through the court offices for a further attendance before me.

[81] Counsel for the husband shall forthwith prepare the form of Judgment and forward that to the wife for her approval in accordance with the Family Law Rules . This Order is made as it appears that none of the earlier Orders made in these proceedings was formally issued and so as to underscore that it is the duty of counsel and parties (if self-represented) to prepare and have issued Orders made after each step in a proceeding.

[82] If the parties are unable to resolve the costs of these proceedings, then the husband shall file his submissions by October 31, 2018 and the wife shall file her submissions by November 20, 2018. Reply (if any) by the husband shall be filed by December 1, 2018. Submissions shall be limited to four pages double-spaced, two pages for reply. All submissions shall be filed in the Continuing Record. Parties are requested to confirm filing of their submissions with my judicial assistant at Nurit.Suzana@ontario.ca . Offers to Settle, Bills of Costs and any Authorities upon which a party may be relying shall be filed with their costs submissions but not form part of the Continuing Record.

Justice David A. Jarvis Date: September 10, 2018

SCHEDULE “B”

1. Lot 47, Top Road, Browns Town, Parish of St. Ann Registered at Volume 1054, Folio 134

2. Lot 39, Discovery Heights, Parish of St. Ann Registered at Volume 1054, Folio 179

3. Lillyfield and Elgin Hall, Parish of St. Ann Registered at Volume 1168, Folio 39

4. Egypt, Browns Town, Parish of St. Ann Registered at Volume 1421, Folio 191