Hawrylyshyn v. Hawrylyshyn, 2020 ONSC 800

COURT FILE NO.: FS-17-420444

DATE: 20200205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul Hawrylyshyn

Applicant

– and –

Brigitte Hawrylyshyn

Respondent

William H. Abbott, for the Applicant

Kenneth E. Snider, for the Respondent

HEARD: January 14 and 15, 2020

Shore, J.

1The issues at this trial were solely related to property. Specifically, I was asked to determine the parties’ net family property, post-separation adjustments, division of contents, and issues related to the listing and sale of the matrimonial home, municipally known as 21 Bendale Blvd, Toronto, ON M1J 2B1.

2The parties agreed that their evidence in chief would go in by way of affidavit evidence. I therefore only heard viva voce evidence in reply and through cross-examinations. There were no witnesses other than the parties. The parties were successful in narrowing the issues prior to trial, reducing the time needed at trial.

Basic Facts:

3The facts are very straightforward and not in dispute.

4The parties were married on June 22, 1985 and agreed to use October 23, 2015 as their date of separation. The parties have been living separate and apart in the matrimonial home since separation.

5The parties have four children of their marriage. The children are adults and living independently.

6The Applicant used to work for Bell Canada but has been on disability insurance since 2000. He receives approximately $60,000 per year from all sources, including disability insurance and CPP.

7The Respondent was a business manager at a long-term care facility. She worked until 2013, when she was let go. She has not worked since that time.

8There is no claim by either party for spousal support.

Initial Matter:

9Various deadlines were set out in the Trial Schedule Endorsement Form. The Respondent missed nearly all the deadlines set out therein, including dates to serve and respond to Requests to Admit, provide outstanding disclosure, answers to undertakings, and exchange of exhibits briefs for trial. As such, it is my discretion to draw an adverse inference against the Respondent in making my decision. Where I have drawn an adverse inference, I have noted same in the decision below.

Divorce:

10The parties consent to a divorce order. The parties have met the criteria under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) and have filed their marriage certificate. I have granted the divorce, as set out below.

Net Family Property:

Contents:

11The Applicant is seeking an order that the contents of the matrimonial home be divided in specie or that $30,000 be added to the Respondent’s side of the NFP because she took the bulk of the contents from the matrimonial home. The Respondent’s position is that there is no proof as to the value of items she removed and that it was worth less than $30,000.

12While the Applicant was away for Thanksgiving weekend in 2018, the Respondent removed most of the contents of the home. During trial, she disclosed that she had been renting alternate accommodations since October 2018 and the chattels were moved into this property. The Respondent conceded that there was no agreement or court order regarding the division of chattel, and she used a “self-help” method.

13While I am prepared to adjust the net family property statement to reflect a higher value of contents on the Respondent’s side of the equation, $30,000 is too high. When giving his testimony, the Applicant testified that he used the cost to replace the furniture that the Respondent unilaterally removed. Fair market value and not replacement value is how contents are valued for net family property purposes. Both parties testified that their furniture was old. As such, I will add $10,000 to the Respondent’s assets, being $10,000 more than the contents left in possession of the Applicant. The issue of the Respondent’s “self-help” approach can and should be a consideration when addressing costs.

Vehicle:

14The Applicant owned a 2008 Buick Allure on the date of separation. This vehicle was driven solely by the Respondent prior to and following separation until two years after separation when she bought a new car. She added 50,000 km on the vehicle during that time. The vehicle was owned by the Applicant on the date of separation and is still owned by him today, although it sits on the driveway and there is a dispute as to whether it still functions.

15The Respondent submits the vehicle should be included in the Applicant’s net family property. The Applicant submits there should be no value attributed as the Buick is not driveable and if a value is attributed, it should be added to the Respondent’s net family property.

16The value of the vehicle on the date of separation is approximately $4,000. It properly belongs in the Applicant’s assets on net family property statement on the date of separation because he owned the vehicle. However, there should be a post-separation adjustment to account for the added mileage and the benefit received by the Respondent as well as the decrease in value when she returned the vehicle. I find the set off would entirely offset the value of the vehicle on separation.

Rolex Watch

17The Applicant owned a Rolex watch on the date of marriage. He submits that the Respondent has his watch. The Respondent’s evidence was that she does not have his watch. I have not included the watch in either party’s net family property on the date of separation, but I have allowed the deduction for the watch on the date of marriage.

Assets on Date of Marriage:

18The parties each allege the other has not met the onus of proving assets owned on the date of marriage. I will address each asset below:

a. Canada Savings Bonds: The Applicant submits he owned Canada Savings Bonds on the date of marriage. He was able to produce statements showing bonds in his name on the date of marriage. The Respondent submits that the bonds may have belonged to his father because the Applicant and his father have the same name. The Respondent offered no evidence to support her position that there may be a mix up. The Applicant provided letters from CSB confirming the bonds in his name. In one of the letters CSB confirms they cross referenced the bonds with his social insurance number to ensure they did not belong to his father. The Respondent acknowledges she received proof of this deduction in the Agreed Statement of Facts. I accept that the Applicant owned the bonds on the date of marriage. Their value was not in dispute.

b. BCE shares: The Applicant submits he had shares in BCE on the date of marriage, obtained through his employment. He provided documentation to support his position. I accept his evidence and allow the date of marriage deduction.

c. Loan to parents: The Respondent submits that she loaned money to her parents prior to marriage and that this money was owing to her on the date of marriage. She is seeking a date of marriage deduction. The Applicant disputes her claim. The Respondent did not provide any documents to support her position. During questioning she advised that she “gave” money to her parents. It is possible that she gave money to her parents, as a loan, and that the money was eventually paid back. However, the Respondent has not met her onus of proving her date of marriage deduction on a balance of probabilities. Further, given that she provided no disclosure for either position, I draw an adverse inference against the Respondent. The deduction is not allowed.

d. Miscellaneous: The Respondent acknowledges the Applicant owned his Rolex watch, a boat, and furniture on the date of marriage. The Applicant claims a deduction of $8,000. The Respondent allows a deduction of $7,000 but she gave no evidence and made no submissions on the value she assigned. I therefore accept the Applicant’s evidence.

Excluded Property:

19The parties agree that during the marriage the Respondent received money from her mother. The parties disagree on the amount. The Respondent submits she received $140,175 as a gift. The Applicant accepts that she received $114,000 from her mother, based on the documentation provided to him but that the Respondent has not accounted for the additional $26,175. She submits this money was received in cash. Although the Respondent attached a letter from her mother, dated August 23, 2017, addressed to “whom it may concern” advising that she gave the Respondent a “cash gift of $140,175”, the Respondent’s mother was not a witness at trial. The Respondent was given an opportunity to argue at a voir dire that her mother should be added as a witness. She chose not to proceed with the hearing. Further, the Respondent produced two cheques from her mother for a total of $114,000 and the Respondent alleges she received $26,175 cash. The letter is therefore inconsistent with the testimony. In this case, I draw a negative inference against the Respondent for failing to provide adequate disclosure.

20The issue of tracing the gift to an asset on the date of separation did not seem to be an issue between the parties.

21I will allow the exclusion of $114,000.

22In light of the above, the parties’ net family property is as set out in the statement attached. The Respondent shall pay the Applicant an equalization payment of $73,078.60 (already adjusted for the post-separation adjustment for the Buick) to be paid from her share of the net proceeds of sale of the matrimonial home subject to the further adjustments below.

Post-Separation Adjustments:

23The parties jointly own the matrimonial home. The parties both remained in the matrimonial home from separation to the date of trial.

24The Applicant has been solely responsible for the expenses of the jointly owned matrimonial home. There is no mortgage on the matrimonial home.

25Neither party is employed. The Applicant receives disability insurance, as he is no longer able to work at Bell. The Respondent was fired from her management position in 2013. To maintain the home pending sale, the capital expenses of the home needed to be paid and should have been shared by both parties, especially because the Respondent wants to share in the post-separation increase in value of the home.

26The Respondent shall pay the Applicant half the cost of the house insurance and property taxes from separation to date as calculated below. The parties shall also each be responsible for paying half of the property taxes and house insurance from the date of this decision until the closing of sale of the matrimonial home. I have not included property taxes for 2015 because there was no evidence as to when the property tax was paid. The parties separated towards the end of the year (October 2015). There should be no adjustment for pre-separation payment.

27The capital costs incurred from separation to December 31, 2019 are as follows:

a. House insurance – $3,281.42

b. Property taxes – $15,580.74

The Respondent shall therefore pay the Applicant an additional $9,431.08 from her share of the proceeds of sale of the matrimonial home, for a total of $80,509.68.

28The question is whether the Respondent should also be responsible for half of the utilities.

29The Applicant has been responsible for the expenses of the matrimonial home at least since separation and submits the Respondent should reimburse him for part of this cost. The Applicant relied on a number of cases to support his position, all of which are distinguishable from the case before me. In Vacaru v. Vacaru, 2010 ONSC 7020, 196 A.C.W.S. (3d) 1072, the court ordered the wife to pay 50% of the capital expenses for the matrimonial home and 35% of the utilities. However, both parties consented to the wife being responsible for 35% of the utilities. The case before me is easily distinguishable.

30In MacLean v. Cox, 2017 NSSC 309, 286 A.C.W.S. (3d) 305, the judge also ordered the capital expenses to be paid equally by both parties as well as the expenses to prepare the house for sale, but not payment of the utilities. In Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, the Court of Appeal ordered the husband to pay 50% to the upkeep of the matrimonial home. It is unclear what expenses had been claimed at trial. The Applicant did not provide the trial decision. Muir v. Muir, 1996 CarswellBC 2510 is a decision from a different province with a different property regime. However, in that case the judge also only ordered equal payment of the capital expenses and repairs on the home. In Buckland v. Buckland, 2015 ONSC 4195, 256 A.C.W.S. (3d) 880, the judge held that whoever has exclusive possession of the home will be responsible for maintaining the matrimonial home. This is not the same as finding that if both parties live in the home, they shall both be responsible for the expenses.

31Although there was no claim for spousal support, the Applicant had been paying the utilities for the matrimonial home well prior to separation. The Applicant would have incurred these expenses even if the Respondent moved out of the home because he too continued to live in the matrimonial home. While the Respondent had the benefit of having no accommodation expenses, this was the status quo since 2013. The Applicant earns more than the Respondent. I am not going to require the Respondent to contribute to the utilities post-separation.

Exclusive possession

32Pending the sale of the matrimonial home, the Applicant shall have exclusive possession of the home. The Respondent submitted several times that the matrimonial home needed to be sold because remaining in the home with the Applicant was “an untenable situation”. Further, in the Statement of Agreed upon Facts, the Respondent acknowledged that she caused vandalism to some of the Applicant’s belongings. Both parties agree the current situation in the matrimonial home is untenable. These parties need a physical separation before matters escalate. The Respondent has alternate accommodations. The Applicant does not.

33The Respondent acknowledged during the trial that she had secured alternate accommodations and that the furniture from the matrimonial home was already at this property. She has been renting this property since October 2018 and offers no reason why she has not moved into same.

34As such, pending closing of sale of the matrimonial home, the Applicant shall have exclusive possession of the home. However, the Respondent shall be allowed reasonable access to the home to assist with the selling and closing of the home. Arrangement shall be made through counsel as set out below.

Sale of the matrimonial home:

35The parties both agree the matrimonial home needs to be sold. They agree on how it is it should be listed for sale. The parties disagree on whether the Applicant should have a right of first refusal.

36On December 3, 2018, an order was made on consent that the house would be listed for sale that the Applicant would have the right of first refusal. Each party blames the other for the delay in listing the house for sale.

37The Respondent is no longer agreeable to the Applicant having a right of first refusal to purchase the house. She submits that the order “expired” or is no longer applicable because of the passage of time. In the Agreed Statement of Facts, the Respondent acknowledges the Applicant has the right of first refusal. The Respondent submits that she will be prejudiced by this right, because no one will want to put in an offer on the home knowing the Applicant may buy it out from under them.

38There was no time limit on the December 3, 2018 order. I see no reason that the order does not stand. It has only been one year.

Order:

39Order to go as follows:

a. This Court orders that the parties be divorced, such divorce to take effect 31 days after the release of this decision.

b. The Respondent shall pay the Applicant $80,509.68 from her share of the proceeds of sale of the matrimonial home, municipally knowns as 21 Bendale Boulevard, Toronto Ontario, in satisfaction of the equalization of their net family property and post-separation adjustments, including contributions to the expenses of the matrimonial home following separation.

c. The Respondent shall pay the Applicant an amount equal to one half of the property taxes and insurance for the matrimonial home from January 1, 2020 to the closing of sale of the matrimonial home. This amount shall be paid from her share of the proceeds of sale of the matrimonial home.

d. On consent, the matrimonial home shall be listed for sale on the following terms:

i. The listing agent shall be Aldo T. Udovicic or Re/Max Crossroads Realty Inc.;

ii. The matrimonial home shall be listed for sale on a Multiple Listing Service basis;

iii. The listing price shall be determined by the listing agent, unless the parties agree otherwise;

iv. Viewing of the property shall be permitted for seven days prior to accepting any offers of purchase and sale. No offers shall be accepted prior to that date.

v. Not on consent: The parties shall execute an OREA Form 801 within ten days of this order.

e. For clarification, subparagraphs 3(v)(vi)(vii)(viii) and (ix) of the order of Monahan J., dated October 3, 2018, shall remain in full force and effect.

f. On consent, in the event any issues arise concerning any aspect of the listing or sale of the property, either party may bring a motion on short notice to have the matter resolved.

g. As set out in the Order of Monahan J., the parties shall equally divide the Applicant’s Bell Canada pension and their RRSPs as of the date of separation.

h. The Respondent shall not attend at the matrimonial home but for the purpose of preparing the home for listing or closing, times to be agreed upon with the Applicant, through counsel, such consent not to be unreasonably withheld.

i. If the parties are unable to agree on the costs of this trial, the parties shall each provide cost submissions to me, within 30 days or release of this decision, no longer than 3 pages in length, not including their bill of costs or any offers to settle. Parties can assume I am familiar with the Family Law Rules, O. Reg. 114/99, on costs.

Shore, J.