Vanderven v. Vanderven, 2021 ONSC 4

John David Vanderven v. Rhonda Leigh Vanderven

COURT FILE NO.: 6351/15

DATE: 2021/01/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN DAVID VANDERVEN Applicant

– and –

RHONDA LEIGH VANDERVEN Respondent

Counsel: James S. Marks and Grace Mackintosh, for the Applicant Edward Kiernan for the Respondent.

HEARD: October 15, 16, 19, 20, 21, 22 and 23, 2020 and November 30, 2020.

BEFORE: Turnbull, J.

REASONS FOR JUDGMENT

1The parties were married on October 1, 1994. On September 28, 2000 their son Carter David was born. His younger sister Olivia Alma was born on January 10, 2005.

2The parties have agreed that the date of separation was October 15, 2015 (V date or valuation date). The parties have lived separate and apart from that time, with the two children residing with their mother.

3Counsel identified a number of issues in this case including the applicant’s claims for retroactive and ongoing spousal support, occupation rent of the residence at 275 Norfolk Road 13, child support and pre-judgment interest. However, the elephant in the room is the ownership of the lands and premises at 275 Norfolk County Road 13, Courtland Ontario (hereinafter referred to as 275) and the interest that the applicant has in that property. That is where the respondent and the children have resided since separation. The applicant moved upon separation to reside with his father.

275 Norfolk County Road 13: (275)

4The applicant asserts that 275 was the parties’ matrimonial home at the date of separation and that he has a 50 per cent interest in its equity as of the date of trial. The respondent denies that claim and asserts that he has a one-half interest only to the date of separation. The respondent relies upon an appraisal she obtained in February 2017 which estimated its V-day value at that time (approximately 16 months post separation) at $355,000. Today, in Ontario’s heated and escalating real estate market, the applicant’s appraiser estimates that it is worth approximately $750,000. Based on that, the applicant seeks an equalization payment relative to the matrimonial home of $375,000 (1/2 of $750,000) whereas the respondent argues that he is entitled to $177,500 (1/2 of $355,000). The applicant’s appraiser estimated the value of the property on V- date as being $455,000.

5That property encompasses approximately 8 acres. There is a log home on the property where the respondent’s grandparents lived until their respective deaths in November and December 2011. The respondent’s grandparents were Alma Pettinger (Alma) and Robert D. Pettinger (RD).

6Thereafter, in the summer of 2012, the parties moved into that home as their principal residence. Up to that time, they resided in a mobile home they had purchased and installed on a concrete pad on a piece of the eight acres, in the autumn of 2006. There was also a barn and a small shed on the property.

Chronology of Events Related to 275

7After their marriage, the parties lived in an apartment for several years.

8The applicant stated that he met RD when he and the respondent started dating in the late 1980’s and early 1990’s. He said that as their relationship began to grow, RD became the grandfather that he never had. He recalled working with him and helping him in many ways. He helped RD with his custom orders in his wood milling business, with repairs on his tractors, his cars, his lawn mower and did yard work for him. He described their relationship as being very good and considered them to be close friends. He recalled helping RD with maple syrup in the spring, and spring clean up including raking leaves. One summer when he was still dating the respondent, Mr. Vanderven recalled cutting down maple trees with RD and splicing them into logs and then helping RD mill them into sizes suitable for construction. Before they were married, the applicant recalled that he serviced RD’s wood mill all the time. On one occasion, RD’s one main hydraulic line gave out and he helped RD with the difficult task of replacing it. The applicant stated that in all the years he knew RD, he never took any money or payment from him because he “was like the grandfather I never had.”

9In 2001, the applicant and respondent moved with their infant son to live in a 2000 square foot home owned by the respondent’s uncle Peter. It was located across the road from RD and Alma. They resided there for approximately five years.

10During those five years, Mr. Vanderven testified that he helped Alma and RD on an ever increasing basis with the maintenance of their home and property. He explained the duties he performed for them at no charge, including cutting grass, cutting down trees and cutting the wood into logs, home repairs including re-roofing the house, and helping Alma with her garden beds.

The Agreement:

11In the spring of 2006, the parties learned that uncle Peter would be moving back to Ontario and that he intended to occupy his residence. They began looking at houses with the plan to possibly purchase their own home. At about that time, he recalled that Alma and RD summonsed them to a meeting.

12Mr. Vanderven testified that they met at Alma and RD’s home sometime in the spring of 2006. They did not want the parties to buy their own home elsewhere and they wanted them to live on their property. Mr. Vanderven recalled that RD and Alma assured he and the respondent that if they took care of them until they died, they would get their property. In that discussion, the applicant testified that they had talked about the feasibility of everyone all living in the house and possibly building an addition to it to allow that to happen. However, because they had two young children, Mr. Vanderven felt that such an arrangement would not work.

13Mr. Vanderven recalled that after that meeting, the respondent said that she was going to care for her grandparents regardless of whether he was going to come with her or not. Mr. Vanderven felt that he had no choice. In due course, he came up with the idea of buying a mobile home. On May 2, 2006, he signed an agreement to purchase a used, three bedroom mobile home for $39,055.¹ A zoning by-law amendment was necessary for the creation of a second residence on the property and that process was commenced in June 2006. In the report to Norfolk County Council dated June 23, 2006,² the applicants are noted as RD and Alma Pettinger. Their agents are the applicant and respondent. The report confirms the evidence of the applicant, especially at page 2 of the report where it is written:

In this case, the applicants are elderly and would like to continue living in their dwelling located on the subject lands. There is a legitimate need for assistance and the applicants presently receive help from their granddaughter and her family who currently reside on a separate property to the south east. The granddaughter will be moving from that property shortly and proposes to locate a mobile home to the subject lands, to the north of the existing dwelling so that she can continue to provide assistance as needed to her grandparents.

14I note that there is no reference in that paragraph to the applicant moving to the property. When asked about that omission in cross examination, the applicant replied that aside from the children, he was also a member of the family.

15Ultimately consent was granted to place the mobile home on the property for a period of five years.³ The permit allowing such use is renewable every five years, presumably if the conditions allowing it in the first place have not changed. As of this date, and from the autumn of 2012, the respondent’s mother has lived in it as her principal residence.

16RD agreed to lend the parties sufficient money to purchase the mobile home and to cover the associated costs of installing a cement pad and hooking up the necessary services including septic and heating to permit it to be placed on their property. Mr. Vanderven said that he and his wife wanted to pay that loan off as quickly as possible so that in due course they would have more equity in the property. He testified that they paid $800 monthly on that loan until it was paid off. They each contributed $400 per month to that payment from their own bank accounts. Mr. Vanderven agreed that they had kept separate bank accounts from the time they reconciled in 1996 after a separation of about one and one-half years.

17The applicant stated in his examination in chief that the alleged agreement with respect to the property was discussed by the four of them at least twice before they died near the end of 2011. In his cross-examination, Mr. Vanderven increased the number of these alleged conversations to having taken place every year between 2006 and 2011.

18The applicant testified that when the agreement about the property ownership was discussed, it was always RD, Alma, the respondent and him who were present. He said it was always RD who brought the subject up when they would be sitting at the kitchen table.

19In cross-examination, he agreed that he never asked to have the agreement put in writing because RD allegedly said that he did not see the need for lawyers and paperwork because they were all family members. He agreed that it was RD’s and Alma’s property and they had the right to do with it whatever they wanted to do.

20He also recalled that he and his wife talked about the agreement from time to time. When he suggested in 2014 that he would like to eventually turn the barn into a stable, she strongly opposed the idea.

Living on the Property 2006 to 2011

21The family ultimately moved into the mobile home in the late autumn of 2006. In cross-examination, he stated that all the work he had done for RD and Alma up to that time was a gift and he did not expect to be paid. Once they moved to the mobile home, he asserted that the work he did for them was part of their agreement. When asked if he had done an estimation of the value of the work he did for RD and Alma from 2006 to 2011, he said he had not done so and suggested that it would be a significant number.

22He also agreed that from time to time work parties were arranged with several relatives coming to the property to help out with various tasks. In other words, all the work was not being done just by him alone.

23He described their family life as hectic on a daily basis with the responsibility to care for the children, helping RD and Alma, taking care of the property maintenance and working full time. Despite that, he recalled that they did lots of things with their children on the property including chasing their dog and driving the golf cart around the property.

24Mr. Vanderven testified that he and the respondent did what they could to help Alma and RD. He stated that “their needs came first.” He said that his family would cancel their plans to get them groceries, take them to a medical appointment or deal with any other sudden exigencies. His wife Rhonda would go their home in the morning to make sure they had breakfast whenever she could. She would make sure that they had meals at night. Because she was working shifts, on occasions Rhonda would prepare meals for them and the applicant would sometimes take them up to the house and microwave them. He stated that despite the fact that both he and his wife were working full time, they did whatever had to be done for Alma and RD.

25In January 2011, RD and Alma (who were joint tenants of 275) attended with their lawyer and conveyed their property to themselves and Rhonda as joint tenants.

26Mr. Vanderven was hospitalized for a period in 2011. When he came home from the hospital, he recalled that he and the respondent discussed how the transfer of ownership was to take place. He recalled being told by the respondent Rhonda that she was already registered on title. RD purportedly said that after the first of he or Alma died, the applicant would then be registered on title as an owner so that when the survivor of he or Alma died, it would be just him and the respondent left on title. When asked why RD and Alma only added Rhonda as a joint tenant and not him as well if the agreement he asserted was in fact the agreement, the defendant said that he never asked RD why his name was also not put on title in 2011. He explained that because they were all family, he felt that they all could trust one another.

RBC Line of Credit for $250,000

27On March 4, 2011, a mortgage was registered against title to the property for $250,000 in favour of the Royal Bank of Canada as security for a line of credit.⁴ RD, Alma and the respondent are shown as the borrowers seeking the loan. In the document, it is written:

John Vanderven is my spouse and has consented to this transaction.

28Mr. Vanderven stated that he first saw this document when he went to seek legal advice in October 2015. He swore that he first became aware of the fact that he was not a registered owner of the property in 2013 when he purchased a dog tag at a municipal office. He confronted his wife over this when he got home and she told him that she had instructed the lawyer to have that completed and he had simply been dilatory in getting it done. He testified that he repeatedly confronted her about it and she kept making excuses for it not being done.

29Unfortunately, in 2011 both RD and Alma both suffered a set back in their health. As their health deteriorated during that year, he recalled that the respondent was up at their home a lot trying to provide them the needed care. Mr. Vanderven testified that as a result, he became “Mr. mom” in that year as he tried to cook supper, do laundry, help the children with their homework, getting them dressed and fed and ready for school etc.

30On or about November 4, 2011, Rhonda who was trained as a personal caregiver, took a compassionate leave of absence from her work due to the rapid deterioration in RD’s health. On November 11th, RD died and Alma’s death followed shortly thereafter on December 25th, 2011.

31In cross-examination, the applicant agreed that two of the children of RD and Alma also did a lot of work for their parents. Peter, the son who lived across the road in the house previously occupied by the parties from 2001 to 2006 was a big help to his parents. His sister Susan was also a significant help to her ailing parents. Mr. Vanderven said this was particularly so in the last two years of their lives.

32Perhaps it was for this reason that Peter and his four siblings were clearly upset when they learned that their parents had arranged their affairs to leave the property to the respondent.

33Mr. Vanderven recalled that all the family left Alma’s funeral luncheon early on December 30, 2011 to attend at the lawyer’s office for the reading of the will. He was aware the children expected to inherit the property. He agreed that there were strong feelings of resentment because Rhonda inherited their home. He recalled that Peter came over a few days later to his parents’ home and was very angry because Rhonda was having the locks changed because things had gone missing from the house. He recalled her boxing things up for the children of RD and Alma to take.

34The applicant and respondent did some painting and other renovations to the home of RD and Alma before moving into the house in mid-summer of 2012. Mr. Vanderven recalled that he and a friend named Mr. MacLeod refloored the bedroom to be used by his son in the basement. He agreed that the respondent paid over $2,000 for the purchase and installation of flooring for the largest area of the basement ⁵.

Jason Meyer

35In November 2012, the applicant had to undergo arthroscopic knee surgery.⁶ Mr. Vanderven recalled that his employer and his friend Jason Meyer came to visit him at their home to enquire about his recovery and his possible return to work date. They chatted at the kitchen table. He remembered getting his guest a bottle of beer while he drank whisky. He said that during their discussion, the property was mentioned and he told Mr. Meyer that he and his wife were going to become the owners of the property when RD and Alma died. This evidence makes no sense as by that time, RD and Alma were already dead. I can only conclude that he was mistaken as to the date he thought the meeting occurred.

36In his cross examination, he reiterated that he had told Meyer that he expected to become an owner of the property after the death of his wife’s grandparents. He agreed the visit did not occur on the date of his surgery but was unable to specify when it exactly occurred after his surgery. He agreed that Mr. Meyer was his friend as well as his employer. He could not recall if Mr. Meyer was invited to dinner.

37Jason Meyer testified on behalf of the applicant. He agreed that he came to visit the applicant but not in 2012 after his knee surgery. He explained that Mr. Vanderven had missed work on a couple of occasions because he had a problem with his knee which led to an infection on two occasions. He remembered visiting him once in the hospital and once in the house after they had moved into it. He recalled it was the house RD had built, who he knew as a former customer of his Tire repair business. Mr. Meyer had visited the applicant and respondent in their mobile home but the visit after the hospitalization for the infection took place at RD’s house and he was positive it was the only visit he ever had with the applicant in that home up to that time. He recalled the parties had lived in the trailer beside the house for years to help the respondent’s grandparents. He recalled seeing them always cutting the lawn when he drove by.

38When Mr. Meyer visited on the occasion in question, he said that the respondent and the children were also home. He did not have anything to drink nor did the applicant. He got the impression from them that they were happy that they had the place as a family home after assisting her grandparents for so many years. He stated that he was not able to recall any other conversations about the house.

39In cross examination, he was sure that his visit was prior to the applicant having to undergo surgery later in 2012. He said that his understanding that the respondents would become owners of the property was based on multiple conversations with the applicant.

40I accept the evidence of Mr. Meyer over that of the applicant about the visit in 2012. He was forthright in his answers and when he was not sure of something, he said so. The best he was able to offer was that he had the impression from Mr. Vanderven over the years that the parties would inherit the farm from RD and Alma and that when he visited the log home in 2012, they appeared to be happy in their new dwelling.

Evidence of the Respondent re 275

41The respondent’s recollection of events, not surprisingly, is totally contrary to that of the applicant. She denied that there was every any meeting at the kitchen table with her grandparents where they promised to transfer the property to her and the applicant if they resided on the property and cared for her grandparents. She denied the monthly meetings about the property occurred as described by the applicant.

Evidence of Stachia Barnas re 275

42Stachia Barnas was called by the respondent to testify with respect the 275 ownership issue. I found her to be a fair and reliable witness bringing a degree of objectivity to this issue.

43She is 73 years old. She is a retired university educated, Certified Public Accountant, who previously lived about five hundred meters from RD and Alma on Norfolk Country Road 13. Around 1987, she enjoyed a personal relationship with their son Peter and was welcomed into their family and was asked by RD and Alma to call them mom and dad. Even after her relationship with Peter ended, she continued to consider RD and Alma as parents and friends and they continued to treat her like a member of their family. She acted as a tax consultant and financial advisor to RD over the years and was aware of his wishes with respect to 275.

44At the time that RD and Alma purchased 275, she was handling their finances and did so until their deaths in 2011. After purchasing the property, RD ran a custom logging business from the property and she helped him get all the required business permits. She also did the accounting for personal matters involving their family. She was required to keep records of how much money any of his five children or numerous grandchildren owed him from loans he had given them. She remembered that RD kept a sheet of paper on which he carefully recorded who repaid him and who did not.

45RD’s plans to assist his children evolved over time as each child married and became financially independent. With respect to 275, Ms. Barnas emphasized that he wanted the property to remain in the family when he and Alma passed away. She testified that she had a continuous relationship with them to the time they both passed away.

46She described Rhonda as a “constant” in the lives of RD and Alma. Before she married John, Rhonda was always there at 275. Ms. Barnas described Rhonda as RD’s “apple of his eye” and his “little girl”. She considered RD and Alma to have a very warm relationship with Mrs. Vanderven and recalled that they always spoke very warmly of her. She described it as “a really, really tight relationship.” She recounted seeing Rhonda carrying a three-ring binder with her as she went to various medical appointments with her grandparents.

47RD and Alma were concerned that Rhonda have a place to live with her children. It was his idea that if they chose to live on the property at 275, then the property would become hers on their death and it would remain in the family. That was important to RD and Alma according to Ms. Barnas

48She recalled that once they decided to leave 275 to Rhonda, he and Alma decided to put Rhonda’s name on title with the idea that as each of them died, she would get a greater and greater ownership in the property so that ultimately it would be in her hands and ultimately in her children’s hands with the passage of time. Ms. Barnas knew that at some stage RD and Alma were going to change the property registration to effect that plan but she did not know the date and had no contact with the lawyer relative to that matter.

49She was unaware of any plan to transfer ownership to the applicant and stated that they were not ever going to do that. RD was adamant the property was going to stay in the family.

50She did recall that RD was upset when Rhonda and John separated for a period and expressed concern over the marriage even when they reconciled and began again co-habiting. He was also concerned about John and Rhonda’s marriage because of an incident he observed in their home. Ms. Barnas herself recounted two incidents which made her aware the marital relationship was not great. On one occasion, when she, RD and Alma and Rhonda and John were invited to supper at uncle Peter’s home, John came home and started “dropping f bombs” when everyone was in the house. Another time, she recalled having dinner at 275 with RD, Alma and the parties when the tension between John and Rhonda was evident. She stated that their outbursts and name calling was something that RD did not like. Ms. Barnas agreed she did not know what the problems were in their marriage.

51Her evidence was not challenged by the applicant who chose not to cross-examine her.

Events Leading to the Separation

52Mr. Vanderven denied that there was a lot of arguing and heated discussions with the respondent in the last two years before he finally left the residence in October 2015. In cross examination, he did not recall the respondent asking him to leave the matrimonial home in 2012, 2013, 2014 or 2015. He did not recall yelling and throwing things down the stairs on the date he left the house However, he agreed there was a heated exchange with his wife as he finally left the residence.

53He moved to live with his father. His financial statements filed during the course of this action were reviewed with him. It is clear, after paying child support and the expenses of daily living, he did not have much disposable income. Of note, he explained the reason he had to live with his father was the lack of funds to pay rent for his own apartment. He commented on how difficult it was for him not having sufficient space for his children to have a room for sleepovers on access visits or a separate room where they could play video games or otherwise spend time without interrupting their grandfather. He stated that the respondent refused to consider allowing him to reside in the mobile home.

Analysis re Ownership:

54The respondent was registered on title as a joint tenant with her grandparents in January 2011⁷. They (RD and Alma) did this with the assistance of their lawyer. It clearly was open to them to add the applicant as a joint tenant if they so chose. They did not. Their decision in that respect together with the evidence of Ms. Barnas confirms my view that it was at all times the wish of RD and Alma to gift their property to their granddaughter, the respondent. She is the sole owner of the property. The applicant’s interest in the property lies in the equalization provisions of the Family Law Act.

55The applicant’s evidence on the alleged agreement with RD and Alma was refuted by the respondent, the evidence of Ms. Barnas and the conduct of RD and Alma. The best that Jason Meyer could add was that it was his impression from discussions with the applicant that he and the respondent would become the joint owners of the property. He was not able to provide any further evidence on the alleged agreement. His evidence contradicted that of the applicant on the timing of their meeting in the house (as opposed to the mobile home) and whether they had a drink. While those contradictions are not determinative of my finding, they do reflect on the lack of reliance I place on the applicant’s memory and version of events. I find that the applicant believed that his family would continue to enjoy the use of and ownership of the property after the death of RD and Alma according to their agreement but not that he would be have his name added as a registered owner.

Unjust Enrichment

56There is no doubt that from 2006 to the date of the death of RD and Alma in late 2011, the parties provided significant help to them. The work done by the applicant to that time and thereafter to the time of the separation would unjustly enrich the respondent absent intervention of the court.

57The respondent has not seriously contested the fact that the decision to move their family into the mobile home was a joint family decision. It was the expectation of both parties that they would attempt to help RD and Alma as much as necessary so that they could spend their remaining years in their home. The quid pro quo was that when they passed away, the respondent and her family would have the house and property as their place of residence. I have no difficulty in finding that both parties contributed to this joint venture and that in the circumstances of this case, absent a finding of unjust enrichment, the respondent would be unjustly enriched at the expense of the applicant.

58The Ontario Court of Appeal has considered a similar situation where Hoy ACJA wrote:⁸

In my view, if unjust enrichment as a result of the marriage has been found, and it has been determined that monetary damages can suffice, the aggrieved party’s entitlement under the equalization provisions of the FLA should be first calculated. Where appropriate, s. 5(6) of the FLA, which provides for an unequal division of net family properties where equalization would be unconscionable, should be invoked.

59In an earlier decision, the Court of Appeal held that “in the majority of cases, any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act.” ⁹

60I am bound by that reasoning. Because the applicant seeks a monetary award and not a proprietary award, the first step in that process is for the court to determine the value of the 225 property on the date of separation and ultimately at the date of trial.

Appraisal Evidence:

Evidence of Steve Wilson:

61Mr. Wilson was called by the applicant as an expert to give valuation evidence of the subject property. He prepared three reports providing different valuations at three different dates. In each case, he used different comparable sales to reach his estimate of value while using the same methodology and considering the same principal factors to identify his comparable sale for each valuation he undertook.

62He is an experienced, qualified residential real estate appraiser and his credentials were not challenged by counsel for the respondent. He testified that in his lengthy appraisal career, he has completed approximately 20,000 appraisals.

63He used the sales comparison approach to determine value, noting that the cost approach also contained in his report was not felt to accurately reflect market value. He determined that it was important to find comparable rural properties which had sold within three months of the date of valuation, that were within 15 kilometres of the subject, and which had somewhat similar structure and similar quality of construction. His first report dated November 5, 2019¹⁰ contained two valuations of the subject property at different dates:

a. $455,000 as of October 25, 2015 using the comparable sales and adjustments for them as found on page 5 of his report.

b. $645,000 as of November 5, 2019, using the comparable sales and adjustments for them as found on page 5 of his report.

64He very fairly and appropriately noted that good comparable sales were difficult to locate due to the rural location and limited number of similar transactions in the area. He tried to choose the best available and then make reasonable adjustments to the sale prices to reflect differences between each comparable sale and the subject. In each case, he found approximately 20 sales he considered to be reasonably comparable and then narrowed these down to what he felt were the three most comparable properties.

65In each of his three valuations, he found the three most comparable properties relying mainly on the site size, the quality of construction and the square footage of the construction. He compared the quality of construction by reading the description offered by the listing realtor on the MLS listing for the comparable sale. He stated that the closer the comparable sale was to the subject in those three categories, the more comparable and reliable that property was deemed for use in his analysis.

66He emphasized that the fact that the subject was constructed from logs affected his valuation because it constitutes higher end construction compared to a frame house. He testified that a typical log home costs $200 to $220 per square foot to construct compared to about $100 per square foot for a frame home. As a result, he feels that a prospective purchaser recognizes some marginal difference in considering a purchase price.

67In his analysis of fair market value as of V-date, he made significant upward adjustments of $47,000 on one property to $62,000 and $67,000 on the other two comparable sales to reflect the fact that the subject property had considerably more acreage. Because the subject was a log home, he considered that to be a positive factor in the eyes of purchasers and made an upward adjustment of the sales price in each case of $40,000. Thus, on those two factors alone, he added between $87,000 to $107,000 to the value attributed to the subject property. He made appropriate adjustments relative to the liveable floor spaces, the condition of the basements, parking facilities, outbuildings and other factors specified at page 5 of his report. He attributed $20,000 to the value of the mobile home located on the subject property.

68The same process was followed at page 4 of his report for his analysis of the fair market value of the subject as November 5, 2019.

69In cross-examination, Mr. Wilson expressed the view that the abattoir located on the adjacent property did not affect the value of the subject property. He noted that when he visited the property, it was not visible from the subject property due to a tree line running along the border of the two properties.

70At pages 4 and 5 of his report, he agreed that the fewer the adjustments which had to be made, the better the comparable sale was for his purposes. With respect to his valuation for October 25, 2015, he made gross adjustments¹¹ on comparable 4 of 49.7%, 63.2 % on comparable 5 and 43.5% on comparable 6. The net adjustments were respectively 3.4%, -4.2% and 32.7% for comparable sales 4, 5, and 6.

71He estimated the fair market value of the subject property to be $455,000 as of October 25, 2015.

Evidence of Tracey Davies:

72Ms. Davies was called by the respondent as an expert witness to provide valuation evidence. Her curriculum vitae was filed as exhibit 18. Mr. Morris agreed that she was qualified to provide expert evidence with respect to the value of residential properties such as 275 Norfolk County Road 13. She has been a designated appraiser by the Appraisal Institute of Canada since 1985 and received her CRA (Canadian Residential Appraiser) designation in 1989. She founded her own residential appraisal firm in 1992 and has worked in that firm from that time to the present. She has also continued to act as a registered real estate salesperson during the past 12 years.

73She prepared a valuation report ¹²for the subject property as of February 1, 2017, which is approximately 15 months post separation. Despite that, the respondent urged the court to apply that figure in calculating the net equalization of property as of V day. Ms. Davies estimated the fair market value of the property as of that date to be $355,000. She used a sales comparison approach to determine her opinion of value. She also used a cost approach to check her valuation but did not rely on it as the sales comparison approach was much more reliable because it reflects the actual market place, namely what a vendor asks for a property and what a purchaser is prepared to pay.

74The main house on 275 is a log home built by the owner rather than by a contractor. Ms. Davies stated that this is a negative factor in valuing the home as the quality of construction is usually poorer when a qualified contractor does not undertake that task.

75She relied on three comparable properties found at page 4 of her report. She, like Mr. Wilson, used the standard Residential Appraisal Report chart to compare information of each property including the date of sale, sale price, days on the market, location, site size, building type, design/style, age/condition, livable floor area, room count, basement, parking, and outbuildings.

76She found and considered 23 properties at as possibly being useful comparable sales and reduced these to the three most comparable. In doing so, she relied on four main factors: properties in the general vicinity of the subject, small acreage properties, sales which occurred in the prior 12 months and those which involved modest residential dwellings.

77I was particularly impressed with her analysis of the positive and negative factors relative to the subject property. She found the main floor layout to be a negative in that the kitchen, dining and living room areas were all in one large room. She felt that the layout of the home would have significantly limited the interest of potential purchasers.

78The open loft above that room, which served as the master bedroom, did not in her view, provide proper privacy, meaning that the one bedroom on the main floor which was fully enclosed and had a door was effectively the only completely private bedroom. She found that the bedroom in the basement was an illegal use as the window did not meet the requirements for emergency egress.

79She felt that the physical condition of the home was wanting. She observed some cracks in the logs of the home. She noted that log homes are usually more drafty than traditionally constructed frame homes and real estate agents are aware of that concern. She noted that at least one of the windows she examined was in need of repair and that the roof was dated but still functional.

80The presence of an abattoir on the adjacent property was also a negative factor which she took into account. While acknowledging that it was not being used for that purpose at the time of her inspection in January 2017, she felt that the fact that it was zoned for that use would cause potential purchasers to hesitate as they would not have any control over the lawful use of that property by the present or future owners. Her photographs taken when foliage was not on the trees running along the boundary line, show that the abattoir is visible from the subject property.

81I found that the properties she used as her comparable sales were more similar in size to the subject property than those used by Mr. Wilson. Ms. Davies’ comparable property sales all transpired nearly a year prior to her date of valuation (being February 1, 2017) but she accounted for the increase in values from the date of sale of each comparable to her February 1, 2017 valuation date with an adjustment of 0.6 per cent per month, based on price increases provided by the local real estate boards. She was not seriously challenged in cross examination on the accuracy or appropriateness of such a price adjustment. Two of her three comparable sales were within 16 kilometers of the subject property and the third was 21 kilometers away.

Position of Applicant re Davies Appraisal

82Mr. Marks noted that in 2011, four years before the date of separation, the Royal Bank of Canada granted RD and Alma and the respondent a $250,000 line of credit secured by a mortgage against 275. He argued that for such a mortgage to be granted, the property at that time had have a fair market value in excess of $300,000. Inferentially, he would have the court thereby conclude that Ms. Davies valuation in 2017 at $355,000 is unduly low when one considers the intervening escalation of real estate prices. At first, that is an attractive analysis. However, the basis of the bank’s valuation has not been led in evidence. That appraiser was not called as a witness. The other security, if any, offered to the bank is not before the court. I do not find the existence of that mortgage in 2011 strongly probative of the value of 275 at the time it was registered but it is something of which I can take notice.

83On January 13, 2016, at the time that she filed her Answer in these proceedings, Ms. Vanderven also signed and filed a Financial Statement¹³. She identified October 16, 2011 as the date of separation. At page 5 of that document, she listed 275 as an asset in which she indicated she had a one-third interest in 2011 which she valued at $92,300. Using her assessment of value, that meant she felt the property in October 2011 had a value of $276,900. When asked for her basis for this valuation during cross examination, she stated that it was her lawyer who prepared the document and she just signed it. I find that answer somewhat disingenuous. Her lawyer would have had to get that figure from her.¹⁴. Mr. Marks urged the court to recognize that Ms. Vanderven would have a financial motive to understate the value of the property at that time and I concur. He suggested that if I assumed the true value of the property in 2011 was approximately $333,000, Ms. Davies report would suggest that its value only increased $20,000 from that date.

84He submitted that the appraisal value of Ms. Davies is unreliable because she focused on three properties of low value which were sold in the early part of 2016. One of the properties was more than 20 kilometers from the subject.

Valuation Analysis

85I find that the comparable sales used by Ms. Davies were more appropriate for determining the fair market value of the property as of October 25, 2015. Having said that, it does not mean that Mr. Wilson’s analysis was not of assistance to the court in attempting to determine fair market value as of V date.

86Ms. Davies used rural properties of much more similar size, varying in acreage from 5.68 acres to 12.91 acres. She used residences that were generally of the same design. In her description of the subject, she referred to the subject as a 1.5 story home. Two of her comparable sales were also described as 1.5 story and the third as bi-level. Her second comparable is located just 12.21 kilometers from the subject and had 7.75 acres. The gross adjustments she made to the sale price of that comparable sale were only 29% with a net adjustment downward of only 3.2 per cent.

87Two of these three sales referred to in her comparable sales chart sold within four months of V-date with the third selling just over six months after V-date.¹⁵ These sales were all within approximately six months of the V-date of October 25, 2015. The evidence indicates that from 2015, real estate prices were increasing significantly as reflected in the time adjustment made by Ms. Davies of 0.6% per month from the date of each sale to the valuation date in her appraisal of February 1, 2017.

88I agree with her opinion that the layout of the subject residence would not be attractive to a significant portion of the public. The open concept loft bedroom would appeal to a relatively small group of buyers. I also agree with her view that log homes are not appealing to many due to the problems of maintenance and drafts associated with their occupancy. I also agree with her assessment that the previous use of the adjacent property as an abattoir and its existing zoning permitting such a use and/or other potential commercial or industrial use is a negative factor which should be taken into consideration in valuing the property.

89In the comparable sales used by her, the gross adjustments were 33.7% for comparable 1, 29.6% for comparable 2, and 31.2% for comparable 3. The net adjustments were respectively 8.7%, -3.2% and -10.2%. The average of each of these adjustments is 31.5% gross and 7.4% net. By comparison, in Mr. Wilson’s chart of comparable sales for valuating the property October 25, 2015, the average of his gross adjustments was 52.1% and the average of his net adjustments was 13.4%.

90Both experts agreed it was preferable to find comparable sales that required the lowest and fewest adjustments. Mr. Wilson stated that every appraiser has to pass the reasonable adjustment test and it is preferable for accuracy purposes to make as few adjustments as possible.

91When referring to his comparable sale 6, Mr. Wilson agreed that the 32.7 net adjustment was above the norm, but it was the best he found available. I must say that I found it difficult to understand why, when he acknowledged that using his three month parameter it was difficult to find good rural comparable sales of similar sized properties, he did not expand his criteria as Ms. Davies did and provide a six to twelve month window to find comparable sales and then make a price adjustment for time as she did. He did that when he considered the value of vacant land by determining a 2019 value for the subject property as a vacant lot and then adjusted that figure down by the equivalent amount of estimated increase in value from 2015.

92On the other hand, Ms. Davies picked comparable sales located somewhat further from the subject than those used by Mr. Wilson. She used them to determine a fair market value as of February 1, 2017 rather than October 25, 2015.

93The determination of fair market value has been recognized by our courts, and by the appraisal industry, as not being an exact science.¹⁶ Both appraisers impressed me with their efforts to be accurate and fair and to fulfill their acknowledged duty to the court under Rule 53.03(2.1)7.

94I concur with the submission of Mr. Marks that it is difficult to believe that in 2011, the Royal Bank of Canada would have granted a $250,000 line of credit mortgage if the property did not at least have a value of $300,000. I am confirmed in that view by Ms. Vanderven’s estimation of 2011 value of $276,900 in her financial statement of September 13, 2016. If Ms. Davies was accurate in her estimation of value, the increase in value from 2011 to 2017 would only be $55,000.

95On all the evidence, I find that the fair market value of 275 on October 25, 2015 was $390,000.

Valuation of 275 as of Date of Trial:

96Mr. Wilson also completed a third valuation of 275 as of October 20, 2020 ¹⁷ which was just about the time of commencement of this trial. Again, he used the comparable sales approach and identified three properties sold within three to four months of the valuation date to obtain his estimate of value. He determined the value of 275 as of the date of trial to be $765,000.

97During his cross-examination, Mr. Wilson opined that during 2016, 2017 and 2018, real estate prices in the region rose by about 10% per annum and that during 2019 and 2020, that annual increase rose to approximately 15 per cent

98Again, I have some difficulty with the comparable sales used by Mr. Wilson. They are very different houses, as evidenced by the significant gross adjustments he has made of 42.9%, 83.8% and 69.9%.¹⁸ While the net adjustments of -22.9%, 26.6% and 2.4% are lower, other than comparable number 3, these are still indicative of the fact that they are not great comparable sales. Two of the comparable sales have three bedrooms and the third has four. The subject has one main floor bedroom, the loft which is presently used as a bedroom but is not enclosed for privacy which really limits the market for such a layout. The final bedroom in the basement does not conform to the fire regulations.

99While not necessary to my decision in this matter, I accept that the present market value of 275 is somewhere close to $700,000. There is no question that there has been a significant increase in the value of 275 from the date of separation to the date of trial.

100This consideration of the present value of the property is helpful as a general “doublecheck” of the V-date value determined by the court by accepting the increases in value due to inflation from 2016 to present as suggested by Mr. Wilson. It also is relevant in considering if a variation should be made in the equalization payment payable to the applicant on the basis of any or all of the factors specified in s. 5(6) of the Family Law Act.

Oct. 25, 2016 value of the residence as determined by the Court: $390,000

Dec. 31, 2016 estimated value allowing for 10 per cent increase: $429,000

Dec. 31, 2017 estimated value allowing for 10 per cent increase: $471,900

Dec. 31,2018: estimated value allowing for 10 per cent increase: $519,000

Dec. 31, 2019 estimated value allowing for 15 per cent increase: $596,863.

Dec. 31, 2020 estimated value allowing for 15 per cent increase: $686,392.

Calculation of Equalization Payment Relative to 275:

101In Levan v Levan, (2008) 2008 ONCA 388, 90 O.R. (3d) 1 (Ont. C.A.) suggested that the proper approach to the application of Section 5(6) of FLA is as follows:

(1) Determine the net family property of each spouse pursuant to s. 4 of the FLA by determining those values on the valuation day:

(2) Apply S. 5(1) of the FLA to determine the equalization payment.

(3) Consider the circumstances listed in paragraphs a-h of Section 5(6) of the FLA to determine if it would be unconscionable to equalize net family properties.

102The respondent agrees (with the principle but not the amount) that the applicant is entitled to a one-half interest in 275 as of the valuation date, which I have determined is $195,000. In her net family property statement dated October 20, 2020, she finally included the full valuation day value of the property on her side of the ledger.

103The applicant seeks a variation from the valuation day value of 275 ($390,000) to the present- day value as determined by the court because of the significant increase in value of the property from valuation day to the time of trial. While his pleading seeks equalization on trust principles, our courts have held that it is rare where trust principles (unjust enrichment and/or constructive trust) will be invoked when legislation governs the problem. I do not find that it is appropriate or necessary to determine this issue outside the provisions of the Family Law Act.

104Section 5 (6) of the Family Law Act is the legislative framework to be applied in a case such as this, where a party wishes a variation in his/her share. If the court finds it would be unconscionable for a party in any one or more of eight defined situations not to have an adjustment made, such an order can be made. In the case at bar, the applicant relies on s.5(6)( h) which allows such a variation of share “in any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.”

105The “threshold” to obtain such an order on the basis of “unconscionability” is high and not easily attained except in exceptional circumstances. It is a much higher standard than inequitable, unjust or unfair.¹⁹

106I do not think that it is unconscionable that the increase in value of 275 from October 25, 2015 to the date of trial is not included in the equalization calculation of the parties.

107As of the date of separation, the respondent as the lawful sole owner, had the right to sell the property and the proceeds would have been subject to equalization. She chose not to do so, as was her legal right. If the real estate market had declined over the past five years, she would still have been obliged to make an equalization payment based on its value on the date of valuation unless she was able to get over the very high “unconscionability” threshold in Section 5(6) of the FLA.

108I also do not find on the evidence that the applicant contributed more to the preservation, maintenance or improvement of the house and property than his equal equalization share would entitle him. The parties shared expenses. The applicant has not proved that he made an extraordinary contribution to the maintenance of the home and property. In my view, he did was what a spouse would normally be required to do who enjoyed the benefit of living there.

109In making a variation order under s. 5(6), the court is to look at all the factors listed under that section. The respondent has clearly incurred a disproportionately larger amount of debts than the applicant for the support of the family. Her NFPS shows a debt at V-day of $61,000 against the home equity line of credit. He had no debts at that date.

110The very apparent prejudice to the applicant is that he has not had use of the equalization payment to which he was entitled from October 25, 2015 to this date. The courts have dealt with similar issues a number of times.²⁰ In theory, if he had received those funds, he could have used some of that money to purchase his own home and benefit from the intervening escalation of real estate prices. In his able submissions, Mr. Marks alluded to delays caused by the respondent which resulted in an extended delay in getting this trial conducted. He emphasized the difficulty the applicant encountered trying to get the respondent’s permission to permit an appraiser to attend at the property in 2017. However, a review of the proceedings satisfies me that it in fact was the unexplained delays on the part of the applicant which largely led to the passage of time before this matter was heard.

Review of the Proceedings:

111In my view, it is helpful to look at the entire movement on this court file as recorded in the Endorsements file. The application initiating this action was issued November 9, 2015. That is within three weeks of the date of separation. An answer was filed January 13, 2016. A reply was filed February 8, 2016.

112A Case Conference was held before Ramsay J. on March 11, 2016, at which time Justice Ramsay noted that “no orders were necessary but the parties may proceed to questioning.” Both parties were represented by counsel. No questioning every occurred.

113No court proceedings are recorded for over five months.

114The respondent served and filed a Notice of Change of Representation on August 24, 2016 indicating that she was going to represent herself.

115This was followed over a year later, on August 29, 2017, by the applicant’s filing of a Notice of Change of Representation in which he appointed new counsel, Mr. Vervaeke.

116In December, 2017, Mr. Vanderven tried to get the consent of the respondent to allow him to have a qualified appraiser attend at 275.²¹ That was unsuccessful. Nothing further was done to get the appraisal done until Mr. Marks was retained as counsel in the latter half of 2019. No explanation for that delay of 20 months was offered at trial.

117Mr. Vervaeke was removed as counsel of record with the serving and filing by the respondent of another Notice of Change of Representation dated April 17, 2018.

118Shortly thereafter, another Notice of Change of Representation dated June 14, 2018 was filed by Mr. Vanderven appointing William Clayton of London as counsel.

119A Settlement Conference was held not held until June 29, 2018. For reasons not clear on the record, Mr. Vanderven attended in person and the presiding judge noted that he was self-represented while Ms. Vanderven was represented by Robert McLeod.

120The matter was put over to a Trial Management Conference for “a lengthy period to allow Mr. Vanderven to retain counsel.” On September 26, 2018, it was adjourned on consent to November 16, 2018.

121The Trial Scheduling Endorsement form indicates that the applicant was represented by yet another lawyer, Jessica Plaine of Komoka Ontario, while Mr. MacLeod remained as the respondent’s counsel. The endorsement of that court event indicates that the applicant’s expert was to be Jeff Breit and that his qualifications were not admitted. That latter position is consistent with the position articulated by Ms. Edmonds (the respondent’s former solicitor) in her letter to Mr. Lados (the applicant’s lawyer at that time) of March 10, 2017 in which she noted that Mr. Breit was the applicant’s cousin and that he was not a certified real estate appraiser. The respondent’s appraisal which had been completed by Ms. Davies was provided to the applicant and his lawyer by March 2017, as evidenced by the contents of Ms. Edmond’s letter. The presiding judge ordered at paragraph 20 of the Trial Scheduling endorsement form that no witnesses other than those listed on the witness list were to be called absent a court order.

122The matter was adjourned to the Assignment Court of November 28, 2018. On that day, the matter was again adjourned on consent to the Assignment Court of December 19, 2018. That day, a trial date was set for the sittings of the court commencing May 13, 2019. I was the presiding judge that day and I noted that the applicant was present and he agreed to that date.

123On May 17, 2019, a consent order was signed adjourning the matter to the Assignment Court of July 24, 2019. This adjournment undoubtedly was necessitated by Mr. MacLeod’s appointment as a judge of this court on April 9, 2019.

124However, on July 16, 2019, the applicant also found himself without counsel when Walters J. granted an order removing Ms. Plaine as counsel of record due to a “break down in the solicitor/client relationship.” By that time, Mr. Kiernan had been retained by Ms. Vanderven as evidenced from the endorsement.

125On July 24th, Sweeny J. adjourned the matter to the Assignment Court of August 28, 2019. At that time, Mr. Marks appeared as counsel for the applicant for the first time. He advised Sheard J. that he had just recently been retained and that another appraisal would have to be obtained by his client and that a motion for leave to do so would probably be necessary to enable that to occur. He requested a trial date in 2020 and the matter was placed on the Trial List for the sittings commencing March 30, 2020. The Covid 19 pandemic caused the courts to be closed in mid-March 2020 and the case was pushed back to the October 2020 sittings of this court when it was finally heard.

126On October 24, 2019, Arrell J. signed a consent order permitting Mr. Wilson to attend at the subject property to conduct an appraisal. I am cognizant of the fact that a motion had to be brought to obtain the order but in due course, the order was issued on consent and no costs were sought by the applicant on the motion.

127Mr. Marks explained the difficulty he had getting Mr. Kiernan and his client to agree to Mr. Wilson’s attendance at the property. I am satisfied having read the correspondence between counsel, that the respondent was less than co-operative in permitting this to occur but Mr. Wilson ultimately was allowed on the property and into the house in early November, 2019.

128Having fully considered the matter, I am not at all satisfied that the conduct of the respondent has unduly delayed the hearing of this matter. Mr. Vanderven started the proceedings in a timely manner after separation. After the case conference in March 2016, for some unexplained reason a Settlement Conference was not held until June 2018. There was a relatively lengthy adjournment to a November Trial Management Conference to allow Mr. Vanderven to retain another lawyer. The trial date was finally set on consent for the spring of 2019, but through no-one’s fault, Justice MacLeod was appointed to the bench. In August 2019, Mr. Marks first appeared on record and it was at his request the trial date was put over to a sittings in 2020, partly because the applicant’s case was not ready to be tried as Mr. Vanderven had not obtained a report from a duly qualified appraiser until the eleventh hour. This was not the fault of the applicant. She resisted the respondent having an appraiser come on her property in 2017 but for some reason, the applicant waited two years before retaining Mr. Wilson.

Conclusion re 275

129I have reviewed each of the factors in paragraphs a-h of Section 5(6), and I do not find one or a combination of those factors to warrant a finding that an equalization of property based on the October 25, 2015 value of 275 would “shock the conscience of the court”. ²² It may well appear at first glance to be unfair, but it is not unconscionable. On review of the file, there has not been undue delay on the part of the respondent in an effort to stall the hearing of this matter.

130The legislature has established V-Date in the Family Law Act to create certainty for the parties. Each party is able to determine if the passage of time is beneficial or detrimental to his/her position. The respondent had the property valued in February 2017. She never contested the fact that the applicant was entitled to a monetary payment equal to one-half of the appraised value of the property as of V-date. She recognized his right to a beneficial interest at an early date. She did take the position that V-date was in 2011 until shortly before trial but at the outset of trial, she agreed it was October 2015.

131It would be unconscionable in a case like this if the respondent was required to remortgage or sell the house in which she and the children have resided to pay a large equalization payment due to two factors out of her control: a. the escalation of the real estate market and b, the unexplained delays of the applicant in moving the file to trial.

132It is ordered that the respondent shall list 275 as an asset in her Net Family Property Statement at the date of valuation as having a value of $390,000.

Net Equalization of Family Property (NFPS):

133The parties filed Net Family Property Statements at trial.²³ For the most part, the parties did not disagree on a large number of items and the appropriate figures. There were a few differences and I deal with them hereunder.

The Dodge Journey:

134In 2013, the parties purchased a new Dodge Journey automobile for just under $40,000. ²⁴ The parties agree that though it was purchased in both their names, it belonged to the respondent and it was used by her. The monthly payments were made equally by the parties. When Mr. Vanderven left the home, he continued making his portion of the monthly payments in lieu of child support. In 2016, Ms. Vanderven traded the vehicle in for a new one.

135In his examination in chief, Mr. Vanderven agreed that the 2013 Dodge Journey should be shown as an asset of the respondent and the loan against it $25,195.76 should also be shown on her side of the ledger in her Net Family Property Statement. I find the value of the vehicle at the date of separation was also $25,195.76 as it was two years old at that time.

The Mobile Home:

136In his Net Family Property Statement dated October 14, 2020, exhibit 21, Mr. Vanderven claimed $382,500 (1/2 of the $765,000 trial date valuation of 275 made by Mr. Wilson) and the sum of $10,000 for the mobile home.

137The mobile home, while a chattel, is included in the property valuations of both experts who gave evidence. It is included in the $390,000 market value of 275 on valuation day which has been determined by me. Hence, a separate claim for one-half of the value of the mobile home is dismissed.

138I asked the parties for further submissions on their NFPS (exhibits 21 and 22) on November 30, 2020 as there was little or no evidence given on them nor attacking them during the trial. For the most part, the differences were not significant. As an example, Mr. Vanderven agreed that the item in Part 4(b) of his NFPS listed as “Other special items” were chattels inherited by the respondent from her grandparents. There was no evidence contradicting the respondent that the RBC Line of Credit for $61,908.03 in Table 2 of her NFPS was not incurred for family and child related purposes.

139For ease of reference, I will refer to the respondent’s NFPS (exhibit 22) in establishing the payment to be made by her to the applicant. I am entering only those items for which an adjustment should be made from the amount shown on exhibit 22.

140Thus, referring to Exhibit 22, the following changes shall be made:

Table 1: (page 1) Applicant Respondent

1. 275 Norfolk Country Road $390,000.00
2. 2013 Dodge Journey $ 25,195.76
3. 1950 International Pickup Truck $0.00

Adjusted Totals for Table 1: Applicant Respondent $7,015.83 $515,946.80

Table 4: (page 3) Total 1: (from page 1) $7,015.83 $515.946.80 Total 6: (from above) $170,196.75 TOTAL 6: NET FAMILY PROPERTY: $7,015.83 $345,750.05

141It is ordered that the respondent shall pay the applicant an equalization payment of $169,367.11.

Occupation Rent:

142This claim was not pursued at length during the trial. As Mr. Vanderven did not have a proprietary interest in 275, such a claim could not be founded in law.

143The situation is different with the mobile home. Both parties recognized that it was a chattel and could be moved from the property. Both appraisers placed a nominal value on it as of valuation day and I attribute a value to it of $20,000, as did Mr. Wilson in his appraisals.

144Mr. Vanderven testified that his mother-in-law Susan Ecker had moved into the mobile home in the early autumn of 2012, not long after he and his wife and the children had vacated it to move to the main house on the property. Because there was no one else who wanted to live there at that time, he had no problem with her living there. He said that she was helpful to the family when she was there. He remembered that she particularly enjoyed gardening and would help out around the property in other ways. She had a relatively limited income, receiving only one half of her deceased husband’s Canada Pension Plan benefit and social security benefits.

145He remembered having a discussion with his wife late in 2013 and again in 2014 with respect to Susan not making any payments towards the costs utilities and heat.

146Mr. Vanderven agreed in cross-examination that in 2019, he demanded that Susan pay rent or move out. Two demand letters were sent to her insisting rent be paid or alternatively, she vacate the mobile home.²⁵ The respondent replied in July by obtaining an order against the defendant pursuant to the Trespass Act.²⁶ At trial in 2020, Susan continued to live in the mobile home. The applicant claims that he helped pay for that home and that he is entitled to occupation rent for its use by Susan all this time.

147He testified that if he had been able to move the mobile home off the property, he would have moved it to his father’s residence, placed it on the property there and resided in it himself.

148I find that the first time Mr. Vanderven asserted a claim to occupation rent was in March 2019. He had a legal right to one-half of the fair market rent payable for its occupation. No expert evidence was led with respect to the fair market rent payable for equivalent accommodation. Mr. Vanderven suggested in his evidence that to find just a one room apartment near his father’s residence would have cost approximately $1,000 per month, an amount he was unable to afford. That evidence however, was simply anecdotal and no supporting evidence was provided to the court. Furthermore, while situated at 275, the trailer was only able to be occupied by family members according to the terms of the permit permitting its placement on the property.

149In the circumstances, I do find that a claim of occupation rent is justified. I assess the reasonable monthly rental for the mobile home to be $800 per month. The respondent is ordered to pay the applicant $400 per month from April 1, 2019 to December 31, 2020. This amounts to $8,400. That occupation rent shall be payable monthly thereafter until the equalization payment owning by the respondent to the applicant is fully paid.

Spousal Support:

150The applicant claims spousal support from the respondent. After the separation, he moved to live with his father in his father’s residence. The applicant explained that after he paid child support for his two children, he was unable to make ends meet unless he lived with his father. He did not have to pay rent but he felt he had no other choice. For reasons never clearly explained to the court, the respondent refused to let him live in the mobile home on the property, but I can assume the acrimony between the parties was too much for the respondent to envisage Mr. Vanderven living that close to her home. Also, her mother was occupying the mobile home.

151I find that the applicant has shown he had need of spousal support. He claimed it in his application initiating these proceedings in late 2015. He explained how difficult it was to enjoy access visits with his children in his father’s relatively small residence. On review of his financial statement, it is evident he was living modestly and within his means.

152The spousal support advisory guidelines have been designed to assist parties who have separated to determine if spousal support is appropriate in their circumstances, and if so, to quantify it. For some reason, the applicant never brought a motion to the court seeking an interim order.

153During their 21year marriage, the respondent earned a higher income than the applicant. Certainly after 2015, that was the case until 2020. He has been regularly employed at Al’s Tire in Burgessville and its related businesses as an as a labourer and more recently as an office manager. He has regularly paid child support for the two children of the marriage and not missed one payment. The respondent, who successfully completed her community college studies in 1993, has been employed with Community Living Elgin as a support worker for disabled people who reside in a community funded residence. She has had the total care of the children and borne the brunt of special medical treatments and appointments required by their son who suffers from a chronic bowel condition. She has had to work overtime to cover the costs of raising both children and to pay her legal bills associated with this case.

154Their respective Line 150 incomes are as follow:

2015: Applicant: $41,216 Respondent: $72,363 2016: Applicant: $44,235 Respondent: $68,549 2017: Applicant: $34,151 Respondent: $64,078 2018: Applicant: $46,471 Respondent: $68,068 2019: Applicant: $49,235 Respondent: $69,096 2020: Applicant : $50,000 to $52,000 Respondent : Disability income since March.

155Mr. Marks helpfully prepared printouts from Divorcemate Software using the custodial parent formula for each of the above years. I have reviewed those printouts and make the following findings of the lump sum retroactively payable annually by the respondent to the applicant. (noting that these figures reflect the respondent’s after tax cost and the applicant’s after tax benefit)

2015: $929 (mid point lump sum for two months) 2016: $4,325 (mid point 12 months) 2017: $5271 (mid point 12 months) 2018: $3834 (mid point 12 months) 2019: $3522 (mid point 12 months) 2020: not payable due to respondent off work and receiving disability benefits pending surgery.

156The total of the above is $17,881. It is ordered that the respondent pay that amount to the applicant at the time of making her equalization payment to him. I am satisfied that with his limited financial means it was reasonable for Mr. Vanderven not to incur the costs of seeking an interim order, knowing the matter was to be ultimately dealt with at this trial.

157The applicant seeks an order for payment of ongoing spousal support. I am not granting that order at this time as Ms. Vanderven’s financial statement indicates that she anticipates only making $42,000 in 2020 as she awaits surgery. As noted above, she has been receiving disability benefits for several months due to her medical problem. If he so decides once she returns to work, the applicant may bring a motion for ongoing spousal support. The respondent is directed to advise the applicant in writing when she returns to full-time work.

Child Support

158There are two children of the marriage, Carter born September 28, 2000 and Olivia born January 10, 2005. Since their parents separated, they have resided with their mother.

159Olivia is presently 15 years old and attending high school full time. Carter is 20 years old and has concluded his high school studies. He enrolled in an apprenticeship program to become an auto body mechanic. That course of training required one year of “hands on work” in shop where he was paid a minimum wage for one year. He found a placement at Martin’s Auto Body in Tillsonburg where he continues to work. He is awaiting the commencement of the classroom component of that program. Due to Covid 19, the start of the classroom component of his program has been delayed. In the interim, he has continued working in the same shop and is paid for his work.

160In her cross-examination, Ms. Vanderven fairly agreed that the “work” portion of his program ceased about five months ago. The applicant, due to a lack of information being provided to him by the respondent, continued making child support payments for both children to the end of March 2020 and has overpaid by about five months. During submissions, he very fairly indicated to the court that he was not concerned with this overpayment being credited to him as the money is needed for the well being of his children.

161If Carter returns to full time classes to complete his apprenticeship program, the applicant shall pay child support for two children in accordance with the Child Support Guidelines. Until that occurs, the applicant shall pay child support only for Olivia in the amount of $454 per month based on his 2019 income of $49,235. I direct the respondent to provide to the applicant written evidence of the date of return to classwork when she receives it and evidence of the date of the termination of class studies.

162It is ordered that the applicant shall pay child support in accordance with the Child Support Guidelines to the respondent for the child Olivia Alma Vanderven born January 10, 2005, in the amount of $454.00 monthly based on his 2019 income of $49,235.00, commencing January 1, 2021 and monthly thereafter on the first day of each month until further order of the court.

Conclusion:

163The applicant shall have judgment against the respondent in the amount of $195,647.95 which is made up as follows:

Equalization payment: $169,367.11 Occupation Rent: $ 8,400.00 Spousal Support: $ 17,881.00.

Pre-Judgment Interest:

164As a result of the significant delays of the applicant in even bringing this matter to court and obtaining a meaningful appraisal of 275, I do not feel it is appropriate to make an order as to pre-judgment interest.

Post Judgment Interest:

165This judgment shall bear post-judgment interest at the rate of five per cent per annum from the date of its release until fully paid. This is higher than the prescribed rate under s. 129 of the Courts of Justice Act as an incentive for the respondent to effect prompt payment of the judgment to the applicant.

Costs

166If the parties are unable to agree on costs, I will receive brief written submissions from counsel and Mr. Vanderven. I am directing that Mr. Marks shall prepare his bill of costs with supporting dockets even though he has been removed as counsel of record. This is required so that Mr. Vanderven is able to make meaningful submissions on costs. He is ordered to provide a copy to Mr. Vanderven and to file a copy with the court on or before January 25, 2021.

167Mr. Kiernan shall provide his written submissions, a costs summary with supporting dockets and copies of any offers to settle on or before January 25, 2021. Mr. Vanderven shall provide his written submissions, a costs summary with supporting dockets and copies of any offers to settle on or before February 7, 2021. Mr. Kieran may, if he deems it necessary serve and file a brief reply on or before February 20, 2021.

Footnotes

1. 1Exhibit 2, Vol. 1, tab 1B.
2. 2Exhibit 2, Vol. 1, tab I, tab i, page 2 of 4.
3. 3Exhibit 2, Vol. 1., tab 1, tab i, page 3 of 4.
4. 4Exhibit 2, Vol. 1, tab R.
5. 5Exhibit 5: invoice of April 19, 2012 from Carpet One Tillsonburg.
6. 6Exhibit 2, Vol 3, tab 22, at page 23
7. 7Exhibit 2, Vol.1, tab 1 tab Q. Transfer dated January. 13, 2011
8. 8Martin v Sansome, 2014 ONCA 14, 118 O.R. (3d) 522 at para 66:
9. 9McNamee v. McNamee (2011) ONCA 533 at para 66.
10. 10Exhibit 9
11. 11Mr. Wilson explained that the gross adjustment referred to the total of all adjustments made with respect to each comparable as a percentage to the sale price. Thus, using comparable 4 at page 5 of his report, the total adjustments (both positive and negative) amount to $228,900 which is 49.5% of the actual sale price of $460,000. The net adjustments are $15,500 which is 3.4% of the sale price of $460,000.
12. 12Exhibit 19.
13. 13Exhibit 2, Vol. 3, tab 28.
14. 14Having said that, the lawyer incorrectly included the property as being excluded from net equalization by virtue of the fact that it was inherited and/or a gift. The Family Law Act, Section 4 (2) 1 clearly excludes a matrimonial home from such a designation and I have no doubt the respondent relied on her lawyer that the financial statement was correct in that respect.
15. 15Comparable sale 1, February 19, 2016 for $335,000; comparable sale 2, February 22, 2016 for $389,000 and comparable sale 3, May 10, 2016 for $365,000.
16. 16Budd v. Budd, 2015 ONSC 346 at para 42.
17. 17Exhibit 10, found in Exhibit 2, Vol. 1, Tab V.
18. 18Exhibit 10, found in Exhibit 2, Vol. 1, Tab V at page 4.
19. 19Braaksma v. Braaksma [1992] O. J. No. 1326, aff’d 141 D.L.R. (4th) 190 (Ont. C.A.).
20. 20Cerenzia v Cerenzia, [2015 O. J. No. 6615 (ONSJ); Pitts v Pitts, [2018] O.J. No. 4213 (ONSC).
21. 21Exhibit 2, Vol. 2, tab 12.
22. 22Serra v Serra, 2009 ONCA 105 at para 47.
23. 23Exhibit 21 is the NFPS of the Applicant and Exhibit 22 is the NFPS of the Respondent.
24. 24Exhibit 2, Vol 2, tab 17.
25. 25Exhibit 2, Vol. 3, tab 23, tabs a and b
26. 26Exhibit 2, Vol. 3, tab 23, tab c.