COURT FILE NO.: FS-17-88382

DATE: 2021 10 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

COMFORT ALABI

Self-Represented

Applicant

• and -

JOHN OLAOSEBIKAN ALABI

Self-Represented

Respondent

HEARD: November 30, December 2, 3, 4, 8, 9, and 11, 2020, at Brampton

REASONS FOR JUDGMENT

Emery J.

1The trial of this Application involved property related claims for equalization, and an unequal division between the net family properties of the parties. The applicant also brought a Motion to Change a final order made at an earlier time for the distribution of net proceeds from the sale of the matrimonial home, and a Contempt Motion against the respondent for non-compliance with terms of previous Orders.

2The parties advanced no claim for spousal support against each other at trial. There was also no claim made for child support. The youngest child, Andreanna, was 17 years old at the time of trial and resided with the applicant mother. The respondent father made submissions in his opening statement at trial about enforcing his access (now, parenting) rights to Andreanna. I do not propose to address this claim as the respondent did not plead access as an issue in his Answer. In any event, Andreanna is now 18 years of age.

3Despite the financial nature of the issues, there is a deep human dimension to this case. In February 2016, the oldest child, Adeola, took his own life. It is often the case that the marriage of the parents of a child who loses his or her life by any means does not survive that death. The marriage of the parties in this case was no exception. Adeola’s death and the sorrow of the parties over it permeates the fibre of this case throughout.

4A review of the background facts will provide context for the determination of the issues. However, as it will be seen, the history of the litigation is as determinative as the underlying facts because of Orders the court made as the case unfolded.

BACKGROUND

5The parties were married in 1992. There is some dispute over the date they separated within the meaning of the Family Law Act. The applicant takes the position that separation occurred on May 21, 2016. It is the respondent’s position that they separated on or before May 20, 2016. The different dates are significant because title to each of two investment properties, 587 King Street and 657 King Street in Welland, were transferred from the names of both parties to the sole name of the respondent on May 20, 2016.

6There were three children of the marriage. Adeola was born in or around 1991 and died on February 8, 2016 at 24 years of age. George was born on June 9, 1995 and Andreanna was born on August 3, 2003.

7The applicant has been employed by Air Canada as a fight attendant since 1999. She was laid off from her job during the COVID-19 shutdown.

8The respondent held a number of positions throughout the marriage, among them employment at MTS AdStream and Citi Cards Canada. He has been self-employed as a travel agent since 2011. He has also taken an increasingly larger role managing the investment properties acquired by the parties. One or both investment properties in Welland were leased to commercial tenants, and the respondent was responsible for collecting rent.

9The parties were residing in the matrimonial home at 6 Premier Place in Brampton on the date they separated. They had paid off the mortgage in 2011, only to refinance through Royal Bank in 2015 to purchase the two investment properties in Welland.

10The parties sold 6 Premier Place for $594,000 shortly after separating. The sale closed on June 30, 2016, with solicitor Jide Oladejo acting on the sale for the parties. After Mr. Oladejo disbursed the sale proceeds to pay out Royal Bank and as directed, $196,579.80 remained in his trust account (the “net proceeds of sale”) as of March 18, 2019.

11The parties agreed between them that Mr. Oladejo would hold the net proceeds of sale in trust until released on consent of the parties, or as ordered by the court.

12On May 20, 2016, the applicant transferred title of 587 King Street and 657 King Street to the respondent.

13The respondent subsequently sold 657 King Street to P F Property Group Inc. on November 1, 2018. The purchase price for this property was $173,000, from which the respondent received $124,899.78 plus any release of holdbacks after all payments and adjustments were made under the Agreement of Purchase and Sale. This sale was confirmed in a reporting letter dated November 12, 2018, with attachments that included the Trust Ledger Statement, from Bates Law in Hamilton, Ontario.

14The respondent also entered an Agreement of Purchase and Sale to sell 587 King Street to one Demetrios Arapis on September 2, 2018, for a sale price of $170,000. This transaction had not closed as of the start of trial. Mr. Arapis commenced litigation over this property, and obtained a Certificate of Pending Litigation which he registered on April 8, 2019.

15The respondent also purchased an investment property consisting of land and a two storey apartment building in Ibadan, in Oyo state, Nigeria ( the “Ibadan property”) in 2004. The respondent gave evidence that this property was acquired by him on behalf of Adeola, or for the three children of the marriage. The respondent owned or controlled the Ibadan property on the date of separation.

16In summary, there were four properties owned by one or both parties on the date of separation. In addition, the parties owned a 2006 Mercedes Benz, a 2006 Mazda Sport GT, a Utility Trailor and possibly an older Mercedes vehicle in Nigeria. The respondent also owned 12,500 shares in Fidelity Bank Plc in Nigeria he had purchased for N100,000 (Naira) on March 25, 2006.

17There is no dispute that the Naira is a unit of Nigerian currency having a value of approximately 300 Naira to $1 Canadian.

18The respondent had a further $1,733.15 as a closing balance in the Business Account opened in his name at the Royal Bank branch at 1665 Sismet Road in Mississauga the day before May 21, 2016.

19In the course of the litigation, neither party made the full and meaningful disclosure required by the Family Law Rules, particularly with respect to their pension related assets and entitlement. The applicant ultimately produced a family law valuation for her pension with the Air Canada CUPE Pension Represented Pension Plan. The respondent had not provided disclosure of any pension or benefit he accumulated at any of his several places of employment through the years.

20On September 17, 2018, the respondent finally made certain disclosure of rents he had collected, and expenses he has paid, with respect to the investment properties in Welland. He also disclosed documents about a Registered Retirement Plan (RRP) opened in his name while he was employed at MTC Adstream.

LITIGATION HISTORY

21The Application was commenced at Brampton on January 23, 2017. In the Application, the applicant claimed a divorce, custody of the children George and Andreanna, child support, spousal support, equalization of net family properties and orders for the sale of properties. She accuses the respondent of committing physical, emotional and psychological abuse against her and the children during the marriage. She also alleges that the respondent has mismanaged family funds, leaving her to continually cover most of the family’s expenses. The applicant did not claim an unequal division of net family property under s. 5(6) of the Family Law Act at the time the Application was issued.

22The respondent filed his Answer on April 13, 2017. In the Answer, the respondent’s claims were essentially mirror claims of those pleaded in the Application against him.

23On July 17, 2017, the parties attended a Case Conference with Justice Shaw in Brampton. Pursuant to Minutes of Settlement filed, an Order was issued that was in part temporary and in part final. The following “final” orders material to this trial were made at that time:

5. The Parties shall instruct their real estate counsel, Jude Oladejo, to disburse the funds from the sale of the matrimonial home within 30 days of this agreement as follows:

a. Comfort Alabi: $64,966.86

b. John Alabi: $137,966.86

6. The Parties shall list the following properties for sale with a registered real estate agent acceptable to both parties by September 30, 2017:

a. Rental Property located at 587 King Street, Welland, ON

b. Rental Property located at 657 King Street, Welland, ON

c. Land in Aja, Nigeria

d. House in Ibadan, Nigeria

7. If the Parties are unable to agree on the real estate agents or refuse to sign a listing agreement by this date, either party may apply to the court for such appointment with both parties bound by the decision of the court.

8. Upon the sale of the said properties, there shall be deducted from the gross selling price:

a. Real estate commission fee;

b. Vendor's legal fees and disbursements;

c. An amount sufficient to fully retire any mortgages presently registered against the property.

The balance remaining shall be divided one-half to the Applicant and one-half to the Respondent.

24The Order made by Shaw J. on July 17, 2017 did not provide for the equalization between the net family property values of the parties. The issue of equalization was not even mentioned in the Order. Therefore, equalization remained a live issue in the Application following July 17, 2017.

25Precisely one year later, the parties attended a Settlement Conference before Price J. on July 17, 2018. On that occasion, the parties filed a Consent to a temporary Order dealing with child support, deadlines for making disclosure and a timetable for a Motion to Change proposed by the applicant. Price J. ordered that the Motion to Change be issued and served by September 3, 2018 and set out a timetable for all steps to have it heard by November 14, 2018.

26The applicant commenced the Motion to Change on August 30, 2018. In the Motion to Change, the applicant seeks to change the Order made by Shaw J. on July 17, 2017 by asking the court to make “an order for the funds in Counsel Jide Oladejo (trust account to be held) until the completion of the sale of our rental properties municipally known as 587 King Street Welland Ontario and 657 King Street Welland Ontario.”

27On October 5, 2018, Lemon J. permitted the respondent to serve and file his Response to Motion to Change within ten days of receiving that Order.

28The Motion to Change came before Justice Ricchetti on February 28, 2019. After reviewing the “final” Orders made by Shaw J. on July 17, 2017 and the timetable set by Price J. on July 17, 2018, Justice Ricchetti determined that the main issue on the Motion to Change would be whether to set aside the Minutes of Settlement entered into on July 17, 2017. In particular, the court would have to decide whether paragraph 5 of that Order providing for the payment of the net proceeds of sale from 6 Premier Place to the parties should be changed.

29Ricchetti J. noted that the applicant’s prime concern over the payment of the net proceeds was that the respondent would take the monies from the sale of the properties, and she would have no recourse. Ricchetti J. also noted that the respondent had failed to comply with other provisions of the Minutes of Settlement. Specifically, he found that the respondent had listed each of the investment properties in Welland for sale without the applicant’s consent, and had sold one of them without distributing the net proceeds from that sale as required by the Order dated July 17, 2017.

30After a review of the issues, Ricchetti J. found that the Motion to Change involved a determination of the respective positions of the parties regarding the enforcement of terms under the Minutes of Settlement. Ricchetti J. further concluded that he was not in a position to proceed with hearing the Motion to Change because of the conflicting evidence filed in written form.

31Ricchetti J. ultimately concluded that the Motion to Change and the Application should be tried together, and as soon as possible. He made an Order for a Settlement Conference and Trial Management Conference to take place on April 10, 2019. He then made the following Orders in paragraphs 2 and 3 of his Endorsement, which are reproduced in their entirety:

2. In the event, there is a closing on any of the three remaining properties, Mr. Alabi is ordered to deposit to the Accountant of the Superior Court of Justice the net proceeds as defined in the Minutes of Settlement - NOT JUST HALF BUT THE ENTIRE NET PROCEEDS. Failure to do so would open Mr. Alabi to a possible claim for contempt.

3. The net proceeds of the sold Welland property, the net proceeds of which should have been distributed equally, this court orders Mr. Alabi to immediately pay the ½ which should have been paid to Ms. Alabi under the Minutes of Settlement to the Accountant of the Superior Court of Justice to the credit of this action. This will at least preserve those funds in the event the Minutes of Settlement are found to be valid. The trial judge can deal with the accounting of the ½ proceeds kept by Mr. Alabi from the sale of this property.

32The applicant brought a motion for contempt on April 15, 2019 for breaching the Order made by Shaw J. as well as the subsequent Order made by Ricchetti J. when the respondent did not pay funds into court. The respondent filed an affidavit dated April 17, 2019, in which he denied he was in contempt of either motion. He set out his reasons in that affidavit which ranged from a miscommunication with Justice Ricchetti when he appeared before him on February 28, 2019, to arguing that the language in the first Order was ambiguous.

33On April 10, 2019, the parties attended before McSweeney J. for a joint Settlement Conference and Trial Management Conference on the remaining issues. The respondent made submissions at the time about his inability to comply with the Order made by Ricchetti J. on February 28, 2019. McSweeney J. endorsed in the Trial Scheduling Endorsement Form that the case was set for an 8 to 10 day trial on the blitz sittings in January 2020.

34On April 25, 2019, the contempt motion was returnable before LeMay J. On that date, LeMay J. ordered that the contempt motion would be deferred and heard as part of the trial. LeMay J. also ordered that the net proceeds from any sale of 587 King Street in Welland be paid into court after specified payments and expenses, and that his Order be registered against title to that property.

35The parties were granted a Divorce Order by Justice Tzimas on July 26, 2019.

36On January 8, 2020, the parties attended before Justice Kurz for trial. This attendance was converted to a Trial Management Conference when Kurz J. found that the parties were not ready for a trial of the financial issues. Kurz J. indicated in his Endorsement that the applicant had not filed a valuation of her Air Canada pension, and that the respondent had not produced an admissible valuation of the property in Nigeria. Each party was ordered to provide those valuations within 60 days. Having made those orders, Kurz J. struck the matter from the January 2020 trial list and adjourned it to the blitz list in May 2020. The trial was later listed by Regional Senior Justice Ricchetti to start the week of November 30, 2020.

37In the Endorsement, Kurz J. memorialized the following facts that the parties agreed upon:

“The parties also agree that:

(a) The value of the property located at 657 King Street, Welland, owned by the respondent was worth $124,000, net on the date of separation; and

(b) The value of the property located at 587 King Street, Welland, owned by the respondent was $170,000 on the date of separation. There was no mortgage on the property.

(c) The matrimonial home, located at 6 Premier Place, Brampton was sold. The net proceeds of sale of approximately $196,000 remain in trust. The parties were joint owners of the matrimonial home.”

38The trial proceeded on November 30, 2020 before me. There was no formal Trial Record, and the parties did not produce much of the missing disclosure ordered on previous attendances. However, the parties were both interested in proceeding on the existing record and with the disclosure made, subject to any order the court should make to obtain the evidence necessary for a fair trial.

ISSUES AND ANALYSIS

39The parties came to Canada with little in their pockets but dreams of a better life and the intention of working to make those dreams come true. Neither of the parties had any assets or liabilities upon entering the marriage. Therefore, the acquisition and value of assets, less liabilities on the date of separation are the factual issues for equalization purposes.

40The Orders made to date, as well as the admissions made before Kurz J. are equally important facts when deciding the value of each party’s net family property. Those Orders and admissions are also important on the applicant’s claim to an unequal division between net family properties. The net family property of each party must first be determined and the basic equalization payment calculated before the court embarks on an unequal division inquiry under s. 5(6) of the Family Law Act.

41The issues for the court to decide are these:

(a) Date of separation;

(b) Value of assets owned by each party on the date of separation;

(c) Attribution of liabilities on the date of separation;

(d) Calculation of any equalization payment;

(e) Consideration of making an order for an unequal division between net family properties;

(f) Adjustment for post separation transactions or expenses;

(g) Determination of whether the net proceeds of sale from 6 Premier Place should be distributed according to the Order of Shaw J. dated July 17, 2017, or whether that Order should be changed under the Motion to Change; and

(h) Whether the respondent should be found in contempt of court.

Date of Separation

42According to the applicant, the title to each 587 King Street and 657 King Street were transferred to the respondent on May 20, 2016 to enable the respondent to manage those properties directly without involving her in the decision-making for them. The applicant gave evidence that she was distraught over the recent death of her son at the time, and at a time when she could not cope. The respondent states the title to the two properties were transferred because the parties had separated. He submits that the parties should share the value of the two properties in their net family property as a result.

43I find that the parties separated on or within a week after May 21, 2016. I make this finding for three reasons.

44First, the respondent has pleaded in the Family History section on page 1B of the Answer that the parties separated on May 21, 2016.

45Second, the applicant’s account about when the parties separated after title to each of the investment properties was transferred on May 20, 2016 is more credible. The transfer documents in evidence show that the instruments to transfer title to those properties were registered on May 20, 2016 at 11:58 a.m. and 12:03 p.m. respectively. The respondent was arrested later that night, or on the morning of May 21, 2016.

46The applicant has given evidence that the events leading up to the arrest were also the reasons for the ultimate separation upon his judicial release. The Recognizance of Bail for the respondent showing he was released on May 21, 2016 was made an exhibit as evidence of this date.

47Third, it makes no sense that the applicant would transfer her interest in two investment properties to the respondent if they were in the process of separating before May 21, 2016.

Value of Assets on the date of separation

6 Premier Place

48The parties held title to the matrimonial home at 6 Premier Place in Brampton as joint tenants. There was no independent evidence given about the fair market value of the matrimonial home as of the valuation date. Since the date the home was sold so closely follows the date of separation, I am using the value of the matrimonial home realized on sale as the value to divide equally between net family properties.

49As a result, I find as a fact that each of the parties shall be allocated $297,000 for this asset.

587 King Street

50I find as a fact that the value of 587 King Street was $170,000 on the date of separation. This finding is based on the facts agreed upon by the parties before Justice Kurz on January 8, 2020. This value is allocated to the respondent’s net family property as he held sole title to the property on the date of separation.

657 King Street

51The respondent sold 657 King Street on November 1, 2018 as the sole owner. According to the closing documents from Bates Law, I find as a fact that the value of this property was $124,000 on the date of separation, net of all encumbrances.

52This was also a fact to which the parties agreed before Justice Kurz. The value of $124,000 of 657 King Street is allocated to the respondent’s net family property as he held sole title to that property on the date of separation as well.

Ibadan property, Nigeria

53The respondent had not made the disclosure required by Shaw J. in July 2017 about the property he purchased in Ibadan, Nigeria by the time the case was called for trial in January 2020. The subsequent Order made by Ricchetti J. requiring the respondent to make this disclosure went unheeded as well. In the course of the respondent’s testimony, I adjourned the trial on December 4, 2020 for the respondent to provided further disclosure, including documents relating to his acquisition of the Ibadan property.

54As unfortunate as circumstances may be, trials involving self represented parties do not have the procedural finish of a trial conducted by counsel. At some point in a family law case, the trial must go on. The respondent did not provide the court with certified copies of deeds and receipts from the purchase and ownership of the Ibadan property. Nor did he serve any report or qualifications of an expert to call as a witness, and no expert testified at trial on this or any other issue.

55I permitted the respondent to refer to the documents he did disclose to give the best evidence available on the issues. I did this because there comes a time when a decision not to relax evidentiary requirements where both parties are self represented will cause even more delay, and corresponding injustice.

56The applicant has taken the position throughout the case that the Ibadan property had a value of $221,000 Canadian. The court did not hear any evidence that would support a finding for this amount.

57An Agreement dated November 29, 2004 was produced by the respondent between Gabriel Edunro as the vendor and himself as the purchaser of the Ibadan property. This Agreement states that the respondent is to pay N3.2 million for the land and building. The Agreement describes the Ibadan property as Part 4 in Block A in the Atolu Layout.

58There is also an Official Receipt No. 000303 from Hasrom Properties Ltd., Real Estate Consultants and Property Managers, dated November 11, 2004. This receipt is made out to Adeola, George and Temilade Alabi for N3 million. The receipt states that this amount is paid for the sale of a house of 5 flats having 3 bedrooms each. The respondent explained in his evidence that he had the receipt filled out to his children as he was purchasing the Ibadan property for them.

59The respondent produced nothing in the way of a title document for the Ibadan property to show how title was taken, or who had an ownership interest in the property other than the respondent. There was no evidence that the respondent took title to the Ibadan property in trust for any child. He did not call an expert witness on how title to a property is transferred or registered in Nigeria.

60I find as a fact that it was the respondent who paid the purchase price for the Ibadan property. George and Adeola would have only been around 9 and 12 at the time. I do not recall any evidence about who Temilade Alabi was, and the relationship of that person to the family. Andreanna herself would have been no more than an infant at the time.

61There was no independent evidence from a third party about the intention behind how the receipt was made out, or how title to the Ibadan property was to be held. In the absence of that evidence, it is hard to believe that at least two of the children would have paid an amount to a vendor’s agent for a property halfway around the world.

62It is understandable that a parent might purchase a property, particularly of an income producing nature, that he or she intends to benefit the children. More likely, the parent would take title and exercise ownership of the property for the benefit of the children during the parent’s lifetime, and then leave it to the children as part of their estate.

63As it is, there is no evidence that the respondent took title or ownership to the Ibadan property in trust for any of the children. There is certainly no evidence that he collected rent from the tenants of the five apartments and used that income for the benefit of Adeola, George or Andreanna. I find as a fact that the respondent was therefore the owner and did not hold title to the Ibadan property in trust for any person.

64The respondent produced a Valuation Report based on an inspection of the Ibadan property on May 2, 2017. The report was prepared by Tolaid & Co. There were no qualifications given by Todalid & Co. in the content of the report or in a separate document to qualify that firm as a valuator, appraiser or real estate office. Still, it is the only evidence of value for the Ibadan property before the court, the applicant having filed no evidence to the contrary. According to the Valuation Report, the Ibadan property had a building replacement cost of N4,524,660 and a land value of N3,500,000, for a total of N8,024,660 as of May 2, 2017.

65The second valuation produced by the respondent was prepared by Fisayo Alo & Co., Estate Surveyors, Valuers and Project Management Consultants. This valuation provides a value for a property and building at No. 6, Ogundele Close, off the Atola Bus Stop in Ibadan. This property is described as a three storey building consisting of 15 to 21 flats ranging from one bedroom to three bedrooms in each flat. This report gives a value for the property and building of N9 million as of March 12, 2020. It was unclear why the respondent filed this later valuation as it bears no resemblance to the Ibadan property at issue. I presume it was introduced for comparative purposes.

66I have considered the respondent’s evidence and the ancillary documents he filed in relation to his acquisition of the Ibadan property. I find as a fact that the Ibadan property owned by him was purchased with cash. There was no mortgage required to purchase the property. I further find as a fact, based on the respondent’s evidence and the Valuation Report by Tolaid & Co. that the Ibadan property had a value of approximately N8,000,000 as of May 2017, which was one year after the date the parties separated. This translates into $26,666 and is added to the respondent’s net family property, and this is the value I give to that property.

Pensions

67At the time of trial, the applicant produced a family law valuation for her pension with the Air Canada CUPE Represented Pension Plan. The family law (imputed) value under that pension plan as of May 21, 2016 was shown as $173,330. The valuation also shows a related tax liability at 16.2% of $28,079.

68The applicant’s imputed value for her pension must be added to her net family property value. However, she is also entitled to a disposition cost of the tax liability.

69The applicant is adamant that the respondent has not made any disclosure of the pension entitlement he has earned at any of his places of employment throughout the marriage. She is understandably frustrated that she has a pension from working as a flight attendant over 14 years of service, and must now have the value of that pension subject to equalization without requiring the same from the respondent.

70The respondent has denied that he had a pension or other entitlement for a payment plan from any of his several employers on the date of valuation. The applicant has made the submission that the respondent was entitled under a pension at his former employers MTS Adstream or Citi Cards Canada on the valuation date.

71In an affidavit dated January 25, 2019 filed in support of the Motion to Change, the applicant attached the disclosure package she had received from the Sachdeva Milne Law Group dated September 17, 2018. Those lawyers represented the respondent at the time. In that disclosure package, an RRSP statement from Manulife was disclosed showing $3,820 had accumulated in a Registered Retirement Plan as of August 15, 2018 from his job at MTS AdStream.

72There is also a reference on the respondent’s T4 for 2005 that he had paid $417 for a pension adjustment while employed at Citi Cards Canada, but no other evidence was given about any pension. The applicant stated when giving evidence that she understands that the respondent had accumulated a pension at Citi Cards of approximately $3,000.

73On reviewing the CPP (Canada Pension Plan) Earnings and Contributions record for the respondent, it is clear that he did not declare significant pensionable earnings. The respondent’s earnings peaked at approximately $42,000 a year in each 2009 and 2010. In later years, he had no pensionable earnings, and in all the others it appears he earned less than $10,000. This income would likely signify that he was self employed. Whether he was self employed, or working at one of the other jobs he held throughout the latter part of the marriage, I find it unlikely that the respondent had a registered retirement plan or pension from those positions at the time of his departure.

74I find that the respondent held pension or pension like assets totalling $6,820 from two former employers as of the date of separation. This total will be added to his net family property value. However, the respondent is also entitled to the same deduction of 16.2% for related tax liability on this asset as the applicant received, in the amount of $1,104.84.

Accounts and other assets

75I heard evidence from the applicant about an account held by the applicant and the respondent at First Bank in Nigeria. A statement for account number ***1088 shows a ledger balance on account of N1,961,472.33 as of May 23, 2016. This amount is slightly less than the balance on account date May 12, 2016. I find as a fact that the account held at least the former amount on the date of separation. The equivalent in Canadian funds, $6,528, shall be divided so that $3,269 is added to each party’s net family property.

76The applicant made reference to other accounts or investments allegedly held by the respondent or by the respondent with the applicant jointly. Those alleged holdings include $$100,000 in an investment account in Nigeria, and $45,000 left in an account at Royal Bank. Unfortunately, no evidence was given to make findings of their existence or the amounts held in each account on the valuation date. As a result, I make no findings of the existence or value of the balance in those other accounts or investments.

77Finally, the applicant also claims the respondent’s net family property should include the value of land she alleges the respondent owns in Aja, Nigeria. There was no evidence to prove that either of the parties owned land in Aja at the date of separation.

Vehicles

78The evidence given by the parties of what vehicles owned by one or them both on the date of separation was confusing, as was the evidence of the value of those vehicles. There was no expert evidence of value given, or evidence provided from a neutral source to even consider taking judicial notice. All I have was the applicant’s evidence that the 2006 Mercedes that the parties used as the family vehicle. In her opinion, that Mercedes was worth $16,000 in 2016, while the respondent puts the value of this vehicle at around $1,500. I therefore find that the Mercedes vehicle the family would use in Ontario had a median value of $7500 on the date of separation. It was 10 years old by 2016, and its condition is unknown.

79I find that the respondent retained the use of the 2006 Mercedes van after separation. I therefore attribute this value to the respondent as a result.

80The applicant alleges that other vehicles owned by the parties at separation included a 2006 Mazda 3 Sport GT 5, a Utility Trailor and another Mercedes the respondent would use in Nigeria. There was no evidence given on the value of those vehicles, and none are assigned to either party.

Liabilities on date of separation

81The parties would each share the balance owing on the mortgage to Royal Bank of Canada registered against 6 Premier Place in the amount of $368,881 on the date of separation. This mortgage was paid out when the sale of the matrimonial home closed on June 30, 2016. Each of the parties therefore owed $184,440.50 on the mortgage at the date of separation.

82The parties did not give much evidence on other liabilities or indebtedness owed by either of them as of the valuation date. This is so presumably because the debts were evenly distributed, or were paid as properties were sold.

Equalization

83Based on the findings made above, the asset values of the applicant and the respondent on the date of separation were as follows:

Asset Applicant Respondent

a. 6 Premier Place (594,000) $297,000 $297,000

b. 587 King Street 170,000

c. 657 King Street 124,000

d. Ibadan property 26,666

e. RBC account, Mississauga 1,733

f. Air Canada pension 173,330

g. MTS RSP/ CITI CARD Pension 6,820

h. Mercedes (2006 vehicle) 7,500

i. First City acc’t, Nigeria (6,528) 3,269 3,269

TOTALS: $473,599 $636,988

84The following were the liabilities of the parties on the date of separation:

Applicant Respondent

a. Mortgage against 6 Premier Place $184,440 $184,440

b. Air Canada Pension tax liability 28,079

c. MTS/CITI CARDS tax liability 1,105

TOTALS: $212,519 $185,545

85The asset values less the liabilities of each party on the valuation date reveal that the applicant’s net family property value was $261,080, and the net family property value of the respondent was $451,443. Under the Family Law Act, the respondent owes the applicant an equalization payment of $95,181. This calculation is subject to the disposition of any other claim made by the applicant.

Claim for an unequal division

86With the benefit of hindsight, it is clear that the parties were intent on dividing their assets as they were liquidated without regard to any equalization claims at the time. This appears to be the intent behind the distribution regime in the Minutes of Settlement that was carried forward in the “final” part of Justice Shaw’s Order.

87At trial, the applicant asked the court to award an unequal division between net family property values in her favour under s. 5(6) of the Family Law Act. Although she had not pleaded a claim for an unequal division in the Application, the court heard evidence on that aspect of her claim as the applicant in effect requested an amendment at trial. The respondent candidly admitted that he was not taken by surprise by it, knowing that she was making a claim of that nature. For greater certainty, I hereby grant leave to the applicant to amend her Application accordingly.

88The grounds on which the applicant seeks an unequal division must meet the requirements of section 5(6) of the Family Law Act. Section 5(6) reads as follows:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

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

(g) a written agreement between the spouses that is not a domestic contract; or

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

89Any claim for receiving an unequal division is decided after the determination of the equalization issue, not after the sale of a jointly held asset. The Court of Appeal set out the following process for considering whether an unequal distribution is warranted in paragraph 37 of Serra v. Serra, 2009 ONCA 105:

a) The court must first ascertain the net family property of each spouse, by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in section 4);

b) Next, the court applies section 5(1) and determines the equalization payment; and

c) Finally, and before making an order under section 5(1), the court must decide whether the equalization of net family properties would be unconscionable under section 5(6), having regard to the factors listed in paragraphs 5(6)(a) through (h).

90In Serra, Blair J.A. emphasized that the court may only exercise discretion under section 5(6) to make an unequal distribution between net family properties where the factors under subsection 5(6) can be applied to the facts, and if the court makes a finding of unconscionability. Both requirements must be met for the court to grant an unequal distribution claim.

91Blair J.A. explained in Serra that the jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. It is only when an equal division of net family properties in the circumstances would “shock the conscience of the court” would the threshold be met.

92I also refer to the definition to unconscionability in the trial decision of LeVan v. LeVan (2006), 2006 31020 (ON SC), 82 O.R. (3d) 1 (SCJ). In LeVan, Backhouse J. held that unconscionability is such a high test that “the courts have only minimal discretion to order anything other than an equal division of family property.” She also explained that unconscionable conduct could be seen as “conduct that is harsh and shocking to the conscience, repugnant to anyone’s sense of justice, or shocking to the conscience of the court.”

93Section 5(6) should be read along with section 5(7) to provide context for its proper application. Section 5(7) reads as follows:

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

94The cases under section 5(6) of the Family Law Act have discussed whether the court must find fault based on the conduct of a party to come under the factors listed in section 5(6), or if circumstances may arise that make those factors applicable and that also shock the conscience of the court.

95The decision of Perkins J. in Cosentino v. Cosentino, 2015 ONSC 271 provides an example of how section 5(6) of the Family Law Act is to be applied in a fault based claim. Perkins J. referred to his earlier decision in Biant v. Sagoo, [2001] O.J. No. 1685 (SCJ) where he had rejected the wife’s claim stating there was no evidence that the husband’s expenditures had materially affected the family in any way, and absent evidence that the wife would be called upon or expected to pay for any of them.

96Justice Perkins found that the alleged misconduct of the respondent in Cosentino did not fall within any of the factors set out under section 5(6), and therefore the wife had no remedy for an unequal division under that section. As he stated in paragraph 49:

49 However morally objectionable or emotionally harmful the husband's conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. There was no evidence in this case that the husband's affairs had any significant effect on the parties' debts, liabilities, or property. There is accordingly no remedy under section 5(6) for the matrimonial misconduct of the husband. Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

97There were several grounds discussed in the applicant’s Closing Submissions for seeking an unequal division, all based on the respondent’s conduct. The applicant submitted that the evidence at trial showed the respondent as a cruel and selfish husband and father who used his own income to benefit himself while allowing the applicant to pay all expenses for the family. That income included earnings from his various jobs. This income also includes the rents he collected from tenants of the Ibadan property which she alleges to total as much as $137,000 over time, and for the investment properties in Welland. The applicant argues that this was all family money that the respondent ought to have used for the benefit of the family.

98The applicant spoke of the fact that the respondent had fathered children outside of the marriage and has diverted his own resources away from the family to those children. The applicant also described the respondent’s abusive treatment of members of the family, including her allegation that he drove Adeola to take his own life.

99There is no doubt that the applicant seeks a form of retribution for what she considers to be the reprehensible behavior of the respondent towards herself and the children during the marriage. She seeks to exact a price for what she perceives that conduct has cost her and the children financially, and in emotional terms. As reprehensible as that behavior may seem to her, the applicant has not shown how those facts fit under any ground in s. 5(6) of the Family Law Act.

100The closest the applicant may have come to bringing her complaints about the respondent’s conduct under s. 5(6) might have been to argue that his concealment of income from employment and rents collected in Ibadan and in Welland were an intentional or reckless depletion of his net family property under subsections (d) or (h). In this sense, had he saved (or disclosed) an accumulation of those funds, the respondent would have a greater net family property value. However, the respondent has produced numerous invoices and receipts in relation to maintaining the investment properties in Welland to justify his expenditure on those properties. These invoices and receipt are evidence of circumstances that relate to the preservation, maintenance or improvement of those properties as much as they are evidence of the respondent’s expenditure of rental income for repairs and maintenance.

101On the other hand, had the respondent used the rents to pay down any mortgage on those properties, he would have had a greater equity to add to his net family property value, but those properties were unencumbered.

102The threshold for a party to argue successfully that the court should find that to equalize the net family properties would be unconscionable under the specified grounds is a high threshold to meet. I am not satisfied by the evidence that the applicant has brought the conduct of the respondent within any of the specified grounds, let alone that the conscience of the court would be shocked if he was only required to pay an amount that equalizes the difference in net family properties.

Post separation adjustments

103That part of Justice Shaw’s Order characterized as “final” provided for distributing the balance of the $275,933.73 held by Mr. Oladejo in trust after the sale of the matrimonial home. The difference between the net proceeds in trust under paragraph 7 of the Minutes on which the Order was based and the $196,579.80 shown in Mr. Oladejo’s trust statement entered in evidence can largely be explained by the payment of $6,299.80 for the respondent’s legal bills, and the disbursement of $73,000 to the applicant. These payments were made from the joint funds held in trust and can be reconciled as post separation adjustments.

104The Order of July 17, 2017 provided for a payment to the applicant of $64,966.86 and to the respondent in the amount of $137,966.86. This distribution was agreed upon by the parties without regard to how their net family properties might differ, and how that difference might alter their entitlement to those proceeds upon equalization. In his Endorsement dated February 28, 2019, Ricchetti J. addressed the difference of $73,000 between the payments to each party under paragraph 5 of Justice Shaw’s Order by finding the applicant had taken that amount from a family line of credit after separation. In a sense, the applicant had taken an advance on her share of the matrimonial home by doing so.

105This rationalization is born out by the evidence. In the Personal Assessment by TD Canada Trust, the applicant is shown as holding $590.91 in U.S. Funds on account, and (-$73,500) in an unsecured line of credit. These account balances resulted in the applicant’s net worth of $74,091.11 in assets at TD Bank as of June 14, 2016. This evidence is consistent with the applicant’s explanation that she put $73,000 or so on deposit in the line of credit to maintain a positive balance.

106The applicant disputes that she took $73,000 from a joint line of credit to top up her own credit line. In the alternative, she submits that she transferred or paid $73,000 from her own line of credit to the line of credit at TD Bank. She has provided no evidence of the source of these funds to begin with, and she has not provided a reasonable explanation for the court to disagree with the findings of Ricchetti J. on February 28, 2019.

107The pre-payment of $73,000 to the applicant supports the difference in the payments the parties agreed to in the Minutes of Settlement dated July 17, 2017. However, the admitted failure of the respondent to pay one half the net proceeds from the sale of 657 King Street when he sold that property in November 2018 disentitles the respondent from insisting on payment out of trust in strict accordance with the Minutes and corresponding Order. The respondent’s failure to comply is particularly relevant to the Motion to Change.

108There shall therefore be a post separation adjustment from the applicant’s one-half share of $275,933.73 for the $73,000 received by the applicant after separation. This adjustment is consistent with the finding of Ricchetti J. on the first return of the Motion to Change. The payment of $6,299.80 for the respondent’s legal fees shall also be deducted from his one-half of those proceeds received in trust. There shall also be a credit back from the respondent to the applicant for $3,269 for her half of the funds on account at First Bank in Nigeria.

Motion to Change

109The Motion to Change has served as a bar to the distribution of the net proceeds of sale held by Mr. Oladejo since June 2016.

110In order for the court to grant relief on a Motion to Change, the moving party must show on the evidence there has been a material change in circumstances since the making of a final order. That part of the Order made by Shaw J. on July 17, 2017 dealing with the distribution of the net proceeds of sale to the parties was expressly characterized as a “final” order. The jurisdiction to consider the Motion to Change is therefore established.

111A Motion to Change is brought where a material change in circumstances is the threshold to meet for the court to order a change of a final order. What is meant by a material change in circumstances was defined by Gordon v. Goertz, 1996 191 (SCC) to be a change which was not foreseen or could not have been contemplated by the initial judge. The moving party must then satisfy the court on the Motion to Change that the change in circumstances is material, which means that had it formed part of the circumstances at the time the order was made, would have likely resulted in a different order.

112In my view, the applicant called evidence that satisfies me that the failure of the respondent to comply with the Order dated July 17, 2017 is in itself a material change in circumstances. He has admittedly breached the Order of Shaw J. by not paying the applicant one-half the proceeds of $124,000 from 657 King Street in Welland when it was sold in November 2018. Furthermore, he did not obtain the consent of the applicant or permission from the court to proceed with listing the two investment properties for sale, as required. Had the respondent breached an earlier Order of this nature prior to the attendance on July 17, 2017, I seriously doubt Justice Shaw would have countenanced that breach by approving the distribution of funds in the manner provided under subparagraph 5 of her Order.

113The applicant candidly answered a question from the court that she brought the Motion to Change to stop the net proceeds from being paid out. She has been successful in her effort to do so. The Motion to Change is granted, and paragraph 5 in the final Order dated July 17, 2017 is set aside.

Contempt

114The applicant has brought a motion asking for the court to find the respondent in contempt for breaching the Orders made by Shaw J. and Richetti J., respectively.

115It is clear that orders made by the court must be obeyed. As J.W. Quinn J. famously said in Gordon v. Starr, 2007 35527 (ON SC), [2007] OJ No. 3264 (SCJ), “an order is an order, not a suggestion. Non-compliance must have consequences.”

116The applicant’s motion to find contempt involves a consideration of the test set out by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17. In dismissing the appeal from the Court of Appeal, the Supreme Court of Canada confirmed the three elements required to meet the test for the court to find civil contempt:

1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;

2. The party alleged to have breached the order must have had actual knowledge of it; and,

3. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

117The court discussed the importance of respect for court orders, and the purpose behind contempt of court as being a remedy that “rests on the power of the court to uphold its dignity in process … the rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect”: United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC). The court further discusses how it is well established that the purpose of a contempt order is “first and foremost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52.

118The contempt power is by its nature discretionary. The courts have consistently held that exercising the contempt power routinely to obtain compliance with court orders should be discouraged. It is a remedy to enforce orders of the court that should be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44. Therefore, the power of the court to find contempt should be made sparingly, and only where the cautious use of the contempt power is the most appropriate form of relief to ensure compliance with an order.

119The Supreme Court of Canada focused on the third element in what is required in Carey v. Laiken to find a party in civil contempt. In addressing the issue of the required intent for a finding of contempt, the court confirmed that contumacy, being the intent to interfere with the administration of justice, is too high a standard and is therefore not an element of civil contempt. This means that lack of contumacy is not a defence to a motion for civil contempt. It is enough for the court to find a party in contempt it is found that the party has committed the act that an order requires a party to refrain from doing, or has failed to perform an act that a court order requires or compels that party to do.

120The court also left open the possibility that a judge may exercise his or her discretion to decline from imposing a finding of contempt where it would work an injustice in the circumstances of the case.

121There are generally two stages of the contempt process if a person is found in contempt of court. The first stage is the hearing held to determine if and where liability, or the contempt at issue, is found. The second stage is the hearing on a later date where the sentence for that contempt is decided. If a finding of contempt is made at the liability stage, this court cannot reopen that finding when it comes time to impose a penalty: Carey v. Laiken, at paragraph 67. One of the purposes behind having a two-stage hearing is to allow the court to determine if the contempt proceeding has had the desired effect of enforcing compliance with the order. See also Boily v. Carleton Condominium Corporation No. 145, 2014 ONCA 574.

122The first and second requirements of the test for contempt are not in dispute. The language of the Orders made by Shaw J. and Ricchetti J. are clear and unequivocal. There is also no doubt the respondent knew about the Orders as he was there on each occasion the Orders were made.

123The language of two Orders provide in precise terms what the respondent must do: he must obtain the agreement of the applicant to list any one or more of four properties for sale under paragraph 6, which he did not do. The Order of Shaw J. also required him to divide the remaining balance of the sale price with the applicant after the permitted deductions were paid under paragraph 8 of the Order. I do not give any weight to the respondent’s argument that he did not think he was breaching that Order by applying the proceeds from the sale of 657 King Street to upgrade the fire detection system at 587 King Street to meet code. He considered himself at liberty to pay his own bills until all four properties were sold because the word “properties” suggested he was not required to divide the proceeds with the applicant until all four properties were sold.

124While the language of the Order made on July 17, 2017 could have been clearer, it is obvious that the intent of the Order was to have the net proceeds divided between the parties as each property was sold. This is apparent from the specific deductions permitted with respect to the property, as that singular term is used in paragraph 8(c).

125Ricchetti J. also found that intent behind the Order of Shaw J. when he stated in his Endorsement that “…he has sold one of the four other properties and has not distributed the net proceeds equally. He has kept the entire proceeds. Arguably, this is a breach of the July 17, 2017 Order.” To remove any doubt, Ricchetti J. then made the Order requiring the respondent to pay the one half proceeds (from the sale of 657 King Street) that should have been paid to the applicant to the Accountant of the Superior Court of Justice to the credit of the Application. This is a further Order that the respondent has not obeyed.

126I find beyond a reasonable doubt that the respondent has breached each Order. On the respondent’s own admissions at trial, he did not obey the Order made by Shaw J. when he listed and sold 657 King Street without the consent of the applicant, and without paying one half the net proceeds of sale to her.

127I also find the respondent breached the Order of Ricchetti J. by failing to pay the same one half the proceeds of 657 King Street to the Accountant of the Superior Court to the credit of the application. He has failed to comply with this Order, justifying his failure on a miscommunication with Ricchetti J. in court. He has raised this issue to defend himself from an alleged contempt of court, yet he has made no effort to return to court to correct matters or to bring a motion to set the Order aside.

128I conclude that the respondent has intentionally refrained from acting in a manner required of him by either Order of the court. In doing so, he has acted in open defiance of the Orders, and must be found in contempt.

129A hearing date shall be arranged through the trial coordinator’s office for the sentencing phase of this motion for contempt.

ORDERS MADE

130The respondent shall pay the applicant $95,181 as an equalization payment.

131The applicant’s claim for an unequal division between net family properties is dismissed.

132The starting point for the calculation of the proper distribution of funds that includes equalization is logically the $275,933.73 the parties acknowledged in the Minutes of Settlement they signed on July 17, 2017. The parties are therefore entitled to the following payments, as adjusted:

Applicant Respondent

From the $275,933.73 in trust: $137,966.86 $137,966.86

Initial payments out: (73,000) (6,299)

SUBTOTAL: 64,966.86 131,667.86

Equalization: 95,181 (95,181)

Post Separation Adj’s: 3,269 (3,269)

FINAL TOTAL: $163,416.86 $33,217.86

133The Motion to Change paragraph 5 of the “final” Order of Justice Shaw date July 17, 2017 is granted. Paragraph 5 is set aside in its entirety.

134Mr. Jide Oladejo shall disburse or retain in trust from the $196,579.80 held in his trust account as follows:

a) To the applicant, Comfort Alabi (Addy): $163,416.86

b) To the respondent, John Alabi: $20,000.86

c) Hold in trust (pending contempt sentencing): $13,162.94

135In the event either party takes issue with the mathematics of this judgment, they are granted permission to serve and file a submission of no more than two pages by November 19, 2021. This written submission shall set out any error alleged along with the suggested correction of that error, provided the submission does not seek to change any underlying finding of fact or the substance of the judgment.

136The respondent John Olaosebikan Alabi is found in contempt of court. A sentencing hearing shall be scheduled by either party after 30 days of this judgment. This hearing may be conducted by video-conference.

137The applicant indicated at trial that she would not be seeking costs. It is unlikely that the respondent will seek costs in view of the outcome. However, if either party decides to seek costs, they may contact my judicial assistant by email at Snaza.Velanovski@ontario.ca to arrange an attendance for that purpose.

138If I do not receive a request for a hearing on costs by December 1, 2021, I shall assume the parties have resolved or waived any claim for costs between them.

139I thank the parties for their patience while waiting for this decision.