COURT FILE NO.: FS-21-43807
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shannon Denise Kelly, Applicant
AND:
Justin Emil Rubatscher, Respondent
BEFORE: Kurz J.
COUNSEL: Margaret Teixeira, for the Applicant
Bethesda Kold, for the Respondent
HEARD: October 6-8, 27, 2021
ENDORSEMENT
Introduction
1These are my reasons in the uncontested trial regarding equalization (or unequal division of net family property) and post separation adjustments between the parties. For reasons set out in my endorsement of October 8, 2021 I did not adjourn this proceeding but allowed the Respondent husband (“the husband”) to participate by cross-examining the Applicant wife (“the wife”) and making submissions.
2In preparing these reasons, I have reviewed the detailed affidavit for uncontested trial of April 13, 2021 of the Applicant (‘the wife”), her financial statement, her NFP Statements and heard both the cross -examination of the wife and her brief re-examination. The wife’s NFP statement of October 27, 2021 was prepared after I questioned some entries in her earlier NFP statement. That latest NFP statement also contains a summary of the wife’s claims to post-separation adjustments.
Background
3In brief, the parties commenced cohabitation on August 26, 1996, married on August 25, 2007, and separated on February 15, 2020. They have three children, now aged between four and seven years of age. All three are in the wife’s exclusive care.
4The wife is a corrections officer, presently on leave and in receipt of Worker’s Compensation benefits. Since separation, she has been the sole support of the parties’ children.
5The husband is a contractor who operated three home contracting, construction, and renovation firms. Each of those firms used a variation of the business name, “ATD”. For a time, the husband’s businesses were very lucrative. The wife’s evidence is that the husband earned a great deal of both reported and unreported income. The husband’s businesses were successful enough to allow the parties to live what the wife described as a luxurious lifestyle.
6The wife described their former matrimonial home as “a five-bedroom home, with a high-end kitchen, pool with waterfall, cabana and hot-tub, an outdoor kitchen, an axe throwing station, with a $200,000 landscape, sky-lights, custom-build closets.” The parties drove expensive vehicles, engaged in expensive vacations, and sent their two oldest children to private Montessori schools. They hired a nanny, paid for by the husband’s business. They purchased and owned valuable jewelry, which between them, totaled over $100,000.
7Earlier in their relationship, the husband had a problem with recreational drugs, but the concern seemed for a time to have been resolved. In 2019, the husband appears to have resumed his drug use. By early in 2020, the husband’s behaviour led the wife to suspect that his drug use had become a serious problem. As the wife describes it:
His communication was lacking and his behaviour became worrisome. Having known him for almost half my life, I suspected that he was abusing drugs again. He distanced himself from me and the children. He became overly aggressive towards us, often yelling, going into psychotic episodes and accusing me of wanting to leave him, or other outrageous claims. His mental health was becoming very concerning. I later found out that he had multiple partners during this time as well.
8On February 15, 2020, the parties separated when the husband left the matrimonial home. He then began to vilify the wife on social media. He attempted to set up a “Go Fund Me” page to assist with his legal fees in fighting the mother. Attempts by the parties to resolve their issues went awry. The wife was charged with mischief for an incident that occurred during a meeting to discuss a resolution. This could have potentially affected her employment. The charge was resolved with a peace bond.
9In March 2020, the husband asked the wife to consent to a second mortgage, which he represented to her was intended to save his business. He arranged a high interest mortgage with a private lender, the Forten Group, for approximately $617,000, including legal fees and interest. Relying on the husband’s representations, the wife consented.
10It turns out that the proceeds of the mortgage did not go towards the husband’s business at all. The husband has not accounted for his use of the mortgage proceeds. The wife has learned that on February 21, 2020, the husband deposited $492,486.85 of the mortgage proceeds into his TD bank account. On that same day, he purchased a bank draft for $300,007.50 and withdrew $1,000 in cash. Three days later, on February 24, 2020, the husband purchased a bank draft for $174,786.85 and sent an e-transfer of $2,500 to an unknown person. The evidence does not disclose where any of that money went.
11The court finds that the husband converted the mortgage funds to his personal use. The wife had an equitable interest in half of those funds.
12On April 13, 2021, the wife swore that the balance owing to Forten Group for the husband’s second mortgage was $547,053.43. She stated that she had to pay approximately $70,000 towards that mortgage between March 2020 and February 2021, in part from funds borrowed from her sister.
13As a result of the husband’s business dealings, both he and the wife have been sued by various business creditors. The husband did not defend those actions, leading to default judgments and executions against him. But the wife had to defend the actions that named her. The executions against the husband claimed portions of his equity of the matrimonial home before the wife could prove her own claims in this proceeding.
14Among the judgments obtained by the husband’s business creditors were:
a. Ferrell Builder’s Supply Co. obtained a judgment against the husband only for $17,051.16.
b. A company called Ottewill sued the husband and his business partner, obtaining a certificate of pending litigation against the jointly owned matrimonial home. The wife had to spend $30,000 in legal fees to have the CPL removed. Ottewill received a judgement against the husband of $121,446.53, which came out of his share of the proceeds of sale of the home.
c. Plaintiffs named Van Boxmeer have sued both parties as well as the husband’s business partner. The wife was sued even though she had no involvement in the husband’s business. She has been forced to defend that action as well. The husband did not do so. The wife says that she spent $35,000 on this action.
15Approximately $87,703.81 was paid into court from the husband’s share of the proceeds of sale of the home.
16On August 1, 2021, the parties settled the issues of parenting and child support. The wife was granted primary care of the parties’ children. Regarding child support, I ordered on consent as follows:
The Respondent, Justin Emil Rubatscher, shall pay a fixed amount of child support in the amount of $42,368 which shall be considered as the Respondent's ongoing child support obligation for the time period of July 15, 2021 to December 15, 2022, for the benefit of the three children. The fixed amount for his ongoing child support obligation between July 15, 2021 to December 15, 2022, totaling $42,368 is based on an imputed income of $150,000, and shall be paid from the Respondent's balance held in trust by the Senior Trust Account Clerk, the Accountant of the Superior Court of Justice.
The Respondent, Justin Emil Rubatscher, shall pay a fixed amount of $3,000 towards section 7 expenses between February 15, 2020 and December 15, 2021. Said amount shall be paid from the Respondent's balance held in trust by the Senior Trust Account Clerk, the Accountant of the Superior Court of Justice.
Analysis
17Having reviewed the evidence of the wife, I accept that her most recent NFP statement, dated October 27, 2021 and attached as Schedule “A” to these reasons, is accurate. That NFP Statement shows that the wife owes the husband an equalization payment of $41,449.44.
18The wife argues that there should be an unequal division of the parties’ net family property, such that she is not required to pay any equalization payment to the husband. She also requests a variety of post-separation adjustments, for the second mortgage taken out by the husband, which was paid out of the proceeds of the post-separation sale of the matrimonial home, as well as various joint expenses that she was forced to incur. Those expenses were primarily for the home and its contents. But they also included the leased vehicle that the husband was driving but had abandoned. It was registered in the name of one of his businesses.
19These arguments raise two issues: 1) should the wife be relieved of her obligation to pay an equalization payment to the Respondent under s. 5(6) of the Family Law Act, and 2) what post-separation adjustments is she entitled to receive?
Issue No 1: The Wife’s Claim to an Unequal Division of Net Family Property
20The relevant provisions of the Family Law Act which deal with both equalization and an unequal division of net family property are found at s. 5. They read as follows:
Equalization of net family properties
Divorce, etc.
5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.
(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.
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).
21In Frick v Frick, 2016 ONCA 799 at para. 32, the Court of Appeal for Ontario approved this comment by Perkins J. of this court in Cosentino v. Cosentino, 2015 ONSC 271, 55 R.F.L. (7th) 117, at paras. 46 and 49:
It is the financial result, the result of the usual NFP equalization that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else.
22The bar set to meet the test of unconscionability was deliberately set very high. As Blair J.A. wrote for the Ontario Court of Appeal in Serra v Serra, 2009 ONCA 105, at para. 47-48:
47 In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: [citations omitted].
48 I note, for example, the following comments of Backhouse J. in LeVan, and of Jennings J. in Merklinger:
LeVan, at para. 258:
“Unconscionability” is a much more difficult test to meet than “fairness” and as a result, the courts have only minimal discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined as, among other things, conduct that is harsh and shocking to the conscience, repugnant to anyone’s sense of justice, or shocking to the conscience of the court. [Citations omitted].
Merklinger, at para 54:
Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. [Emphasis added].
23I also note that in Serra, the Court of Appeal found at para. 49 that unconscionability can be founded on “post-separation changes in the value of a spouse’s assets and the circumstances surrounding that change.”
24Writing for the Court of Appeal in Frick, Benotto J.A. wring at para. 33, set out the timing of a determination of unconscionability under s. 5(6):
the determination can only be made after the usual equalization payment is calculated. It is that calculation that must result in unconscionability. By definition, therefore, this determination cannot be made on a pleadings motion; it can only be made once the equalization payment is known.
25Here the equalization payment is known. It is $41,449.44. I find that requiring the wife to pay the husband that amount would be unconscionable in light of:
a. His reckless depletion of his assets and the reckless increase in his liabilities cited above.
b. His post-separation removal of $617,000 from the equity of the parties’ matrimonial home, which he effected by misleading the wife. While the calculation of post-separation adjustments includes a consideration of those funds, I cannot say at this time that the husband is ever likely to repay the full amounts set out below.
c. The husband’s failure to account for those funds.
d. The husband’s lack of support for the wife and children post-separation, causing her to become their sole support after the husband was the main breadwinner throughout the parties’ marriage.
e. The wife’s unwilling concomitant assumption of the payments on the second mortgage after the husband effectively abandoned the wife and children.
f. The litigation in which the wife is required to engage as a result of the husband’s conduct.
26All of those factors, considered together, lead me to find that requiring the wife to pay a $41,449.44 equalization payment to the husband when he has removed so much money from their joint asset through deceit, and has forced the wife and children to endure so much financial insecurity would shock the conscience of the community. Accordingly, I find that the wife is not required to make any equalization payment to the husband.
Post-Separation Adjustments
27The wife has set out her claimed post-separation adjustments on the final two pages of her October 27, 2021 NFP statement, set out below and attached as Schedule “A” to this endorsement. Having reviewed them I find that she is entitled to post-separation adjustments payable to her of $355,556.23. Those adjustments consist of the following amounts, each of which is proven in the wife’s materials:
a. Mortgage payments made exclusively by the wife on the jointly owned matrimonial home: $21,532.50
b. Monthly Payment to Forten Group: $2,159
c. Reimbursement of Husband’s impounded car, registered to his business: $5,000
d. One half of the following joint debts or expenses:
i. Payout for Scotiabank Line of Credit registered against the matrimonial home of $99,142.05 = $49,571.02
ii. Repairs to the home of $1,300 x 5 = $650
iii. Hydro and internet while husband still in the home of $650 = $325
iv. Storage for household contents: $3,584 ($597.40/mo. x 6) = $1,792
Total joint debts claimed: $53,338.02
e. One half of the $547,053.43 Forten Group Mortgage payout on the closing of the sale of the matrimonial home: $273,526.71
Total Claims for post-separation adjustments: $355,556.23
28The wife also claims for $5,887, representing a rebate that she would have received from the Town of Oakville, subject to an inspection report. The basis for the claim has not been clearly laid out in the wife’s materials. Further she did not plead that head of relief. I do not grant it.
29The wife concedes that she is holding $70,305 in jewelry that belongs to the husband. She appears to have no intention of returning it to him considering the amounts that he owes to her. While claiming the colour of right to take this jewelry, she concedes that the husband is entitled to set-off its appraised value of $70,305 against the amounts that he owes to her. Without making any finding as to the wife’s claim to a colour of right to those items, I nonetheless grant her request to deduct that figure from the $355,556.23 that the husband owes to her in post-separation adjustments. Thus, the net amount that the husband owes to her for post-separation adjustments is $285,251.23 ($355,556.23 - $70,305).
Conclusion
30For the reasons set out above, I order that:
a. the wife is entitled to an unequal division of the parties’ net family properties, such that she is not required to make an equalization payment to the husband.
b. The husband owes the wife the sum of $285,251.23 in post-separation adjustments.
c. Prejudgment interest is payable on these amounts from the date of issuance of the wife’s application.
Costs
31The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit her costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.
Additional note
32I thank both counsel for their professionalism and assistance during this hearing.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Date: November 25, 2021
Schedule “A” to the Endorsement of Kurz J. of November 25, 2021
ONTARIO
Court File Number
Superior Court of Justice
FS-21-43807
(Name of Court)
at
491 Steeles Avenue East, Milton, Ontario, L9T 1Y7
Form 13B: Net Family Property Statement
(Court office address)
Applicant(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).
Shannon Denise Kelly 1016 Bridge Road Oakville, ON
L6L 2B5
Tel: 905-580-4096
Margaret Teixeira Wood Gold LLP
21 Queen Street East, Suite #300 Brampton, Ontario L6W 3P1
Tel: 905-451-4646
Fax: 905-451-4650
Respondent(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).
Justin Emil Rubatscher 1016 Bridge Road Oakville ON
L6L 3B5
My name is (full legal name) Shannon Denise Kelly
The valuation date for the following material is (date) February 15, 2020
The date of marriage is (date) August 25, 2007
(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND
Nature & Type of Ownership
(State percentage interest)
Address of Property
APPLICANT
RESPONDENT
Matrimonial Home
1016 Bridge Road, Oakville ON L6L 2B5 – joint
$469,370.73
$469,370.73
tenancy/tenants in common – sold for
$2,590,797.46
Balance of real estate commission: $2,211.12
(added)
Forten Group Mortgage: 547,053.43
Scotiabank Mortgage: 1,036,572.81
Legal fees incurred to discharge Ottewill no-
dealings order and Van Boxmeer CPL: 52,756.42
Closing fees, including preparation of motion
material to dispense with husband's signature:
$17,884.47
Funds remaining after mortgages and taxes paid:
$938,741.45
TAB 1A – Statement of Adjustments
- Totals: Value of Land
$469,370.73
$469,370.73
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
Item
Description
APPLICANT
RESPONDENT
Household goods
Divided
& furniture
Cars, boats, vehicles
1988 LX Convertible (Shannon) – approximately 150,000km
- Unable to obtain a blackbook value online as the year will only go as far back as 2009
- TAB 1B - ad from Autotrader, with vehicle selling at 11,500 with 119,000 km
$11,500.00
1984 GT Mustang (Justin)
- Modified
- After-market parts/track car/roll cage
- Unable to obtain a blackbook value online as the year will only go as far back as 2009
- TAB 1C - ad from kijiji listed as $15,999 for resale.
$15,999.00
2018 Sierra Denali Truck 2500 HD – UPDATED EVIDENCE – LEASED VEHICLE
- lift kit (to raise it up)
- Special rims
- Approximately $30k in modifications
- TAB 1D - ad from autotrader, with value of
$75,754 for the higher end of the average price range. Also attached, Blackbook value attached - $75,789
2012 Bobcat S650 Skidsteer (Justin’s name only)
- TAB 1E - ad from kijiji listed as $34,000 for resale. Value listed here accounts for the value on date of separation.
$34,000.00
2018 ATV Polaris Rzr (Justin’s name only)
- TAB 1F - ad from kijiji listed as $18,500 for a 2016 Polaris Razor. Value listed here accounts for date of separation value and it being a 2018 Polaris
$18,500.00
Jewellery, art, electronic tools, sports & hobby, equipment
TAB 1G – For Justin - several expensive pieces of jewellery, including rings, solid gold necklaces, bracelets and watches. Value based on Gem Vision Certificate. TAB 1H – For Shannon – engagement/band – value ($28,915) based on Gem Vision Certificate (for both engagement ring and band). family birth stone ring (pictures in Affidavit Uncontested Trial material) necklace and bracelet, diamond earings
$50,000.00
$70,305.00
Other special items
- Totals: Value of General Household Items and Vehicles
$61,500.00
$138,804.00
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
Category (Savings, Checking, GIC, RRSP, Pensions, etc.)
Institution
Account Number
APPLICANT
RESPONDENT
Chequing
CIBC Chequing Account – TAB 1I
**7135
$2,623.41
CIBC US $ Personal Account (sole) TAB 1J
**1033
$1,113.15
Investment Planning Counsel
RRSP – TAB 1K
***1815
$42,495.01
Tax-Free Savings – TAB 1L
**4982
$22,937.60
- I have depleted these funds as I had to pay off my legal fees and mortgage
Pension
Opseu Trust, ID number 112-180- 178 Pension Valuation – cannot afford to incur this additional expense
- Telephone call with pension contact, who indicated that Shannon’s pension to date is $295,550
- She commenced employment in April 2004
- Date of Marriage is August 25, 2007
- Value listed here is based on the following calculation: $295,550 /17 years of employment) = $17,38529
/12 months = $1,448.77 per month;
$1,448.77 x 150 months (dom to dos) = $217,315
- The only pension statement that I could find was a statement for year ending 2018, with a total contribution plus interest during my membership of $79,860.56 – TAB 1M
$217,315.00
Investment Planning Counsel
Family RESP, client ID 152208453, Plan ID 152169731 – joint with Justin – TAB 1N
- As at March 31, 2020 the balance in the account was $8,514.23. I have not contributed towards the account
since then given my financial difficulties
Bank Statements
TD Account, account number **0512 TAB 1O
$672.92
TD Account, account number **0663
($500.00)
- It is worth noting that on February 21, 2020, Justin had a deposit into the account of $492,486.85 TAB 1P
NO OTHER ACCOUNTS HAVE BEEN DISCLOSED BY JUSTIN – FULL DISCLOSURE HAS NOT BEEN MADE
RRSP
Justin has an RRSP account with Investment Planning Counsel, which I believe that he had approximately
$25,000 on date of separation. I suspect that he has now depleted his account.
Unknown
- Totals: Value of Accounts And Savings
$286,484.17
$172.92
PART 4(d): LIFE AND DISABILITY INSURANCE
Company, Type & Policy No.
Owner
Beneficiary
Face Amount ($)
APPLICANT
RESPONDENT
Manulife Financial
Shannon Kelly
Erin Kelly
None
- Totals: Cash Surrender Value Of Insurance Policies
$0.00
$0.00
PART 4(e): BUSINESS INTERESTS
Name of Firm or Company
Interests
APPLICANT
RESPONDENT
N/A ATD Contracting
50% partnership with Joseph Aragona – Shannon believes that Justin took the funds (approximately
$490k) from the line of credit to open a new business
unknown
- Totals: Value Of Business Interests
$0.00
$0.00
PART 4(f): MONEY OWED TO YOU
Details
APPLICANT
RESPONDENT
- Totals: Money Owed To You
$0.00
$0.00
PART 4(g): OTHER PROPERTY
Category
Details
APPLICANT
RESPONDENT
None
- Totals: Value Of Other Property
$0.00
$0.00
- VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])
$817,354.90
$608,347.65
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
Category
Details
APPLICANT
RESPONDENT
Matrimonial Home
Scotiabank Mortgage/Scotia Line of Credit account no. **486 011 (joint) - $1,036,572.81
- Justin withdrew $150,000 from the line of credit, for his business – in $50,000 increments to pay for his employees
Credit Cards
CIBC Aerogold Visa Infinite Card, card no. ***3223 (sole) for date of June 2020 (I was unable to obtain any other credit card statements as my statements are in storage and I am unable to obtain copies of my credit card statements, as my card has now been compromised). TAB 1U
$4,997.31
CIBC Areogold Visa Infinite Card, card no. **8830 (sole) TAB 1V – Revised amount to account for only up to date of separation transactions
$5,245.79
Opseu Trust, ID number 112-180-178 - $217,315 x 18%
$39,116.70
Loan to my Sister
I could not sustain the financial burden of the household and childcare expenses alone. My sister loaned me the funds to ensure that we did not lose the home to the bank.
Justin (he has not provided his financial disclosure and therefore the value on the valuation date is unknown.
The debts that he has are post-separation, including Forten Group Mortgage, Ferrell Builder’s Supply Co., Ottewill, Van Boxmeer
- Totals: Debts And Other Liabilities, (TOTAL 2)
$49,359.80
$0.00
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
Category and Details
APPLICANT
RESPONDENT
Land
$0.00
General household items & vehicles (engagement ring and band was valued at $28,915, on date of marriage I had my engagement ring, with estimated value of the
engagement ring is estimated at 60% of the estimated at $17,349)
$17,349.00
Bank accounts, savings, securities, pensions (based on pension calculation)
$59,399.57
Life & disability insurance
$0.00
Business interests
$0.00
Money owed to you
$0.00
Other property (Specify.)
$0.00
3(a) TOTAL OF PROPERTY ITEMS
$76,748.57
$0.00
Debts and other liabilities (Specify.)
$0.00
3(b) TOTAL OF DEBTS ITEMS
$0.00
$0.00
- NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)
$76,748.57
$0.00
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”
Item
APPLICANT
RESPONDENT
Gift or inheritance from third person
Income from property expressly excluded by donor/testator
Damages and settlements for personal injuries, etc.
Life insurance proceeds
Traced property
Excluded property by spousal agreement
Other Excluded Property
- TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)
$0.00
$0.00
TOTAL 2: Debts and Other Liabilities (item 23)
$49,359.80
$0.00
TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)
$76,748.57
$0.00
TOTAL 4: Value of Excluded Property (item 26)
$0.00
$0.00
TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)
$126,108.37
$0.00
APPLICANT R
TOTAL 1: Value of Property Owned on Valuation Date (item 22)
$817,354.90
$608,347.65
TOTAL 5: (from above)
$126,108.37
$0.00
TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)
$691,246.53
$608,347.65
EQUALIZATION PAYMENTS
Applicant Pays Respondent
Respondent Pays Applicant
$41,449.44
$0.00
on behalf of the Applicant October 27, 2021
Signature Date of signature
Funds to be accounted for by Justin for post-separation expenses
$21,532.50 – mortgage payments made by Shannon solely, from March 2020 to February 2021. See paragraph 15 of the Uncontested Trial Affidavit.
$5,500 – reimbursement for monthly payment on the Forten Group Mortgage
$2,159.51 – half of Justin’s share for the property tax (which was paid by Shannon). See Exhibit 48 of the Uncontested Trial Affidavit. TAB 1Q
$99,142.05 – reimbursement for the payout of the Scotiabank line of credit that was registered as an encumbrance against matrimonial home. See Exhibit 49 of the Uncontested Trial Affidavit. TAB 1R
$15,809.40 - reimbursement for the following expenses:
o Return of the impounded car, to Justin’s business - $5,000. See paragraph 19 on page 28 of the Uncontested Trial Affidavit.
o Repairs in the home – $1,300;
o Hydro and Internet while Justin was residing in the matrimonial home post separation - $325;
o Final Inspection Report, deficiencies/cheque from Town of Oakville - $5,887; and
o Storage for household contents – $3,584.40 ($1,194.80 divided by 2 = $597.40 x 6 months) See Exhibit 50 of the Uncontested Trial Affidavit.TAB 1S
- $273,526.72 -half of Justin’s share for the Forten Group Mortgage (despite Justin withdrawing the full amount of the mortgage ($492,486.85) from the parties TD account, and to date, Shannon does not know what Justin has done with the funds or where he has deposited the funds). See Exhibit 25 of the Uncontested Trial Affidavit. TAB 1T
Total amount owed from Justin
$144,143.46 + $547,053.43 (full amount Forten Group Mortgage = $691,196.89
In the alternative,
$144,143.46 + $273,526.72 (half of the Forten Group Mortgage) = $417,670.18 Less Jewellery (Shannon keeping Justin’s jewellery) - $70,305.00