COURT FILE NO.: FS-18-41148 DATE: 20220404

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.C. Applicant – and – N.C. Respondent

Counsel: L.C. Self-Represented Ann Stoner, for the Respondent

HEARD: December 8, 9, 10, 13, 14, 15, 16, 2021, January 12, 13, 14, 2022

REASONS FOR JUDGMENT

Conlan J.

I. The Undisputed Background Facts

[1] The Applicant mother, L.C., and the Respondent father, N.C., are the parents of four children, ranging from age 13 to 19. The children all live with L.C., and the parenting issues were resolved prior to this Court’s involvement.

[2] The parties had a 17-year relationship; they were married in December 2000 and separated in December 2017. They are now divorced.

[3] After the parties separated, they continued to reside under the same roof for some period of time, at a home in Burlington, Ontario (“Winterberry”). That arrangement ended on March 8, 2019, when N.C. left the home after L.C. changed the locks.

[4] Winterberry was bought on August 22, 2005. At that time, both parties were on title. On April 27, 2009, the title was transferred to L.C. alone, though both parties remained on the mortgage.

[5] Prior to Winterberry, and after the marriage, the parties lived together at another home in Burlington. That home was owned solely by L.C.

II. The Issues

[6] The trial of this matter was quite lengthy and included a large number of exhibits, however, the issues are not complex and all relate to property and section 7 expenses. There are six issues to be decided by this Court, and they may be stated as follows:

i. is the matrimonial home, Winterberry, owned solely by L.C. or by both parties;

ii. what equalization payment is owing by L.C. to N.C.;

iii. what order should be made regarding the contents of Winterberry;

iv. what section 7 expenses are owed by N.C. to L.C.;

v. should there be an order made securing N.C.’s ongoing child support obligations; and

vi. what order should be made, if any, regarding money taken by N.C. from the children?

III. The Positions of the Parties

[7] As a courtesy to L.C., although she is the Applicant in this proceeding, she was permitted by the Court to file her written closing submissions after N.C. delivered his. L.C. was also granted a considerable extension on the original deadline for her written closing submissions to be filed.

[8] N.C.’s counsel filed some very helpful documents along with the written closing submissions, including but not limited to a Form 13C – Comparison of Net Family Property Statements, and a detailed breakdown of the calculation of the section 7 expenses arrears figure that N.C. says that he owes to L.C., and a draft Final Order.

[9] Interestingly, N.C.’s Form 13C shows that his position is actually more beneficial to L.C. than her own position, as his figure for equalization owing by her to him is $125,223.82, while that figure using her calculations is $242,993.85 owing from her to him.

[10] L.C., a self-represented litigant, also filed a very helpful draft Final Order as part of her detailed written closing submissions.

The positions of the parties on issue number one - is Winterberry owned solely by L.C. or by both parties?

[11] L.C. submits that Winterberry is hers alone. She claims that title to Winterberry was transferred to her name alone, in April 2009, because N.C. had reneged on the parties’ agreement at the time that Winterberry was purchased that the parties would contribute equally to the carrying costs of the home.

[12] At clause 11 of her written closing submissions, L.C. states that “I am asking that the Court find that the respondent is not deemed to have a one-half ownership interest in the matrimonial home by way of Resulting or Constructive Trust…”.

[13] N.C. submits that he has a fifty per cent (50%) interest in Winterberry. He relies on the doctrine of resulting trust and section 14 of the Family Law Act, R.S.O. 1990, c. F.3, as amended: “[t]he rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that, (a) the fact that property is held in the names of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants…”.

[14] Relying on Pecore v. Pecore, 2007 SCC 17, at paragraph 24, N.C. submits that the burden is on L.C. to demonstrate that the transfer that occurred in April 2009 was a gift, as it is clear that the transfer was made for no consideration.

[15] Relying as well on Kerr v. Baranow, 2011 SCC 10, at paragraph 18, N.C. argues that the focus of the inquiry is what his actual intention was when title to Winterberry was transferred to L.C.’s name alone in April 2009.

[16] In addition, or in the alternative, N.C. claims that he has a one-half interest in Winterberry by virtue of a constructive trust, submitting that there would be an unjust enrichment to L.C. and a corresponding deprivation to N.C., in the absence of any juristic reason for the same, if a finding was made that L.C. has a 100% interest in Winterberry.

[17] Ultimately, N.C. is asking this Court to order that Winterberry shall be sold. He is also requesting that this Court set-off what he owes L.C. for half of the carrying costs of Winterberry against what she owes him for occupation rent since March 8, 2019.

[18] That requested set-off, in principle, is not opposed by L.C., and this Court does not need to assess that request other than to say that it is reasonable and shall be granted.

[19] L.C. strongly opposes any forced sale of Winterberry. As she states at clause 3 of the draft Final Order that she filed, “I am asking the court to grant me as the primary and sole caregiver to the 4 children of the marriage, the opportunity to stay in the home that they all have ever known”.

The positions of the parties on issue number two - what equalization payment is owing by L.C. to N.C.?

[20] The resolution of this issue depends, in the main, on this Court’s assessment of two things: (i) N.C.’s date of marriage business interests, and (ii) N.C.’s alleged debts to his mother and to CIBC as of the valuation date (the date of separation of the parties).

[21] On the former, N.C. asks this Court to accept the evidence of his expert witness who testified at trial, Trevor Hood. On the latter, N.C. relies upon the factors outlined in the decisions of the British Columbia Supreme Court in Locke v. Locke, 2000 BCSC 1300 (particularly paragraph 20 therein) and the Ontario Superior Court of Justice in Barber v. Magee, 2015 ONSC 8054 (specifically, at paragraph 42), affirmed on appeal – 2017 ONCA 558, as they relate to an assessment of whether money advanced by a parent to an adult child ought to be considered a loan or a gift.

[22] Of the two sub-issues referred to above, the alleged debts owing by N.C. to his mother and to CIBC, the one that L.C. has most forcefully made submissions on is that of the alleged loans made by N.C.’s mother to N.C. For various reasons given, at paragraph 115 of her written closing submissions, L.C. states that “I absolutely do not accept that the monies given to [N.C.] are a loan”.

[23] N.C. has calculated that L.C. owes to him an equalization payment of $125,223.82. He proposes that the said amount be paid out of L.C.’s share of the net proceeds of sale of Winterberry.

[24] L.C., at clause 93 of her written closing submissions, states that “I am asking the Court to accept that I owe [N.C.] an equalization payment as set out in the Comparison of Net Family Property Statements”, but she disputes the request that the said figure be subject to any interest. L.C. views the request for interest on the equalization payment as being “outrageous” given that N.C. has delayed the proceedings and has failed to comply with his own support obligations.

[25] In her draft Final Order, L.C. has included a concession that she owes to N.C. an equalization payment of $242,993.85. She also asks in the draft Final Order that this Court grant her considerable time to make the equalization payment in instalments, somewhere between four to ten years. Further, she requests in the draft Final Order that this Court “[c]onsider an unequalization based on the obvious untruths, unconscionable behaviour by the respondent over the course of the marriage and post-separation”.

[26] N.C. opposes L.C.’s request that she be permitted to pay any equalization amount that she owes to N.C. by way of instalments over a lengthy period of time, even as long as ten years. His argument is that L.C. never claimed that relief in the pleadings, and besides that relief is not appropriate given how the jurisprudence has interpreted subsection 9(1)(c) of the Family Law Act, R.S.O. 1990, c. F.3, as amended, including Reu v. Reu (1995), 14 R.F.L. (4th) 401 (Ontario Unified Family Court), and Purcell v. Purcell (1996), 26 R.F.L. (4th) 267 (ON CA), and Symmons v. Symmons (2012), 29 R.F.L. (7th) 187 (ON CA).

[27] N.C. also opposes any relief claimed by L.C. in terms of an unequal division of net family property. N.C. points out that the said claim was expressly and unequivocally abandoned by L.C. at trial.

The positions of the parties on issue number three - what order should be made regarding the contents of Winterberry?

[28] L.C. states that “there is no value in the home contents”, and thus, no order should be made regarding the contents of Winterberry. What N.C. was entitled to was shipped to him long ago (clause 119 of L.C.’s written closing submissions).

[29] Relying on the decision in Zabranski v. Zabranski, 2000 CarswellOnt 1640 (ON SC), incorrectly spelled as “Zabransky” in N.C.’s written closing submissions, reversed in part on appeal on other grounds – , N.C. seeks an order that the parties be given an opportunity to equally divide the jointly owned contents of Winterberry, failing which the contents should be sold and the net proceeds divided equally.

The positions of the parties on issue number four - what section 7 expenses are owed by N.C. to L.C.?

[30] N.C. has calculated that he owes to L.C., on account of section 7 expenses arrears, the sum of $21,891.53, being his 64% share of certain items in the years 2018, 2019, 2020, and 2021 up to March.

[31] N.C. proposes that this Court set-off that amount, $21,891.53, against what L.C. owes to him by way of an equalization payment. L.C. disputes any such set-off (clause 150 of her written closing submissions).

[32] N.C. makes three arguments against the balance of L.C.’s claims regarding section 7 expenses: (i) the items do not constitute special or extraordinary expenses, and further they were not reasonable and necessary, relying on the wording of subsection 7(1) of the Federal Child Support Guidelines, and the definition of “extraordinary expenses” in subsection 7(1.1), and jurisprudence interpreting what is and what is not an allowable section 7 expense including but not limited to the decision of the Ontario Superior Court of Justice in Tessaro v. Tessaro, 2010 ONSC 5342, at paragraph 257, (ii) if any of the disputed items are proper section 7 expenses, then N.C. did not give his consent to those expenses being incurred as required by the Orders of Justice Kurz on October 19, 2018 and Justice Doi on December 23, 2019, and (iii) L.C. has not provided sufficient proof of the expenses that she is claiming, and specifically no receipts as contemplated by Court decisions like that in Simmonds v. Simmonds, 2007 CarswellOnt 1547 (ON SC), at paragraph 12.

[33] Unfortunately, L.C. has not included in her draft Final Order any figure for what total amount she says is owing to her by N.C. on account of section 7 expenses arrears. She simply asks that his share of the full amount claimed be paid within 30 days and be subject to interest after that date. Looking at paragraph 121 of her written closing submissions, however, I gather that L.C. is requesting an order that N.C. shall pay to her his 64% share of the following section 7 expenses - $34,918.23 for 2018, plus $34,804.46 for 2019, plus $12,545.88 for 2020 and for part of 2021. That would result in a payment from N.C. to L.C. in the total amount of $52,651.88.

The positions of the parties on issue number five - should there be an order made securing N.C.’s ongoing child support obligations?

[34] N.C. submits that “[t]here was not sufficient evidence adduced at this Trial to indicate that a lump sum payment should be paid by [him] or held in trust as security for child support” (clause 210 of the written closing submissions filed on behalf of N.C.).

[35] L.C. has not addressed this matter directly, in either her written closing submissions or in her draft Final Order.

The positions of the parties on issue number six - what order should be made, if any, regarding money taken by N.C. from the children?

[36] No order is necessary, submits N.C., as he claims that he has repaid all of the money that he improperly took from the children’s TD Bank accounts and lockboxes.

[37] L.C. disagrees with that and submits that N.C. still owes the children $672.00, $2164.00, $1634.00, and $1114.00, respectively, from the eldest to the youngest child (paragraph 159 of L.C.’s written closing submissions). She asks in her draft Final Order that those sums shall be paid by N.C.

IV. Analysis of the Issues

Issue number one - is Winterberry owned solely by L.C. or by both parties?

[38] This was the most significant issue at trial in terms of time spent, the importance to the parties, and the amount of money at stake.

[39] As L.C. stated in her opening address, the case is all about the home. That sentiment was not disputed by Ms. Stoner, in her opening address delivered on behalf of N.C.

[40] The home is a detached five-bedroom building located in Burlington, Ontario. L.C. does not want the home sold. All of the children live there with her. They are all very attached to the home.

[41] Much of L.C.’s evidence at trial focussed on N.C.’s alleged propensity for being a louse (my word). According to L.C., N.C. is now claiming a trust interest in Winterberry, something that was advanced only in 2021, because the COVID-19 pandemic has caused substantial increases in the values of homes in the Burlington area. He wants to get a windfall from that, alleges L.C. She testified further that N.C. has a history of violating Court orders, even though he is a lawyer. For example, in late 2018, Kurz J. ordered N.C. to pay costs of $2500.00 within 60 days, yet N.C. waited until the week before the case was to be tried in June 2021 to finally pay the money. Further, in May 2018, Seppi J. ordered N.C. to pay $1200.00 in costs, yet he has never paid that money to L.C. As well, in December 2019, Doi J. ordered that N.C. shall pay $19,062.62 to L.C., for his one-half share of outstanding property taxes, mortgage payments, utilities expenses, and home insurance premiums, within 24 hours from when N.C. received his share of funds from an investment that the parties had in Jamaica. L.C. testified that N.C. breached that Order of Justice Doi.

[42] I pause here to note that Justice Chozik, in an Endorsement dated January 9, 2020, made some scathing comments about N.C. They are comments that no litigant, never mind a lawyer, would want to have made about him or her. Her Honour found that N.C. indeed failed to comply with the Order of Justice Doi, and that he did so intentionally because he disputed the accuracy of Justice Doi’s calculations. That failure to comply was “without excuse”, wrote Justice Chozik. Her Honour gave N.C. until the end of that same day to pay the full amount ordered by Justice Doi, failing which L.C. would have permission to bring, on short notice, a motion to find N.C. in breach of or in contempt of the Order of Justice Doi.

[43] L.C. testified and presented documentary evidence in support of her position that she contributed far more to Winterberry than N.C. ever did. For example, Exhibit 52 is a spreadsheet prepared by L.C. It shows what she alleges to be home maintenance costs paid for by her, and those paid for by N.C., between 2000 (even before Winterberry was purchased) and 2021. Exhibit 54 is a similar document but focusses instead on home improvement expenses. Both Exhibits 52 and 54 show very little expenditures paid for by N.C. over the life of the marriage.

[44] This Court accepts that L.C. poured a lot of her own money into Winterberry, both initially and over the course of time from its purchase until now. That is not enough to sustain her legal position, however.

[45] An important witness at trial, regarding the issue of whether Winterberry is owned solely by L.C. or by both parties, was William Thatcher, the lawyer for the parties when they purchased Winterberry and when the title to Winterberry was transferred from both names to L.C.’s name alone.

[46] Mr. Thatcher was an excellent witness. Although he was called by N.C., he presented himself as a neutral, independent, and professional witness. He was careful in his evidence, avoiding any temptation to speculate or say anything that was imprecise. He was friendly with both sides and most patient with the self-represented L.C. I accept his evidence.

[47] Mr. Thatcher testified that the only reason why Winterberry was transferred from both names to L.C.’s name alone, in April 2009, was because N.C. was concerned about his creditors. There was absolutely no discussion of, or intimation of, the transfer being a gift from N.C. to L.C. If Mr. Thatcher had suspected that it was a gift, he would not have acted for both parties because he would have considered it to have been a conflict of interest, he testified. Mr. Thatcher’s notes made at the time of the transfer, which are included in Exhibit 74, make specific reference to N.C.’s concerns about his creditors.

[48] Largely on the basis of the evidence of Mr. Thatcher, this Court finds as a fact that the transfer of Winterberry from both parties to L.C. alone, in April 2009, was made for the purpose of protecting the asset against N.C.’s business creditors. It was not done for any other reason. More specifically, it was not done because of some alleged failure or refusal on the part of N.C. to abide by some prior agreement that he contribute equally to the carrying costs of Winterberry, if such a prior agreement existed (which this Court need not decide). It was not a gift from N.C. to L.C. It was not a relinquishment of N.C.’s equal interest in the matrimonial home. It did not change the “real” ownership of Winterberry; that property, off-title, remained jointly owned by the parties after April 2009 and continuing to this day.

[49] I agree with N.C.’s position and conclude that he has, today, and that he had on the date of separation of the parties, a fifty per cent (50%) interest in Winterberry. I agree with N.C. that the said conclusion may be reached in either one or both of two ways.

[50] First, the presumption of a resulting trust applies in this case. From the time of purchase until the time of the transfer in April 2009, Winterberry was held in the names of these spouses, L.C. and N.C., as joint tenants. That fact is proof, in the absence of evidence to the contrary, that the parties were intended to own Winterberry jointly.

[51] That fact no longer exists today – Winterberry is not currently held in the names of both parties. That fact ceased to exist effective April 2009, when Winterberry was transferred into the name of L.C. alone, for nil consideration (see the Transfer itself, part of Exhibit 74). The analysis does not end there, however. It would be unfair to N.C. to say, simply, that section 14 of the Family Law Act has no current application to Winterberry because the property is not currently held in the names of both parties.

[52] The law of equity presumes bargains, not gifts. It is presumed that the transfer of Winterberry in April 2009 was not a gift. Put another way, it is presumed that the transfer did not alter the parties’ intention to own Winterberry jointly. It is for L.C. to rebut that presumption. I find that she has failed to do so, particularly given the independent evidence of Mr. Thatcher, which evidence I accept. Pecore, supra, at paragraphs 24-25.

[53] Because it is corroborated by the evidence of Mr. Thatcher, I accept the evidence of N.C. that he did not intend to gift his interest in Winterberry to L.C. in April 2009. Unfortunately for L.C., despite her able submissions, I am unable to find that there is any reliable evidence of an intention by N.C. to make a gift, and I agree with Ms. Stoner that it is the actual intention of the transferor, N.C., that must be the focus of the inquiry. Kerr, supra, at paragraph 18.

[54] The reader should note that there is no issue in this case about whether the presumption of advancement, rather than the presumption of a resulting trust, ought to be applied to what happened in April 2009, given that the parties to the transfer of Winterberry in April 2009 were husband and wife. That was not argued at trial. That was not pleaded by L.C. That argument would not have succeeded in any event, given section 14 of the Family Law Act and the fact that this case bears no resemblance to the facts in the old decision of the Supreme Court of Canada in Hyman v. Hyman, 1934 SCC 324, often regarded as a leading authority on the presumption of advancement.

[55] Second, the doctrine of constructive trust also applies in this case, in favour of N.C.

[56] There is something that I do not think L.C. really understands, I say respectfully. The Family Law Act gives special treatment to Winterberry, as a matrimonial home. In fact, the legislation devotes an entire section, Part II, to matrimonial homes. It defines a matrimonial home in a way that is completely independent of “ownership”, as per the title to the property. The title is not determinative. I would encourage L.C. to read Part II of the legislation, including the definition of a matrimonial home contained in subsection 18(1).

[57] Married life, I think we would all agree, cannot be measured like a balance sheet. How many couples, after separation, could say that they contributed equally, 50-50, in dollars and cents, to the matrimonial home? Probably, I would guess, none. Not one. So, L.C. is not the only separated or divorced spouse who finds herself in the position where, even if she is right that she put way, way more money into the matrimonial home than her partner did, the end result with respect to the home will likely not be commensurate with the relative financial contributions of the spouses.

[58] That is the backdrop against which, respectfully, I ask L.C. to view N.C.’s claim for a constructive trust.

[59] On the evidence at trial, there is no question that (i) N.C. lived with the family at Winterberry for nearly 14 years, even after the date of separation, and (ii) N.C. was a mortgagor throughout, even after the transfer in April 2009, and (iii) N.C. did make significant property taxes payments for Winterberry over the years (L.C. admitted that in cross-examination), and (iv) N.C. paid some of the home insurance and utilities expenses (L.C. admitted that in the course of cross-examination, in answer to the Court’s questions for clarification of her evidence), and (v) N.C. was the driving force, in terms of money contributions and “sweat equity” (my term), behind the very substantial backyard improvements, including the fancy pool and the landscaping, at Winterberry, which improvements undoubtedly enhanced the market value of the home.

[60] On those facts alone, with nothing else, all not disputed by L.C., and regardless of what amount of money L.C. put into Winterberry since 2005, this Court concludes that to find in favour of L.C., that is to accept her argument that she is the sole owner of Winterberry and is therefore entitled to 100% of its net value as of the date of separation, would indeed (i) unjustly enrich her, (ii) and correspondingly unjustly deprive N.C., (iii) and for no juristic reason for the same. It would be, simply put, patently unfair.

[61] Thus, by virtue of both a resulting trust and a constructive trust, this Court holds that N.C. is, and was on the valuation date, a joint owner of Winterberry and, as such, as part of his rights and responsibilities as a joint owner, he is entitled to half of Winterberry’s equity.

[62] N.C. is asking this Court to order that Winterberry be sold. He is also requesting that this Court set-off what he owes L.C. for half of the carrying costs of Winterberry against what she owes him for occupation rent since March 8, 2019. As indicated above in these Reasons for Judgment, the latter request, unopposed in principle by L.C., is granted.

[63] In cross-examination at trial, L.C. stated that she can come up with enough money to satisfy any judgment, even if N.C. succeeds in his trust claims regarding Winterberry, without the home having to be sold.

[64] Before addressing the question of whether the home must be sold, this Court must resolve the issue of what value to place on Winterberry. The sale of the home, therefore, is left to part V of these Reasons for Judgment, where this Court outlines the Final Order being made.

[65] There was conflicting evidence at trial about the value of Winterberry at the time of separation. David Pabon, a witness for N.C., was permitted by this Court to give expert opinion evidence in the field of residential real estate appraisal. His Desktop Residential Appraisal Report dated April 19, 2021, Exhibit 69, estimates the value of Winterberry as at December 1, 2017 to be between $1,325,000.00 and $1,360,000.00. To prepare that report, Mr. Pabon used four comparable properties but did not visit the Winterberry home. Exhibit 70 is Mr. Pabon’s report dated November 2, 2021; that report estimates a market value of $1,640,000.00 for Winterberry as of October 27, 2021.

[66] This Court places very little weight on Exhibit 69. In cross-examination at trial, L.C. quite effectively minimized the utility of that report because of the fact that Mr. Pabon relied on the earlier work of his associate named Jag. That associate had previously been involved with N.C. in appraising Winterberry for lending purposes. Jag did not testify at trial. His work, including any report that he prepared, is not before the Court. In short, Exhibit 69 is dependent on inadmissible hearsay evidence, and thus it is of very limited usefulness to this Court.

[67] Jeffrey Allen, an appraiser retained by L.C., was called by L.C. as a witness at trial. He appeared reluctantly, after the Court essentially ordered him to attend. He stated at the outset of his testimony that he is not an expert witness. He signed no Acknowledgement about his duties as an expert witness. He did not have time to prepare for trial. He had a contract with L.C. that stated that he would not be called to testify at trial.

[68] Nevertheless, this Court elected to continue with Mr. Allen’s evidence and then decide later whether it would be admitted. N.C. takes the position that it should not be admitted. I respectfully disagree.

[69] There is no question that this Court is going out on a limb to admit Mr. Allen’s evidence. I do so because I am convinced that it would be fundamentally unfair to L.C., a self-represented litigant, and contrary to the interests of justice, to decide otherwise. I say that despite my awareness of the following: (i) Mr. Allen was served by L.C. with a Summons unreasonably late, and (ii) he was not provided with a witness fee, as required, and (iii) L.C. has failed to comply with the mandatory requirements of Rule 20.2(2) of the Family Law Rules and Form 20.2, and (iv) Mr. Allen’s express protestations that he is not an expert witness.

[70] The fact is, however, that Mr. Allen’s evidence is very important on the issue of the value of Winterberry, and frankly he is every bit as qualified as Mr. Pabon, and in actuality I found his evidence more persuasive than that of Mr. Pabon. Thus, I feel compelled to admit it.

[71] Although Mr. Allen cannot place a current value on Winterberry, he did appraise the property at $1,065,000.00 as of the separation date, December 1, 2017. That figure is substantially lower than that presented by Mr. Pabon, $1,325,000.00 to $1,360,000.00.

[72] Mr. Allen, unlike Mr. Pabon, personally visited the property and inspected it not long after the effective date of the appraisal. He visited Winterberry on November 30, 2018.

[73] Mr. Allen appeared to be a very knowledgeable witness at trial. He was well-spoken, and I found that he explained the concepts better than did Mr. Pabon. Mr. Pabon was a good witness as well, but I prefer the evidence of Mr. Allen. With a practice limited strictly to residential real estate appraisals, ten years of experience, roughly 2000 appraisals completed to date, six years of accreditation with the highest designation available, involvement in the file much earlier than Mr. Pabon and much closer to the valuation date of December 1, 2017, and, unlike Mr. Pabon, a physical attendance at and a thorough inspection of Winterberry not that long after the said valuation date, those factors considered, I find the evidence of Ms. Allen more helpful to this Court than that of Mr. Pabon.

[74] I accept the evidence of Mr. Allen. I conclude that his figure of $1,065,000.00 shall be the value attributed to Winterberry as of December 1, 2017.

Issue number two – what equalization payment is owing by L.C. to N.C.?

[75] First, there can be no unequal division of net family property in this case. In cross-examination at trial, L.C. clearly and unequivocally stated to Ms. Stoner that she is not asking for that relief, prayed for at clause 40 of her Amended Application, any longer. I am satisfied that the said abandonment of that claim by L.C. was a valid one, notwithstanding her self-representation at trial. The questioning of L.C. on this point by Ms. Stoner was simple and straightforward. L.C. was taken to the amended pleading itself. L.C. demonstrated an understanding of what an unequal division of net family property claim is, and she unreservedly and unambiguously indicated that she was not pursuing that claim at trial, and she never resiled from that position at any point during the remainder of the lengthy hearing. As such, she cannot re-assert the claim in closing submissions. To the extent that she has, her request is denied.

[76] N.C. has proposed that the equalization payment owing to him by L.C. be paid out of L.C.’s share of the net proceeds of sale of Winterberry. He also asks for interest on the equalization amount due.

[77] L.C. disputes the claim for interest, arguing that N.C. has delayed the proceedings and has failed to comply with his own support obligations. The former allegation is not established by the evidence at trial. The latter is true, but that is no reason to deny the interest claim. That can be accounted for in terms of costs.

[78] This Court orders that whatever equalization payment is due from L.C. to N.C. shall be subject to interest at the rate and for the duration requested by N.C.

[79] Further, I agree with N.C. that this Court should not grant L.C.’s request to pay the equalization amount owing by way of instalments over a lengthy period of time, even as long as ten years. That relief was not the subject of any pleading by L.C., nor was it the subject of any evidence at trial. In fact, it is contrary to L.C.’s own testimony at trial that she can come up with the money to satisfy any judgment made in favour of N.C., even if he is successful in his trust claims regarding Winterberry.

[80] Thus, L.C.’s request on time to pay the equalization amount owing is denied, although some grace period has been incorporated into the Final Order, as outlined under the concluding section of these Reasons for Judgment.

[81] Next, on the more substantive sub-issues relevant to equalization of net family property, in terms of N.C.’s business interests, during her direct evidence, L.C. referred to her most recent Net Family Property Statement, dated June 16, 2021, marked Exhibit 62. Under Part 6 therein, dealing with property, debts, and other liabilities on the date of marriage, L.C. has inserted a figure of $713,900.00 for N.C.’s business interests. L.C. testified that she disputes that figure, but she fairly acknowledged in her direct evidence at trial that she does not know what amount it should actually be.

[82] Also with regard to Exhibit 62, L.C. testified that she disputes two other figures contained in that document, attributed to N.C. First, under Part 5, debts and other liabilities on the valuation date, there is a figure of $245,100.00 representing alleged personal loans made to N.C. by his mother; L.C. testified that the said alleged debt should be removed completely. Second, also under Part 5, there is a figure of $77,479.68 for an alleged CIBC loan owing by N.C.; L.C. disputes that amount because she testified that the said CIBC loan was less than $50,000.00 on the valuation date.

[83] Trevor Hood, a witness called by N.C., gave expert evidence at trial. He was permitted by this Court to give opinion evidence in the field of the valuation of business interests in a family law proceeding. Exhibit 65 is Mr. Hood’s report of N.C.’s business interests as at the time of marriage in December 2000; Appendix B of that report shows a combined fair market value of those business interests in the amount of $697,000.00. At the time of marriage, N.C. had business interests, as a shareholder, in a group of family companies that were involved, in part, in the restaurant and hospitality industries. Exhibit 66 is Mr. Hood’s report as at the valuation date, December 1, 2017. That report shows nil as the total value of N.C.’s business interests at that time, as the businesses were, by then, inactive.

[84] This Court, for a few reasons, accepts the evidence of Mr. Hood. First, there is no other expert evidence to the contrary. Second, L.C. was unable at trial to tell the Court what figures she thinks should be attributed to N.C.’s business interests on either the date of marriage or the valuation date. Third, although it is true that Mr. Hood did not have all of the financial statements for the group of companies when he did his work, something that L.C. properly elicited from Mr. Hood in cross-examination at trial, it is also true that Mr. Hood testified that the absence of those financials is not significant because he did not base his opinions on financial statements but rather on a specific market transaction that had occurred and that he believed was the best approach to use in this case because of its currency around the time of marriage. This is all explained in detail in Exhibit 65 – “[i]n calculating the [fair market value] of [N.C.’s] share interests in the Companies, we started with the proceeds from the Big Star Precedent Transaction on his disposition of his stated 3% interest to an arm’s length investor in 2000…” (page 9). The methodology explained by Mr. Hood made perfect sense to this Court.

[85] This Court concludes that, in terms of N.C.’s business interests, the equalization payment that is owing by L.C. to N.C. shall be calculated on the basis of the figures supplied by Mr. Hood.

[86] Regarding the CIBC loan, which is one of the two remaining figures disputed by L.C., I accept the evidence of N.C. and hold that he owed $77,479.68 to CIBC on the valuation date.

[87] This item was not pressed by L.C. She was much more concerned about the alleged money owed by N.C. to his mother. On the CIBC loan, L.C. made a bald assertion that it was less than $50,000.00 in December 2017. She said really nothing else about it, whether in evidence or in closing submissions. There is no reason for this Court to reject the documentary evidence submitted by N.C. – Exhibit 85.

[88] Regarding the alleged debts owed by N.C. to his mother, I agree with L.C. In terms of the equalization payment calculation, this Court orders that there shall be no accounting for any money owed by N.C. to his mother; the $245,100.00 shall not be recognized as a debt of N.C. as of December 1, 2017.

[89] Looking at the factors mentioned in Locke, supra and Barber, supra, specifically at paragraph 42 of the latter authority, (i) the declaration allegedly signed by N.C.’s mother on November 21, 2018 (part of Exhibit 86) is not contemporaneous with any of the alleged loans described therein, and further the declaration was also signed while the declarant was incapable of governing her own property affairs, which fact makes me seriously question its validity at all, and (ii) neither the promissory notes nor the said declaration specify anything about the manner of repayment, and (iii) there is no security being held for any of the alleged loans, and (iv) there appears to not have ever been any demand for repayment, in whole or in part, of any of the alleged loans, and (v) there appears to have never been any partial payments made by N.C. to his mother against any of the alleged loans.

[90] In addition, this Court has no direct evidence from N.C.’s mother, understandably, and no hearsay voir dire was conducted on the evidence provided by N.C.’s two sisters, much of which is therefore inadmissible.

[91] Finally, N.C. is not a credible witness on this issue of the alleged loans owing to his mother. A telling moment came near the end of the cross-examination of him at trial, when he stated that he never paid anything back to his mother in 2013 when he received what he admitted was a lot of money that year. This despite that the first loan allegedly advanced by his mother was made in 2012. So, unless N.C. wants this Court to conclude that he is a heartless man who takes advantage of his own mother, which is not at all what I think, then the more reasonable conclusion to draw from that is that he did not pay anything back in 2013, despite coming into a lot of money that year, because there was no loan to pay back. It was a gift, as were all of the other advances. That is this Court’s finding. With respect, it is not a close call.

Issue number three - what order should be made regarding the contents of Winterberry?

[92] Next to no time was spent on this issue at trial. In fact, I did not anticipate that I would be asked to rule on it.

[93] In any event, there is no harm in permitting the parties to work out themselves the division of any personal property of N.C. that may still be at Winterberry, as requested by N.C.

[94] Hence, this Court orders that N.C. shall, within thirty (30) calendar days after the date of these Reasons for Judgment, provide a written list to L.C. of anything that he wants from Winterberry. L.C. shall reply to that, in writing, within fifteen (15) calendar days of her receipt of N.C.’s list. If there is anything outstanding between the parties after that, then either one may bring a motion (not a Motion to Change), in the within proceeding, asking that the Court order something further.

[95] It is premature to force the sale of any contents of Winterberry in the Final Order that emanates from these Reasons for Judgment.

Issue number four - what section 7 expenses are owed by N.C. to L.C.?

[96] The parties are about $30,000.00 apart on this issue, with N.C. submitting that he owes around $22,000.00 in section 7 expenses arrears, and L.C. suggesting (though not directly in her draft Final Order) that the amount owing is about $52,000.00.

[97] I agree with and adopt all of the submissions made by Ms. Stoner, as counsel for N.C., at paragraphs 178 (the numbering is off in the written submissions – I am referring here to the #178 that appears at the very bottom, the last line, of page 34 of the written submissions) through 208, but not paragraph 209, of the written closing argument dated 28 January 2022.

[98] This Court orders that, on account of section 7 expenses arrears, N.C. shall pay to L.C., forthwith, the sum of $21,891.53.

[99] To be clear, that amount is due “forthwith”. It shall not be set-off against the equalization payment owing by L.C. to N.C.

[100] Although a set-off like that would normally be appropriate, it is not here. N.C. has forfeited his right to obtain such a courtesy. N.C. has admitted to stealing, or one could soften the language to say improperly appropriating, money from the children’s lockboxes and bank accounts. N.C. is a lawyer with family members, at least a mother, who will extend to him massive amounts of money. Why he would do such a thing escapes me. That the money has been paid back, which is disputed by L.C., is irrelevant to the point being made here. More priority needs to be shown to the financial welfare of the children, and permitting the requested set-off sends the wrong message in these circumstances. There is no hardship to N.C. He shall pay the section 7 expenses arrears forthwith.

[101] There is no need to order any interest on the said section 7 expenses arrears, as requested by L.C. If the amount has not been paid in full by the time that we deal with costs, that delinquency will be considered then.

Issue number five - should there be an order made securing N.C.’s ongoing child support obligations?

[102] The answer is no.

[103] L.C. gave no evidence about this at trial. She did not address it in her closing submissions, although she had the chance to do so and had already been provided with the closing argument filed by counsel for N.C., which did address it.

Issue number six - what order should be made, if any, regarding money taken by N.C. from the children?

[104] The evidence is too sketchy about what amounts, if any, are still owing to the children as a result of the theft of their funds by N.C.

[105] In fact, at paragraph 159 of her written closing argument, the most that L.C. alleges is that N.C. promised to pay back double what he stole and has not done so (that is, in terms of the “double”). I am not making any Order based on that allegation.

V. Conclusion

[106] A Final Order shall issue in accordance with these Reasons for Judgment. It shall be prepared by counsel for N.C. Approval of the form and content of the Order by L.C. is hereby dispensed with.

[107] The Order that issues shall include the following provisions, taken from the draft filed as part of N.C.’s written closing submissions:

− clause 1 therein, but the equalization amount must be recalculated to conform to these Reasons for Judgment;

− clause 2 therein, but the wording shall be amended to clarify that the relief is granted not only on the basis of a resulting trust but also on the basis of a constructive trust;

− clause 3 therein, except that the provision shall be amended to state that Winterberry shall be listed for sale no later than June 1, 2022, as L.C. shall have until that date to pay to N.C. everything that she owes to him, including what she owes to him on account of his one-half interest in Winterberry, if she wants to avoid the forced sale of the home;

− clause 4 therein, if the sale of the home proceeds;

− clause 5 therein, but no adjustment for (a), as the section 7 expenses arrears payment shall be made by N.C. to L.C. forthwith, and the adjustment at (b) granted but with the amount of the equalization payment recalculated in accordance with these Reasons for Judgment, and the adjustment at (c) granted as requested, and the adjustment at (d) granted but recalculated in accordance with these Reasons for Judgment;

− clause 6 therein, denied and replaced with the wording contained under the heading above, “issue number three – what order should be made regarding the contents of Winterberry?”;

− clause 7, denied and subject to the direction on costs made below;

− clause 8, granted as requested; and

− clause 9, granted except that the wording shall be amended to clarify that no interest attaches to the equalization payment owing by L.C. to N.C. before June 1, 2022.

[108] Submissions on costs shall be dealt with orally, by Zoom. I think that would be beneficial to L.C., who is a very busy mother of four children and should not have to prepare more written documents for this case. The Court attendance may be arranged on request to the trial office.

[109] I strongly recommend that the parties attempt to resolve the issue of costs between themselves. It is unlikely that this Court will award any costs to either side. L.C. should think about the degree of success and who has been more successful on all of the issues in totality. N.C. should think about what this Court might do with 24(4) and/or 24(8) of the Family Law Rules.

[110] Finally, I wish to thank Ms. Stoner for her unparalleled patience, respectfulness, and professionalism throughout the trial, including the closing submissions. I am most grateful for that.

Conlan J.

Released: April 4, 2022