Court File and Parties

COURT FILE NO.: FS-20-21054 DATE: 20230111 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Roger Marc Sauve Applicant – and – Sandra Lyn Sauve Respondent

Counsel: Richard Gordner, for the Applicant Robert Ballance, for the Respondent

HEARD: July 25, 2022

Ruling on Motion

HEBNER J.

[1] The applicant husband and respondent wife were married on December 7, 1999 and separated on January 3, 2020. The respondent was a teacher from approximately 1984 to October 25, 2012, when she left employment due to a disability. The respondent’s application for long term disability benefits was initially refused and litigation ensued. The respondent’s claim was settled in mediation and in December 2016, the respondent received a disability settlement in the sum of $154,355.22, which netted her $111,118.27 after legal fees. There was no evidence proffered to indicate what portion of the settlement related to the respondent’s entitlement to benefits before the parties’ separation as opposed to after the parties’ separation.

[2] This is a motion brought by the applicant for partial summary judgment on the determination of a legal issue as to whether the lump sum disability payment of $111,118.27 paid to the respondent, or any part of it, is excluded from the respondent’s net family property for the purposes of equalization pursuant to s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3 (“Family Law Act”), or on some other basis.

Background Facts

[3] At the time the parties were married, the respondent was the owner of the property municipally known as 13187 Jasper Place in Tecumseh, Ontario. She remained the sole owner of that property at the time of the parties’ separation. The parties were living in the property at the time of their separation and it was, therefore, their matrimonial home.

[4] The respondent registered a line of credit against the matrimonial home securing a borrowing limit of $260,000. Subsequently, a joint line of credit with a credit limit of $185,000 was established for the anticipated purchase of a cottage property in Michigan. That line of credit was also secured against the matrimonial home.

The Cottage Purchase

[5] In November 2011, the parties purchased a cottage in their joint names at 7677 Nicole Drive, South Branch, Michigan. A deposit of $5,000 was submitted with the offer to purchase. The balance due on closing was $98,226.89, paid in its entirety from the joint line of credit. The transaction closed on December 16, 2011.

[6] The parties made payments on the joint line of credit from December 16, 2011 to and including January 1, 2017, such that the outstanding balance at that time was $51,326.

The Settlement

[7] The entire settlement of $111,118.27 was deposited into the parties’ joint account at the Royal Bank of Canada on December 22, 2016. At the time, the amount outstanding on the joint line of credit was $51,326. That amount was transferred from the joint account to the joint line of credit in two payments of $1,500 and $49,826 on January 6, 2017 and January 9, 2017, respectively. The payments discharged the line of credit balance in full.

[8] The respondent asserts that approximately one-half of the purchase price of the cottage was paid in periodic payments between December 2011 and January 2017. The other one-half of the purchase price was paid by the transfer of funds from the respondent’s disability settlement through the vehicle of the joint line of credit.

[9] The balance of the respondent’s disability settlement, namely $59,792.27, remained in the joint account of the parties and was, between January 2017 and October 2018, paid out for family expenses.

[10] The respondent formally retired from her employment as a teacher on January 1, 2020 and, since then, has been in receipt of her Ontario Teachers Pension.

The Respondent’s Position

[11] The respondent asserts that this is not a proper case for partial summary judgment. She asserts that the issues raised by the applicant require findings of mixed fact and law and ought to be left to the trial judge.

[12] The respondent claims an exclusion for her one-half share of the cottage property based on its value as of the date of disposition or settlement, on the basis that the payment of the sum of $51,326 from her disability settlement represented approximately one-half of the total purchase price of the cottage property.

[13] Alternatively, the respondent asserts that her disability settlement is excluded in its entirety on the basis that it falls outside the definition of “property” as that term is defined in s.4(1) of the Family Law Act.

The Applicant’s Position

[14] The applicant takes the position that this is a proper case for partial summary judgment. The facts are not in dispute. Rather, the application of the law to those facts is in dispute.

[15] The applicant points out that the stream of income from disability benefits was paid to the respondent prior to the date of separation. He asserts that such a stream of income cannot be excluded property such that the money paid during separation be deducted from the applicant’s net family property owned on the valuation date.

[16] The applicant further asserts that the disability settlement cannot be excluded from the respondent’s net family property as it cannot be traced to property owned by the respondent on the date of separation.

Issues

[17] The issues on this motion are:

1. Is this case an appropriate case for partial summary judgment?

2. Is the disability settlement “property,” as that term is defined in the Family Law Act? The Family Law Act, s. 4(1) defines “property” as “any interest, present or future, vested or contingent, in real or personal property”. The Act defines “net family property as:

   “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

   (a) the spouse’s debts and other liabilities, and

   (b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

3. If the answer to question two is yes, is the respondent entitled to exclude her one-half share of the cottage property from her net family property under s. 4(2) of the Family Law Act, which reads as follows:

   The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

   1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
   2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
   3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
   4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.
   5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
   6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
   7. Unadjusted pensionable earnings under the Canada Pension Plan.

4. A fourth issue is whether the jointly owned cottage property was a matrimonial home. If so, the tracing argument fails. Fulsome argument on this issue was not made before me. The parties appear to be in agreement that this issue, at least, requires factual findings beyond the scope of this motion and therefore would require a trial.

Analysis

[18] I approach the analysis by referencing the issues described above.

Issue 1: Is this a proper case for partial summary judgment?

[19] The summary judgment procedure is informed by r. 16 of the Family Law Rules, O. Reg. 114/99 (“Family Law Rules”) the germane portions of which are as follows:

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[20] The leading case on the use of summary judgment is, of course, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. At para. 49, the Supreme Court of Canada held that “there will be no genuine issue requiring a trial when the motions judge is able to reach a fair and just determination on the merits. This will be the case when the process (l) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

What is the test for partial summary judgment?

[21] In Nemetz v. Reiter-Nemetz, 2022 ONSC 2825 (“Nemetz”), Kraft J. dealt with a motion brought by the respondent wife seeking partial summary judgment dismissing the husband’s spousal support claim. Justice Kraft found that, in that case, partial summary judgment was inappropriate as the issue of spousal support ought not to be bifurcated from the issue of property division. She found the most important consideration in that case was the risk of inconsistent findings by multiple judges who will touch the divided case. She pointed out that it is only after the property issues are determined that the condition, means, and circumstances of both spouses become clear such that an order dismissing the husband’s entitlement to spousal support is premature before the property issues are dealt with.

[22] At para. 35 of her decision, Kraft J. referenced the Court of Appeal for Ontario’s decision of Brown J., in Malik v. Attia, 2020 ONCA 787 (“Malik”), at para. 62, which sets out a road map for judges dealing with a partial summary judgment motion:

When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[23] In my view, these considerations must be considered through the lens of the post-pandemic world. For a year or more the court was unable to conduct trials to the same extent as it has historically done. As a result, the court is facing an unprecedented backlog of cases that need to be dealt with, including family cases, and both criminal and civil cases. Trial dates are hard to come by, particularly for those cases requiring more than five days for a trial. In these circumstances, anything that would simplify or shorten a trial ought to be carefully considered.

[24] With these principles in mind, I turn to the considerations for partial summary judgment settled in Malik.

(i) and (ii): Counsel advise that the major issue in a determination of the parties’ net family properties and equalization is the respondent’s claimed exclusion of her one-half share of the cottage property. Mr. Gordner, counsel for the applicant, opined that if this issue can be resolved, then the entire case may well be resolved by way of settlement. At the very least, the issues requiring a trial will be reduced and the trial shortened accordingly.

(iii): The claimed exclusion will need to be determined before the equalization of net family property can be calculated. The respondent has made a claim for spousal support. The equalization of net family property must be calculated before the respondent’s claim for spousal support can be adjudicated.

[25] Should I grant summary judgment on the claimed exclusion, I do not see a risk of inconsistent findings. This case is unlike Nemetz where the respondent sought partial summary judgment dismissing the applicant’s spousal support claim. In that case, the motion judge determined that the property issues must be decided first. There are no issues that must be decided prior to a determination of the claimed exclusion.

[26] The Malik considerations lead me to the conclusion that this is potentially a proper case for a summary judgment motion. Moreover, a determination of the claimed exclusion would allow the parties to move forward with settlement negotiations or, failing a settlement, a more focused trial on the remaining issues. In this post-pandemic world, it will be easier and faster to find dates for a shorter trial to accommodate the parties.

Issue 2: Is the disability settlement “property” as that term is defined in the [Family Law Act](https://www.ontario.ca/laws/statute/90f03)?

[27] The respondent makes the argument that her disability benefits, paid to her before the parties separated, fall outside the definition of “property” in the Family Law Act, and therefore are not to be included in the calculation of the respondent’s net family property.

[28] In Lowe v. Lowe (2006), 78 O.R. (3d) 760 (C.A.), 263 D.L.R. (4th) 588 (“Lowe”), the parties were married in 1984 and separated in 2003. The husband had injured his back at his workplace in 1985, suffering a partial disability as a result. He received monthly workers compensation benefits in the amount of $221.15 payable for life and a second benefit of $227.90 per month payable to age 65. On an application, the application judge was asked to determine the appropriate treatment of the entitlement to a future stream of workers compensation benefits. The judge found that the benefits fell within the definition of “property” in the Family Law Act and rejected the argument that they were excluded as damages for personal injuries pursuant to s. 4(2) 3. The conclusion reached was that the future stream of benefits should be valued and included in the husband’s net family property. The husband appealed. The appeal was allowed. The Court of Appeal for Ontario found that the disability benefits payable after the date of separation were to be treated as income rather than property and thereby taken into account in the determination of support, but not included in the equalization of net family property.

[29] Sharpe J., speaking for the Court, stated at para. 15:

The disability pension bore no relationship to the marriage partnership but rather arose because of a disability that impeded the recipient’s capacity to earn a livelihood. It followed ... that the stream of benefits to be received post separation should not be capitalized and included as family property for purposes of equalization. The benefits would be taken into consideration with respect to spousal support, but they fell outside the category of “property” and could be distinguished from a pension earned as part of a spouse's remuneration during the marriage.

[30] The case before me is different than Lowe. Here the respondent received the benefits before the date of separation. We are not dealing with an entitlement to a future income stream.

[31] The distinction is aptly described by Leitch J. in Vanderaa v. Vanderaa, [1995] O.J. No. 439, 18 R.F.L. (4th) 393 (S.C.) (“Vanderaa”), a decision dealing with a settlement from a motor vehicle accident received during the marriage. At paras. 28-30, Leitch J. stated:

Compensation for a wage loss which accrued during a period prior to the date of separation is sharable property. Such damages are not paid for the injury itself and are paid to replace lost wages and, in essence, are income replacement and should be sharable to the extent that they replace income that would have been earned but for injuries sustained prior to the date of separation, as was the case in Girouard v. Girouard, Shaver v. Shaver and Docherty v. Docherty (1992), 42 R.F.L. (3d) 87 (Ont. Gen. Div.). A party’s right to claim lost income is a property right and therefore the value of this property right as at the valuation date should be included in net family property. This interpretation provides a logical result because damages that compensate for sharable property ought to be shared and included in the calculation of net family property.

However, the value of the right to claim lost income as at the valuation date would not include the amount of damages paid to replace lost wages which would have been earned after the date of separation. This also provides a reasonable result because these monies would not have been shared in any event and should be excluded from the calculation of net family property as at the valuation date.

Damages for loss of future earnings are awarded when a plaintiff has proven there is a real and substantial risk that the plaintiff will suffer a loss of future income because of injuries sustained. After considering contingencies and other relevant factors, a lump sum figure is arrived at which will fairly and reasonably compensate a plaintiff for loss of earning capacity.

[32] The conclusion is set out in para. 32:

I find that these settlements for future wage loss are within the category of damages that are completely personal to the parties and are therefore excluded from their net family property pursuant to para. 3 of s. 4(2) of the Act. The result is that the extent to which the motor vehicle accident settlement funds for past and future wage loss are to be included is as set out in Ex. 8B, that is, only the portion of the settlements attributable to each party’s wage loss from the date of the motor vehicle accident to the date of separation are included.

[33] Of note, in Vanderaa, Leitch J. also dealt with a future right to benefits under a long-term disability plan. At para. 51, Leitch J. stated that the value of those benefits were excluded from net family property under s. 4(2) 3 of the Family Law Act.

[34] Mr. Ballance, counsel for the respondent, relies on Lukovnjak v. Weir, 2016 ONSC 6893 (“Lukovnjak”), a decision of Leach J. of this court. In Lukovnjak, the parties had separated in February 2013 after a 12-year marriage. During the marriage, the husband had been off work for six years following a motor vehicle accident in 2002. He received a net settlement payment of $800,000 in 2006, some of which was paid in a lump sum and some of which was paid by way of a structured settlement. Initially, the parties drew on the settlement funds over time to lessen the family’s financial strain. At some point in or around 2012, the husband discontinued his practice of drawing on the non-structured settlement funds.

[35] One of the issues framed by the parties was “the extent, if any, to which proceeds received by the applicant through a personal injury settlement should be excluded in net family property calculations.” After reviewing the relevant authorities, including Lowe, Leach J. concluded at para. 34:

a. The portion of the remaining non structured settlement funds relating to general damages should be excluded from the husband’s net family property as they fall within Section 4(2) 3 of the Family Law Act.

b. The portion of the remaining non structured settlement funds relating to income loss (i.e. compensation for the plaintiff’s inability or reduced capacity to earn a livelihood), and any portion of the structured settlement entitlement relating to income replacement benefits, also should be excluded. This was because they fall outside the concept of “property” and therefore “net family property” as defined by s. 4(1) of the Family Law Act.

c. The portion of the remaining non structured settlement funds relating to the cost of future care and any portion of the structured settlement entitlements relating to the benefits addressing various aspects of future care and rehabilitation needs of the applicant should also be excluded from net family property pursuant to Section 4(2)3.

[36] Mr. Ballance points to the reasoning set out in (b) above and asserts that the disability settlement received by the respondent should not be included in her net family property as it is not “property” as defined in the Family Law Act. He goes one step further and asserts that the respondent’s one-half interest in the cottage property is not “property” as defined in the Family Law Act because it was purchased using a line of credit that was then paid off using the disability settlement funds.

[37] It is clear that Leach J. was dealing with funds that existed on the date of separation, either in a structured settlement or in an investment separated from other funds. Leach J. specifically dealt with the funds remaining. Lukovnjak was not a case where the settlement monies had been spent and the spouse sought to trace the funds into property existing on the date of separation. Accordingly, the reasoning of Leach J. does not apply to this case.

[38] In my view, the respondent’s interest in the jointly owned cottage property is “property” for the purpose of equalization of that family property. The cottage property is real estate – it is not separated funds from the settlement of the respondent’s long term disability benefits. I must now turn to the last issue.

Issue 3: Is the respondent entitled to exclude her one-half share of the cottage property from her net family property under s. 5(2) of the [Family Law Act](https://www.ontario.ca/laws/statute/90f03)?

[39] Section 4(3) of the Family Law Act provides that: “The onus of proving a deduction under the definition of ‘net family property’ or an exclusion under subsection (2) is on the person claiming it.”

[40] In order to exclude the settlement from her net family property, the respondent would have to prove three things: that the settlement fits within one of the enumerated items in s. 4(2); that the funds can be traced into the respondent’s interest in the jointly owned cottage; and that the jointly owned cottage is not a matrimonial home.

[41] In Vanderaa, Leitch J. found that a spouse’s right to future disability benefits were excluded under s. 4(2) 3 as the benefits were paid to reflect compensation for a disability as opposed to a loss of earnings. This reasoning was followed in Snjaric v. Snjaric, 1999 CarswellOnt 1073, 44 R.F.L. (4th) 448 (S.C.) (“Snjaric”).

[42] In Lowe, the Court of Appeal for Ontario found that disability payments to be paid following the date of separation fall outside the concept of net family property. In Vanderaa and Snjaric the courts found that a right to disability payments as an ongoing income stream following the date of separation ought to be excluded under s. 4(2). The result is the same. Disability payments that relate to a period following the date of separation are not included in a spouse’s net family property.

[43] Long term disability benefits that relate to a period prior to the date of separation are akin to tort damages paid to replace lost income prior to the date of separation. Both are paid because the recipient is unable to work and are meant to be a replacement of income that would otherwise be earned. In my view, the reasoning of Leitch J. in Vanderaa where she dealt with a tort settlement, applies to disability benefits. Benefits paid that relate to a time before the separation are shareable property, not to be excluded from net family property. Benefits that relate to a time after the separation are excluded.

[44] The difficulty in this case is that there is no evidence proffered by the respondent to prove that any amount of the settlement relates to payments owing to her for the period of time following the date of separation. Given that, she has not met her onus of proof on the first requirement.

[45] I turn then to the second requirement. In the circumstances of this case, can the settlement be traced to the respondent’s one-half interest in the cottage property?

[46] In Ruston v. Ruston, 2000 CarswellOnt 75 (S.C.), the wife had received inherited monies during the course of the marriage. She utilized the sum of $10,370.84 to pay the outstanding balance owing on a mortgage against property. When the payment was made, the property was registered solely in the wife’s name. Subsequent to the payment, but before the valuation date, the wife transferred title to the property to the husband. At paras. 30 and 31, O’Neill J. explains his reasoning for a finding that money used to pay down a debt or mortgage on property cannot be used to ground an exclusion:

In the decision Sanders v. Sanders (1992), 42 R.F.L. (3d) 198 (Ont. Gen. Div.) Mossop, J. dealt with a situation where monies inherited by the husband, and rolled into an RRSP, were subsequently used on the sale of the RRSP, in renovations to the matrimonial home and on other expenses. At p. 201, Mossop, J., after quoting from the 1986 revised edition of Law and Practice under the Family Law Act of Ontario, concluded:

The original inheritance property was no longer in existence at the date of valuation, nor was the security into which it was traceable, so the sum of $26,051.00 must be deducted from the list of excluded property.”

In my view, there is no difference in utilizing inherited monies to pay down a debt or mortgage on property (and arguably increasing its net value) as compared to utilizing inherited monies to carry out renovations to property (and thus arguably increasing its net value). Accordingly, I find that the claim by the wife to exclude the sum of $10,370.84 from her net family property cannot be allowed.

[47] In Ludmer v. Ludmer, 2013 ONSC 784 (“Ludmer”), the parties had signed a marriage contract whereby certain assets were to be excluded from the calculation of net family property. The assets excluded by contract included inheritances or gifts and any assets acquired as a result of the sale or exchange of any inheritances or gifts. The respondent sought to exclude property acquired from a gift given to him from his parents. The factual tracing of property is set out by Penny J. in para. 75:

The respondent’s argument is that $625,000 was a gift to him, acquired after marriage, from his parents. That gift was deposited into the parties’ joint bank account but was used immediately in its entirety (no mortgage was required) to acquire the Glengarry property. The joint bank account otherwise carried a modest balance. There was no co-mingling. Glengarry, therefore, according to the respondent, became an asset acquired by the respondent as a result of the exchange of the LCT funds for the Glengarry property. When Glengarry was sold, the respondent argues that the cash from that sale ($411,000) itself became an asset acquired by him as a result of the sale of Glengarry, which was then used to acquire Brookdale. As such, Brookdale is an asset which was acquired with proceeds directly traceable to Glengarry, which is itself directly traceable to the original gift. The value of his interest in Brookdale, therefore, is excluded property.

[48] In Ludmer, Penny J. sets out the following principles:

• The tracing concept was adopted because the property scheme in the Family Law Act has a bias in favor of sharing the value of assets in existence at separation date and a bias against the exclusion of assets from the equalization calculation: see para. 78.
• Over the years there has been a certain amount of litigation over the scope and nature of the tracing tests to be used. Some of the older, more technical tracing rules developed in the context of trust law are not applicable in the family law context where they would bring about an arbitrary or unfair result: see para. 79.
• A commonsense approach ought to be applied such that based on the proximity of two events (the inheritance or gift and the purchase of property) one may conclude that on a reasonable balance of probabilities, the inherited funds were used for the purchase: see para. 80.

[49] At paras. 85 and 86, Penny J. further states:

There is no principle of which I am aware in the family law context that limits the application of tracing by number of transactions or mere changes in the form of the asset. Nor can such limitations be implied into the language of the marriage contract. At each stage, the question is whether the beneficiary can show that the subsequent property or proceeds were acquired, or partially acquired, with assets traceable to the trust property.

Thus, it is not the transformation of the asset that brings tracing to an end. Rather, it is the inability of the beneficiary to prove the necessary connection or nexus between the trust property and the subsequently acquired asset. For example, tracing may reach its limit when an asset is spent or dissipated or where it is used to pay down debt or otherwise becomes comingled with other assets such that the original trust property can no longer be discerned.

[50] In Booth v. Booth, 40 R.F.L. (5th) 22 (Ont. S.C.), the respondent husband received a settlement for injuries suffered during a motor vehicle accident in the sum of approximately $300,000. The sum of $200,000 was deposited by the respondent into a daily-interest-bearing account. After about nine months, the respondent withdrew the $200,000 from the retirement account and used the monies to pay down the outstanding balance on a line of credit secured by a collateral mortgage against property owned by the respondent, part of which was used as a matrimonial home and part of which was used as a rental income property. The collateral mortgage was not discharged, and the line of credit was subsequently drawn upon so that the balance at the time of separation was approximately $184,000. The question at trial was whether the monies invested in the retirement account and then used to pay down the line of credit were “excluded property” within the meaning of the Family Law Act. At para. 36, Lofchik J. found that the paying-off of the line of credit was essentially the payment of a debt. The debt did not constitute the parcel of land property into which the personal injury settlement funds could be traced. Accordingly, the husband’s claim for an exclusion was disallowed.

[51] Here, the settlement monies were used to pay the line of credit registered against the matrimonial home five years after the same line of credit was used to purchase the cottage property. The settlement monies therefore increased the respondent’s equity in the matrimonial home. The payment of the line of credit had no effect on the respondent’s interest in the cottage property. I cannot find the necessary connection or nexus between the payment of the line of credit secured against the matrimonial home and the respondent’s interest in the jointly owned cottage property. To use the reasoning in Ludmer, I cannot conclude that the cottage property was an asset acquired with monies directly traceable to the respondent’s settlement. In my view, the tracing analysis would, at best, lead to the conclusion that the settlement monies are traced into the matrimonial home, which negates the possibility of an exclusion. Accordingly, the respondent has not met her onus of proof on the second requirement.

[52] I am unable to make a finding on the third requirement, namely the question of whether the cottage property was a matrimonial home on the date of separation. That issue would require viva voce evidence. However, given my conclusions on the first two requirements, the third requirement is moot.

Conclusion

[53] For these reasons, I find that the respondent has not met the burden of proving an exclusion of her interest in the cottage property from her net family property.

[54] In the event the parties are not able to agree on costs, they may make brief written submissions, to include a costs outline and any relevant offers to settle, on the following timeline:

1. The applicant, within 20 days;
2. The respondent, within 20 days thereafter; and
3. The applicant may provide any reply within 10 days thereafter.

Pamela L. Hebner Justice

Released: January 11, 2023