Crombie v. Crombie, 2024 ONSC 2847

BRAMPTON COURT FILE NO.: FS-21-100017 DATE: 20240517 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Bonnie Crombie Applicant – and – Brian Hugh Crombie Respondent

Counsel: Gary Joseph/Julia McArthur, Counsel for the Applicant Areesha Zubair, Counsel for the Respondent

HEARD: January 29, 31, February 1, 2, 5 and 6, 2024 and March 1, 2024

Reasons for Decision

D.A. JARVIS, J.:

1Although the parties are divorced, they shall be described as “the wife” and “the husband” for ease of reference.

2The issues for trial are:

(a) Whether the parties made a binding agreement on February 4, 2021, and, if so, its specific performance; (b) Damages for either delay by the husband in the sale of the matrimonial home (this issue raised by the wife) or for the wife’s breach of an alleged agreement between the parties (this issue raised by the husband); (c) Equalization of the parties’ net family properties; (d) Post-separation adjustments; (e) Occupation rent; (f) Sale of two properties owned by the parties in Ontario and in New York, USA.

3During the trial the parties agreed that the fair market rental value of their matrimonial home was $7,000 a month and that the wife’s average tax rate of her projected post-retirement annual OMERS income after age 65 was 21.1%. [1]

Background

4The following general background facts are relevant:

(a) The parties were married on May 26, 1984. (b) There are three children of the marriage, all adults, none of whom is financially dependant on their parents. (c) The valuation date is January 12, 2019. (d) During the early years of the parties’ marriage the wife worked to financially support the husband’s MBA studies, worked as a homemaker and as a business owner and was involved in community service. In 2008 she was elected a Member of Parliament, then served as a municipal councillor until she was elected in 2014 as Mayor of the City of Mississauga, a position she held until recently. In December 2023 she was elected leader of a provincial party. (e) The husband is a businessman. He earned a MBA (Harvard) and then worked in various capacities in the corporate world. From May 2004 to August 2004, he was Chief Financial Officer (“CFO”) for Biovail Corp. (“Biovail”) and then its Vice-President, Strategic Development, from August 2004 to May 2007. Biovail is a Canadian pharmaceutical company with international operations. (f) Around the time that the husband began to work for Biovail, the parties purchased their matrimonial home in Mississauga, Ontario (hereafter sometimes referred to as “Mississauga”, “the matrimonial home” or, simply, “the home”). Its title was registered in their names as joint owners and its purchase was facilitated by savings, an institutional mortgage and, later, the proceeds of sale of a Toronto property owned by the parties, which partially paid down the mortgage. (g) In 2002 title to the home was transferred into the wife’s name. While the parties dispute the reason for the transfer it is irrelevant to the trial issues as the wife conceded during this litigation that the husband was entitled to a 50% resulting trust interest in it. (h) For most, if not all, the time that the home has been owned by one or both of the parties it has been encumbered by a mortgage (fully discharged in April 2005) or a registered line of credit (in the amount of $1,091,171.37 as of January 31, 2019) that remains on title and which the husband has been paying monthly (interest only). (i) In 2007 the husband was paid a significant severance from Biovail (around $2,000,000) the net proceeds of which (after tax) were used to reduce the line of credit. Thereafter the line of credit was used to help pay the family expenses, including private school education for their children in Ontario and overseas. (j) The husband worked as CFO for several private and public companies afterwards. As a result of proceedings before the Ontario Securities Commission (the “OSC”) that concluded in early 2009 relating to misleading market statements made by the husband for Biovail in 2003, he was prohibited from becoming or acting as a director or officer of a reporting issuer for a period of eight years from February 25, 2009, and fined $300,000 (including costs). [2] The fine was paid from the line of credit. Between 2017 to early 2021 the husband was Chief Financial Officer for the Ottawa Senators hockey team. (k) In July 2013 an uncle of the husband died. He and his late wife had been very close to the parties and owned a seaside residence in Patchogue, Long Island, New York (the “Patchogue” property or the “cottage”). The parties and, in time, their children often visited there. When the uncle died, he bequeathed Patchogue to the parties. Beginning in 2020, shortly after the pandemic was declared, Patchogue was advertised as a “Seaside Home with spectacular view” on Airbnb and rented. The husband and one of the parties’ sons managed the property rentals. (l) The parties’ marriage was troubled years before the valuation date. They agree that the valuation date is January 12, 2019, as that was when the wife returned home unexpectedly during the day and discovered the husband in a compromising situation. She retained a family lawyer, Ella Bernhard (“Bernhard”). After she was able to rent alternate accommodations, she left the matrimonial home on April 4, 2019. According to the wife, the situation in the home was “emotionally abusive.” The husband retained a family lawyer, Jane Harvey (“Harvey”), on or about April 10, 2019, who wrote to Bernhard confirming that both parties wanted to sell the home and that he wanted to purchase the cottage. The husband has occupied the home and exclusively used the cottage since. He has paid its occupancy-related expenses and line of credit registered on title to the home while the wife has paid its realty taxes. He also paid the expenses for the cottage using personal funds and its rental proceeds. (m) The wife’s rental accommodation has cost her $5,000 monthly. The landlord is a company owned by a realtor, Gregory Gilmour (“Gilmour”), who was known to the wife in local politics but with whom she was not otherwise romantically involved until some time after the spousal parties had separated. (n) Shortly after the exchange of letters between their lawyers, the parties began negotiating a resolution of their matrimonial issues, which principally involved the disposition of their properties. The wife understood that the husband was going to cooperate with a sale of the home and so she asked Gilmour to help them. He arranged and paid for an appraisal of the home (July 2019) and otherwise incurred about $4,000 in expenses to prepare the property for sale. No listing agreement was ever signed but discussions about the sale of the home (and the cottage) continued into December 2020. The wife had authorized Gilmour to speak for her because she was uncomfortable doing that herself and because Gilmour had more experience in real estate matters. (o) On August 31, 2020, the parties were divorced by Order of S. Himel J. (p) Throughout late 2020 into early 2021 the parties tried to negotiate a resolution of their property affairs. Their lawyers were involved in the background. In late December 2020 the husband forwarded a draft Separation Agreement to Gilmour (“Agreement #1”). This document had been prepared by Harvey and was comprehensive in that it dealt with all issues arising from the parties’ marriage and its breakdown including the disposition of their properties (the husband wanted to acquire the wife’s realty interests), equalization of their net family properties (no amount or payee identified, those portions left blank), waiver of spousal support, releases, indemnifications and ancillary provisions not uncommon to separation agreements. (q) The agreement was not acceptable to the wife. There were further negotiations between Gilmour and the husband. On January 22, 2021, Gilmour emailed the husband a copy of Agreement #1 on which he had handwritten calculations dealing with the value of the properties and deleting and adding other comments (“Agreement #2). The “Subject” line of the email stated, “Discussion Note subject to your lawyers [sic] agreement”. When the wife did not hear back from the husband, he was given an ultimatum by Gilmour on February 3, 2021, to accept Agreement #2. The email also stated, “Details to be worked out between lawyers”. The husband had Harvey revise Agreement #1 (as amended by Agreement #2) and sent that to Gilmour on February 4, 2021 (Agreement #3) saying “I accept your last offer to settle our divorce and financial situation”. The husband’s email was copied to Bernhard. (r) It is the husband’s position that the parties reached a binding agreement on February 4, 2021. (s) The wife had Bernhard draft an agreement (Agreement #4) that she initialled, had witnessed, and was sent to the husband on February 9, 2021. He declined to sign it maintaining that the parties had already reached an agreement but, saying that he was reserving his rights to insist that the parties had a binding deal (feeling “honour bound”), he instructed Harvey to draft another agreement (Agreement #5) that included significant revisions to Agreements #3 and #4 and which, among other things, better expressed his position on tax indemnification provisions in those drafts. This agreement was not acceptable to the wife. (t) On March 3, 2021, Gilmour sent to the husband an email to which was attached yet a further agreement (Agreement #6) for the sale of the matrimonial home. This agreement is of lesser significance to the trial issues than its predecessors. In any event, the husband declined to sign it. Less than three weeks later the wife started these proceedings.

Procedural Background

5Given both parties’ claims about the other party’s delay in this case and the consequent damages and expenses they incurred for which they are claiming relief, the following procedural events and court rulings are relevant:

(a) In her application issued on March 23, 2021, the wife sought an order declaring that the home was her sole property and for its possession so that she could sell it without the husband’s cooperation. Her application was amended by Order of Fragomeni J. on November 14, 2023, to request an Order for partition and sale of the home, damages for the husband’s refusal and delay in selling it, for an in personam Order for the sale of Patchogue and other post-separation adjustments. The application was further amended at trial to formally claim occupation rent relating to the home; that relief had been the earlier subject of motion and conference events and was identified as an issue in the Trial Scheduling Conference Order. (b) The husband’s Answer is dated April 29, 2021. He claimed that the parties had reached an agreement on or about February 4, 2021, pursuant to which he would acquire from the wife her interests in the properties, or, in the alternative, he claimed an equalization of the parties’ net family properties and damages (for breach of the parties’ alleged agreement). In addition, he sought an Order declaring him an equal owner of the home and related relief. This pleading was subsequently amended to flesh out the particulars of his dispute about the properties and, at trial when leave was granted to the wife to further amend her application, the court accepted that he opposed any order for occupation rent without having to formally deliver an amended Answer. (c) On June 8, 2021, Petersen J. dismissed an urgent motion by the wife for an Order dispensing with a case conference and for relief restraining the husband from interfering with her efforts to sell the home. The motion was not granted on the basis that it was premature but without prejudice to the wife later renewing it. The husband was cautioned that he could be found liable for occupation rent. A case conference was scheduled for December 24, 2021. (d) In October 2021 the wife renewed her motion to sell the home. The motion was made returnable on January 6, 2022, after the case conference date. (e) The conference was heard on January 4, 2022, as scheduled by Kurz J. In an endorsement released that day, the parties were given deadlines to exchange specified disclosure. (f) On January 6, 2022, the wife’s motion came before Woolcombe J. The husband sought an adjournment to respond (claiming that he had been short-served) and to bring a cross-motion to enforce the parties’ alleged agreement. Woolcombe J. made an Order requiring the husband to pay occupation rent of $3,500 a month. A long motion date of March 23, 2022, was scheduled. (g) On March 15, 2022, Richetti J. dealt with a motion by the husband to transfer the proceedings to another jurisdiction or to have an “out of Region” judge deal with any hearings. The motion was dismissed. Richetti J. was unimpressed by what he described was the husband’s “excessive and unexplained delay” in bringing the motion (“almost a year”) and that the motion appeared “to be a delay tactic on the part of [the husband] who wants to remain in the home that is registered solely in the name of the [wife]”. It was noted too that the timing of the request would prevent the wife’s motion for the sale of the home from proceeding. (h) On March 23, 2022, McGee J. heard the parties’ motions. In the Ruling released later in April, both motions were dismissed, but with a few exceptions. Her Honour was unable to find “ on the record ” before her that there was a binding agreement as alleged by the husband. The exceptions affirmed the wife’s right to occupation rent and the husband’s entitlement to non-exclusive possession of the home even though he was no longer a spouse. Leave was granted to the wife to bring a further motion for sale if the husband failed to maintain the expenses for the home, including payment of occupation rent. [3] Subsequently McGee J. ordered the husband to pay $13,500 costs to the wife on a divided success basis, most of the costs awarded relating to the March 15, 2022, motion before Richetti J. (these were paid). (i) On August 22, 2022, Rahman J. heard a renewed motion by the wife for the sale and vacant possession of the home. She claimed that the husband had breached the payment condition set out in McGee J.’s Order of April 19, 2022. Rahman J. observed that while there was a “technical” breach of the Woolcombe J. occupation rent Order, more important was the wife’s acknowledgement that the husband had a 50% resulting trust interest in the home. Leave was granted to the wife to bring a motion for partition and sale. (j) On February 6, 2023, Rahman J. dismissed the wife’s partition and sale motion, finding that the April 2022 McGee J. ruling about whether there was a binding agreement between the parties was never intended to be determinative of the issue and that in light of the husband’s claim for specific performance of the alleged agreement, the parties should proceed to trial. The wife was ordered to pay $7,500 costs (these were paid). (k) At a Settlement Conference before Fragomeni J. on November 14, 2023, the wife (as already noted) was allowed to amend her pleadings. (l) McGee J. held a Trial Management Conference on January 3, 2024, at which time the Trial Scheduling Endorsement was completed but not signed (it was later signed by McGee J. during the trial). The issues identified for trial were those set out above under issues for trial.

6Both parties testified. Gilmour’s evidence was delivered by affidavit and supplemented by time-limited, direct examination. Timelines for cross-examination were estimated and, with some flexibility, followed. A rental value report for the matrimonial home (occupation rent) was prepared by an expert witness called by the wife (Jason Lee). The parties accepted Mr. Lee’s qualifications as did the court; Mr. Lee was qualified to provide opinion evidence on rental values for residences proximate and comparable to the matrimonial home as of April 4, 2019 (the date that the wife left the home) to the date of trial. As noted above, the parties agreed during the trial (but after Mr. Lee had testified) that the fair market rental value of the home was $7,000 a month.

Credibility

7Much of the trial evidence involved negotiations about Agreements #1 to #5, with each party challenging the credibility of the other party, and the husband the credibility of Gilmour. The wife alleged that the husband’s evidence on key points was contradictory, his changes in position not random, but strategic, and tainted by deceptive behaviour, principally involving a redacted email used by the husband to mislead McGee J. when she dismissed the wife’s summary judgement motion in April 2022. The subject title of a January 22, 2021, email between Gilmour and the husband “Discussion Note subject to your lawyers [sic] agreement” had been removed in the husband’s version presented to the court. As for the husband, he countered that it was the wife whose evidence was contradictory, and that of Gilmour, and that it was “indisputable that these two sophisticated parties [i.e., the wife and husband] had entered into a carefully negotiated separation agreement, resolving all issues between them in a [just and fair] manner.”

8In [Najm v. Najm, 2024 ONSC 2053][4], this court observed that the assessment of credibility is not an exact science and adopted the following comments of McGee J. in [M.K-C. v. C.C, 2023 ONSC 7097][5], a case where there were suggestions that evidence was tailored, ignored or unreliable.

55Credibility and reliability are related but distinct concepts. Reliability speaks to the accuracy of the witness’ ability to accurately observe, recall and recount the events in issue. Credibility centres on a witness’s genuine efforts to tell the truth in a wholesome manner, not leaving out details that could mislead the listener. An honest witness endeavors to tell the truth as they experienced it, acknowledging that some of their perceptions may have been flawed.

56One of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness’ oral testimony, but also from things said differently at different times, or from omitting certain events at one time while referring to them on other occasion. [Citation omitted]

57A dishonest witness is not a reliable witness absent corroboration, but it does not automatically follow that a credible witness gives reliable evidence. To provide honest and reliable evidence, a witness must be truthful and alive to their limitations. They must be open to the possibility of alternative perceptions. A credible witness without such insight may inadvertently give unreliable evidence because they are rash, overconfident, or reckless in their pursuit of an outcome.

58Ultimately, a court must consider all the relevant factors that go to the believability of the evidence in the factual context of the case.

9A witness’ demeanour (however articulate or sophisticated) is a factor that may be considered in assessing credibility and reliability but cannot be the exclusive determinant. [6] In [Fayna v. Chorny][7], the British Columbia Court of Appeal considered the role of witness demeanour in assessing the credibility of an interested party.

10. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth.

10Ultimately, credibility assessment is not an all or nothing proposition. As noted in [Re Novak Estate, 2008 NSSC 283][8],

37There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. [Citations omitted]

11In this case, the following observations are relevant:

(a) The wife disclaimed recall of certain disclosures made by the husband which had been sent to Bernhard or which Gilmour acknowledged were in her [i.e., the wife’s] possession. While there was evidence about the husband’s frequent delays in the case involving disclosure, her allegations were often not well-informed. The husband acknowledged that the wife always relied on third parties, usually professionals, for advice or assistance. (b) The wife testified that she had authorized Gilmour to negotiate for her with the husband because she wasn’t able to deal with him and hoped that the parties could settle “cordially” without using lawyers “…[but] that they would have the final review”, an approach that Bernhard didn’t like. Gilmour testified that he only had the wife’s permission to “try and negotiate something, but I had no authorization…” The husband acknowledged to the court that not only did he suspect that the wife was relying on Bernhard but also that he “knew that she was relying on Bernhard in the critical emails when I saw them cc’d…” (c) The husband was frequently evasive in his testimony. There were numerous examples of him deflecting simple answers to questions or resisting a direct answer. Several examples involved the OSC/Biovail proceedings in 2009 for which the husband was sanctioned (see paragraph 4(j)). The husband refused to answer (“yes or no”) to signing a materially inaccurate document and engaging in conduct contrary to the public interest, repeating on three occasions “I admitted that in the settlement agreement.” Fair enough. But as for that agreement, in which the OSC recorded that the husband had engaged in misleading and misrepresentative conduct, the husband responded (a fourth time) “I admitted that in the settlement agreement, that is not a finding of fact.” Presumably an eight-year securities ban and $300,000 in sanctions are not based on fact. (d) The husband was pressed in cross-examination to admit that on at least seven occasions after June 28, 2020 [sic] [9] he was informed that the wife wanted to sell Mississauga. After repeated questions, the husband finally admitted that “…yes, Mrs. Crombie was interested in selling the property.” (e) The husband was less than truthful about the bona fides of his litigation strategy. The wife alleged that she had proposed out-of-court arbitration (which the husband acknowledged) but that didn’t interest him. She claimed that the husband’s intent was to extract a litigation advantage because she was prominent politically, and to humiliate her. Acknowledging that he was “very knowledgeable about arbitration”, its lesser cost, quicker accessibility and appealing private nature, the husband insisted on a trial because “…I do think that…Ms. Crombie will hopefully admit to some things…if it is in public court, that she might not otherwise…” The court was never told what those “things” were. (f) Prior to trial, the wife brought a motion to restrict public access to the court file pursuant to [Rule 1.3. of the Family Law Rules][Family Law Rules, O. Reg. 114/99, Rule 1.3]. She did not seek a sealing Order. In her supporting affidavit the wife wanted to ensure that her family case remained private due to her public/political position and she expressed concern that the husband was trying to “penalize and embarrass” her. The husband opposed the motion. While McGee J. dismissed the motion as not falling within the scope of the rule, the husband’s assertion that he wanted an adjudication “in an open court with fairness and integrity” and that the wife “waived any privacy concerns” when she started the case was disingenuous at best. (g) The wife alleged that the husband also tried to embarrass her with respect to payment of realty taxes on the matrimonial home, which he was occupying, but not paying. To avoid public embarrassment as city mayor, she was compelled to ensure they were paid, a cost that only increased every year and became especially acute after her municipal career ended and she was earning significantly less than before. The husband also suggested (for the first time at trial) that the wife had incorrectly recorded a minor tax return expense for the cottage that, in his view, exposed her to civil or criminal liability for tax fraud if she didn’t correct the entry, which he disputed (“…she’s gonna have problems”). Maybe this was one of those “things” but the linkage, if any, was never made clear.

12The wife was a credible witness but often unreliable when testifying about the minutiae of the disclosure to Bernhard and the discussions between Gilmour and the husband because, in the latter situation for example, she wasn’t directly involved. She never waivered in her wish to dispose of her interests in both properties. The narrative of her efforts is consistent and amply supported by the documentary record even if that involved accommodating the husband not only in being receptive to his acquiring her interests in the matrimonial home and cottage (for which she was under no legal obligation to agree) but also to facilitate that being done by extending to him a take back mortgage, first on the matrimonial home, then ultimately the cottage (for which she was also under no obligation to do).

13Compared to the wife, the husband was not a credible witness. While he had a better command than her about the documentary record, he was (as noted) frequently evasive in his testimony, often combative, deflecting answers to a narrative that he perceived was more favourable to him and minimizing evidence that could reflect poorly on him (such as his evidence about the OSC/Biovail proceedings). While the husband cannot be criticized about wanting his day in court, the fact is that he weaponized the court process by his pattern of delay (often the subject of comment by judges in this case) and using a public platform (i.e., open court) to pressure the wife to yield, to help him acquire her interests in the matrimonial home and cottage. The husband’s reasons for declining an out-of-court dispute resolution process such as arbitration rang hollow; he had been the CFO of an NFL hockey team for three years, was knowledgeable about arbitration and had, in fact, more recently been involved in 2021 as “the lead witness” (the husband’s description) in a multi-million dollar lawsuit.

14Gilmour was a credible witness. I accept that he was, with the wife’s authority, negotiating with the husband on the basis that whatever was agreed with respect to the values of the properties was subject to legal input, the end goal being (as the husband also wanted) a more comprehensive outcome captured in a separation agreement acceptable to the parties’ lawyers. His “Discussion Note” and February 3, 2021 (the ultimatum) email “Details to be worked out between lawyers” are evidence of that restriction on his authority.

15Except where noted, the evidence of the wife in this case is to be preferred to that of the husband.

The Agreements

16In Reasons for Judgment dealing with the parties’ motions heard on March 23, 2022, McGee J. reviewed the elements of a binding agreement and then the terms of the agreements which the parties were negotiating between late December 2020 (Agreement #1) and late February 2021 (Agreement #5). [10] At the start of trial, both parties agreed (as does this court) with McGee J.’s analysis of the relevant contract principles. They merit repeating.

22The elements of a legally binding agreement are well established. There must be a manifest meeting of the minds or consensus ad idem on all the essential elements of what that relationship will be, see: G.H.L. Fridman, The Law of Contract in Canada, 5th ed. The absence of a formal signed and properly witnessed agreement does not vitiate the binding nature of a contact. Neither does the absence of immediate consideration.

23What is required is that the parties express themselves outwardly in a manner at the time of the agreement that indicates an intention to be bound by mutually agreed and reasonably certain terms. The burden of proving consensus is on the party seeking to prove the existence of the agreement; and the standard to be met is proof on a balance of probabilities. [Citation omitted].

24The test for determining consensus ad idem at the time of contract formation is objective. The actual state of mind and personal knowledge or understanding of the promisor are not relevant, see S.M. Waddams, The Law of Contracts, 5th ed. at page103. If a reasonable person would find that the parties agreed on the essential terms of a contract, then a contract will exist at common law.

25In determining whether a reasonable person would find that a binding agreement was conducted, the court may consider the parties’ conduct leading up to and following the conclusion of the alleged agreement. The parties' actions, such as the altering of terms after what appears to be an agreement, may be evidence, in some circumstances, that no such agreement was ever reached.

26At the same time, the proposal of additional or changed terms does not necessary negate the existence of a binding contract if such terms are not inconsistent with a fully formed agreement. For example, trivial modifications to an offer do not necessarily rise to a counteroffer or repudiation [Citation omitted]. A court must look to the entire course of the negotiations to decide whether an unqualified acceptance did in fact conclude the agreement.

27Once an offer has been made and accepted without qualification, and it appears that all essential terms have been agreed between the parties, there exists a contract which cannot be affected by subsequent negotiations.

28But if the agreement contemplates the execution of a further formal contract or where, as here, further negotiations are to take place after the conclusion of the agreement, the court must determine whether the parties intended to create a binding contract or, if they merely intended to settle certain terms of their agreement to be placed into a future agreement yet to be concluded.

17All the agreements were drafted by the parties’ lawyers with, at least on two occasions, redlining added to rule out or add terms. While there is no universally accepted (or approved) precedent for an Ontario separation agreement, the general format of the agreements in this case mirrored those found in the Law Society of Ontario library (“Sample Separation Agreement”) and Separation Agreement Annotated by Epstein, Grant and Sadvari. [11] Opening recitals in the agreements identified the parties, their family, marriage and separation (or valuation) dates, followed by a definition section, particularized terms dealing with support and property and, finally, more general (and not uncommon) terms involving indemnification and release, acknowledgment of independent legal advice and disclosure. Draft Certificates of Independent Legal Advice naming the parties’ lawyers, Harvey and Bernhard, were attached.

18The various iterations of the agreements were prepared by the parties’ lawyers who were present in the background but took no other active negotiation role, the parties preferring instead to negotiate between themselves, the wife principally through Gilmour and the husband himself. The wife had made it clear since the parties retained their lawyers in April 2019 that she desired a sale of the matrimonial home and cottage. Although the husband had initially expressed an interest in selling the Mississauga property and acquiring the wife’s interest in the cottage, he subsequently changed his position about Mississauga, repeatedly rebuffing the wife’s efforts to sell it. He denied her use of the cottage too. In July 2020 the wife was frustrated with the husband’s failure to work with Gilmour and her on the sale of Mississauga. While the husband suggested that he had negotiated an agreement in principle with Gilmour to purchase Mississauga in August/September 2020, nothing happened. The facts are that the parties couldn’t agree on values for the two properties and the husband didn’t have the financial wherewithal to acquire the wife’s interests in them without her assistance.

19Agreement #1 proposed that the wife transfer her interest in Mississauga to the husband for $650,000 and take back a second mortgage for the purchase price secured by a one-year mortgage, no interest, but 4% interest payable on default. The husband proposed to pay $450,000 USD ($584,000 CDN) for the cottage. The agreement referenced December 2020 financial statements attached to the agreement (none was), a division of contents of the properties as per a Schedule (not attached), an equalization payment from one party to the other (not identified) in an amount (left blank) and a waiver of a loan made by the wife’s mother to the husband. Attached to the draft was an Election pursuant to s. 74.5(3) of the [Income Tax Act (Canada)][Income Tax Act (Canada)] dealing with the tax consequences of disposition of the properties.

20On January 22, 2021, Gilmour emailed the husband a copy of Agreement #1 on which he had made handwritten changes to the purchase of Mississauga ($704,000) and proposed that the husband either obtain a mortgage of the property to pay the wife or pay her cash. The wife was agreeable to transferring her interest in the cottage to the husband and taking back a four-year mortgage maturing on April 1, 2025, for $480,000 USD on terms that the husband pay to her 2% a year on the principal (noted as being $800 USD a month) and that he indemnify her for any capital gains liability she might have with respect to her transfer. The email queried the wife’s responsibility “for any income tax caused by the $480,000 if any? If any as Bonnie does not have any financials.” Other handwritten terms included the husband paying off a $50,000 family visa and transferring into his name the family car. It is this email that identified in its Subject line “Discussion Note subject to your lawyers [sic] agreement.” This title was absent in the copy included as an exhibit to the husband’s affidavit in the wife’s summary judgment motion that McGee J. dismissed in April 2022.

21Further negotiations between the husband and Gilmour ensued.

22On February 3, 2021, Gilmour emailed the husband and advised that if he did not accept the wife’s counteroffer as set out in his January 22nd email by 4 pm the next day “it is no longer available.” The email also said the following:

To be clear the offer must close by March 31, 2021.

$704,000 cash paid to Bonnie and the First Mortgage on Patchogue for $450,000 US you pay closing costs on both properties and indemnify Bonnie of all other past costs or future costs. A US tax return is filed showing no capital gain, no future taxes to Bonnie.

Details to be worked out between Lawyers.

23Shortly before the deadline on February 4, 2021, the husband emailed Gilmour the following:

I accept your last offer to settle our divorce and financial situation.

Please find attached a redline and clean version of the separation agreement that reflects the mark up and numbers in Greg’s offer, on your behalf. I included the red line so you can see the changes we made to reflect Greg’s emails. We can sign the clean version as soon as you are ready.

Brian

24The redlined version (Agreement #3) incorporated the wife’s transfer prices for Mississauga and the cottage and, with respect to the latter, the four-year mortgage term (but without a maturity date or the monthly amount of interest to be paid). The husband amended paragraph 6(f) dealing with the designation of Mississauga as the parties’ principal residence up to and including 2020. No financial statements were attached to the agreement. The term dealing with equalization payment was lined out. No reference was made to the transfer of the car.

25Gilmour replied to the husband that there needed to be a provision included that dealt with late or missed payments and a due date for payment of the principal in the event of a 90-day default.

26On February 9, 2021, Gilmour sent the husband Agreement #4, initialled by the wife and witnessed by him. (“Here it is! Congratulations”). Among other things, this version amended the husband’s paragraph 6(f) to reference the actual year of transfer of the Mississauga (to 2021 from 2020) and provided for an indemnification in the event of a breach of the term. The paragraph dealing with the cottage was revised to include the enforcement terms mentioned by Gilmour in his February 4th response to the husband and, more specifically, obtaining the wife’s release from the $1,000,000 line of credit on title to Mississauga. This version also tightened the husband’s indemnification obligations to the wife to which he had agreed in earlier iterations. The transfer of the car to the husband was included.

27On February 19, 2021, the husband emailed Gilmour, the relevant portions of which are the following:

I honestly thought we had a deal when I agreed to your ultimatum at 3:30 pm Feb 4th. I felt / feel honour bound to live by that agreed to ultimatum. I am surprised Bonnie and you don’t feel you needed to or frankly still need to.

You now want to change the deal from that ultimatum pretty extensively. I have now reviewed it with my lawyer. Thank you for sending the redline. Given the substantial changes it was helpful.

I think we have / had agreed on money.

I can not agree to any indemnification of tax issues. I am not aware of her tax situation and believe she may have Capital gains and income tax issues, but she has a tax accountant, I don’t. Anyway that is her issue not mine.

28On February 23, 2021, the husband emailed the wife and enclosed a redlined Agreement #5.

Bonnie: here are our comments on your last draft Separation Agreement as per my email discussion with Greg last week. I feel honour bound to still accept the version that I agreed to when you provided the ultimatum on Feb 4th, so you can chose [sic] to go with that version or this new one you amended after the Feb 4th acceptance, further then amended by us. [italics added]

29The redlined additions referenced the parties’ Divorce and, among many other terms, expanded the tax definition in the earlier versions of the agreement to include the Internal Revenue Code of the United States, referenced the wife agreeing not to interfere with the husband’s public media activities and political aspirations, payment of Mississauga realty taxes by the wife to the date of transfer of title, ignored any reference to an indemnification of the wife for any capital gains taxes relating to transfer of title to the cottage, substantially revised the terms relating to the take-back mortgage, added a release to be held in escrow to be signed by the wife’s mother relating to a loan made to the husband and, lastly (of significance, although there were several other revisions), including a term not unlike that included by the wife in Agreement # 4 (but the names of the parties reversed) that the wife consent to an enforceable judgment against her in favour of the husband for any breach of the agreement by her.

30In my view, there was no legally binding agreement between the parties. Not for the first time, the husband alleged an agreement focussing only on price but chose to ignore other inconvenient contractual terms essential to a legally binding agreement. [12] Context is important:

(a) Throughout the parties’ negotiations, particularly during the exchange of the five draft agreements, their lawyers were involved but in the background. As the husband acknowledged, Harvey “…was intimately involved in every step of the way” as, he suspected, was Bernhard. When he forwarded draft Agreement # 3 on February 4th (the “acceptance” email), the husband testified that he did not expect the wife to sign it because “…it was subject to the lawyers working out the details…I knew that there would be lawyers that would have to work out the details.” In my view, the exchange of emails on February 3 and 4, 2021, were part and parcel of the parties on-going negotiations leading to (hopefully) a comprehensive legally binding separation agreement. That is what both parties wanted. (b) Despite their respective business careers, Gilmour and the husband used the term “offer” loosely, and not consistently in a legal context except where, in the husband’s case, it suited him. For example, the husband often described Agreement #1 as an “offer” but (as noted above, and as he also testified) there was no expectation of its “acceptance” because legal input was still required. At best the references to “offer” and “counteroffer” by the husband and Gilmore represented their evolving negotiations, principally (but not exclusively) about money. (c) Maintaining that the “business terms were agreed” with his February 4th email to Gilmour, the husband selectively ignored that part of Gilmour’s “ultimatum” email of February 3, 2021, that referenced the wife not being liable for any costs or taxes relating to the cottage transfer. In his January 22, 2021, email to the husband, Gilmour raised the wife’s concerns about her income tax liability relating to the cottage transfer. Gilmour raised the issue more specifically in his “ultimatum” email, confirming the transfer values and adding “…you pay closing costs on both properties and indemnify Bonnie of all other past costs or future costs . A US tax return is filed showing no capital gain, no future taxes to Bonnie .” [italics added] The next day the husband accepted “…your last offer to settle our divorce and financial situation.” The redlined Agreement #3 dealing with the wife’s indemnification for the cottage in paragraph 7(d) which accompanied the husband’s February 4th email was unchanged from the earlier draft and inconsistent with, or at least ambiguous about, the wife’s indemnification term. In my view, this was an essential term for any legally binding agreement between the parties and was specifically referenced in the “ultimatum” email. (d) The husband acknowledged at trial that the wife was concerned about her tax exposure relating to the cottage transfer and that she wanted indemnification from him. Her Agreement #4 captured in a revised paragraph 7(d) the indemnification she wanted which term, in my view, the husband ignored directly referencing in his February 4th email, perhaps inadvertently, but in my view purposely. In his February 19, 2021, email to Gilmour responding to Agreement #4, the husband said “I can not agree to any indemnification of her tax issues… Anyway that is her issue not mine.” (e) When pressed on the indemnification issue in cross examination, the husband avoided directly answering whether this really was so important a term on at least three occasions, finally stating that according to his calculations, there would not have been any tax liability anyway. [13] This was different from his pre-trial position and begs the question why he was so opposed to a term indemnifying the wife in the first place. (f) While the husband said his February 4th acceptance settled “our divorce and financial situation,” there was left incomplete in the draft agreements leading up to that date, and carried over into the redlined Agreement #3 that accompanied his email, terms referring to Schedules “A” and “B”, being December 2020 financial statements of the parties to be attached to the final agreement warranting that “no significant financial change had taken place since [that party] swore the said financial statement.” No financial statement from either party accompanied Agreement #3. In fact, none existed. Nor was there attached a Schedule “C’ dealing with a list of chattels to be returned to the husband by the wife. This schedule didn’t exist either. In fact, the negotiations had focussed on just a few chattels which the wife wanted. The paragraph dealing with an equalization payment being made, by whom and the amount, was simply lined out. (g) The parties disputed whether other terms such as the Patchogue take-back mortgage had been clearly agreed or properly expressed, whether the wife would be entitled to use the cottage in the future and whether she could have a few chattels from the cottage. At best the parties had reached an understanding about money, in principle, but in no way could it be said that they had fully resolved, as the husband contended, their “financial situation.” (h) In his February 23, 2021, email forwarding Agreement #5, a much broader agreement that included new terms, the husband gave the wife the option of choosing Agreements #3, #4 or #5. She chose none.

31The matrimonial home should have been sold after the wife vacated it, the parties had exchanged financial disclosure (as Harvey had written Bernhard on April 10, 2019) and a reasonable time given for the parties to assess their overall financial situation with their lawyers. Who owned the home would have been immaterial, or at least negotiable in the event of a dispute about value, because the husband was presumptively entitled to share in half of its net value by virtue of the equalization regime anyway. Gilmour had the property appraised in July 2019 and paid $4,000 to ready it for sale. There was no evidence that the wife was taking then the position she later adopted and then abandoned before Rahman J. in August 2022 that the husband had no financial interest in the property (or any right to participate in any increase in its post-valuation date value). Her position that she was the owner of the property and that the husband had to leave it was adopted, in my view, out of frustration with the husband’s delay. Moreover, the delay was purposeful. Only the husband benefitted by it. There was no reason the property should not have been listed for sale, or a sale completed, by the end of 2019. The wife was prepared to accommodate the husband’s desire to acquire sole title to the matrimonial home and the cottage, and on financial terms he needed from her. But only up to a reasonable point in time.

32The matrimonial home must be sold. To avoid any repetition of the events which led to these proceedings, in particular the husband’s delay tactics, the sale of the matrimonial home must be made to a non-family third-party. Gilmour will be the listing agent. The parties shall be guided by his recommendations. Any reasonable offer must be accepted. If necessary, further sale directions can be sought from the court.

33The husband is ordered to cooperate with the in personam sale of the cottage. He may acquire from the wife her interest in it, but she is under no obligation to assist in his financing of that purchase. Absent an agreement by June 28, 2024 on its value and who owes what to whom as a result of the accounting ordered (see below), the parties must sell the property.

34Payment of each party’s distributive share of the matrimonial home shall only be made after calculation of any equalization payment, including responsibility for post-separation adjustments and occupation rent (see below), and shall consider (if required) the value of the wife’s appraised interest in the cottage.

Equalization

35The wife claims that any equalization payment she presumptively owes the husband in the amount of $185,576 should be dismissed because the husband disobeyed his statutory and court-ordered disclosure obligations. The husband claims that if the court should order the sale of the matrimonial home, then the wife owes him an equalization payment of $196,305.

36The wife filed a Net Family Property (“NFP”) statement (Exhibit 40), the husband did not, nor was a comparative NFP statement filed by either or both the parties (which would have assisted the court and should have been prepared anyway for the settlement conference). The wife submitted that the property issues were not complicated since, apart from their ownership of the matrimonial home and cottage, the value of the parties’ other assets were modest: however, there were several assets and debts whose values were disputed.

(a) Promissory Note

37All iterations of Agreements #1 to #5 referenced a debt owed by the husband to, and its forgiveness by, the wife’s mother. Under Part 4(f) “Money Owed To You”, the wife recorded an October 5, 1988, Promissory Note for $53,200 payable on demand by the husband to the wife’s mother and two other family members. The accompanying explanation was that the husband had borrowed the funds but never repaid them.

38The note was never tendered in evidence nor did either party testify about it, except noting that its’ forgiveness was referenced in the agreements and would form part of any final agreement between the parties. Given the date of the Note and the paucity of evidence surrounding it since it was written, I am not prepared to give it any weight or factor it into determining the parties’ net family properties. In addition, it is not unreasonable that its’ recovery would be statute barred, an issue neither party raised.

(b) TD Visa (**7703)

39The parties had several joint bank accounts as well as a joint Visa on the valuation date. In her NFP statement, the wife attributed half the value of the outstanding balance of the TD Gold Elite Visa, which she recorded as being $38,845.66, to each of the parties, adding that it was used solely by the husband. [14] Copies of the Visa account for the month in which the valuation date fell were filed with the court. The husband recorded $51,404.36 as his debt for this credit card in calculating his net family property.

40The parties consistently referred to the credit card in their agreements as the “family TD Visa” and, in fact, upon a closer examination of the monthly statements for January/early February 2019, they disclose that the credit facility was used by the husband (mostly) and by the wife and two of the parties’ children in roughly equal amounts. The husband testified that he had paid the balance outstanding on the card at some point in time after the valuation date, an assertion that the wife didn’t dispute. In its review of the card statement for January 2019, the court calculated that $43,165.34 had been charged up to and including January 12, 2019. This debt will be recorded as equally owed by the parties and the presumptive equalization payment owed will be adjusted accordingly. [15]

(c) Income tax liability

41In his trial financial statement, the husband declared that he owed income tax for 2017 ($32,680.76) and 2018 ($23,029.79), totalling $55,710.55 and HST of $17,595.83. His 2019 Notice of Assessment dated April 30,2023 disclosed a “Previous Account Balance” of $68,010.46 but no other details were provided. The husband did not otherwise testify about these deductions.

42Attached to the husband’s financial statement sworn on April 27, 2021, was his 2018 Notice of Assessment dated June 10, 2019. It disclosed a balance due of $23,029.79 (i.e., “Previous Account Balance” owing of $31,249.77 less assessed 2019 credit of $8,219.98). There was no evidence about what it comprised or for what year the balance due referred. No 2017 Notice of Assessment was disclosed and there was no evidence about the HST debt claimed.

43The husband will be allowed a $23,029.79, say $23,030 (rounded), deduction. Nothing will be allowed/deducted for HST.

(d) Notional disposition costs (RRSPs)

44In his actuarial report dealing with the wife’s projected average tax rate when she would begin receiving her OMERS pension, Mr. Wolgelerenter estimated that the rate would be 21.1% (age 65). This was based on a $78,100 retirement income comprising her pensions, estimated RRSP income, Canada Pension Plan benefits and Old Age Security benefits. The wife applied this notional tax discount rate to her RRSP. She was 59 years old when the parties separated.

45The husband was also 59 years old when the parties separated. He applied a 35% discount factor to his RRSP but never testified why that figure was chosen nor did he provide any evidence supporting it either.

46Absent any better evidence I am prepared to accept a 21.1% notional discount factor to both parties’ RRSPs.

Determination of equalization payment

47The wife submits that while she owes an equalization payment in principle to the husband she should be relieved of that obligation. Her three reasons are unpersuasive:

(a) The husband did not undertake a formal valuation of Crombie Capital Partners (“CCP”) and provided no disclosure about this business. The husband testified that this was a sole proprietorship through which he was paid for consulting work and that he stopped using it after his position with the Ottawa Senators ended. The revenue and expenses flowed through his personal bank accounts. His office was in the matrimonial home for which he declared business-use-of-home expenses in his income tax returns, and nothing in the way of capital cost allowances. Despite the wife’s complaint, not every family law case in which a spouse has a business interest requires expert valuation assistance, it is my view that apart from earnings dependant on his services, CCP had no appreciable value. (b) The husband listed debts which were not corroborated. Some of those have already been addressed above (i.e., the TD Visa, Income tax owing, HST, and the RRSP tax discount factor). Others included unpaid property taxes on the cottage and notional realty disposition costs. As for these latter claims, an accounting is ordered (see below) with respect to the cottage at which time the issue of taxes will be taken into account and, as for realty disposition costs, those will be to the parties’ accounts when the net sale proceeds from the matrimonial home and cottage are calculated. (c) The wife alleged that the husband had not complied with the disclosure Order made by Kurz J. dated January 4, 2022. Both parties were ordered to provide disclosure by Kurz J; the husband’s disclosure was more extensive than the wife. The husband’s Certificate of Disclosure filed at trial indicated that many essential documents were provided in February 2022 and more recently in November 2023. While the wife was frustrated with what she submits was the husband’s delay in providing disclosure, likely intentional in my view, I cannot conclude that his disclosure was materially prejudicial to her; in some respects, his inattention to disclosure (relating, for example, to his HST claim and supporting his 35% RRSP tax discount factor claim) cost him.

48Both parties’ financial statements and the wife’s NFP statement referenced each party’s competing claims involving expenses they incurred for the matrimonial home and the cottage. In the NFP statement that accompanies this Decision, none of those is recorded as they are addressed elsewhere in these Reasons.

49A revised NFP statement incorporating the values upon which the parties agreed and as determined above accompanies these reasons. The wife owes the husband an equalization payment of $216,073.75, say $216,074 rounded.

Post-Separation Adjustments (Part 1)

50Each party claimed post-valuation date adjustments to the equalization payment. The wife claimed one-half (or $59,433.78) of the total of the realty taxes she paid for the matrimonial home ($118,867.56) from and after the valuation date. The husband has claimed adjustments totalling $168,005 comprising an amount for the wife’s share of the family TD Visa (estimated to be $23,200) which he paid and which included one-half of charges incurred on the card by two of the parties’ children, an amount equal to one-half of the interest he paid on the line of credit secured on title to the matrimonial home from and after the valuation date (estimated as not less than $122,000 owing by the wife), one-half (i.e., $22,805) of the property insurance paid on the matrimonial home, a repayment to him of the occupation rent he had been ordered to pay from January 1, 2022 to February 1, 2024 ($87,500, being twenty-five months x $3,500) plus any rent paid after March 1, 2024 to the date of closing and, finally, an amount representing one-half of losses on the cottage funded by him ($31,325 from the wife).

51Claims with respect to occupation rent will be addressed in the section dealing with occupation rent and those dealing with the cottage in the section after that, respectively.

(a) Realty taxes

52It is not an unreasonable inference that neither party gave much, if any, thought to reimbursement for the expenses each incurred for either of their properties after the valuation date while they were negotiating the husband’s purchase of the wife’s interests in them, in particular the matrimonial home. Certainly, none of the proposed agreements ever referenced reimbursement or accounting terms. The husband was always aware that the wife wanted her equity out of the home. It should have been obvious to him by late July 2020 that she was frustrated with the lack of meaningful progress. By the time that the wife rejected his Agreement #5 in late February 2021, it was patently clear that whatever the parties’ pre-existing understanding about responsibility for the matrimonial home expenses before that date, it no longer applied.

53In my view, the husband should be responsible for one-half of all realty taxes paid by the wife from and after March 1, 2021, to the date of completion of any sale of the matrimonial home. He should assume responsibility for all other expenses relating to the property to that date. This includes all payments (which were interest only) on the line of credit, utilities and other user-related occupancy costs and regular maintenance and upkeep. There was no evidence of material repairs or additions to the property paid by him.

54The wife paid realty taxes of $73,318.16 for the 2021 to 2023 calendar years. The taxes were $23,417.32 (2021), $24,195.16 (2022) and $25,705.68 (2023). Pro-rating 2021 (i.e., subtracting the first two months), the taxes amount to $19,514.43. This amount when added to the 2022 and 2023 taxes totals $69,415.27, say $69,415 rounded.

55The husband shall pay to the wife $34,707 for his share of realty taxes on the matrimonial home from March 1, 2021, to December 31, 2023, and one-half of all realty taxes paid by her on the home after December 31, 2023, to the date of completion of the property’s sale.

(b) TD Visa (*8703)

56The husband shall be allowed a post-valuation date adjustment of $21,582.67 for the amount he paid on the family Visa representing one-half of the charges outstanding and incurred to and including January 12, 2019. In addition, the wife charged $1,508.72 on the card after January 12, 2019, up to the card’s February 4, 2019, statement date. There was no evidence of the wife’s use of the card after that date.

57As for the children’s use of the card from and after the valuation date, they collectively incurred charges of $4,924.66, for personal use (mostly food and transportation: at least one of the children was attending Western University at the time). Neither party spent any trial time on these expenses being qualified as a contributory expense or about their respective allocations. There was also no evidence about either party incurring further expenses for the children after February 4, 2019. Likely there were such expenses, but this court will not arbitrarily hazard a guess about them.

58It is not unreasonable given the parties’ respective incomes that they should share equally the children’s expenses. Since the husband paid for the card (there was no evidence that the wife contributed to its payment), he shall be allowed a further credit of $2,462.33.

59Accordingly, the husband shall be allowed a post-valuation date credit relating to the Visa in the amount of $25,553.72 (i.e., $21,582.67 plus $1,508.75 plus $2,462.33), say $25,553 rounded.

(c) Line of Credit and property insurance

60Apart from a reference in his trial financial statement to a $4,000 monthly debt payment, the husband led no evidence breaking down the monthly expense he was paying on the line of credit. Among other things, the financial statement recorded that he also had significant debts owing on a Visa card ($43,128.81), an American Express card ($10,794.42), 2022 income tax ($98,097.60), legal fees ($4,000) and unpaid property taxes for the cottage ($17,567.57, currency not identified). It is not clear that his $2,416 monthly housing tax entry related to the matrimonial home or the cottage. The husband’s aggregate housing expense was recorded as $6,461 monthly. The wife was paying $5,000 for her rental.

61The husband recorded monthly property insurance of $345 and repairs and maintenance of $200. No receipts or proof of payment were tendered in evidence.

62Consistent with this court’s finding with respect to the wife’s entitlement to a contribution from the husband for realty taxes only after March 1, 2021, no adjustment in the husband’s favour shall be given for expenses for the matrimonial home incurred by him from and after the valuation date to February 28, 2021, except for an admittedly arbitrary amount of $6,000 between the valuation date and April 4, 2019, when the wife left the property. [16] The value of what each was paying for their respective accommodations was comparatively equivalent taking into account the differences in the rental property occupied by the wife and the much grander (with pool) matrimonial home.

Summary of Post-Valuation Date Adjustments

63Setting off the husband’s realty tax obligation against the wife’s TD Visa and line of credit and insurance obligations results in the wife being entitled to a favourable adjustment to the equalization payment of $3,154 (i.e., $34,707 less $25,553 less $6,000).

Post-Separation Adjustments (Part 2: Occupation Rent)

64The wife has claimed occupation rent from the husband from April 2019 to the date of his vacating the Mississauga home no later than fourteen days before its listing for sale. [17] The husband disputes the wife’s claim, submitting that it was her choice to leave. The wife has not occupied the matrimonial home since she left.

65There is no question that parties initially agreed to sell the matrimonial home. In Harvey’s April 10, 2019, letter to Bernhard she wrote that the husband “did not want to list the property in April but certainly in future.” The wife was prepared to have the husband acquire her interest in the property, and negotiations between the parties in that regard proceeded through Gilmour and the husband but by mid-summer 2020 the wife was frustrated and emailed the husband (July 28, 2020) that “It’s time to sell the house.” The husband’s evidence is that in August/September 2020, the wife had agreed to sell him her interests in both of their properties (this is based on a verbal agreement he alleged was made with Gilmour) but that there were “some fairly significant financial money issues” that needed to be resolved first (he wasn’t able to close any deal without the wife’s forbearance through take-back financing on the purchases). When the wife said in mid-December that she was going to come to the home (there was a prospective purchaser), the husband gave her “formal notice that you are not allowed entry to the home.”

66In my opinion, the husband either didn’t want to sell the Mississauga property from the outset of the parties’ separation despite Harvey’s April 10, 2019, letter to Bernhard or at some later point that summer he resolved that he would acquire ownership of the home (and the cottage) once he was aware of their values and had explored his alternative accommodation options. All his actions afterward reflect his intent to use whatever means at his disposal to frustrate any proposed third-party sale of the home, to acquire its ownership (and that of the cottage) using his presumptive share of the equity in both properties. And relying on financial assistance from the wife . While he continued to occupy the matrimonial home and paid the line of credit and the utilities (and, for a while, for two of the parties’ children who intermittently lived there) he knew that the wife was paying the property’s realty taxes, he knew that she had residency costs of her own and, above all, he knew that the wife was unable to access her equity in the home (or even the cottage equity) due to his actions. She was stuck.

67Occupation rent is a discretionary remedy that can be used to ensure financial fairness between spouses, the application of which will vary from case to case. [18] An equal joint owner is not entitled to occupation rent as of right: rather, it is merely a tool for balancing competing equities and may be awarded where it is reasonable and equitable to do so. [19] As noted by the Court of Appeal in [Non Chhom v. Green, 2023 ONCA 692][20], the order must be reasonable; it need not be exceptional.

The relevant factors to be considered when occupation rent is in issue in a family law context are: the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize on their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation [citation omitted]. [21]

68The list is not exhaustive. In [Saroli v. Saroli, 2021 ONSC 4450][22], Petersen J. listed other factors which are relevant, such as the circumstances under which the non-resident spouse left the home, whether the non-occupying spouse moved for the sale of the home and any financial hardship experienced by the non-resident spouse because of being deprived of their equity in the property. [22] The husband submitted that as it was the wife’s choice to leave the matrimonial home, he should not have to pay occupation rent, presumably implying that in the absence of physical ouster or some other event (such as family violence) he should be excused liability (the wife had claimed that the atmosphere in the home was emotionally abusive, which the husband denied). While physical ouster or some other precipitating safety event (such as the exposure of children to adult conflict) is often a significant factor warranting occupation rent, its absence is not a disqualification. In [Irrsack v. Irrsack][23], the talisman of occupation rent, there was no ouster: the wife simply left the jointly owned matrimonial home. This was the case in [Sanders v. Sanders (1992)][24]. In [Jasiobedzki v. Jasiobedzki, 2022 ONSC 1854][25] the trial judge noted only that the husband left the matrimonial home.

69At all material times the wife wanted her equity in the home. Her willingness to accommodate the husband’s not unreasonable wish to acquire its ownership does not defer the start date from which rent should be calculated. And does not insulate the husband from exposure. Even Petersen J. cautioned the husband on June 8, 2021, that he could be liable for occupation rent. Similarly, the wife’s concession in the proceeding before Rahman J. in August 2022 that the husband held a half interest in the home does not preclude her from seeking a rental start date before then either because when the parties’ separated the husband was entitled anyway to have the entirety of the value of the home factored into the calculation of the parties’ net family properties to which he, at least presumptively, was entitled to half of that value. At all material times after early April 2019, the husband was represented by experienced family law counsel. The wife is entitled to an award of occupation rent.

70As with the property’s realty taxes which she was paying, it is doubtful that the wife entertained advancing an occupation rent claim until at or shortly after her July 28, 2020, email to the husband that it was “time to sell the house” and wanted access for a photographer to take pictures for listing purposes (“It needs to be on the market to showcase the pool, etc.”). Even then, it is not an unreasonable inference that had the parties been able to conclude a comprehensive settlement before the end of February 2021, no rent claim would have been advanced. The husband should have been on notice then about his potential exposure. Certainly, Petersen J. was unequivocal about that exposure later that June. After Woollcombe J. ordered occupation rent in January 2022, Richetti J. was critical of the husband two months later about delay tactics, and the appearance of judge shopping. McGee J. too was unequivocal in continuing the occupation rent Order made by Woollcombe J.

71The parties agreed that the fair market rental value of the matrimonial home was $7,000 a month. One-half of that ($3,500) is presumptively payable by the husband to the wife from and after March 1, 2021, until the earlier of his vacating the property or completion of its sale. This date is shortly after the parties’ negotiations ended when the wife rejected Agreement #5.

72As for credits relating to the matrimonial home, the husband did not quantify those with any degree of certainty at trial apart from their monthly amounts being identified in his financial statement. His evidence about paying interest only on the line of credit registered on title was imprecise, unquantified (i.e., never broken down), and the monthly amounts payable would have varied according to changes in interest rates. Importantly, the mortgage principal was not reduced from April 2019 when the wife left the matrimonial home.

73Once a fair market value for a jointly owned property is determined, there is no “one size fits all” approach to allocating responsibility for its related expenses. Typically, user-related expenses such as utilities, internet, etc. are the responsibility of the occupier. Property taxes paid by either or both parties and mortgage payments where the principal is reduced are shared as would be improvements made to the property (less so for regular maintenance). Children and support issues may impact the court’s assessment (not in this case). As noted in Non Chhom, the order should be reasonable. When McGee J. continued the Woollcombe J. Order she noted that the wife “should not continue to be placed at a financial disadvantage. She is being deprived of the use of her equity in the property…” In addition to the $3,500 monthly occupation rent, the husband was ordered to pay “…the costs of maintaining the home, including home insurance, utilities, and interest payments on the line of credit.”

74The evidence of Mr. Lee was that between January 12, 2019, and January 17, 2024, the fair market value of the property increased from $2,600,000 to $3,500,000. While that increase will presumptively benefit both parties, the fact is (as the wife testified) she was prevented by the husband’s claims in realizing on her equity in the property (both properties, in fact) and acquiring her own property (which she had wanted to do). Given this court’s determination about the husband’s contributive responsibility for realty taxes paid by the wife from and after March 1, 2021, to December 31, 2023, it is my view that the husband’s $3,500 occupancy rent obligation should continue after January 1, 2024, to the sale of the matrimonial home. The husband shall be responsible for one-half of the realty taxes paid by the wife after that date and the additional costs set out in the Order of McGee J. which, in my view, was a reasonable assessment, even though a temporary Order. This disposition is not unreasonable because not only does the husband enjoy an an annual income ($304,000) well in excess of the wife’s income ($180,000) but he has had the exclusive use for almost five years of a premium property located in what Mr. Lee described was a ‘luxury neighbourhood.” There was no evidence of repair expenses out of the ordinary. The husband is not entitled to any credit for the home expenses incurred between April 4, 2019, and February 28, 2021, for the same reason that the wife’s occupation rent claim for that period is denied.

75Accordingly, the husband’s $3,500 monthly obligation rent runs from March 1, 2021, to the date of sale of the matrimonial home less any rental payments made since January 1, 2022, the effective date when Woollcombe J. ordered rent to be paid.

Revised Equalization Payment

76For 2021, the husband was ordered to pay $3,500 monthly occupation rent, or $35,000 for the year. He was credited with one-half of the $19,514.43 realty taxes paid by the wife, or $9,757.21, there by leaving a balance owing to the wife of $25,242.78, say $25,243 rounded.

77The wife shall pay to the husband an equalization payment (as revised) of $187,677 (i.e., $216,074 less $3,154 less $25,243).

Patchogue Property

78It is axiomatic that this court has no in rem jurisdiction over realty located outside of Ontario, a proposition with which neither party disagreed. This court does have an in personam jurisdiction though to require property owners of foreign realty to sell their interest provided certain criteria are met (which they are in this case). [26] Or to adjust the distributive value of other assets in Ontario of comparable value where there may be concern about compliance with the in personam Order. [27]

79The wife did not use the cottage after the parties separated except for one occasion near the end of the pandemic with one of the parties’ sons. The husband forbade her from its use because she wasn’t participating in paying its expenses. A seawall had been damaged and, ultimately, insurance proceeds were received. The advent of the pandemic led to its rental as a prime Airbnb property, whose management of the property was undertaken by the husband and another of the parties’ sons. A TD Bank (US) account was addressed to the husband at the cottage and spanned the period from December 11, 2018, to December 10, 2023. Copies of the account statements were tendered in evidence.

80The wife seeks an accounting with respect to the cottage. As tabulated by her, account deposits from 2020 to November 2023 totalled $399,487.19 USD, insurance receipts (sent to the husband then deposited to the cottage account) were $285,530 USD which, less operating expenses of $324,933 USD results in a net receipt of $360,084.17 USD of which the wife claims one-half, or $180,042.08 USD. These figures may not be entirely accurate because the wife maintains that she has never received a full accounting from the husband (despite repeated requests, including confirmation of the actual amount of the insurance proceeds paid to him) and she adjusted a portion of the expenses to account for personal use by the husband and other members of the family (although they were neither identified nor tabulated).

81The husband’s position at trial was that the wife was obliged to transfer her interest in the cottage to him pursuant to their alleged agreement. In the alternative, he proposed that the cottage be sold and that its net sale proceeds be equally paid to the parties. No reference was made anywhere in his submissions to sharing any net revenue with the wife.

82In my view, the property must be sold. The wife was clear in her evidence (and this is consistent with the early negotiations between the parties) that the property held a sentimental value for the parties’ children and this was a reason why she was prepared to entertain the husband’ purchase of her interest in it. An accounting should precede that if possible but only under stringent conditions.

Disposition

83Specific directions are set out below with respect to the court’s disposition of the trial issues.

Matrimonial Home

84The matrimonial home shall be listed for sale and sold.

85The following are the sale directions:

(a) Greg Gilmour shall be the realtor. (b) By May 31, 2024, the parties shall sign an MLS listing agreement with Gilmour. (c) The parties shall be guided by the agent’s staging and listing recommendations (which will include closing date). Reasonable staging costs to ready the house for sale shall be shared equally by the parties and paid from their distributive share of the net sale proceeds before any distribution of those proceeds to the parties. (d) The parties shall accept the agent’s recommendation on any reasonable Offer to Purchase. (e) If the parties cannot agree on the choice of solicitor to act on the sale, the wife shall have the final authority to make that choice. (f) The net proceeds of sale shall be equally shared by the parties, subject to payment of the equalization payment below and occupation rent.

Patchogue Property

86The following is ordered:

(a) There shall be an accounting of all revenue and expenses relating to 8 Salt Meadow Lane, Patchogue, New York. This shall be concluded by June 28, 2024. (b) The husband shall provide to the wife by May 31, 2024, copies of all documents relating to the payment to him by the property insurer and any other operating expense for the property from January 12, 2019, to May 31, 2024. (c) By June 14, 2024, the wife shall identify and tabulate those expenses which she adjusted from Exhibit 75 at trial and factored into her $324,933 USD calculation of the property’s operating expenses. (d) The parties shall have until June 21, 2024, to conclude the accounting. If they are unable to agree on any of the revenue, expenses or the amount presumptively owing by one party to the other by June 28, 2024, they are ordered to list the property for sale, the net sale proceeds of which shall be equally shared by the parties subject to the outcome of a later accounting. (e) The husband shall have until June 24, 2024 (1 pm) to make an unconditional written proposal to the wife to purchase her interest in the property The amount to be paid shall reflect the wife’s presumptive share less one-half an estimated realtors’ commission and other closing expenses commonly incurred for sale transactions of this nature in Patchogue, New York. If there is no acceptance by the wife, the parties are directed to comply with (d) above.

Equalization Payment

87The wife shall pay to the husband an equalization payment of $187,677. No pre-judgment interest shall be payable because the wife was unable to access any of her equity in either the matrimonial home or cottage. At the wife’s option, this amount shall be paid from her share of the net sale proceeds of either property.

Occupation Rent

88The husband shall continue to pay to the wife occupation rent in the amount of $3,500 from and after January 1, 2024, to the date of completion of sale of the matrimonial home. In addition, he shall pay the interest owing on the line of credit, one-half of the realty taxes paid by the wife from and after that date and all user-related expenses such as home insurance, utilities, pool maintenance and landscaping.

General Household Contents and Vehicles

89Neither party spent much trial time on this issue. In her proposed final order, the wife asked that the contents of the matrimonial home and cottage be equally divided. Her trial financial statement indicated that the matrimonial home contents had been divided. The statement had appended to it a detailed listing of contents, their estimated values and who possessed them. She claimed that the husband had retained contents of the cottage property which she estimated were worth $200,000 USD. As for the husband, his financial statement indicated that the wife had removed contents of the matrimonial home (which he estimated were worth $120,000) but the statement made no reference to the value of the cottage contents. His position was that there should be no further division of the contents of either property.

90None of the iterations of the five agreements or the parties’ negotiations meaningfully addressed any further division of contents or allocated their values. If the parties are unable to resolve this issue, then the court will consider (if appropriate) further submissions and (possibly) a further court attendance to deal with this issue. If nothing is heard from either party by June 28, 2024, the court will conclude that the parties have resolved this issue.

91All other claims by the parties, excepting costs, are dismissed.

Further Directions

92If further directions or clarifications are required with respect to the foregoing, arrangements may be made through the judicial assistant.

Costs

93The court encourages the parties to settle costs between themselves. If they cannot by May 31, 2024, the following is ordered:

(a) The wife shall deliver her submissions by June 7, 2024. (b) The husband shall deliver his submissions by June 18, 2024. (c) Reply (if any) from the wife by June 24, 2024. (d) Submissions shall be single page, double-spaced and, in the case of (a) and (b) above, limited to four pages: reply is limited to two pages. (e) Counsel are to advise the judicial assistant when they have filed their submissions and uploaded them to caselines. (f) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the deadlines above but not form part of the Continuing Record.

Justice D.A. Jarvis

Date: May 17, 2024

ONTARIO Court File Number Superior Court of Justice, Family Court FS-21-100017-0000 (Name of Court) at 7755 Hurontario Street, Brampton, Ontario, L6W 4T6 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). Bonnie Crombie 875 The Greenway Mississauga, Ontario L5G 1P7 Gary Joseph/Julia McArthur MacDonald and Partners LLP 155 University Avenue Suite 1700 Toronto, Ontario M5H 3B7 Tel: 416-971-4802 Fax: 647 727 0904 garyj@mpllp.com/jmcarthur@mpllp.com

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). Brian Hugh Crombie 2480 Mississauga Road Mississauga, Ontario L5H 2L5 Areesha Zubair Mills & Mills LLP 2 St. Clair Ave W #1700 Toronto, Ontario M4V 1L5 Tel:416.682.7105 Fax:416.863.3997 Areesha.zubair@millsandmills.ca

Parties names are Bonnie Crombie and Brian Crombie The valuation date for the following material is (date) January 12, 2019 The date of marriage is (date) May 26, 1984

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 Joint Ownership 2480 Mississauga Road, Mississauga, ON ($3,500,000 Value based on the Appraisal of Jason Lee dated January 17, 2024 as at January 15, 2024) $1,750,000.00 $1,750,000.00 Joint Ownership 8 Salt Meadow Lane, Patchogue, Long Island, New York ($1,200,000 estimated value or $1,644,000 CDN at 1.37 exchange rate) $822,000.00 $822,000.00 15. Totals: Value of Land $2,572,000.00 $2,572,000.00

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES Item Description APPLICANT RESPONDENT Household goods & furniture Contents of the Mississauga Property and the New York Property - No schedules provided or values included (NI). Parties to resolve allocation of chattels or, failing that, a court attendance may be scheduled. Cars, boats, vehicles 2006 Lexus $5,000.00 Jewellery, art, electronics, tools, sports & hobby, equipment Other special items 16. Totals: Value of General Household Items and Vehicles $0.00 $5,000.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS Category (Savings, Checking, GIC, RRSP, Pensions, etc.) Institution Account Number APPLICANT RESPONDENT Investments Mandeville Investments Cash Account *****9-A $2,458.89 RRSP BMO RRSP ***88-13 $213,969.70 Savings account US Account Mandeville RRSP (formerly TD Bank RRSP). As at March 31, 2019 Mandeville RRSP (formerly TD Bank RRSP). As at March 31, 2019 Mandeville RRSP (formerly TD Bank RRSP). As at March 31, 2019 (NB. Investments held by TD bank transferred to Mandeville Investments in February 2019) TD Bank TD Bank: Joint Account (wife claims solely used by husband) TD Bank: Joint Account (wife claims solely used by husband) TD Borderless Plan Joint Account but wife claims was solely used by the husband OMERS (as per actuarial opinion) City of Mississauga OMERS (as per actuarial opinion) Region of Peel TD Patchogue account: $3,458.35 USD as at January 12, 2019 adjusted @ $1.3266 exchange rate to CDN$ ****6-R ****6-S *****6-T **517 **7706 #8345 #4675 **4431-01 **0634 $10,716.06 $15,683.22 $232,061.72 $38,738.78 $15,598.20 $3,640.50 $324,086.24 $115,886.31 $15,598.20 $3,640.50 $18.56 $4,574.00 17. Totals: Value of Accounts And Savings $758,869.92 $237,800.96

PART 4(d): LIFE AND DISABILITY INSURANCE Company, Type & Policy No. Owner Beneficiary Face Amount ($) APPLICANT RESPONDENT 18. Totals: Cash Surrender Value Of Insurance Policies $0.00 $0.00

PART 4(e): BUSINESS INTERESTS Name of Firm or Company Interests APPLICANT RESPONDENT Crombie Capital Partners Sole proprietorship $0.00 $0.00 19. Totals: Value Of Business Interests $0.00 $0.00

PART 4(f): MONEY OWED TO YOU Details APPLICANT RESPONDENT 20. Totals: Money Owed To You $0.00 $0.00

PART 4(g): OTHER PROPERTY Category Details APPLICANT RESPONDENT 21. Totals: Value Of Other Property $0.00 $0.00 22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21]) $3,330,869.92 $2,814,800.96

Table 2: Value Of Debts and Liabilities on Valuation Date

PART 5: DEBTS AND OTHER LIABILITIES Category Details APPLICANT RESPONDENT Matrimonial Home Line of Credit on Mississauga Road Property ** 3702 ( $1,091,171.37 as at January 31, 2019) $545,585.65 $545,585.65 Notional disposition costs Mandeville Investments $54,535.26 Notional Disposition costs BMO RRSP (at @21.1%) $45,147.60 Notional disposition costs OMERS: City of Mississauga (as per actuarial report) $68,382.19 Notional disposition costs OMERS: Region of Peel (as par actuarial report) $24,452.01 Credit Cards TD Gold Elite **7703 as at January 12, 2019 (Card was used by parties and at least two of the parties’ children) AMEX Credit Card as at January 12, 2019 TD Aeroplan Visa Statement as at January 12, 2019 $21,582.67 $6,428.84 $21,582.67 $1,699.24 Notional disposition costs (matrimonial home) Estimate based on 5% realtor commission on $3,500,000 sale, $1,500 legal fees and HST on both costs ($199,445 total) $99,722.50 $99,722.50 Notional Disposition costs (Patchogue) Estimate provided by applicant $25,425.00 $25,425.00 Income tax Tax balance due as per 2018 Notice of Assessment $23,030.00 23. Totals: Debts And Other Liabilities, (TOTAL 2) $846,114.12 $762,192.66

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 (exclude matrimonial home owned on the date of marriage, unless sold before date of separation). General household items and vehicles Bank accounts and savings Life and disability insurance Business interests Money owed to you Other property 3(a) TOTAL OF PROPERTY ITEMS $0.00 $0.00 Debts and other liabilities (Specify) 3(b) TOTAL OF DEBTS ITEMS $0.00 $0.00 24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3) $0.00 $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 (Estimated current fair market value less estimated disposition costs) $796,575.00 $796,575.00 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 26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4) $796,575.00 $796,575.00

TOTAL 2: Debts and Other Liabilities (item 23) $846,114.12 $762,192.66 TOTAL 3: Value of Property Owned on the Date of Marriage (item 24) $0.00 $0.00 TOTAL 4: Value of Excluded Property (item 26) $796,575.00 $796,575.00 TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4) $1,642,689.12 $1,558,767.66

APPLICANT RESPONDENT TOTAL 1: Value of Property Owned on Valuation Date (item 22) $3,330,869.92 $2,814,800.96 TOTAL 5: (from above) $1,642,689.12 $1,558,767.66 TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5) $1,688,180.80 $1,256,033.30

EQUALIZATION PAYMENTS Applicant Pays Respondent Respondent Pays Applicant $216,073.75 $0.00 Signature Date of signature

Footnotes:

[1] The wife had called an expert (Jason Lee) to testify about fair market rental values but before his evidence was concluded, an agreement was reached. This agreement was without prejudice to the husband’s position that no occupation rent should be paid. The wife had also tendered an actuarial report (DSW Actuarial Services Inc.) estimating her projected average tax rate on her retirement income. The parties agreed when the trial started that the author of the report (David Wolgelerenter) was a duly qualified expert (this court has so qualified this witness as an expert in other proceedings) and that his report be accepted as his evidence (Exhibit 63). His evidence was accepted. [2] Investigations by the OSC had begun in 2003. In the Settlement Agreement approved by the OSC the husband acknowledged that he had acquiesced in conduct by Biovail that was in violation of Ontario Securities law and that, by his conduct, he had acted contrary to the public interest. [3] These expenses were interest-only payments on a joint line of credit on title, a joint visa, and utilities for the home. There were also pool maintenance and landscaping expenses. [4]: https://www.minicounsel.ca/scj/2024/2053 "Najm v. Najm, 2024 ONSC 2053" [5]: https://www.minicounsel.ca/scj/2023/7097 "M.K-C. v. C.C., 2023 ONSC 7097" [6]: https://www.minicounsel.ca/oca/2015/558 "R. v. A.A., 2015 ONCA 558" [7]: https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html "Fayna v. Chorny" [8]: https://www.canlii.org/en/ns/nssc/doc/2008/2008nssc283/2008nssc283.html "Re Novak Estate, 2008 NSSC 283" [9] The date that the wife emailed the husband that “It is time to sell the house” was July 28, 2020. [10] This is the husband’s undated redline agreement sent to the wife by the husband after Agreement #4 that McGee J. noted had been sent to her Registrar during argument of the parties’ motions. It was attached to an email exchange between the parties on February 23 and 24, 2021 (Exhibit # 27). [11] Epstein, Philip et al. Separation Agreement. Toronto, Law Society of Upper Canada, 2002. [12] Exhibit 15, text chat messages between Gilmour, the husband and Alex Crombie (the parties’ son). In a December 11, 2020, chat, the husband texted ‘I am not in any way eliminating my belief that I accepted your offer to sell me the house.” This is not the binding agreement alleged in these proceedings and is referencing a late summer exchange where a September 15, 2020, closing date was mentioned (for the first time according to the husband). [13] The husband also admitted that he was not a tax accountant, a chartered professional accountant or a tax lawyer. [14] This was the amount owing on January 4, 2019. [15] The court calculated the amount owing on the card as of January 12, 2019, as being $43,165.34. [16] Although “arbitrary”, this figure was arrived at by taking the husband’s monthly housing costs of $6,461 (which included occupancy rent of $3,500, property tax of $2,416, insurance of $345, repairs and maintenance of $200 and an estimated $3,500 for the line of credit) and backing out the occupancy rent and realty tax figures, multiplied by three (for the months of January to and including March 2019). The resulting figure is $12,135. Divided in half, the amount is $6,067.50. [17] The occupation rent claim was obliquely referenced in the Amended Application that Fragomeni J. allowed in November 2023 (on consent) and it was later identified as a trial issue in the Trial Scheduling Order but the amendment was unclear. When the trial started the wife sought to amend her Application to formally advance her claim, which the husband did not oppose. The amendment was granted and the court accepted that the husband disputed his liability for occupation rent in its entirety, without his having to submit a written amended pleading. [18]: https://www.minicounsel.ca/scj/2021/4450 "Saroli v. Saroli, 2021 ONSC 4450" [19]: https://www.minicounsel.ca/oca/2023/482 "Jasiobedzki v. Jasiobedzki, 2023 ONCA 482" [20]: https://www.minicounsel.ca/oca/2023/692 "Non Chhom v. Green, 2023 ONCA 692" [21] Non Chhom, at para.9. [22] Saroli, at para. 312. [23]: https://www.canlii.org/en/on/onsc/doc/1978/1978canlii2158/1978canlii2158.html "Irrsack v. Irrsack" [24]: https://www.canlii.org/en/on/onsc/doc/1992/1992canlii14002/1992canlii14002.html "Sanders v. Sanders (1992)" [25]: https://www.minicounsel.ca/scj/2022/1854 "Jasiobedzki v. Jasiobedzki, 2022 ONSC 1854" [26]: https://www.canlii.org/en/on/onca/doc/1999/1999canlii1930/1999canlii1930.html "Catania v. Giannattasio (1999)" [27]: https://www.minicounsel.ca/scj/2017/7297 "Chen v. Li, 2017 ONSC 7297" [Income Tax Act (Canada)]: https://laws-lois.justice.gc.ca/eng/acts/i-3.3/ "Income Tax Act (Canada)" [Family Law Rules, O. Reg. 114/99, Rule 1.3]: https://www.ontario.ca/laws/regulation/990114 "Family Law Rules, O. Reg. 114/99"