Court File and Parties

Court File No.: FS-21-00027068-0000
Date: 2025-06-17
Court: Superior Court of Justice - Ontario

Applicant: Rebecca Jarrett
Respondent: Nigel Anthony Jarrett

Before: M. Kraft
Counsel: Jonathan Korman, for the Applicant
No one appearing for the Respondent
Heard: In Writing

Endorsement

Introduction

1The parties were married for 25 years. They have three children of the marriage, all of whom are now independent adults. This has been protracted, high conflict litigation, where the applicant, Rebecca Jarrett (“the wife”), has been put to tremendous costs as a result of the respondent, Nigel Anthony Jarrett (“the husband”), failing to comply with his disclosure obligations under the Family Law Rules and breaching several court orders regarding the sale of the parties’ matrimonial home and to produce financial disclosure.

2The parties’ matrimonial home, located at 188 William Street, Toronto ON, M9N 2G7 (“the MH”) was sold on December 22, 2022, made possible only by the wife having to bring three motions before this Court beginning on September 28, 2022, until she was granted sole carriage of the home. The home was ultimately sold for $693,500. The balance of net sale proceeds in the sum $313,731.92 are being held in trust by the real estate lawyer, Alan McConnell. Each party is presumptively entitled to 50% of these net sale proceeds of $156,865.96.

3On August 16, 2023, Brownstone J. struck the husband’s Answer and allowed the wife to proceed to an uncontested Trial based on a Form 23 affidavit.

Issues to be Decided on this Uncontested Trial

4The issues for me to decide on this uncontested trial are:

(a) Whether it is appropriate to order that neither party pay the other an equalization payment?

(b) Whether, in addition to the wife’s 50% share of the MH net sale proceeds ($156,865.96):

(i) the wife should receive $55,750 from the husband’s half-share of the MH net sale proceeds representing 50% of the depreciation of the fair market value of the matrimonial home, as an unequal division of net family property pursuant to s.5(6)(h) of the Family Law Act?

(ii) the wife should receive the sum of $18,047.32 from the husband’s half-share of the MH net sale proceeds, on account of previous costs orders and/or Writs of Execution the wife discharged on his behalf?

(iii) the wife should receive the sum of $23,867.17 from the husband’s half share of the MH net sale proceeds, representing his 50% share of post-separation adjustments because the wife paid all the carrying costs associated with the MH after separation?

(iv) the wife should receive the sum of $1,000 from the husband’s half-share of the MH net sale proceeds, representing 50% of s.7 expenses paid solely by the wife for post-secondary education tuition for one of the children?

(c) What amount of costs should the husband pay the wife of this uncontested trial?

Background

5The parties were married in the United Kingdom on April 6, 1995.

6They have three children of their marriage, ages 27, 24 and 22, all of whom are now adults living independently of the parties.

7The parties separated almost 5 years ago, on October 31, 2020.

8The wife describes a marriage fraught with longstanding and significant verbal, emotional, psychological, and financial abuse perpetrated against her by the husband. She alleges that the husband was volatile and erratic, regularly had angry outbursts, screamed profanities at her and took steps to intentionally damage the wife’s relationship with the children.

9Throughout this proceeding, the husband failed to follow the Family Law Rules. He refused to provide financial disclosure and caused delays in multiple attendances in this proceeding. From the outset of these proceedings, the wife was seeking to sell the MH, title to which was in the parties’ joint names. The husband refused to consent to a sale of the MH and repeatedly told her that he would prefer the Bank to force a sale rather than agree to allowing her to sell the MH.

10In the summer of 2022, the wife’s counsel wrote to the husband on multiple occasions advising that the wife could no longer afford to continue to keep current with the costs associated with the MH and was seeking to effect the sale of the MH. The husband would not agree.

11As a result, on July 15, 2022, the wife issued the within proceeding, her Amended Application, seeking the sale of the MH.

12On August 14, 2022, the husband filed an Answer seeking to freeze the proceeds of sale from the sale of the MH until the wife produces full and frank financial disclosure. In his Answer, the husband acknowledges that the wife has a right to demand the sale of the home but stated that she should produce full and frank financial disclosure to enable the parties to determine each party’s net family property and complete the equalization payments. The husband also admitted that he prefers the home to be sold by the Bank rather than voluntarily consent to the sale of the home before the financial disclosure of the parties.

13It is agreed that from about August 2021 onward, the wife paid for all of the carrying costs associated with the MH without contribution from the husband.

14As a result of the wife not keeping current on the parties’ home equity line of credit (“HELOC”) in favour of TD, on September 8, 2022, TD Bank wrote a demand letter for payment of the entire HELOC in the amount of $247,747.80 by September 24, 2022, failing which legal action would be commenced to recover that sum.

15The wife attempted to stall TD Bank from bringing legal action and withdrew funds from her RRSP to attempt to bring the HELOC payments into good standing.

16On September 14, 2022, the wife requested a To Be Spoken To (“TBST”) attendance on September 19, 2022. The wife sought leave of the court to bring an urgent motion for the sale of the MH prior to a case conference being conducted. She served the husband with motion materials for sale motion to be returnable on October 4, 2022.

17On that same date, September 14, 2022, the husband accepted the wife’s proposal to list the MH if they jointly retained the husband’s choice of listing agent, Tony Barone, because the husband had told the wife that he did not trust her choice of agent, Mr. Cassidy.

18The parties then met Mr. Barone on September 15, 2022, with the intention of executing a joint listing agreement, but then the husband refused to sign the listing agreement and asked for time to confirm his agreement.

19On September 19, 2022, Mr. Barone wrote to the parties suggesting limited improvements to the property in an effort to promote the sale of the property. According to the wife, the husband had inexplicably removed the kitchen door cabinets from all cabinets in the kitchen which reduced the sale appeal of the home.

20For no reasonable explanation, the husband then refused to have Mr. Barone be the listing agent and took the position that he did not want the parties to retain independent listing agents.

21At the TBST attendance on September 19, 2022, Shore, J. granted the wife leave to bring an urgent motion for the sale of the MH, prior to a case conference being held, returnable on October 4, 2022.

22The husband refused to agree to have Mr. Barone as the parties’ joint listing agent, despite this individual being his choice of agent; demanded the wife pay him $1,000 to list the MH on MLS; and he stated that he intended to purchase the MH.

23In the immediate lead up to the October 4, 2022, motion date, the husband agreed on September 28, 2022, to use another agent that the wife proposed, Alethia Barret.

24On October 4, 2022, Nakonechny, J. made an order on consent for the MH to be listed for sale using Ms. Barret as the listing agent (“October 4, 2022 Sale Order”). The terms of sale included the following:

• The parties were to execute the listing agreement with Ms. Barrett within 48 hours;
• The MH was to be listed for sale as soon as practicable pursuant to the Agent’s advice;
• The property was to be sold “as is” unless both parties agree to staging costs to be paid for by the Agent, with the wife paying for the costs of the staging up front and to be credited for doing so on closing;
• Prior to the listing on the market, the parties were to ask the Agent to provide an opinion in writing as to the listing price and reasonable sale price and this written opinion shall be used as evidence if there is an issue with a party refusing to accept an offer. The parties were to follow the written opinions of the Agent for the initial listing price and subsequent reductions if advised in writing that such reductions are warranted;
• The parties were to jointly retain a real estate lawyer;
• The parties were equally entitled to be present for showings of the matrimonial home;
• The parties were to accept the first reasonable offer to purchase the MH as per the written advice of the Agent;
• The parties were to cooperate with the Agent to facilitate the most prompt and efficient sale of the MH, including cooperating to facilitate showings of the MH, such as vacating the MH, and otherwise advising in writing by the Agent;
• When the home sells, the following was to be paid from the proceeds of sale:
  • Realtor’s commission;
  • A payment to wholly discharge the mortgage with TD Canada Trust;
  • A payment to wholly discharge the HELOC with TD Canada Trust;
  • Payments of all other regular closing adjustments;
  • Real estate lawyer’s fees;
  • Any outstanding property taxes;
  • Such further closing costs necessary to close the transaction, as agreed;
  • Any further encumbrance or debt or other payment owing by either or both parties as necessary to close the transaction made without prejudice to either party’s claims regarding equalization payment;
  • Any other adjustment as agreed by the parties; and
  • Costs payable of this motion;
• The remaining proceeds were to remain held in trust by the real estate lawyer;
• Parties were to make best efforts to divide the contents of the MH between them;
• The real estate lawyer was to disburse $25,000 to each party immediately without prejudice to the equalisation; and
• The husband was to pay the wife $1,500 costs of this motion from his share of the net proceeds of sale.

25On the evening of October 4, 2022, the husband then began to act aggressively toward the wife by verbally abusing her. He demanded that she agree to sell her solely owned vehicle and threatened to damage the vehicle or remove the tires if she refused to sell it and give him 50% of the sale proceeds.

26The husband then failed to comply with the October 4, 2022 Sale Order and impeded the sale of the MH as follows:

• He refused to list the MH for sale at a price below $850,000, including when the real estate agent gave advice to lower the listing price.
• He refused to stop smoking cannabis in or around the home and garage causing potential buyers to complain of the smell during showings on a number of showings.
• He then refused to reduce the sale price of the MH to $699,999 as per the advice of the listing agent on October 11, 2022, and insisted that it only be lowered to $799,999.
• He refused to agree to remove the 5 cannabis plants despite being told he had to do so by the agent on October 12, 2022.
• He interfered with the agent’s first showing of the MH on October 16, 2022, when he initially refused to allow the potential purchasers to enter the home. He then changed his mind. When the potential purchasers were in the home, he began videotaping them, following them around and making rude statements. He yelled at the prospective purchasers demanding to know how they learned of the listing.
• On October 16, 2022, he prevented the home inspector from completing the inspection, by refusing to allow the inspector to go into the attic and inspect the ceiling. On October 18, 2022, when the agent sent the inspector back into the MH to finish the inspection, he again, refused to allow the inspector and agent into the home and called the police alleging the wife had pushed him. In response, the agent called the police because of his aggressive behaviour toward her.
• He ignored the listing agent’s advice on October 20, 2022, to reduce the listing price of the MH to $699,999 when she advised that she believed the major reason for lack of interest in the property was the husband’s insistence that the home be listed for sale so high.
• He scheduled a TBST attendance on October 17, 2022, to seek leave of the court to bring a motion to force the wife to sell her solely owned vehicle and equally disburse the net proceeds of sale equally between the parties. Instead of entertaining the husband’s request for the wife to sell her vehicle, Faieta, J. granted the wife leave to bring a motion returnable on November 3, 2022, to have sole carriage of the sale of the MH and for it to be sold without the husband’s consent, given his conduct.
• He refused to sign an updated listing agreement to reduce the sale price of the MH to $749,999 sent to him on October 19, 2022, and asked to be returned by October 20, 2022.
• He insisted on smoking cannabis in the house and garage resulting in a cannabis odour in the house during showings.
• He was extremely antagonistic with the listing agent by telling her that she lacked credibility and accused her of being involved in fraudulent activity regarding the listing. He threatened to retain a new agent and called her incompetent. In addition, he threatened the agent with legal action against her personally.
• He insisted that no showings occur during the weekends.
• He removed the kitchen cupboard and pantry doors and refused to let them be reinstalled prior to showings.

27On November 3, 2022, the wife’s motion to implement the October 4, 2022, Sale Order and/or for sole carriage of the sale of the MH returned before the court, at which Diamond, J. made an order, building on the October 4, 2022 Sale Order but did not grant the wife sole carriage of the sale. Essentially, the Court granted the husband one last chance to work cooperatively and comply with the terms of the October 4, 2022, order by ordering:

• Given the urgency of having the MH sold, the parties were to follow and adhere to the advice of the listing agent, including reducing the listing price;
• The husband was to ensure that the MH was made presentable for showings and follow the listing agent’s advice to that effect;
• The husband was to make every part of the MH, including the garage unimpeded and accessible to the wife and the agent;
• The husband was to remove any and all cannabis plants from the MH including those growing in the backyard;
• The parties are to ensure that the listing agent is able to use a lock box for all showings of the MH;
• Neither party was to be present during the showings; and
• The wife’s motion was adjourned to November 22, 2023, and the wife was granted the right to return her motion if nothing had changed.

28The husband did initially allow the agent to facilitate showings on November 5, 2022, by using a lockbox. He then demanded that the agent return the key to him.

29On November 13, 2022, the agent advised the parties again that the house should be relisted from $749,000 to $699,999 and she sent an updated listing agreement and asked it to be signed and returned to her by November 14, 2022, at noon. The husband did not do so.

30On November 14, 2022, the agent advised that the smell of cannabis in the home continued to be an issue during showings and that it persisted on a showing of the home on November 6, 2022. As well, the husband had prevented showings of the property on weekends.

31The husband decluttered the garage as per the direction of the listing agent but then moved his belongings from the garage to other areas in the house including the living room. The agent told the husband that his belongings were in the home in an obtrusive way and asked him to move his belongings from the living spaces in the home. The husband responded to the agent that she was harassing him.

32There was one offer to purchase the MH, which was open to the parties until November 22, 2022, the date of the return of the wife’s motion before Diamond, J. The agent advised the parties that it was reasonable to accept this offer to purchase the home because the market had declined significantly. The husband refused to do so.

33On November 22, 2022, Diamond, J. granted the wife sole carriage of the sale of the MH, with the clear expectation that she would accept the offer to purchase the MH for $664,595.78, which she did. In his Endorsement, Diamond, J. made the following comments and findings:

• “..it is readily apparent that not only did the [husband] squander that final opportunity, his conduct approached the level of being ungovernable as her simply reduce to abide by the terms of my prior Endorsement, and then proceeded today to try and revisit events that occurred prior to that Endorsement.”
• The husband chose “instead to obfuscate and delay the efforts of the listing agent again.”

34On December 5, 2022, the parties attended a case conference at which, Sharma, J. ordered the husband to provide a significant amount of disclosure and to immediately begin his search of the requested documents and maintain a record of his efforts to find those documents. Specifically, the husband was ordered to serve his Form 13.1 Financial Statement by January 27, 2023, and exchange the disclosure items set out in the wife’s case conference brief. The husband failed to produce the ordered disclosure.

35On December 20, 2022, Diamond J. ordered the husband to pay the wife $12,500 in costs for her motion to sell the matrimonial home which he heard on November 22, 2022.

36On April 12, 2023, the parties attended a Settlement Conference, at which Kristjanson, J. ordered the husband for one last chance to produce the disclosure items that Sharma, J. had ordered him to provide, along with an Equifax report by May 12, 2023. In this Endorsement, Kristjanson, J. ordered the husband to pay the wife costs of $1,000 immediately out of the proceeds of sale of the home and made the following comments and findings:

• “This should have been a simple case. The issues related only to property (equalization); there are no parenting or support issues. Yet Mr. Jarrett has failed to comply with the Family Law Rules and has disregarded court orders. He has never produced a Form 13.1 Financial Statement. He has failed to make the most basic financial disclosure, despite his obligations under the Rules, and despite Justice Sharma’s order.”
• “This is the most basic financial disclosure required in respect of a case where the only issues are equalization and post-separation adjustments. Yet Mr. Jarrett has failed to provide the most basic financial disclosure. He failed to comply with the Order.”
• “In the circumstances, I am giving the respondent one last chance. He has 30 days to provide the disclosure ordered, failing which his Answer will be struck, and the Applicant may proceed to an undefended trial based on Form 23C affidavit evidence.”

37On August 14, 2023, a combined conference took place before Horkins, J. at which she endorsed the record that the husband had failed to comply with past disclosure and costs order such that the conference ought not to have taken place. The husband was not in court for the combined conference and Horkins, J. ordered the wife’s motion to strike the husband’s pleadings to proceed on August 15, 2023.

38On August 15, 2023, Brownstone, J., struck the husband’s Answer and ordered the wife to proceed with an uncontested trial. She also ordered the husband to pay the wife $19,642.50 out of his share of the proceeds of sale of the MH being:

• $5,000 for the Rule 1(8) motion;
• $12,500 plus $250 of pre-judgment interest from the order of Diamond, J., dated December 20, 2022;
• $1,500 from the SC, dated August 14, 2023; and
• $392.50 from the order of Sharma, J., dated December 2, 2022.

39The client Trust Account ledger from the parties’ real estate lawyer, Alan McConnell, confirms that from the gross sale proceeds of the MH, the following amounts were paid out:

• The sum of $249,741.08 was paid to TD Bank to discharge the mortgage;
• The sum of $2,488.65 was paid to the City of Toronto to discharge a Writ of Execution for a debt owing 100% by the husband;
• The sum of $12,463.49 was paid to DeBousquet PC to discharge a Writ of Execution for a debt owing 100% by the husband;
• The sum of $9,182.76 was paid to Homelife Miracle Realty to pay real estate commission;
• The sum of $22,305.25 was paid to the husband as per the October 4, 2022 Sale Order;
• The sum of $26,197.75 was paid to the wife as per the October 4, 2022 Sale Order;
• The sum of $1,500 was paid to Nussbaum Law as costs;
• The sum of $4,709.50 was paid to Alan McConnell, the parties’ real estate lawyer;
• The sum of $132.88 was paid to Alan McConnell as a disbursement to the parties’ real estate lawyer;
• The sum of $1,500 was paid to Nussbaum Law as costs as per the Order of Kristjanson, J., dated April 12, 2023; and
• The sum of $19,642.50 was paid to Nussbaum Law as costs to the wife, as per the Order of Brownstone, J., dated August 15, 2023.

40The balance of the MH net sale proceeds of $313,731.92 remains in trust with the real estate lawyer, Alan McConnell, as the net sale proceeds from the matrimonial home.

Issue One: Should the Court order that neither party owes the other an equalization payment?

41The wife’s financial statement, sworn on February 6, 2023, lists her net family property at $141,071.21.

42The only financial statement sworn by the husband in these proceedings was sworn on May 9, 2023. His net family property as set out in this financial statement is $258,144.82. This includes the husband listing his 50% interest in the MH as being worth $402,500 on the date of separation and 50% of the HELOC registered on title of ($120,687.79). In the husband’s Answer, he states that he “is operating a business from home” and yet this business is not listed as an asset on the date of separation in his financial statement. The husband also had a pension which is not listed on his financial statement.

43The wife argues that since the husband had prevented her from being able to calculate his net family property by his failure to provide disclosure as ordered or otherwise required by the Family Law Rules, the appropriate remedy is to make an order that neither party owes the other an equalization payment: Mullin v. Sherlock, 2023 ONSC 3744, paras. 1 and 18.

44As a result of the husband’s failure to make proper disclosure, it is impossible for the wife or the court to determine who owes the other an equalization payment.

45Accordingly, I agree with the wife that it is appropriate for the Court to make an order that neither party owes the other an equalization payment.

Issue Two: Whether in addition to the wife’s 50% share of the MH net sale proceeds ($156,865.96), the wife should receive $55,750 from the husband’s half-share of the MH net sale proceeds representing 50% of the depreciation of the fair market value of the matrimonial home, as an unequal division of net family property pursuant to s.5(6)(h) of the Family Law Act?

46The wife seeks an order that the husband pay her for the decline in the fair market value of the MH from September 28, 2022, when she sought the sale of the property until its sale on December 22, 2022. The wife argues that the husband’s obstructive conduct delayed the sale of the MH these three months, without proper justification.

47Specifically, she argues that the decline in the fair market value between when she first asked the husband to consent to the sale of the MH and when the MH actually sold amounted to a loss of $111,500, 50% of which the husband ought to reimburse her in the sum of $55,750.

48The wife argues that her entitlement to $55,750 arises as a claim for unequal division of net family property pursuant to s.5(6)(h) of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”) and refers to Ramezani v. Najafi, 2021 ONSC 7638, para 212 as being the authority for this proposition.

49In Ramezani v. Najafi, the husband sought reimbursement from the wife for 50% of the decline in the fair market value of their matrimonial home because she had delayed in agreeing to sell the house for 2 ½ years without any justification. The husband framed his entitlement to this as a post-separation adjustment. In paragraph 212 of this decision, I stated that “in my view, a decline in the FMV of the matrimonial home is not correctly framed as a post-separation adjustment to the EP.” I also stated that “essentially”, the husband is trying to make an argument that he is entitled to an unequal division of net family property pursuant to s.5(6) of the FLA.

50The difference between this case and Ramezani v. Najafi is that there was an equalization payment being paid from one party to the other. In this case, there is no calculable net family property or equalization payment. Therefore, it follows that a variation of the equalization payment is not appropriate.

51Section 5(6) of the FLA provides that a court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to a laundry list of factors. Only s.5(6)(h) of the FLA qualifies here, being (h) any other circumstances relating to the acquisition, disposition, preservation, maintenance of improvement of the property.

52On September 28, 2022, the husband verbally agreed to retain Alethia Barrett as the parties’ listing agent, thereby settling the wife’s motion for the sale of the MH which was returnable on October 4, 2022.

53The wife obtained an Appraisal of the Matrimonial Home completed by Randy Bierworth, a certified Appraiser, which states that the fair market value of the MH as of September 28, 2022, was $805,000. The Appraiser had full access to the property.

54The wife obtained this Appraisal when the parties were still living in the MH because she was concerned that the husband would take steps to sabotage the sale of the MH based on his comments to her.

55It is clear from the various Endorsements in this matter that the wife took every step possible to attempt to have the MH sold promptly and efficiently. Prior to issuing this Application, the wife attempted to reach a consent with the husband to sell the MH. The husband refused to agree. The Endorsement of Diamond, J. is clear that the husband’s conduct in terms of the MH sale was “ungovernable” and that the delay in the MH being sold was the result of his actions.

56It is clear, based on the record before me, that the husband’s attempts to delay and sabotage the sale of the MH contributed to the fact that it sold for much less than the parties’ hoped it would sell.

57Ultimately, the MH sold for $693,500 on November 22, 2022, again, which offer the husband refused to accept but the wife accepted once she was granted sole carriage of the sale by Diamond, J.

58As further evidence of a decline in the fair market value of the MH, the wife submits that they had received offers to purchase the MH that were not capable of being accepted by the time the wife was forced to bring the third motion to gain full carriage of the sale, as follows:

• An Offer to purchase the MH open until October 11, 2022, for $730,000;
• An Offer to purchase the MH open until November 12, 2022, for $720,000; and
• An order to purchase the MH open until November 15, 2022, for $720,000.

59The husband refused these Offers to purchase the MH and took the position that the listing price of the MH should be increased without any indicators that there would be interest in the MH at such a higher listing price.

60Without considering the wife’s appraisal report, the offers to purchase the MH demonstrate that it was worth as much as $730,000 on October 11, 2022, and it then declined by $36,500 to $693,500 on November 22, 2022, about 5 weeks later, when it sold.

61The wife looks to the appraisal report as being the more reliable evidence as to the MH’s fair market value on September 28, 2022, which stated it was worth $805,000 on that date. The best evidence before the court is the appraisal report. However, it is hard to determine whether the decline in the FMV between September 28, 2022 was solely the result of the husband’s conduct or rising interest rates during the Fall of 2022. At its higher, the decline in the FMV of the MH between September 28, 2022 and when it sold was as much as $111,500 or it could be a decline in FMV of $36,500.

62To be successful in the s.5(6) argument, the wife has to demonstrate that it would be unconscionable for the court not to pay her a sum of money equal to one-half of the decline in the FMV of the MH between September 28, 2022, and when the MH was sold in November 2022: See Ramezani v. Najafi, 2021 ONSC 7638, para 212.

63As set out in Stone v. Stone, para 16, in analyzing a s.5(6) claim the Court must: “weigh all of the circumstances…to determine whether it would be unconscionable to make an equal division between the husband and wife” when making a finding of unconscionability.

64The wife argues as follows:

• The purpose as indicated of section 5(7) of the FLA is as follows:

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

• The purpose of section 5(7) is functionally about the equal responsibility of the parties, and in the context of 5(6)(h), the responsibility of each party to ensure the efficient or at least reasonable maintenance and disposal of joint property post separation.
• In this case, the responsibility to maintain and dispose of the MH was left entirely to the wife because the husband had stopped contributing to the carrying costs of the MH and he then actively took steps to undermine the wife’s efforts to sell the property responsibly and reasonably.

65The steps the wife has to undertake when making a s.5(6) argument are set out in Serra v. Serra, 2009 ONCA 105, para 37. The Ontario Court of Appeal held that the court must first ascertain the parties' respective net family properties applying the principles set out in section 4 of the Act and must then determine what the equalization payment would be pursuant to section 5(1) of the Act. The court must then decide whether ordering an equalization of the net family properties would be "unconscionable" having regard for the factors outlined in section 5(6) (at para. 37). The court has also held that the onus is on the party seeking a variation of the equalization payment under section 5(6) to establish that a variation is warranted. In order to succeed under section 5(6), the party seeking a variation must bring their case within one or more of the subparagraphs of section 5(6) (Serra; Levan v. Levan, 2008 ONCA 388).

66Since I cannot ascertain the parties’ respective net family properties and/or determine what the equalization payment would be pursuant to s.5(1) of the FLA, I do not find it appropriate for the court to determine whether equalization would be “unconscionable” pursuant to s.5(6)(h) of the FLA.

67Even if I am wrong, and the claim for 50% of the decline in the FMV of the MH is a remedy available to the wife under s.5(6)(h) of the FLA, I do not find that the circumstances of this matter “shocks the conscience” of the court or that the wife has met the onus of establishing “unconscionability.”

68Section 5(7) does not provide any independent grounds for making a finding of unconscionability pursuant to section 5(6), but the court should be guided by the purpose set out in that section in assessing the criteria articulated in section 5(6) (Brett v. Brett, paras. 30-34; Booth v. Bilek, 2021 ONCA 123, para 12).

69I do, however, find that the husband’s conduct with respect to the sale of MH was willful, and intentional and as such, it was “bad faith” on his part for having behaved in blameworthy manner. His refusal to comply with the listing agent’s instructions, his insistence on delaying showings, leaving clutter in the home, removing the cabinet doors from the kitchen and smoking cannabis in the home and garage close to showings, are all examples that persuade me his conduct ought to be addressed when the Court makes a costs determination.

70Accordingly, the wife’s claim to receive a variation of the equalization payment pursuant to s.5(6)(h) in the sum of $55,750 is hereby dismissed.

Issue Three: Should the husband pay the wife the sum of $18,047.32 from his half-share of the MH net sale proceeds, on account of previous unpaid costs orders and/or Writs of Execution the wife discharged on his behalf?

71When the MH closed, two Writs of Execution that had been registered on title arising from the husband’s sole debts were discharged and unpaid costs orders were paid, totaling $36,094.64, as follows:

• A writ of execution in favour of De Bouquet Professional Corporation the sum of $12,463.49 and a writ of execution in favour of the City of Toronto in the sum of $2,488.65, were discharged with the MH net proceeds of sale. These two writs totalling $14,952.14 were sole debts of the husband but were discharged out of the MH sale proceeds, 50% of which the husband must reimburse the wife; and
• The costs of $21,142.50 the husband was ordered to pay the wife were paid out of the net proceeds of sale, 50% of which the husband must reimburse the wife because otherwise she is paying 50% of the costs out of her half share of the net proceeds of sale.

72Given that these were the husband’s sole obligations, and they were paid out on closing, the wife essentially paid 50% of these obligations when she ought not to have done so.

73Accordingly, I find that the husband shall pay the wife the sum of $18,407.22 from his half-share of the MH sale proceeds as reimbursement for these obligations.

Issue Four: Should the husband pay the wife the sum of $23,867.17 from his half share of the MH net sale proceeds, representing his 50% share of post-separation adjustments because the wife paid all the carrying costs associated with the MH after separation?

74The wife seeks that the husband pays her the sum of $23,867.17 out of his half-share of the MH net proceeds of sale, being his 50% share of the carrying costs of the home she fully paid for without contribution from him before and after the separation.

75Specifically, the wife paid $56,539.36 of carrying and capital costs associated with the matrimonial home without contribution from the husband, broken down as follows:

• $37,382.36 was paid toward the HELOC from November 2020 onward;
• $2,640.36 was paid toward Toronto Hydro (electric) from November 2020 onward;
• $2,941.64 was paid toward Enbridge Gas from November 2020 onward;
• $3,446.32 was paid to the City of Toronto for water and garbage collection from November 2020 onward;
• $2,465.08 was paid for home insurance from November 2020 onward;
• $6,380.88 was paid for property tax from November 2020 onward;
• $344.61 was paid toward financing the stove;
• $344 was paid for home internet; and
• $653.08 was paid toward financing the refrigerator.

76After giving the husband credit for having paid $8,863.45 toward the HELOC between November 2020 and September 2021, the wife seeks reimbursement for 50% of the overage of $47,734.33 paid by her.

77I find that the wife should be paid $23,867.17 from the husband’s 50% share of the MH net sale proceeds on account of these post-separation adjustments.

Issue Five: Should the husband pay the wife $1,000 as his 50% share of s.7 expenses paid solely by her for E.’s tuition at the University of Ottawa out of his half share of the MH net sale proceeds?

78The wife’s income as set out in her Notices of Assessment provide as follows:

• in 2023, her Line 15000 income was $45,488;
• in 2022, her Line 15000 income was $56,644;
• in 2021, her Line 15000 income was $55,257;
• in 2020, her Line 15000 income was $36,113; and
• in 2019, her Line 15000 income was $66,803.

79The husband has failed to make disclosure of his income and, therefore, it is impossible for the wife to calculate his proportionate responsibility toward E.’s post-secondary educational expenses.

80The wife paid $2,000 toward E.’s post-secondary tuition for E.’s first degree, in which she was enrolled on a full-time basis. This sum was paid on September 21, 2021, and September 23, 2021, totalling $2,000.

81Section 7(1) of the Child Support Guidelines provides jurisdiction for the court to provide for an amount to cover all or any portion of (e) expenses for post-secondary education, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the spending pattern of the spouses in respect of the child during cohabitation.

82Without adequate disclosure regarding the husband’s income, the wife seeks an order requiring the husband to pay the wife 50% of this legitimate s.7 expenses from his share of the net proceeds of sale from the MH.

83I find that tuition for post-secondary education is a legitimate s.7 expense to which both parties ought to contribute. The husband shall pay the wife $1,000 out of his half-share of the MH net sale proceeds.

Issue Six: What amount of costs should the husband pay the wife of this uncontested trial?

84The wife is seeking her full indemnity costs of this proceeding in the sum of $73,768.32 pursuant to Rule 24(10) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), representing the totality of funds spent by her on this proceeding inclusive of the difference between the amounts expended by her and the amounts previously ordered against the husband at any and all of those previously decided stages of this proceeding for which costs were ordered.

“In S. (C.) v. S. (M.), supra, Perkins J. defined bad faith as follows paragraph 17:

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.”

85In Jackson v. Mayerle, 2016 ONSC 1556, paras. 58-59, Pazaratz J. quoted the passage from S.(C.), above and went on to say:

[58] Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children's Aid Society of Peel (Region) v. F. (K.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Leonardo.

[59] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. The above, the factors tending towards a finding of bad faith include:

a. Intent to inflict financial harm.

b. Intent to inflict emotional harm.

c. Intent to conceal information relevant to the issues.

d. Intent to deceive the other party or the court.

e. Litigation conduct that has run the costs up so high that they must have taken to know their behaviour is causing the other party major financial harm without justification.

f. The unsuccessful party forcing a long and expensive trial.

g. Intentional failure to fulfill an agreement in order to achieve an ulterior motive.

86Based on the record before me, and various findings of other judges of this Court, I find that the husband’s conduct in this proceeding has amounted to bad faith as contemplated in rule 24(10) which sets out that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

87The wife argues that the husband caused 10 different court attendances, the bulk of which were required to sell the MH; to then have his pleadings struck and have her incur legal fees to prepare an unnecessarily complicated uncontested trial given his refusal to comply with the FLRs and court orders.

88This court made costs orders against the husband on November 3, 2022; November 22, 2022; December 12, 2022; December 22, 2022; April 12, 2023; August 14, 2023, and August 15, 2023.

89Despite these costs orders, the husband’s conduct became worse over time and, in fact, resulted in him failing to participate in the proceedings.

90In contrast, the wife behaved reasonably throughout these proceedings.

91The wife is seeking costs of the totality of this proceeding, and, in that manner, she revisits prior steps in the proceeding. As set out in Lewis v. Silva, 2019 ONCJ 795, para 21:

If a party seeks the previously undetermined and unreserved costs of a previous step, the onus rests on him or her to set out why those costs should now be awarded in their favour. To meet that onus, the party should offer a detailed summary of each prior step for which he or she is seeking costs. The party should add an explanation of why he or she should now be granted the costs of that step. That summary should include:

a. the positions that each party took at that step;

b. the manner in which the party’s participation in that step advanced the case or contributed towards the ultimate result;

d. a comparison of any relevant offers to settle, particularly as they may impact on the prior step; and

e. any other consideration that the party relies upon to claim the costs of that step.

92The wife went through each previous step and set out why costs should be awarded in her favour, a summary of which is as follows:

• The TBST attendance on September 19, 2022, was necessitated because the husband reneged on his earlier agreement that the parties should jointly retain his choice of listing agent, Tony Barone, to list the MH for sale. He refused to sign the listing agreement and that is why the TBST occurred, and the wife had to schedule the urgent motion for the sale of the home on October 4, 2022, to be heard prior to a case conference. The costs of this attendance were not previously ordered.
• The motion on October 4, 2022, was ultimately agreed to on consent. However, the Endorsement states that the motion was “necessary”. While the husband agreed to the wife’s choice of listing agent, he never ended up complying the terms of this order resulting in the wife having to bring further motions before the court.
• The TBST attendance on October 17, 2022, was initiated by the husband in an effort to force the wife to sell her solely owned vehicle. Ultimately, the court did not agree with the husband.
• The TBST attendance on December 12, 2022, was necessary to shore up the order of November 22, 2022, because the parties’ real estate lawyer felt further direction was necessary to enable the wife to sign the closing documents because the husband refused to sign a limited power of attorney.
• The combined conference on April 12, 2022, was a waste of time because the husband had failed to comply with the disclosure order of Sharma, J. on December 2, 2022. Kristjanson, J.’s Endorsement is clear that the husband’s conduct had unnecessarily complicated this case.
• The combined conference on August 14, 2023, was wholly wasted as stated by Horkins, J. in her Endorsement as a result of the husband’s failure to comply with the prior two disclosure orders. The husband did not attend the conference and also refused to agree to adjourn the conference. Although Horkins, J. ordered the husband to pay the wife’s costs, the wife argues it was not sufficient.
• The motion on August 15, 2023, before Brownstone, J. was to have the husband’s pleadings struck. Brownstone, J.’s Endorsement is clear that the husband had not only failed to comply with the disclosure orders and that he actively misrepresented his disclosure and concealed information necessary for the court to conduct a fair trial.

93I have reviewed the wife’s Bill of Costs. Her lawyer, Jonathan Korman, billed out at an hourly rate of $290 until December 31, 2023, and $325 after January 1, 2024. Where possible he downloaded work to senior law clerks and students. From time-to-time, senior counsel refused Mr. Korman’s work at a higher hourly rate. I find that fees to be reasonable and proportionate.

94Costs were ordered and paid by the husband for the TBST attendance of October 17, 2022, November 3, 2022, and November 22, 2022, in the fixed sum of $12,500. Costs were also ordered and paid in connection with the December 2, 2022, attendance of $500; the April 12, 2023, conference of $1,000; the August 14, 2023, conference of $1,500; the August 15, 2023, motion of $5,000.

95The costs incurred by the wife once the husband’s pleadings were struck to prepare for this uncontested trial, amounted to $36,914. These costs have not been accounted for in any of the prior costs orders. The uncontested trial materials were voluminous and complicated given the significant history of bad faith on the part of the husband and the documentary evidence necessary to calculate post-separation adjustments and costs.

96Of the wife’s full indemnity costs of this entire proceeding being $62,975, 59% of these costs, namely, $36,914, were associated with preparation for this uncontested trial, not including HST.

97The husband was given multiple opportunities to comply with court orders and participate in this proceeding and he failed to do so. He was warned a number of times that if he continued to conduct himself as he had been that he ran the risk of his pleadings being struck. He ought to have reasonably expected to pay costs of this uncontested trial.

98I am not inclined to review attendances for which costs were already ordered. However, I have found that the husband’s conduct amounted to bad faith and that his bad faith contributed to the parties having to accept an offer to purchase the MH at a lower fair market value than would have been the case had the husband behaved reasonably.

99For all of these reasons, I order the husband to pay the wife costs of this uncontested trial in the fixed sum of $65,000, payable immediately out of his 50% share of the MH net sale proceeds.

Order

100This court makes the following order:

(a) Neither party owes the other an equalization payment for the period from the date of marriage, namely April 6, 1995, to the valuation date, being the date of separation, namely October 31, 2020.

(b) Alan McConnell to Nussbaum Law Professional Corporation shall be directed to pay the applicant, the sum of $156,865.96, which represents her 50% share of the net proceeds of the sale of the Matrimonial Home, namely the property municipally known as 118 William Street Toronto, ON M9N 2G7, hereinafter referred to as (“the Matrimonial Home”), that is currently held in trust.

(c) Alan McConnell to Nussbaum Law Professional Corporation shall be directed to pay to the applicant from the respondent’s 50% share of the net proceeds of the sale of the Matrimonial home of $156,865.96, the following sums:

i. $23,876.17 in respect of the respondent’s share of post-separation adjustments;

ii. $18,047.32, in respect of 50% of the amounts paid by both parties, which were the sole debts of the respondent, being costs previously ordered of $21,142.50; the writ #19-00003610 discharged of $12,463.49; and the Writ #14-0005225 discharged of $2,188.50;

iii. $1,000 in respect of the respondent’s share of university tuition paid on E.’s behalf, as a s.7 expense; and

iv. $65,000 on account of costs of this proceeding.

The Honourable Justice Kraft