CITATION: Bourdages v. Macey, 2026 ONSC 3598

COURT FILE NO.: FS-21-0066-00

DATE: 2026-06-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Suzanne Bourdages

M. Waddington & C. Dreger, for the Applicant

Applicant

• and -

Robert Elgin Macey

Self-Represented

Respondent

HEARD: May 26, 27, 28 & 29, June 4 & 11, 2026 at Thunder Bay, Ontario

Mr. Justice F. B. Fitzpatrick

Interim Judgment on Valuation of Net Family Property

Background

1This is a family law dispute. The parties began cohabiting in early 2017. They were married July 14, 2017. They were temporarily separated from August to October 2019. They finally separated January 7, 2021. There are no children of this relationship. The parties settled the issues of spousal support prior to trial.

2The trial evidence focused on issues related to the division of the parties’ net family property. They also led evidence in respect of a claim by Mr. Macey for an unequal division of the parties’ net family property. Mr. Macey also asked that the parties be adjudged divorced as soon as possible. The parties agreed on many facts. The evidence in chief of the two parties was given by affidavit. Both parties called additional viva voce evidence. The parties agreed on the issues to be decided following the receipt of the trial evidence and submissions.

3As previously noted, Mr. Macey also made a claim for an unequal division of the parties’ net family property based on s. 5(6)(e) of the Family Law Act, R.S.O. 1990, c. F.3, as amended (the “Act”), which provides:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years.

4In order to assess this particular aspect of Mr. Macey’s claim, the Court must first determine the value of the various disputed property items. The equalization of the parties’ net family properties according to s. 5(1) can then determined. Once that process is completed, the parties will return to address the Court on the issue of unequal division with a net family property division notionally available based on the rulings I make in this interim judgment. I will also consider submissions concerning security for any equalization payment. Ultimately, I will also be hearing submissions as to costs at a later date.

5I am going to deal with matters issue by issue. I will set out any agreed facts relating to that particular issue, any relevant trial evidence concerning the issue that was tendered, any applicable law on the issue, and a brief summary of the parties’ submissions on the issue.

6I will then give my ruling on that particular issue.

7I observe that there was a great deal of hearsay and irrelevant evidence tendered by the parties to which no objection was raised during the trial. On certain occasions, I did raise the issue of admissibility with the parties regarding certain evidence and made rulings on the spot. Those rulings will not be repeated here. To the extent that I considered any of the parties’ positions on individual issues to be founded in a material way on hearsay evidence, I will conduct a principled approach analysis of the evidence and rule on whether the evidence was necessary and reliable and, whether the prejudicial effect of the evidence substantially outweighed its probative value.

Issue 1. The Valuation of 218 Trout Lake – Date of Separation

The Trial Evidence

8The following facts were agreed concerning a residential lakefront property located at 218 Trout Lake Road, Gorham District of Thunder Bay (“TL”).

9Mr. Macey owned TL prior to marriage. The TL house was unfinished and used seasonally prior to the parties meeting. Solar panels were installed at TL in 2012 with a 20-year contract ending November 2032. The cost of the solar panels was $54,264.26. The contract price is 80.20cents/kWh. The solar panels generate approximately $10,000 annually, prior to taxes. The house located at TL was significantly renovated during the relationship. The parties primarily lived at TL during their marriage.

10The mortgage on TL was refinanced three times during the relationship:

• September 19, 2017;

• July 12, 2018; and

• April 25, 2019.

11TL is a matrimonial home within the meaning of the Act.

12TL was listed for sale at $795,000 with RE/MAX First Choice Realty in November 2019 until the spring of 2020. In June 2021, Mr. Macey and Ms. Bourdages, entered into an Agreement of Purchase and Sale for TL at a value of $852,000. All conditions were waived and this became a firm offer. The Agreement of Purchase and Sale was voided in August 2021 and the sale did not occur. Mr. Macey paid the prospective purchasers $46,000 to break the Agreement of Purchase and Sale when he decided not to sell the property.

13In November 2021, Michael Vecchio completed an appraisal for TL as of January 7, 2021. He valued the property at $670,000.00.

14In January 2021, the value of the mortgage on TL was $512,017.09. Ms. Bourdages was and remains a guarantor on that mortgage. Mr. Macey remains the only legal owner of TL. Ms. Bourdages did not reside at TL after the date of separation. Ms. Bourdages did not make any financial contributions towards TL after the date of separation. On March 18, 2021, Ms. Bourdages attended TL to collect the majority of her personal belongings.

15Mr. Macey called Michael Vecchio to give expert opinion evidence as to the market value of TL at the date of separation. Mr. Vecchio holds the designation AACI (Accredited Appraiser Canadian Institute) granted by the Appraisal Institute of Canada. The parties agreed that Mr. Vecchio was qualified to give expert opinion evidence on the market value of real property.

16Mr. Vecchio did an inspection of TL on November 12, 2021. He prepared a report supporting his opinion of the market value of TL at $670,000.00 effective January 7, 2021. He used a comparative sales approach in support of his opinion of the market value of TL. Earlier in the trial, Ms. Bourdages had called Timothy Groulx to give opinion evidence on a piece of vacant land owned by Mr. Macey. The parties admitted Mr. Groulx as qualified to give expert opinion evidence on the market value of real property. In the course of his testimony, Mr. Groulx described the 3 accepted methods of appraising real property: the comparative sales approach, the income approach, and a cost approach. Both experts agreed that the comparative sales approach was the best way to provide an opinion of value for both pieces of real property at issue in this trial.

17The comparative sales approach analyzes sales of similar properties in reasonable proximity to the subject property, which occur in a time frame reasonably close to the valuation date at issue. The challenges posed by this method comes from the lack of comparative sales. Both Mr. Vecchio and Mr. Groulx acknowledged that a lack of sales of similar properties in the vicinity of this part of Northwestern Ontario always poses a challenge for appraisers when contrasted to the sales rich environment of markets like those in the Greater Toronto Area.

18Mr. Vecchio looked at four sales for his comparators. He identified that three sales occurred in 2019 and acknowledged that on a theoretical basis, this was less than ideal. However, he testified that comparable sales were hard to come by with regard to TL as it was a lake front, year round occupancy property. One sale was used for a lake front property of relatively similar size and age of construction, which occurred 3 months before the valuation date. Mr. Vecchio did time adjustments to all his comparable sales to evaluate and check his ultimate opinion of value.

19Mr. Vecchio opined that the aborted sale of TL in June 21, for $852,000.00 was not a comparable sale for the purposes of giving a market value of TL on the date of separation. He stated that as the transaction did not close, and the only evidence about which he was aware was the presence of an executed Agreement of Purchase and Sale, that the transaction was not reliable evidence of a willing buyer and a willing seller at arms length to allow it to be considered a good basis upon which to assign a value for TL at the date of separation. Mr. Vecchio also opined about the unusual reality that the COVID pandemic had imposed on the real estate market in general in Northwestern Ontario. He recalled that the market experienced a significant upswing in the spring of 2021 after it had been in a state of uncertainty from the start of the pandemic in North America in mid March 2020, until the valuation date in early January 2021. He also noted that historically, residential property values are depressed in the winter months here in Thunder Bay, particularly in January and February.

Position of the Parties on Issue 1

20Mr. Macey relies on the evidence of Mr. Vecchio that the market value of TL at the date of separation was $670,000.00. He points to the fact that he was hospitalized in the adult mental health unit at the time he signed the Agreement of Purchase and Sale for TL in June 2021. He submits he did not have the mental capacity to consent to the sale of TL at that time. He also submits the market conditions in June 2021 were significantly different than those of January 2021 and any finding of market price of TL in June 2021 is not relevant to the market value on the date of separation.

21Ms. Bourdages argues the fact an agreement of purchase and sale was executed between Mr. Macey and arms length purchasers in June 2021 is the best evidence presented at this trial as to the market value of TL on the date of separation. Medical records produced by Mr. Macey concerning his hospitalization indicates an observation of a treating physician, Dr. Wadhwa, on a consultation report dictated June 18, 2021:

“His insight and judgment is good.”

22Accordingly, Ms. Bourdages submits the value of TL at the date of separation was $852,000.00.

The Law

23In Robertson v. Robertson, 2021 ONSC 3933, Himel J., in discussing the purpose of the equalization provisions of the Act and in particular s. 5, noted at para. 157:

Courts have universally accepted that the Act is intended to promote predictability and discourage litigation Ward v. Ward, 2012 ONCA 462, at para. [25]. Ontario deliberately chose a fixed valuation date approach. For most practical purposes, that date is the date of separation Serra v. Serra, 2009 ONCA 105, at para. [41].

Disposition of this Issue

24On the evidence submitted at trial, and after considering the submissions of the parties, I find that the market value of 218 Trout Lake Road at the date of separation, January 7, 2021, was $670,000.00. I say so for the following reasons.

25I accept Mr. Vecchio’s opinion of value as of January 7, 2021, as reflecting the market value of TL as that date. I accept his evidence that the spring market of 2021 was substantially improved over the market conditions of January 2021. I accept that the realities of the COVID pandemic during the period March 2020 to June 2021 were extraordinary in respect of real estate values in Northwestern Ontario. I take judicial notice of the conditions of everyday life being experienced by the population of Northwestern Ontario in January 2021. The pandemic was recognized by the Province on March 17, 2020, when a state of emergency was declared. The first vaccine for COVID was only authorized by the Government of Canada on December 9, 2020. Widespread availability of the vaccine only came available over the next six months. On Boxing Day 2020, a provincial shut down was imposed by the Provincial Government due to the worsening COVID conditions. A second COVID emergency was declared on January 12, 2021, which included a stay-at-home order. Persons in Northwestern Ontario had been subject to travel restrictions throughout 2020. While these travel restrictions may have differently impacted others in the more populated areas of the Province in 2020, in this part of the Province, given the distances between settlement areas, the lockdown restrictions had a genuine effect. They had a dampening impact on both social and economic activity of persons in this region.

26A third state of emergency was declared on April 1, 2021.

27By June of 2021, vaccinations were being widely distributed in Ontario.

28In light of these COVID realities, and consistent with Mr. Vecchio’s evidence concerning market conditions, I find there was a significant difference in the real estate market for residential lakefront properties in Northwestern Ontario between January 2021 and June 2021. I accept Mr. Vecchio’s evidence that he only had a limited number of comparable properties with which to determine the market value for TL. I accept his evidence that this is not unusual for valuations of relatively unique residential year-round lake front property such as TL in the Northwest Region of Ontario. I accept his evidence that while the majority of his comparable properties sold between 14 and 21 months before, the properties were otherwise comparable because of the limited number of sales of comparable properties in the vicinity. In my view, his time adjustments in respect of market data for these properties, both up and down, were proper to maintain these properties as appropriate comparators. The sale of the fourth comparable, 3 months prior to the valuation date, was time adjusted upwards to yield a value for comparison purposes of $668,400.00. Mr. Vecchio’s opinion was not changed by the questions he faced in cross-examination. I assess he presented his evidence in a forthright and fair manner consistent with his duties to the Court as an expert opinion witness.

29The difference in the positions of the parties as to value of TL was $182,000.00. This meant that comparing Mr. Vecchio’s opinion of value to the value of TL as reflected in the aborted sale of June 2021, the value of the property would have increased approximately 27% over that six-month period.¹ I accept Mr. Vecchio’s opinion that the market had taken a significant upward trend in the spring of 2021. In my view, this is consistent with how the province was experiencing the uniquely horrible circumstances of the period of March 2020 to June 2021. The introduction of the vaccine had given the majority of the population of this Province hope. We were beginning to cope better with the restrictions imposed by the Province by the spring of 2021. While the impacts of the virus were still significant, the doomsday scenarios of the early days of the pandemic in the spring of 2020 had begun to subside by June 2021. In this context, I can understand how an arms length purchaser would have been willing to offer $852,000.00 in June 2021 for TL. However, this was not the valuation date at issue in this trial.

30I also have some concerns about the circumstances under which Mr. Macey became involved in the sale of TL in June 2021. He was hospitalized June 18, 2021. The full paragraph of the note by Dr. Wadhwa wherein the one quote that was relied upon by Mr. Bourdages states:

On mental status, Mr. Macey presents as a 58 year-old gentleman. He is extremely pleasant, dysphoric, tearful, logical, coherent and goal directed describing anxiety, having difficulties with neurovegetative symptoms of sleep. He does have suicidal ideation with increasing thoughts of not wanting to be alive. His insight and judgment is good.

31The physician then sets out his diagnosis of Mr. Macey and plan as follows:

Major depressive disorder, recurrent episode, moderate severity with treatment resistance.

Mr. Macey has been placed on a Form 1 by Dr. Chow; we will continue this at this time due to his ambivalence and suicidal ideation that he is not completely forthcoming with.

32I am familiar with this medical terminology in particular the reference to “Form 1” from other matters I have had before me. It indicates that as of June 18, 2021, Mr. Macey was being held on an involuntary basis as the result of a physician’s order to evaluate whether a person requires further psychiatric care. These are hardly circumstances for which it can be seriously contended that a person freely and without reservation entered into a contract of such magnitude as the sale of their home. However, this evidence of Mr. Macey’s state of mind at the time, is of much less importance to my decision concerning value as contrasted to the evidence of Mr. Vecchio concerning the value at the time of separation and, the changes to the market in the six months following the breakdown of the marriage. I do not discount the possibility of a 27% increase in value of a residential property in a relative short period. However, those times were unique, and particularly volatile, and I have reliable, admissible, and compelling evidence concerning the market value of TL on the actual valuation date at issue.

33For these reasons, relying on the expert evidence of the market value of TL on the date of separation, I find the value of TL, for the purposes of equalizing the net family properties of the parties, is $670,000.00.

Issue 2. Whether 176 Clayte Street is a Matrimonial Home within the meaning of ss. 4(1), 18(1) and 23(a) of the Act

The Trial Evidence

34Ms. Bourdages owned a bungalow style residential property located at 176 Clayte Street in the City of Thunder Bay (“CS”), prior to the marriage in June 2017. It has an upstairs and a downstairs unit. In November 2021, Timothy Groulx, (the expert property appraiser referred to earlier in these reasons) completed an appraisal for CS as of July 2017. Mr. Groulx valued the property at $280,000. The mortgage on CS on the date of marriage was $213,572.70. Mr. Macey was never responsible for, nor contributed funds to the mortgage of CS. CS was rented out by Ms. Bourdages at different times during the relationship.

35Ms. Bourdages claimed the following gross rental income in respect of CS on her tax returns:

a. 2017 - $17,761.64.

b. 2018 - $28,892.38.

c. 2019 - $23,526.64.

d. 2020 - $950.

36In November 2021, Mr. Groulx, completed an appraisal of CS as of January 2021. Mr. Groulx gave a date of separation value for CS of $330,000. The mortgage on CS was $189,932.80 in January of 2021. Mr. Macey did not make any financial contributions towards CS after separation. On March 19, 2021, Mr. Macey attended the property to collect some of his belongings.

37There was conflicting evidence in both the affidavits and the vive voce testimony of both parties, and several lay witnesses about the times and degree of occupation Mr. Macey and Ms. Bourdages had with CS as a married couple.

38I will first address the evidence of the “lay witnesses” called at this trial who testified about this particular issue. Ms. Donna-Rae Stevens was called by Ms. Bourdages. She was a long-term friend of Mr. Macey and had only met Ms. Bourdages in 2019. She confirmed that on one occasion, she saw the couple together at CS. Ms. Stevens testified that contact with herself and the parties was limited once COVID began in March 2020, although she testified she was with Ms. Bourdages on the date of separation.

39Cathy Couch also testified as part of Ms. Bourdages’ case. Ms. Couch is a long-time friend of Ms. Bourdages. A good deal of her testimony concerned the times she spent with Ms. Bourdages at TL. Her testimony concerning CS was limited. She did testify she would drop in quite often to see Ms. Bourdages when she was living at CS. The exact timeframe which she was testifying about was not clear to me

40The Court also heard from Jason Komoski as part of Mr. Macey’s case. Mr. Komoski was a tenant in the downstairs portion of CS. He confirmed he left CS in January 2020. He testified that he and Mr. Macey had installed a door separating the upstairs and downstairs of the CS unit some time in 2019.

41In the year before separation, there were no tenants living at CS. Ms. Bourdages had evicted the tenant occupying the upstairs unit in November 2019. She was of the view she had to wait a year before she could again offer the upstairs unit for rent.

42According to Ms. Bourdages, once the COVID pandemic started in March 2020, the parties resided at CS on “slightly more” occasions than had been the case previously, as the property was vacant and provincial government restrictions caused a lack of ability to socialize. During this time, she took the opportunity to paint the house. Mr. Macey could not fully participate as he hurt his back and was bedridden at CS. Ms. Bourdages cooked Christmas dinner in December 2020 for her extended family which had to be delivered in “care packages” because of the COVID restrictions. The couple was there for Christmas Eve that year. Photographs of CS showing Christmas decorations in December 2020 were placed in evidence. The parties got a new puppy in the fall of 2020. There were a number of photographs of the dog with other people all at CS some in the November and December 2020 time frame.

The Law

43Section 18(1) of the Act requires a determination of ordinary occupation at the time of separation.

44A leading case in this area is the decision of Smith J. in Ledrew v. Ledrew, 1993 CanLII 16082 (ON CTGD), [1993] O.J. No. 596 (Ont. Gen. Div.). At para. 21, Smith J. stated:

The ordinary occupation which is required of a home in order to qualify as a matrimonial home is that it be occupied by the parties as a family residence. This requires that a significant part of the spouses' time together be spent in and around the home and that the occupation of the home is not merely occasional or casual.

45In Oliver Estate v. Oliver, 2012 ONSC 718, Nelson J. noted at para. 47:

However, the jurisprudence also makes clear that the court must engage in flexible and contextual analysis of ordinary occupation: see LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), [2005] O.J. No. 1141 (S.C) at para. 78. In Goodyear v. Goodyear, 1999 CanLII 20759 (ON CTGDDC), [1999] O.J. No. 29 (C.J.) at para. 16, Perkins, J. noted that "to occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre." In MacFarland v. MacFarland, 2009 CanLII 26349 (ON SC), [2009] O.J. No. 2149 (S.C.), Mackinnon, J. found that the parties need not be physically together when occupying the family home; they simply must both treat it as a family home.

46The Court of Appeal for Ontario in Nahatchewitz v. Nahatchewitz, 1999 CanLII 787 (ON CA), [1999] O.J. No. 3154 (C.A.), at para. 23, made it clear that the determination of the status of a property for the purposes of the exemption under the Act is based on the facts as at the date of separation.

Disposition of this Issue

47In my view, the critical evidence in this trial is that of the parties and what their actions and intentions were as of the late fall 2020 and the first week of January 2021 when they separated. The evidence of the “lay witnesses” was not useful at all for the purpose of determining this issue. It is clear from the evidence that Mr. Macey and Ms. Bourdages had a substantial physical presence at CS at the time of separation. COVID was in full swing. There were restrictions on gatherings. I can understand why they were living at CS at the time, as it was closer to town and given the restrictions on movement and gatherings imposed by the government at the time, this made it easier to try and deal with obtaining the necessities of life, such as groceries and gas in the face of restrictions on access to retail stores at that time. The degree to which CS is shown as being decorated for Christmas in December 2020 and the evidence of Ms. Bourdages of her preparation of a substantial Christmas dinner for her and Mr. Macey’s extended family at that time is indicative to me that CS was being used as a matrimonial home at the time immediately prior to separation. Important family things are done together in matrimonial homes. The fact that an important pet was purchased and appears from photographs to be living with the couple at CS in December 2020 is also evidence of their intent to use CS as a matrimonial home. The couple was also present at CS for extended periods prior to the onset of the pandemic in March 2020.

48Mr. Macey had important personal items at CS such as his tools and tool bench, as well as several cabinets containing important documents. The parties had purchased a sea-can that was outfitted to allow Mr. Macey to use it as a workshop outside of CS. This, in my view, is evidence of intent to use the property as a matrimonial home. In my view, the intent to the couple in the period preceding separation and at the date of separation to occupy CS together as a matrimonial home is supported by strong and convincing evidence.

49Accordingly, I find for the purpose of calculating the net family property of Ms. Bourdages, a property located at 176 Clayte Street, Thunder Bay, is a Matrimonial Home within the meaning of ss. 4(1), 18(1) and 23(a) of the Act.

50Ms. Bourdages made a submission that because a portion of the home was tenanted at various times throughout the marriage that this should decrease the value of the property which is added to the date of separation calculation. I do not accept that submission because the evidence was clear CS had not been tenanted since January 2020.

51Mr. Macey also made a submission that because his TL property was used to earn income from solar panels, that some portion of the value I fixed for the property at the date of separation should be excluded from the calculation of his net family property at the date of separation. I do not accept this submission because the solar panels were not separately valued and played no part in Mr. Vecchio’s valuation of the property. Additionally, the solar panels do not otherwise limit the overall use of the property, as would be the case in a situation where a part of the property was rented out. Notionally, I can understand how Ms. Bourdages was able to make the argument that a portion of her residence was not used for the family as it was rented out. However, I did not accept it because Mr. Macey’s argument was not at all compelling for the case of solar panels.

Issue 3. Valuation of Vacant Land Lot 2 – Ware Township

The Trial Evidence

52The parties agreed as follows.

53Lot 2 - Ware Township (“Ware”) is a piece of vacant land owned by Mr. Macey prior to the marriage of the parties and prior to the parties meeting. This property is approximately 160 acres. There was no mortgage on this property during the relationship of the parties. There was no mortgage on this property as of the date of trial.

54In January 2022, Mr. Vecchio appraised the property as follows:

a. $32,000 as of July 14, 2017.

b. $38,500 as of January 7, 2021.

55In March 2022, Mr. Groulx appraised the property as follows:

a. $45,000 as of July 14, 2017.

b. $90,000 as of January 7, 2021.

Disposition of this Issue

July 14, 2017 Value of Ware

56Resolution of this issue comes down to the consideration of the opinion evidence of the two experts who testified at this trial. Both used the comparable sales approach to give an opinion on the value for Ware. Both experts acknowledged the difficulty in providing an opinion of value for vacant land in this region of Ontario due to the lack of comparable market sales. Neither valuator adjusted the sale price of the comparables they chose. Both acknowledged the limited use of Ware, given it is landlocked. The property is also not connected to the power grid and the nearest connection is about a half mile away. I assumed there are no hydro easements to Ware.

57I first start with the opinions of value given for the date of marriage. I prefer the approach to value used by Mr. Vecchio. In my view, he went a step further with the market sale comparison approach used by both valuators. Mr. Vecchio used an analysis of per square acre of comparable properties and extrapolated that to value the subject lands. I note both valuators had a common comparable Conc VI south ½ Lot 4 in Ware Township (Conc VI). However, Mr. Vecchio noted that he as aware there was a small unnamed lake contained within or on the boundary of Conc VI. Upon reflection, Mr. Vecchio opined that it was not really a good comparable upon which to value the Ware property.

58I agree. The lake would make a landlocked recreational property more valuable which explains the markedly higher price per acre for Conc VI. It is not comparable in my view.

59Sale price, acreage, date of sale and location were set out in the evidence for all comparables used by both valuators. All comparable properties were landlocked.

60I accept that two of the three comparables used by Mr. Groulx were appropriate, utilizing a comparable market sales approach. Both valuators used a common format to present their evidence concerning the comparable properties. From the statistics revealed in Mr. Groulx’s report, it is easy to obtain a “dollar per acre” value for the two comparables he relied on, excepting Conc VI.

61I therefore had evidence of five comparable land sales within a reasonable time period, approximate to the date of marriage from which a dollar per acre value could be obtained. I used this to assess the opinions of value arrived at by the respective valuators. The comparables, sale price, date of sale, acreage and dollar per acre is as follows, starting with the lowest per acre property and ending with the highest per acre value:

Comparable

Price

Sale Date

Acres

$/Acre

Expert

PCL 3568 Scobie

32000

21/11/2016

161

198

V

Conc V N ½ L 5 Murillo

34000

1/5/2017

158.5

215

G

Conc 8 N L 13 Forbes

34000

21/12/2016

158

215

V

Lot 1 C 5 Hwy 588 Lybster

38000

20/7/2015

160

237.50

V

Conc II N ½ L 3 Kam

52000

7/3/2018

160

25

G

62The median sale price per acre using these five comparables was $215 per acre. Multiplying this by the acreage of Ware, yields a market value of $34,292. Mr. Vecchio used a value of $200 per acre to obtain his value at $32,000.00. This is within 7.5% of the median value using all five comparables, which is an acceptable margin of error for vacant property of such limited use.

63I therefore prefer the opinion of value offered by Mr. Vecchio for the date of marriage value of Ware. I find the value of Ware to be $32,000.00 for the purposes of calculating Mr. Macey’s pre-marriage assets.

January 8, 2021 Value of Ware

64Both valuators used the comparable sales approach to value Ware on the date of separation. Both valuators chose four comparable properties. Again, I prefer Mr. Vecchio’s “dollar per acre” valuation on the comparable sales he selected to assist in his creation of an opinion of the value of Ware. I was not convinced of Mr. Groulx’s opinion of value for Ware at the date of separation for a number of reasons.

65First, in my view, only one of the properties Mr. Groulx chose as comparable was a good comparable. This was the property located at Conc V N ½ Lot 5 Ware. It was of comparable size to Ware with a sale date close to the date of separation and location very proximate to the subject property. Using a per acre approach, it sold for $330 per acre.

66I did not accept that the other properties used by Mr. Groulx were comparable. All involved multiple parcels in one sale. Two were significantly larger aggregate parcels than the subject, 240 and 300 acres respectively. The 240 total acres sale contained a hunting cabin. Mr. Groulx adjusted the value downward to reflect this. However, I was not convinced that the adjustment appropriately reflected the difference as he had no data on the state of the cabin on the site. The other comparable had two smaller parcels which combined, were still about 25% smaller in acreage than Ware. Typically, comparable pieces of smaller land sell for a higher per price, per square unit, than larger parcels. Also, I found it difficult to accept that Mr. Groulx was of the opinion that Ware had doubled in value in 3 years. There was nothing special in his evidence or the trial evidence that would explain a 100% jump in value, albeit that the separation date occurred in the middle of the pandemic when recreation property did go up in value.

67I was therefore left to consider Mr. Vecchio’s evidence. Three of the four comparables he chose potentially suffered the same issue as those of Mr. Groulx regarding size. One sale on Onion Lake Road was for a 300 acre parcel. It yielded the lowest dollar per acre price of all the comparables. The two comparable parcels in Forbes Township appeared by legal description to be close to one another. The parcels were both 80 acres. They sold within four months of each other for the exact same price. They yielded a dollar per acre value of $250 an acre. This compares favourably to a sale used by Mr. Vecchio for a property located at PCL 6292 Pardee Twship which sold for $240 per acre in September 2020 for a 160 acre parcel.

68I was concerned that the Forbes sales required further investigation to understand if they were indeed comparable. Also, Mr. Vecchio identified a comparable PCL 12-2 Sec Con 7 Marks Thunder Bay. It was a sale on August 29, 2020 of a 158.8 acre rural parcel. However, Mr. Vecchio testified it did have some road access by an old logging road. For him, this explains the relatively high dollar per acre value of $395.41 per acre. I accept these property conditions would also not make it comparable to the landlocked subject.

69I was therefore left with only two comparables that seemed appropriate based on the evidence of both valuators. One was that identified by Mr. Groulx at Conc V N ½ L 5 Ware (“Conc V”). I have already found that the spring market for residential properties had changed a great deal between the time of separation and the aborted sale of TL in June 2021. Ware is a vacant land, and I can understand how the market could be different so the Conc V sale would be of use in determining value. The other acceptable comparable is PCL 6292 Pardee Twship, Thunder Bay (“Pardee”) identified by Mr. Vecchio. The average of the two sales on a dollar per acre basis is $285 per acre (330 + 240/2= 285). Applying that to the 158.5 acres at Ware yields a value of $45,172.50.

70This represents a 41% increase in value. This is contrasted to the 19% value Mr. Vecchio identified in his opinion of value. Of course, it is nowhere near a 100% jump in value as identified by Mr. Groulx. Absent a full range of proper comparables, I am of the view that the sales of Conc V and Pardee identified by the experts does give the best evidence for market data for vacant landlocked land comparable to Ware. Applying the average dollar per acre from those sales, I find the value of Ware at date of separation was $45,172.50 for the purpose of calculating Mr. Macey’s date of separation net family property.

Secondary Issue regarding Timber on Ware

71Ms. Bourdages obtained an expert opinion concerning the value of the standing timber on Ware and of another property owned by the couple which fronted on Mapleward Avenue. Mr. Macey did not dispute the qualifications of the expert retained to do the valuation, nor did he dispute the value of the timber estimated to be standing on Ware as of the date of the opinion, July 16, 2022. The opinion indicated a total Spruce/Pine/Fur sawlog value which was dependent on the quality of the timber harvested at $25,903.19. At total biomass value for Ware of the timber was given as $19,552.86.

72Both expert land appraisers advised they were not qualified to given opinions as to timber value. Both appraisers indicated they did not complete their appraisals giving any consideration to the timber value.

73In my view, the timber on Ware would be a meaningful alternative indicator of land value, but it does not represent a separate asset to be valued on top of the land value attributed to it by the two experts. It is an either/or type of proposition which is tied to a preferred use of the property because of the nature of timber as an asset. Either the landlocked land is to be harvested at a particular point in time, or the land is to be used as recreational, which in this part of Ontario, usually means for hunting. Commercially viable timber harvesting on a 160 acre plot cannot occur very frequently. The commercially valuable trees take years to grow. Further, treeless land changes the dynamic for hunting for such a relatively small plot, as game animals like deer tend to congregate in wide ranging forested areas. Harvesting timber is a long-term value proposition for land in this part of Ontario. Mr. Macey indicated he did harvest timber from Ware in 2012. The extent of the harvesting was not clear on the evidence. In any event, ten years later, a not insubstantial value was assigned to the timber, but it was not outside the quantum range assigned by the two appraisers as the land value.

74Accordingly, I find Mr. Macey is not required to include the value of timber set out by the timber expert in the land value section of his net family property for the purposes of calculating his net family property.

Issue 4. Values for Various Personal Items

75The parties could not agree on the value of a number of assets. It is settled law that a party asserting a particular value has an onus to provide the court with credible evidence concerning the value of particular assets. Financial disclosure is mandated by Rule 13 of the Family Law Rules, O. Reg. 114/99. Again, I will briefly outline the trial evidence, followed by the position of the parties, then my decision on the particular item.

2018 Dodge Ram

76Mr. Macey owned a 2018 Dodge Ram ST Quad Cab with 53,209 km on the date of separation. He submitted an opinion of value from Auto-One International of Thunder Bay from January 4, 2024, indicating a value of $23,000.00 as of January 8, 2021. The author of the opinion, Don Axent was not called to testify.

77Ms. Bourdages submitted 33 listings for 2018 Dodge Rams at various times and for various qualities. She aggregated these to argue the vehicle was worth $45,000.00 at the date of separation.

78With regards to the Dodge Ram, all the evidence before the Court is hearsay. I must take a principled approach to the reliability and necessity of this evidence. The Court is in a difficult position to place a value on this asset. I recall from my own experience that in early 2021, during the pandemic, prices for used vehicles were generally higher because the pandemic had placed a huge stranglehold on the production of new vehicles. Again, from my own experience, 53,000 km is relatively low for a truck that is being used for recreational purposes. Absent a willingness of Mr. Macey to sell the vehicle for $23,000.00 around the date of separation, it is difficult to say that this value is accurate. Ms. Bourdages’ multi-vehicle approach from trucks all over Ontario with varying kilometers and unknown state of repair is also less than satisfactory, but does leave the Court looking at these values with an idea that Mr. Macey’s value for the truck is a bit low.

79With this less than satisfactory evidence to consider, I find the 2018 Dodge Ram was worth $35,000.00 on the date of separation.

The Excess Lumber

80Ms. Bourdages included a photo of three piles of lumber at TL. The parties agreed on the date of marriage value of this asset at $1,031.46. Ms. Bourdages deposed that during the aborted sale in June 2021, Mr. Macey offered to sell the lumber to the purchasers for $8,500.00 and they accepted. Mr. Macey did not include any evidence about this discreet point in his trial affidavit. He did not give further testimony about it at trial. He argued the lumber was worth $1,900.00 at the date of separation. He argued this based on the fact the lumber had been sitting around for some three years under a tarp and probably had not appreciated much in value.

81The evidence concerning this asset is again less than satisfactory. I suspect Mr. Macey simply forgot to include whatever he wanted to say about this relatively small item, given what else was at stake in the litigation. The lumber was worth something at the date of separation, despite problems for buying and selling between individuals at that time given the pandemic restrictions. I discount Ms. Bourdages’ evidence about the value because the sale of TL and the timber was never consummated. However, the lumber was worth something and at the time, due to the pandemic, it was a valuable item due to lack of production in North America and problems with the supply chain. I fix the amount at $3,000.00.

The Backhoe

82In argument, Ms. Bourdages abandoned her claim that Mr. Macey owed a $65,000.00 backhoe at the date of separation. This item is not to be included in the final calculation of the parties’ net family property.

The Shane Macey Loan for $15,000.00

83Ms. Bourdages alleges that Mr. Macey had loaned his son Shane, $15,000.00, which loan was outstanding on the date of separation. She points to several transactions from 2019 where Mr. Macey advanced funds to Shane, including $5,000.00 to pay off an MBNA credit card and $4,300.00 paid to a Thunder Bay law firm in respect of Shane’s legal fees in October 2019. Ms. Bourdages also had bank statements showing relatively small amounts – $100, $300, $100, $1000, $300 – totalling $1,800.00 being sent to Shane by e-transfer in 2020 before the separation. Also on the same account, there were three transactions, October 8, 2020 for $140.00, November 27, 2020 for $100 and January 6, 2021 for $100 where Shane was e-transferring money to Mr. Macey. Ms. Bourdages also presented bank statements showing several small e-transfers from Shane post separation totalling $400.00. Ms. Bourdages asserts these were evidence of loan payments.

84Mr. Macey asserts all the transactions where money went to Shane were gifts to his son.

85Shane Macey testified at trial. He denied that he was the recipient of a $15,000.00 loan. He admitted his father paid for some of his legal fees pre-separation. He indicated he had helped his father set up an investment account just before separation. This explains his transfers to his father pre-and post-separation.

86In Lukovnjak v. Weir, 2016 ONSC 6893, Leach J. set out the following principles concerning parental loans in the family law context, at para. 17:

*Transfers of property from a parent to a child traditionally were governed by the equitable presumption of advancement, suggesting a presumption of gift rather than a situation of resulting trust or loan. However, the principle justification for that presumption is the parental obligation to support dependent children. The presumption of advancement is no longer considered applicable in relation to situations involving transfers from parents to independent adult children Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. [36].

*Although the presumption of resulting trust therefore now applies to transfers of property from parents to independent children, the presumption is just that; a presumption which can be rebutted based on all of the evidence Klimm v. Klimm, 2010 ONSC 1479, [2010] O.J. No. 968 (S.C.), at para. [28].

*When determining the character of a transfer from parent to child, criteria considered include the following:

*whether there were any contemporaneous documents evidencing a loan;

*the purpose or motivation underlying the transfer;

*whether any manner of repayment has been specified;

*whether any security has been taken or held to ensure repayment of the transfer;

*whether transfers have been made by the parent to one child and not others, and if so, whether any transfers to other children have been in equal or differentiated amounts;

*the age of an alleged debt, and whether the parent has made any demands for repayment of the transfer prior to the child's separation from his or her spouse;

*the existence of litigation to collect the alleged debt, (although courts also consider whether any such litigation is a sham, aimed at bolstering external perceptions that the debt claimed is legitimate);

*the possibility that the alleged debt may be statute barred or otherwise unenforceable, (since only legally enforceable debts can be taken into account to reduce the legally shareable property of a spouse);

*the age, health and need of the transferring parent;

*whether there has been any partial repayment of the transfer; and

*whether there was any expectation or likelihood of repayment of the transfer [Klimm, supra].

*Compelling reasons require courts to take a "good hard look at the reality of the situation" when determining whether a professed debt should have an effect on net family property calculations. In particular, a debt constitutes a credit in the equalization calculation, reduces the net family property of the spouse claiming the debt, and therefore has a direct impact on the equalization payment. It reduces the amount that spouse has to pay, (if he or she has the higher net family property), or increases the amount that spouse will receive, (if his or her net family property is lower). Fairness dictates that he or she therefore should not receive a credit for a debt, with the financial benefits that flow from that credit, if he or she realistically will never be called upon to pay the alleged debt. There accordingly is said to be a "judicial premise" that a "spouse who claims a deduction from shareable property on the basis of a family debt in order to reduce the other spouse's entitlement will be put to strict proof of the debt" and "the true terms of indebtedness" [Jukosky v. Jukosky, 1990 CanLII 12332 (ON CTGD), [1990] O.J. No. 2470 (Ont. Gen. Div.), at pp. 14 and 16].

87Although Shane Macey is not at arms length with Mr. Macey, I believe his testimony that any monies he received from Mr. Macey were gifts, not a loan. The transactions with the law firm preceded the date of separation by fourteen months. The amounts alleged by Ms. Bourdages as “payments” on this loan started a year after the monies were allegedly advanced and were not substantial or regular enough to evidence some kind of regularized payment schedule. Shane Macey gave his testimony in a forthright and straightforward manner. He was not shaken in cross-examination. There were no formal loan documents tendered to evidence this loan. I believe his evidence about the investment account payments as not being payments for a loan.

88I also agree with Mr. Macey’s submission that a value of $15,000.00 that Ms. Bourdages seeks for the loan does not add up from the evidence concerning the issue adduced at trial. The only documented funds which relate specifically to the facts alleged by Ms. Bourdages are the transactions involving the Atwood Labine law firm.

89In my view, Mr. Macey has rebutted the presumption of a resulting trust with regard to the funds advanced to pay the legal fees for Shane, and for the other monies advanced by him to Shane. Taking a good hard look at these transactions and the evidence presented at trial, I find these monies were gifts and not a loan.

90Accordingly, I find that Mr. Macey did not have an outstanding loan to his son on the date of separation in any amount.

Personal Loan from Alexandrea Macey

91Mr. Macey asserts on the date of separation he owed his daughter $35,000.00. In November 2020, he alleges she advanced him these funds from a line of credit she had with a very favourable interest rate. The loan was evidenced by a document that was tendered at trial. The loan recited that Mr. Macey was seeking to use the advanced funds to purchase a property at 192 Trout Lake Road in Gorham because he was in the process of selling TL. There were several other terms concerning re-payment, but ultimately the full amount of the principal of the loan was due on January 31, 2022.

92Mr. Macey’s signature on the loan agreement was witnessed by his ex-wife. Alexandrea Macey’s signature was not.

93Mr. Macey testified at trial he has repaid the loan. He did not provide any documentary evidence to show these payments.

94In this case, taking a good hard look at this issue, I find that Mr. Macey has proved that he was indebted to his daughter in the amount of $35,000.00 at the date of separation. I find this because of the terms of the loan agreement, which clearly reflect the lack of legal training on the part of the drafter and the chaotic approach to finances which appears to have characterized Mr. Macey’s situation before, during, and after the marriage. This couple was clearly living very close to the financial edge throughout their marriage. Mr. Macey was on LTD. Ms. Bourdages had retired. They were in significant debt. Yet they continued to make aggressive plans to buy and sell real estate during a time of the pandemic when economic circumstances throughout the world were less than stable. In my view, Mr. Macey’s borrowing from his daughter made sense in the otherwise chaotic way he was conducting his financial affairs, as he was trying to find money from whatever source he could near the time the parties separated. I find the desire to sell TL and buy a new property consistent with the parties occupying CS as a matrimonial home at the time of their separation. Apparently, they had “moved on” from TL and were looking to obtain another, more luxurious camp property. I can understand why Mr. Macey was looking to obtain funds to purchase another property elsewhere as he had significantly mortgaged TL at that time. Unfortunately, the plan to buy a new property close to TL did not work out.

95In any event, I find Mr. Macey has proved he owed these funds to his daughter on the date of separation and is entitled to claim that amount as a deduction to his net family property on the date of separation.

Personal Loan from Elaine Bell

96Mr. Macey claims he owed his mother, Elaine Bell, $10,500.00 on the date of separation. This loan was evidenced by a promissory noted dated December 13, 2018. On its face, the note was to be repaid on November 29, 2019. This date coincided with the proposed sale of TL at that time, which as the evidence indicates, never came to fruition.

97The signatures on the note were not witnessed.

98Mr. Macey did not tender any evidence that the monies were repaid in respect of this promissory note. Mr. Macey did not tender evidence to show any part payments were made on the note.

99The limitation period for Ms. Bell to sue on the note was up on November 30, 2021. There was no evidence tendered that Ms. Bell sought to ever enforce this obligation.

100Mr. Macey has the onus to demonstrate the amount of the debt. He does have the presumption of resulting trust from the Pecore decision of the Supreme Court of Canada. Ms. Bourdages seeks to rebut that presumption to show the monies, if they were ever advanced, were actually a gift and not a loan.

101On this issue, I agree that Ms. Bourdages has rebutted the presumption of a resulting trust and the evidence of the promissory note. I was persuaded to this conclusion by the lack of evidence of repayment by Mr. Macey and the fact that Ms. Bell has not taken any steps to enforce the terms of the note.

102Mr. Macey is not entitled to claim a deduction in respect of this transaction with Ms. Bell in regards to his net family property on the date of separation.

Date of Marriage Loans for Mr. Macey

103There were four alleged loans that Mr. Macey had at the date of marriage. One, Mr. Macey admits, but there is a dispute as to the quantum of the loan. The other three, he denies existed at all as of the date of marriage.

104I will deal with them in turn.

(1) Debt to the CRA

105Mr. Macey admits he owed the Canada Revenue Agency money on the date of marriage. He says it was only $2,260.00. Ms. Bourdages say it was $18,997.67.

106Both parties submitted documents in support of their position. Mr. Macey submitted a two-page CRA Statement of Account dated May 21, 2022 (the “Statement”) showing transactions commencing February 27, 2017 and ending December 11, 2017. The closest entry to the date of marriage was June 29, 2017 and it showed a balance owing at that time of $2,260.84.

107Ms. Bourdages deposed that shortly after the parties married, she received a phone call from the CRA looking for Mr. Macey. After the call, she claims he “confessed” to her he owed over $20,000.00 in unpaid HST, capital gains and taxes. In support of her argument concerning unpaid taxes as of the date of marriage, Ms. Bourdages submitted Mr. Macey’s 2016 Notice of Assessment (“2016 NOI”) which indicated a balance due of $12,080.67. Ms. Bourdages also submitted Mr. Macey’s 2017 Notice of Assessment (“2017 NOI”) which showed a previous account balance of $7,099.05 owing.

108Ms. Bourdages also submitted a document she claimed was an email from September 2017 wherein Mr. Macey “admitted” he owed $5,594,00 to CRA for 2015 taxes.

Disposition of this Issue

109To begin, I do not accept as reliable for the truth of the contents, the alleged September 2017 email put forward by Ms. Bourdages. It does not have an email type header showing the date and who it is from and to. This alone is sufficient for me to discount its reliability. Also, it speaks to a 2015 debt, and not the state of the CRA account on the date of marriage.

110Reading the text of the email, it clearly refers to Mr. Macey’s ex-wife, Faith. Also on one reading, it could be an interpreted as a communication to a solicitor. How this email came in Ms. Bourdages’ possession is not clear on the evidence. These problems make it neither reliable nor credible for the purposes of this case.

111As to the other documents submitted by the parties respecting this issue, several items on the Statement and on the 2017 NOI match: the provincial tax owing, the federal tax owing, the total tax deducted, and the total paid by installments. What does not match is the amount owing. The Statement says $2,260.84 is the amount owing, and the 2017 NOI says the amount owing is $12,080.67. The 2017 NOI does not reflect the credit of $5,604.84 as of June 8, 2017, shown on the Statement. However, the balance shown on the Statement of zero as of December 11, 2017, is inconsistent with the amount shown on the 2017 NOI as the previous account balance of $7,099.05.

112When faced with these irreconcilable differences in the documentary evidence, I resolve the issue by finding Mr. Macey’s tax debt to the CRA as at the date of marriage to be $7,099.05. I do this because I am not entirely confident that the Statement shows all the debts owed to CRA by Mr. Macey at the date of marriage because for whatever reason, he only produced pages 2 and 3 of the Statement. I am left to wonder what page 1 set out. I therefore resolve this issue by determining that the amounts argued to be owing by Mr. Macey were actually too low, and the 2017 NOI was the best evidence of Mr. Macey’s debt to the CRA as of the date of marriage.

(2) $7,500 Debt to Mr. Macey’s Father

113Ms. Bourdages refers to the alleged September 2017 email where Mr. Macey refers to “$7500.00” borrowed from his father. Mr. Macey denies he owed his father any money on the date of marriage.

114I am not prepared to find Mr. Macey had such a debt on the date of marriage. I do so because I am not confident in the reliability of the alleged September email for reasons I stated earlier. I am not confident this email is complete or was even made during the marriage.

(3) $1,600 Alleged Debt to Buset’s Firm

115Ms. Bourdages again points to the alleged September 2017 email where Mr. Macey notes “Buset: $1600” under the heading “other debt to be dealt with”. Mr. Macey denies he owed the Buset firm this money on the date of marriage.

116As is the case for the previous item, I am not prepared to find Mr. Macey had such a debt on the date of marriage. I do so because I am not confident in the reliability of the alleged September email. I am not confident this email is complete or was even made during the marriage.

(4) $54,000 Solar Panel Loans

117Ms. Bourdages asserts Mr. Macey had a $54,000.00 debt in respect of solar panels that were used at TL. She bases this claim on a document from Mr. Macey’s divorce proceedings with his first wife, Faith. In particular, she submitted as an exhibit to her trial affidavit, Exhibit QQ, which appears to be a kind of comparative net family property statement, although it is not in the format set out by the Family Law Rules. The statement notes that at date of separation in that marriage, September 26, 2013, Mr. Macey had a solar panel debt of $54,000.00.

118Mr. Macey claims he paid off this debt in 2012 by virtue of a refinancing of TL.

Disposition of this Issue

119I am not prepared to find that Exhibit QQ is reliable for the truth of its contents. I am not sure how this document came in Ms. Bourdages’ possession. It appears to be related to litigation and may have been subject to privilege. On top of the hearsay problem, it raises concerns as to admissibility. Also, there is no evidence how this alleged debt was paid off during the marriage, which is at issue in this case. For these reasons, I find Mr. Macey did not have a $54,000.00 debt related to solar panels on the date of marriage

(5) Return of the Filing Cabinet

120Although this is not a debt issue, I will deal with it under this particular sub-heading. Both parties agree Ms. Bourdages kept a metal filing cabinet belonging to Mr. Macey which, on date of separation, was located at CS. Mr. Macey wants it back. Mr. Macey owned it well before the parties got together and apparently it is well made and sturdy. It had files in it personal to Mr. Macey, but the exact nature and extent of these were not particularized. Mr. Macey suggests Ms. Bourdages obtained several documents from this filing cabinet that she used in this trial, although again, these are not particularized. Ms. Bourdages has repainted and repurposed the filing cabinet and does not want to return it to Mr. Macey. She says she will put an extra $100 in her asset column in respect of this item.

Disposition of this Issue

121Ms. Bourdages can keep the filing cabinet. She will recognize an additional $100.00 in her assets on the date of separation for the purposes of calculating her net family property.

122This particular issue was a waste of court time and resources. I will deal with this when costs are ultimately addressed.

Issue 5. $50,000 Paid by Mr. Macey pursuant to an Aborted Marriage Contract

The Trial Evidence

123On this issue the parties agree as follows.

124The parties temporarily separated from August to October 2019. During the parties’ separation in 2019, Ms. Bourdages vacated TL and retained a lawyer to negotiate a Separation Agreement. No Separation Agreement was ever signed. The parties reconciled later that same year. In 2019, the parties also negotiated a Marriage Contract. The Marriage Contract was never signed. Mr. Macey provided Ms. Bourdages with $51,197 in 2019, from the 218 Trout Lake refinancing. Ms. Bourdages has not paid back this $51,197. There is no written signed agreement requiring the return of this $51,197.

125The parties gave additional evidence in their trial affidavits concerning this issue. Ms. Bourdages deposed that the monies were not paid to her pursuant to this Marriage Contract, but rather in recognition of her various monetary contributions to TL and for the various costs she had to incur due to the temporary separation.

126Mr. Macey deposed he had independent legal advice in respect of the preparation of the marriage agreement and expected it to be signed when he gave the money to Ms. Bourdages. He wants an order that Ms. Bourdages return these funds to him.

Disposition of this Issue

127I am persuaded by the arguments made by Ms. Bourdages on this issue. The monies came from a refinancing of TL. That amount was “baked in” to the debt that Mr. Macey is entitled to claim as a deduction to his net family property on the date of separation. Also, Ms. Bourdages did whatever she did with the money which she was free to do during the marriage. If anything remains, it could not be traced, but forms part of her assets.

128The entire property equalization scheme in the Act is designed to eliminate trials which are forced to return to a tit-for-tat analysis of the minutiae of the day to day of a couples’ economic existence for however long they were married, at least when it comes to the division of their property. It mandates a focus on only two particular points in the relationship, date of marriage and date of separation. The approach is ingenious as it serves to eliminate the ability of family law litigants to air their sometimes sense of grievance, anger and loss arising from separation by bringing to court a never-ending litany replay of whatever allegedly passed between them economically during their marriage. The only time this replay litigation strategy could possibly be relevant is if it had some connection to a claim for a constructive trust which is not the case here.

129The monies that were exchanged in regards to this issue, substantial as they were, were nonetheless part of a back and forth that took place in the unique circumstances of this relationship. It happened. But so did a lot of other things which involved money and property for these two parties. The equalization regime in the Act does not permit or encourage the Court to focus on those mid-marriage issues because they are irrelevant to what was the state of the parties’ assets and liabilities on the date of marriage and on the date of separation.

130The attempt to litigate this issue was a classic example of a fruitless attempt to redress things that by the equalization scheme of the Act are irrelevant. Again, this issue was a waste of the Court’s time and will be dealt with when the issue of costs is addressed.

Issue 6. 13043 Mapleward Adjustments

131The parties agree as follows. The 13043 Mapleward Road property (“Mapleward”) was purchased on June 29, 2018 (during the relationship) with the parties as joint owners. The property was purchased for $135,000, plus expenses. Following the separation, Ms. Bourdages brought a motion in 2023 for the partition and sale of the property which was granted. The 13043 Mapleward Road property was sold in 2024 for $225,000.

132During submissions, counsel for Ms. Bourdages admitted that she owed 50% of the property tax payments for the property from the date of separation to the date of sale. The total taxes paid for the period was $2,605.29. I find Ms. Bourdages owes Mr. Macey $1,302.65. This amount should be reflected as either a credit to Mr. Macey or as an additional sum to be paid by Ms. Bourdages, depending on the ultimate calculation of the parties’ net family property following this interim ruling.

133Mr. Macey had earlier abandoned his claim to be reimbursed for the capital gains taxes he had to pay as the result of the sale. In argument, he also abandoned an argument that he wanted to be reimbursed for his share of the principal for Mapleward.

Disposition of this Issue

134The only issue remaining for adjudication was the question of the carrying costs in the form of interest paid on the funds used to purchase the property at first instance from date of separation to date of sale.

135The total interest paid was not disputed to be $6,930.83. Ms. Bourdages resists paying the amount on the basis that while title to Mapleward was in her name as a joint tenant, her name was not on the mortgage on TL used to finance the purchase, although she remains as a guarantor of this mortgage to this day.

136I do not accept that Ms. Bourdages can escape liability for half the carrying costs of this jointly owned vacant piece of land from the date of separation to the date of sale. In my view, there is no juristic reason for her not to be liable for this debt. A juristic reason implies some equitable principled basis for a particular result. The fact there was no debt registered on title to Mapleward per se, does not eliminate the fact that the money to purchase came from somewhere, and was mostly borrowed. Mr. Macey did carry the bulk of the acquisition cost of the property post separation, as he had to continue to pay the interest on the mortgage on TL which was used to get the majority of the purchase funds. Using an unjust enrichment analysis, Mr. Macey was deprived to the extent of having to pay more than his half the interest payments post separation to sale. Ms. Bourdages was enriched to the extent that she shared in the gain to the property value upon sale. There is no juristic or equitable reason for this result. Mr. Macey did not specifically plead this in his answer. He can amend his pleading if necessary to add this claim to rectify this one occasion of an unjust enrichment on the part of Ms. Bourdages.

Issue 7. Erasure of Contents of the MacBook

137In his trial affidavit, Mr. Macey asserted that Ms. Bourdages maliciously erased all of his electronic files from a MacBook Air that she owned on the date of separation. He also asserted this action caused the files to be deleted from an iCloud account for which it was not entirely clear was owned by him. According to Mr. Macey, these files contained hundreds of irreplaceable family photos, his income tax returns for prior years, and other Canada Revenue Agency pertinent data, a collection of family recipes from relatives since passed away, years of archived emails, digital designs of construction projects, and other items now forgotten.

138Ms. Bourdages admits the contents of the MacBook were all deleted shortly after separation. However, she explains this by Mr. Macey having changed the password to the device before leaving in January 2021. She could not access the MacBook and had to contact Apple for a solution. According to Ms. Bourdages, Apple had to do a remote hard reset which caused all the contents to be deleted from the device.

Disposition of this Issue

139This was another occasion of what I considered petty and disgraceful behaviour being litigated in this matter. I accept Ms. Bourdages’ evidence that Mr. Macey changed the password on the device immediately before separating. From the evidence in this matter, which unnecessarily included far too much detail of alleged bad conduct of both of the parties, it is clear this was not an amicable break-up. Changing a password on a device that was used by two people and not telling the other person the new password is not cool. In my view, it explains why Ms. Bourdages wiped the device in order to set a new password and reuse it. I still do not understand how this eliminated the files in iCloud which I thought was the entire purpose of storing files there. I am sure after the fact, some computer savvy person could tell all of us involved how there would have been a better way to resolve the issue and save all the files. However, I had what evidence I had on this trial, and it was not particularly tech savvy or helpful.

140I am sorry that both people lost precious electronic files when they separated. In the circumstances, I see both parties as equally to blame for this circumstance. No damages will be awarded to Mr. Macey from Ms. Bourdages for this alleged transgression.

141Again, I see adjudication of this particular issue as a waste of the Court’s time.

Issue 8. Waiver of Pension Benefits by Mr. Macey for Ms. Bourdages’ Pension

142The parties agree Ms. Bourdages retired from her long service job with the Workplace Safety and Insurance Board on November 30, 2017. As the parties were married at the time, Mr. Macey was designated as the survivor beneficiary of Ms. Bourdages’ pension.

143Mr. Macey wants to be removed as the beneficiary and to have the asset value of the survivor benefit removed from the calculation of his net family property on the date of separation.

The Law

144Section 67.4(8) of the Pension Benefits Act, R.S.O. 1990, c. P.8, permits Mr. Macey to waive his entitlement, as he indicates in this litigation he wants to do.

145In Fazzari v. Fazzari, 2025 ONSC 6462, Bingham J. stated, at para. 86:

A survivor's benefit pension falls within the definition of "property" in the Family Law Act, R.S.O. 1990, c. F. 3, and prima facie must be included in a spouse's net family property calculation. See the Divisional Court decision in Bennett v. Bennett, [2004] O.J. No. 5808 (Div. Ct.), at paras. 20-27. See also the trial decision in Bennett v. Bennett (2003), 2003 CanLII 1957 (ON SC), 68 O.R. (3d) 619 (S.C.), MacMillan v. MacMillan (2000), 2000 CanLII 22549 (ON SC), 3 R.F.L. (5th) 409 (Ont. S.C.), at paras. 26-28, and Withers v. Withers, 2013 ONSC 1665, at para. 69.

Disposition of this Issue

146The jurisprudence noted above is clear. Despite Mr. Macey asking to waive his entitlement to a survivor benefit of a pension that is in pay, this does not mean he does not have to include it in the calculation of his net family property. It is a contingent asset to which he would have been entitled to recover had Ms. Bourdages died between the date of separation and now. Prima facie, it is to be included in his net family property on the date of separation.

Issue 9. Divorce

147Following the close of submissions, I indicated to the parties I was severing the request by Mr. Macey to move for an uncontested divorce from the other issues in this action. Mr. Macey has leave to bring a motion to obtain an order declaring the parties divorced effective thirty days from the date of the order.

148I was not persuaded that Ms. Bourdages will suffer any prejudice from the making of this order and allowing the divorce to go through in the very near future. The parties have been separated for more than a year. I expect this interim decision will narrow the amount that appeared from the initial calculations Mr. Macey has to pay Ms. Bourdages by way of an equalization. The granting of a divorce will mean Ms. Bourdages is no longer entitled to Mr. Macey's life insurance, health benefits or survivor pension through Hydro One. He has not yet retired from Hydro One, so the pension entitlement is treated differently for family law purposes than if it was already in pay. Mr. Macey argued the current value of the potential survivor pension benefit is in excess of one million dollars. Ms. Bourdages did not challenge this calculation. In my view, this contingent amount is nevertheless far beyond any security Ms. Bourdages may be able to reasonably request once the ultimate equalization payment is determined, plugging in the calculations from this interim judgment to the numbers already agreed by the parties.

149For this reason, I find it just and equitable to the parties for the divorce relief to be severed and Mr. Macey given leave to obtain an order for a divorce before the other matters are finally determined.

Next Steps

150The parties shall forward to my judicial assistant the final net family property calculation in the Form set out by the Family Law Rules. The trial coordinator will then reach out to the parties to set a date for a trial management conference, where the parties can set a date to argue the unequal division claim by Mr. Macey if he indeed determines to continue with this claim. If the unequal division claim is not pursued, then the next date will be used to argue the issue of security for any equalization payment and costs.

The Hon. Mr. Justice F.B. Fitzpatrick

Footnotes

1. 1852,000 – 670,000 = 182,000\670,000 = 0.2716.