Assuming the facts as related were accurate, one cannot argue with the substantive result in this case. Only in the most extreme cases should children be denied a relationship with a parent. What this writer does protest is the manner in which the order was made. It is a basic principle of our common law legal system that contested temporary or interim orders are made based upon sworn evidence. That sworn evidence is subject to testing and probing through cross-examination. Once we allow contested orders to be made based upon unsworn reports and unsworn submissions in briefs, from there it is not too far a stretch to rely upon ad hoc submissions of lawyers. We thus descend into sheer anarchy. (Indeed, at paragraph #18, Her Honour bases her decision in part on the contradictory submissions of counsel with respect to the degree that father’s counsel was involved in negotiations to expand the access.) We will be left with a free for all, “anything goes” system at case conferences. We may as well throw any basic concepts of procedural fairness out the window if the Chand decision is followed.

What is distressing to those of us who toil in the family law trenches is that Chand – like decisions are made all too frequently by judges who are prone to run roughshod over the rules and basic principles of procedural fairness. These judges bank on the following factors:
1. Clients lack financial resources to apply for leave to appeal.

2. The time involved to effectively process a leave to appeal motion and to argue an appeal if leave is granted effectively discourage such motions.

3. Events in family law often move rapidly so that the new reality on the ground supersedes the situation making the leave motion or appeal if leave is granted largely academic.

The net result is that it is difficult to mount any effective legal challenge to judicial over stepping of reasonable boundaries.

To intellectually support her decision, the judge relied upon the “primary objective” rule that we know so well: “The primary objective of these rules is to enable the court to deal with cases justly.” She also relied upon Rule 2(3) which encourages all of us involved in this system to deal with cases in a manner that saves expense and time and takes due cognizance of court resources. This writer submits that nothing in the Family Law Rules ought to trump a cardinal principle of our system that contested orders must be based upon evidence. And “evidence” must be sworn. It’s basic.

There were alternatives open to the court. The judge could have directed that the parties file affidavit material and that the matter proceed as a motion on an urgent and expedited basis. The judge could have attempted to persuade the father to accept an expanded access regime on consent, telling the further that if these facts were to come before the court on motion, there would be very little doubt as to the result. But to make an order that was not supported by sworn evidence is far too serious a departure from elementary principles of procedural fairness upon which our legal system is based.

Counsel for the father has filed a motion for leave to appeal.

Gene C. Colman practises family law from Toronto. He is a Founding Editor and Advisory Board Member of the Canadian Journal of Family Law. The views expressed here are entirely his own. Comments (both pro and con) are welcome.

SUPERIOR COURT OF JUSTICE

Herman J.

[1]          The applicant wife, Ms. Apollonia Chand, and the respondent husband, Rabindar Chand, separated on May 1, 2012, after almost 41 years of marriage.  Each now seeks an equalization payment from the other.

[2]          The wife seeks: an equalization payment of $73,678.50; the payment of $60,000, which Mr. Chand paid for her interest in the cottage and is currently being held in trust; the return and division of various personal and household items; security for costs and the equalization payment; and a divorce.

[3]          The husband seeks: an equalization payment of $80,000; and the return of artwork.  He does not object to the granting of a divorce.

Background

[4]          The parties married on September 13, 1971 and separated on May 1, 2012.

[5]          They have three adult children.

[6]          The husband purchased the wife’s interest in the matrimonial home and their cottage for $250,000 and $60,000, respectively.  The wife has received the $250,000.  The $60,000 was paid into the trust account of the real estate lawyer and remains there, pending court order.

[7]          The husband resides in the matrimonial home (although he was temporarily residing with his daughter at the time of the trial).

[8]          By order of Paisley J., dated January 16, 2013, the husband was ordered to pay costs to the wife of $4,908 within thirty days.  Those costs have not been paid.  They have been secured against the cottage and the matrimonial home by order of Czutrin J., dated April 2, 2013.

[9]           On May 15, 2013, Kiteley J. ordered the husband to pay costs of $2,000 by May 24, 2013.  These costs had not been paid as of May 23.

General comments on credibility

[10]      I have significant concerns with the husband’s credibility.

[11]      There is no doubt that the husband did not tell the truth when he stated, at his questioning on October 15, 2012, that he and his sister never e-mailed each other, his sister did not have an e-mail account and she did not have a computer.

[12]      The questions related to a central issue in dispute, that is, the husband’s claim that funds in two of his bank accounts at the time of separation belonged to his sister.  The husband did not disclose the existence of these funds until they were discovered by the wife.

[13]      The husband’s position is that he did not have to tell the truth about the existence of e-mails because he believed the wife had improperly obtained copies of the e-mails from his computer.

[14]      This matter was pursued at trial.  The following interchange took place during the husband’s cross-examination:

Q: Did you take that oath [to tell the truth at the questioning] seriously?

A: No.

Q: And you didn’t take that oath seriously?

A: No.

Q: You don’t take oaths to tell the truth seriously?

A: I do, I do, but it is when the truth has to come out.  But when the truth doesn’t have to come out, when it’s stolen property.  I’ve, I’ve, with your questioning, I found out that the property was hacked from my computer.  I wanted you to bring evidence here so I said no.  …

[15]      The husband appears to believe that an oath to tell the truth is qualified: it only applies if he feels “the truth has to come out”.   Given the husband’s view of the meaning of an oath, it is difficult to accept his testimony at trial, where that testimony is not corroborated.

[16]      I do not have similar concerns with the wife’s testimony.  I found her testimony to be forthright and consistent with other evidence.  To the extent that the husband’s and wife’s evidence differs and the husband’s testimony is uncorroborated, I prefer the wife’s evidence.

Equalization of Net Family Property

[17]      The wife claims an equalization payment of $73,678.50; the husband claims an equalization payment of $80,000.

[18]      The valuation date is May 1, 2012, the date of the parties’ separation

[19]      There are two main issues in dispute:  (i) funds in two of the husband’s bank accounts, amounting to about $74,000 at the time of separation, which the husband claims belonged to his sister; and (ii) artwork created by the wife’s mother, which the wife claims she received either as a gift or an inheritance and is of little monetary value, and which the husband claims was a gift to both of them and is worth about $75,000.

[20]      The wife’s equalization claim is reflected in her Net Family Property Statement (“NFP”), dated May 20, 2013 (attached as Appendix A).  There is one minor change to that NFP resulting in a reduction of less than $200.

[21]      The husband did not present a calculation to explain how he arrived at his claim of $80,000.  He prepared an NFP, dated January 14, 2013.  However, the values in that NFP appear to be based on a valuation date of January 13, 2013, nine months after the parties’ separation date.

[22]      The husband’s most recent Financial Statement, dated March 18, 2013, states that the valuation date is March 18, 2013 and has identical values for “valuation date” and “today”.  He agreed, on cross-examination, that this was incorrect.

Admissibility of e-mails

[23]      Before determining whether the funds in two of the husbands’ bank accounts are subject to equalization, I first have to determine the admissibility of four e-mails between the husband and his sister, Ms. Rita Singh.  I permitted examination on the e-mails during the trial but reserved my decision on their admissibility.

[24]      The husband submits that the e-mails are inadmissible because the wife stole them from his computer.

[25]      The wife points out that there is no proof that she stole the e-mails.  She submits that the e-mails should, in any case, be admissible.

[26]      A similar situation arose in the case of Grassie v. Grassie, 2013 ONSC 1198 (CanLII), 2013 ONSC 1198 (S.C.J.).  In that case, the husband had accessed the wife’s e-mails without her consent.  The wife sought to remove the e-mails from the Continuing Record.  Trousdale J. found that the wife had a reasonable expectation that her private e-mails would be confidential.  In deciding that the e-mails should be removed, the judge considered the following three factors: (i) whether the evidence was relevant to the issue and whether it was available by other means; (ii) whether the person seeking to introduce the e-mails did anything improper to obtain them; and (iii) whether the probative value outweighed the prejudicial effect of admitting the e-mails.

[27]      In view of the circumstances of this case, it is my opinion that it is appropriate to admit the four e-mails as evidence.  The e-mails are clearly relevant to a central issue in this case, that is, the source, purpose and ownership of the funds in the husband’s bank accounts.  The evidence is not available through other means.

[28]      While I do not condone someone accessing another person’s computer without their permission, if that is what happened, the husband does not have clean hands.  The wife attempted to obtain copies of the e-mails through the legitimate process of questioning.  The e-mails were compellable evidence.  The husband denied their existence and lied under oath.  In these circumstances, he should not be able to benefit from their exclusion.

The husband’s bank accounts

[29]      The amounts in the husband’s bank accounts at the valuation date that are set out in the wife’s NFP are accepted by the husband with the exception of: two bank accounts in which the husband had $32,652.81 and $41,543.06 at the valuation date, which he says belonged to his sister; a bank account with the proceeds of sale of a Florida property; and one minor undisputed change to the bank account he holds jointly with his mother.

[30]      The husband claims that the money in the two bank accounts belonged to his sister, Ms. Singh, who lives in India.  The money was intended for their mother’s care when she was in Canada.  When the mother returned to India, he had to return to money to his sister.

[31]      The wife does not accept the husband’s explanation.  According to her, the husband’s sister never sent any money to look after the mother.  The wife believes the funds in the two accounts were the husband’s money, and came either from the sale of a property in India or another unknown source.  She believes the husband transferred the money out of his accounts shortly after being served with her divorce application, in order to avoid it from being equalized.

[32]      The husband did not disclose the existence of these accounts in his Financial Statement of July 10, 2012.  When the husband was asked about the nondisclosure at trial, he said he did not have to disclose the accounts because they were someone else’s money.

[33]      The wife discovered the existence of the accounts in about September 2012, when she found some bank slips.

[34]      The funds were then disclosed in the husband’s NFP, dated January 13, 2013, as: “Gifted Money from sister (returned Oct 10^th 2012)”.

[35]      According to the bank statements, significant funds were deposited into the two accounts in May and June 2011. The husband’s mother came to Canada in October 2011 and left Canada on January 13, 2012.  The accounts were closed on June 4, 2012.  The divorce application was served on May 27, 2012.

[36]      There is documentary evidence that the money was returned to India, to the account of the sister’s son, in October 2012.  According to the husband, he tried to return the money in June 2012, but there was a problem and the money was eventually sent in October.

[37]      The sister testified that the money was returned in August or September 2012.  She said the money was deposited into her son’s account because she had tax problems.

[38]      The bank statements show debits both before and after the mother’s stay in Canada.  The husband acknowledged that he continued to use money from the two accounts after his mother left Canada to pay some bills and for his living expenses.

[39]      The sister provided an affidavit, dated September 6, 2012.  In that affidavit, she stated that her mother was going to reside permanently in Canada with her brother starting in October 2011.  Her mother did not have any health insurance coverage or a health card in the first few months.  The sister offered the money for the upkeep of their elderly mother.  It was a mutual understanding between her and her brother that they would share the costs of upkeep for their mother.  She transferred $90,0000 to her brother from her sale of property.  The mother was forced to return to India in January 2012.  After her return, “my brother returned back the money which did not belong to him”.

[40]      At the husband’s questioning, his counsel made the following undertakings: to advise if Respondent’s counsel or her office has had any contact with Respondent’s sister with respect to the Affidavit; to advise who prepared the Respondent’s sister’s Affidavit; and to advise what information was provided to the Respondent’s sister to assist her in the preparation of the Affidavit.  These undertakings were not complied with.

[41]      At the trial, the sister testified that she sent her brother the money because their mother was coming to Canada.  Her mother did not have medical benefits and her brother wanted to renovate the cottage for their mother.  When the mother returned to India, there was no reason to leave the money with her brother and it was returned.

[42]      The sister said she got the money from the sale of a property in India.  She said she was the sole owner of a shop in a complex. The deed to the property shows the sister as the sole owner.

[43]      The sister testified that the agreement of sale for the property was entered into in March 2011 but it did not close until June 2011.  She received the money from the sale between March and June 2011.

[44]      While the sister and the husband both testified that the husband did not have any interest in the property, the wife testified that when she and the husband were in India, he pointed out a property that belonged to him.

[45]      The sister testified that she began to transfer money to her brother for their mother’s care in July or August 2011, in preparation for the mother’s arrival in October and to give her brother funds to fix up the cottage for her.

[46]      In an e-mail dated August 28, 2012, the husband wrote his sister: “Rita the shop in Mumbai was never on my name. It always belonged to u didnt it.Let me know as per her the shop was on both our names.Thats what she told her lawyer”.

[47]      A second e-mail, dated September 26, 2012, is from the sister to the husband: “hi roby I was just thinking that manu [her son] has an account in bank of india in case u want please find out from icici bank if u can transfer your money in his account in bank of india…”.

[48]      It is likely that there was other e-mail correspondence between the sister and the husband, which might have shed further light on this issue.  There are excerpts from five e-mails at the side of the first e-mail. The sister testified that she e-mailed her brother once or twice.  When she was shown the e-mails, with excerpts from five e-mails, she agreed that there could have been more than five e-mails. The husband said there were lots of e-mails but he deleted them all because the wife went into his computer.

[49]      I find that the money in these two accounts belonged to the husband and is not excluded property.  In making this finding, I rely primarily on the following: the husband did not disclose the existence of the accounts until they were discovered by the wife; after the accounts were discovered, the husband referred to the funds as “Gifted Money” in his NFP, not as his sister’s money; the husband lied about the existence of e-mails between him and his sister; the husband did not comply with the undertakings concerning correspondence with the sister; the sister testified that the money was sent in July or August 2012, several months after the funds appeared in the husband’s accounts; the funds were deposited into the husband’s accounts long before the mother’s arrival in Canada and stayed in the accounts long after her departure; the husband used money from the accounts prior to and after the mother’s stay in Canada; the husband admitted he used funds from the accounts for personal reasons unrelated to the care of the mother; the sister referred to “your [the husband’s] money” in the e-mail; and the accounts were closed one week after the husband was served with the wife’s application in this proceeding.

[50]      The husband also challenges the inclusion of an account which contains his share of the proceeds of sale of a property in Florida.  The account has about $28,500 (U.S.) in it.  The property was sold in 2003.  The parties each put their half-share of the proceeds into their own bank account.  The funds do not qualify as excluded property within the meaning of s. 4(2) of the Family Law Act, R.S.O. 1990, c.F.3.  They should therefore be included in the calculation of the equalization payment.

The wife’s bank accounts

[51]      The husband raises two challenges to the wife’s statement of funds in her bank accounts at the time of separation.  The husband claims: (i) the wife intentionally depleted her funds just prior to filing her application for divorce; and (ii) the wife had a balance of $60,000 in one of her bank accounts, which she has not claimed.

[52]      The first issue is the alleged depletion of the wife’s bank accounts in contemplation of their separation.  The husband pointed to withdrawals from the wife’s bank accounts.  However, the bank statements show that most of the withdrawals were, in fact, transfers from one bank account to another.  The wife explained that one withdrawal was to pay for car insurance and repay her brother.

[53]      The second issue relates to an ING investment savings account of the wife’s.  According to the wife’s NFP, there was $4,190 in that account at the date of separation.  This is the balance that is shown in a copy of a bank statement from that account on April 30, 2012.

[54]      A statement accessed from the Internet appears to show different balances.  At the top of the statement it states that there is a balance of $60,264.44.  There is no date next to this balance.  However, the bottom half of the page shows an “Account History”, with monthly balances between December 2008 and August 2009, which range between a high of $8,202.10 and a low of $3,202.10.

[55]      The wife could not explain why this second statement showed a balance of $60,264.44.

[56]      The evidence supports the finding that the balance in this account was $4,190 at the date of separation.  This amount is reflected in the wife’s bank statement.  It is unclear what the $60,264.44  balance in the second statement refers to.  There is no date.  The “Account History” portion of the statement shows a very different picture, with $3,202.10 as the last balance on August 30, 2009, three years prior to separation.

Artwork from the wife’s mother

[57]      The wife claims that the artwork received from her mother was given solely to her by way of gift or inheritance.  She also claims it has no commercial value.

[58]      The husband claims that the artwork was given to both him and his wife and is worth about $75,000.

[59]      A significant quantity of art is at issue: a number of clay and bronze statues; ceramic plaques; figurines; wall hangings; and paintings.

[60]      According to the wife’s testimony, all the art was either given to her during her mother’s lifetime or inherited from her mother after her death.  The wife’s mother passed away on January 12, 2001.

[61]      The wife said her mother never gave art to her and her husband.  According to the wife, her mother did not like the husband and was adamant that he would not receive any art.  The wife said her mother came to Canada to visit every other year and she would give the husband gifts such as a bottle or alcohol or cigarettes.

[62]      The wife testified that her mother gave her art to family members and others as gifts.  She never sold the art.  The wife said she also never sold or tried to sell any of the art.  For her, the art has emotional, not financial, value.

[63]      The wife’s brother, Johannas van Heezik, testified.  The brother lives in the Netherlands, where the mother lived until her death.

[64]      The brother testified that his mother made figurines and paintings as a hobby.  She gave them as gifts to her children and the children of friends.  She only made money once from her art.  That was when a city in the Netherlands asked her to create a series of figures.  She received about $3,000 for the work.

[65]      Also according to the brother, all the art after the mother’s death went to him, his sister and the grandchildren.  The mother did not leave anything to the husband.

[66]      The brother said that when his mother visited Canada, she gave the husband gifts such as cigars, but definitely not the statues.  According to him, the mother got along with the husband but she was afraid of what would happen between the husband and the wife because of problems between them.

[67]      The husband testified that the mother gave the artwork to him, the wife and their children, not just to the wife.  He said he knows the art is worth a lot of money from watching antique shows on television.

[68]      There is no reference to artwork in the wife’s first Financial Statement.  In her second Financial Statement, dated January 9, 2013, the wife lists two bronze figures and a ceramic plaque, valued at a total of $1,120.  In her NFP, filed at the trial, the wife includes “gifted and inherited art work, minimal value” as excluded property.

[69]      The husband does not refer to the artwork in either of his two Financial Statements.  In his NFP, he lists “statues, artefacts, paintings, 4 antique clocks” as belonging to his wife and worth $75,000.

[70]      I am satisfied from the evidence that the artwork belonged to the wife, and was given to her either as a gift or as an inheritance.  As such, it is properly excluded.  In any case, I am also satisfied that it is of minimal financial value.

Clocks

[71]      The husband includes four antique clocks in the property owned by his wife.  He claims they are valuable based on what he has seen on television antique shows.  He did not place an individual value on the clocks but included them with the art as having a total value of $75,000.

[72]      The wife’s testimony was that she had three clocks. She said the value of the clocks is no more than €30 and none of them work.

[73]      According to the wife, she inherited one of the clocks from her paternal grandmother, which she gave to her son to have repaired.  She brought another clock with her from Holland in the 1970s.  She inherited a third clock from her mother, which does not work.

[74]      I find that at least two of the clocks are gifts or inheritance and the value of the three clocks is minimal.

Property in Holland

[75]      The wife and her brother inherited their mother’s home in the Netherlands when she passed away in 2001.

[76]      The husband accepts that the property is inherited and therefore excluded, but he believes that the wife has received income from the property which she has not disclosed.

[77]      The husband also believes the property is worth more than the value placed on it by the wife.  However, given that it is excluded property, the value of the property has no impact on the equalization claim.

[78]       The wife and her brother still own the property.  They rent out the property to an elderly aunt who lives there with her child.  The brother, who lives near the house, has assumed responsibility for the maintenance.

[79]      According to the evidence, the home is rented out for €408.40 Euros a month.  The brother testified that the rent is low because his aunt is elderly, has a small pension and is looking after her disabled son.

[80]      According to the brother, there is no income from the house: the rent just covers the taxes and the cost of maintenance.  The brother said his sister was agreeable to the low rent as long as the rent covered the costs of maintaining the property.  She does not want to have to put any money into the property.  As a result of this agreement, the brother said he does a lot of the work himself and he does not do certain repairs that otherwise should be done.  Maintenance on the home has included replacing the window frames and painting.

[81]      Last year the assessed value of the house was €200,000 Euros.  The taxes were €2,400.

[82]      The husband does not believe that the house requires as much maintenance as the brother claims.  He pointed to the fact that some of the documents presented as evidence are only estimates, not invoices reflecting actual work done.  The brother explained that the estimates relate to work that needs to be done in the future.

[83]      The brother’s testimony that there was no additional income from the house was believable, in view of the rent, taxes and reasonable costs of ongoing maintenance.  His testimony was supported by documentary evidence.

[84]      I therefore find that there is no undisclosed income from the rental of the house.

The husband’s cars

[85]      According to the wife’s NFP, the husband had a Mercedes Benz, a Dodge Dakota, a 1999 ATV and a trailer worth $4,100, $1,000, $1,000 and $500, respectively, at the date of separation.

[86]      In the husband’s first Financial statement, he claimed the Mercedes Benz, Dodge Dakota, ATV and trailer were worth $6,000, $2,000, $1,000 and $500, respectively.

[87]      In the husband’s NFP dated January 14, 2013, the husband valued the vehicles at $4,100, $1,000, $1,000, $1,000 and $500, respectively.

[88]      The Endorsement of Goodman J. from the parties’ Trial Management Conference on March 11, 2013, states that: “For Trial purposes, Ms. Chand accepts the values that Mr. Chand has placed in the automobiles in his Net Family Property Statement dated January 14, 2013.”  These are the values in the NFP the wife presented at trial.

[89]      At the trial, the husband claimed lower values, as reflected in his second Financial Statement, dated March 18, 2013.  According to that Statement, the Mercedes Benz and Dodge Dakota were worth $1,450 and $500.  The husband lowered the values of the ATV and trailer to $500 and $200.

[90]      The husband did not provide any evidence at trial of these revised values.  Although he said they were based on the Black Book values, he did not provide any evidence that this was the case.  According to the husband’s second Financial Statement, which reflects the values the husband claimed at trial, the claimed values are based on a March 2013 date, not the valuation date.

[91]      In view of the lack of supporting evidence, the husband’s changing position and the wife’s willingness to accept the husband’s position of January 2013, it is reasonable to accept the values reflected in the wife’s NFP.

The wife’s car

[92]      According to the wife’s NFP, she had a Toyota Corolla worth $2,000 at the date of separation.  The same amount is reflected in her two Financial Statements.

[93]      In the husband’s NFP, he placed the same value, that is, $2000, on the Toyota.

[94]      At the trial, the husband claimed the Toyota was worth $4,000.

[95]      In the circumstances, it is reasonable to accept the wife’s value of $2,000.  The husband appeared to have accepted that value prior to trial, as reflected in his NFP.  He provided no explanation for the change in his position.

Jewellery

[96]      The wife does not claim any amount for jewellery on her NFP.  She claims that the jewellery she owns was given to her or inherited.  Further, she says that most of it is no longer in her possession.

[97]      According to the husband’s January 13, 2013 NFP, the wife’s jewellery is worth $15,000, which amount should be included in family property subject to equalization.

[98]      At trial, the husband gave his opinion that the wife’s gold bangles were worth $4,000 and her gold chains were worth $6,000.

[99]      The wife testified that she no longer has any jewellery, except for a coin she wears around her neck, which she inherited from her grandmother.   According to the wife, she and her husband kept valuable items, including jewellery, in a bag hidden in a secret place.  When the wife checked the hiding place, the bag was no longer there.  The wife said she subsequently saw her husband wear a bracelet that had been in the bag.

[100]                          The husband disputes the wife’s claim.  He claims the wife has the jewellery.

[101]                          The husband pointed to a letter written by the wife’s lawyer that refers to “all personal items that she has packed up, including all of her gold and jewellery and gifted items from her family”.

[102]                          In view of my concerns with the husband’s credibility, I accept the wife’s testimony on this issue.  I note that the letter, upon which the husband relies, was written by the wife’s lawyer, not by the wife.

[103]                          There being no jewellery in the wife’s possession, there is nothing to value.  The wife did not include the husband’s jewellery in her equalization claim.

Miscellaneous household and personal goods

[104]                          The husband says the wife did not include her computer, IPad, IPhone and lap-tops in her NFP.  He estimates they are worth about $800.

[105]                          However, the husband also did not include any of his possessions in his NFP, with the exception of his jewellery, coins and cars.

[106]                          In the circumstances, I decline to include the value of any items, other than the parties’ cars.

[107]                          At the conclusion of the trial, the parties were able to agree to the wife’s removal of certain items from the matrimonial home.  An endorsement was made to reflect their agreement.

[108]                          There are household items that remain in dispute, such as tools and kitchen items.  It is not possible for me to determine the ownership of these items or how they should be divided.  I would encourage the parties to resolve the division of the remaining items.  If they are unable to come to an agreement within 60 days, the items should be sold and the proceeds of sale divided equally.

Equalization payment

[109]                          In the result, I accept the wife’s calculation of the NFP.  It reflects the wife’s NFP filed at the trial (see Appendix A), with one change: the husband’s half of the bank account he holds with his mother has a value of $532.50 instead of $821.87.

[110]                          The husband shall therefore pay the wife an equalization payment of $73,678.50.

Money in trust

[111]                          The husband purchased the wife’s interest in their cottage for $60,000.  The money remains in the trust account of the real estate lawyer.

[112]                          The $60,000 and any interest that has accrued shall be released to the wife.

Security for costs and equalization payment

[113]                          The wife seeks security for costs and for the equalization payment.

[114]                          Rule 24 (13) of the Family Law Rules, O. Reg. 114/99 as am., provides that a court may make an order for security for costs if there is an unpaid costs order.   Section 9 (b) of the Family Law Act provides a number of mechanisms where there is a concern that an equalization payment may not be paid: the equalization payment may be secured against a property, property may be transferred or vested in a spouse or property may be partitioned or sold.

[115]                          The husband has not paid the costs order of $4,908, ordered to be paid within 30 days after January 16, 2013. At trial, he said he did not pay it because he did not have the money.

[116]                           By order of Paisley J., dated December 20, 2012, the husband is not permitted to mortgage the matrimonial home for more than $250,000.  By order of Czutrin J., dated April 2, 2013, the costs of $4,908 were secured against both the cottage and the matrimonial home.

[117]                          As of the end of the trial, the husband had not paid a second costs order, payment of which was due the following day.  At trial, he said he would be unable to pay it.

[118]                          When the husband was asked how he would be able to pay an equalization payment when he could not pay the costs, he said he would have to get a loan.

[119]                          According to the husband’s most recent Financial Statement, dated March 13, 2013, his sole source of income is $485.04 a month from CPP.  His only significant assets are the matrimonial home and the cottage and about $71,000 in savings and RRSP’s.   The husband took out a loan of $60,000 to purchase the wife’s interest in the cottage, which loan is still outstanding.  He has a mortgage of $250,000 on the matrimonial home.

[120]                          In view of the husband’s financial circumstances, the non-payment of at least one costs order and the animus between the parties, I have a significant doubt as to whether the father will comply with the requirement to pay the equalization payment or costs orders without further enforcement mechanisms being put into place.

[121]                          Accordingly, the equalization payment, including any interest, the two costs orders made on January 16, 2013 and May 15, 2013, and any subsequent costs order I make arising from this trial, shall be secured against the matrimonial home located at 31 Kent Road, Toronto.

[122]                          The husband shall not further encumber the matrimonial home except for the purpose of satisfying the equalization payment and costs orders, in which case the written consent of the wife is required.  The husband shall continue to maintain the insurance on the house.

[123]                          The wife may register this order on title.

[124]                          Upon payment of the full amount owing, the wife shall obtain an order setting aside the security registered on title.

[125]                          If the payment of the full amount owing is not made within 90 days, the husband shall take immediate steps to list the house for sale.

[126]                          If the husband does not take all reasonable steps to sell the house, the wife may return to court for an order that she have carriage of the sale.

[127]                          In either case, the money owed to the wife shall be paid out of the proceeds of sale.

Divorce

[128]                          The wife seeks a divorce.  The husband does not object.

[129]                          A divorce is granted, to take effect in thirty-one days.

Costs

[130]                          I would encourage the parties to resolve the matter of costs.  If they are unable to do so, they may provide written cost submissions.  The wife’s submissions should be provided within 14 days of the release of this decision.  The husband’s responding submissions should be provided within 14 days thereafter.  The submissions shall not exceed five pages in length, plus a bill of costs.

___________________________

Herman J.

Released:       June 28, 2013