





CITATION:
Barker v. Barker, 2011
          ONCA 447



DATE: 20110610



DOCKET: C51708



COURT OF APPEAL FOR ONTARIO



Rosenberg, Moldaver and Feldman JJ.A.



BETWEEN



James Anthony Barker



Applicant (Appellant)



and



Hi-Sook Barker



Respondent (Respondent in Appeal)



Kenneth J. M. Coull, for the appellant



Amelia Yiu, for the respondent



Heard: March 18, 2011



On appeal from the order of Justice A. W. Bryant of the
          Superior Court of Justice dated January 15, 2010.



By The Court
:



[1]

This appeal involves a dispute over a matrimonial home
    between a husband and wife who separated in 1994 and divorced in 1995.

[2]

In October 2008, the husband brought an application for
    Partition and Sale of the matrimonial home under the
Partition and Sale Act
, R.S.O. 1990,
c.P
.
    4 and Rule 66 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. The wife resisted the application and
    Bryant J., the application judge, refused to grant it. Instead, pursuant to an
    earlier interim order made by MacLeod-Beliveau J., he considered what it would
    cost for the wife to pay out the husbands share of the equity in the home, taking
    into account various set-offs the wife was claiming against his share. That
    exercise resulted in the husband owing the wife more than his share of the equity.
    Accordingly, the application judge ordered the husband to transfer his 50
    percent interest in the home to the wife for $1.  In return, the wife was to release him from all
    her claims against him.

[3]

The husband appeals from that order. He raises various
    grounds of appeal in an effort to have it set aside and replaced with an order
    requiring that the matrimonial home be sold and that the net proceeds from the
    sale be divided equally between him and his ex-wife. For reasons that follow,
    we would dismiss the appeal.

Background

[4]

The
    husband and wife married in 1977. They had two children who are no longer
    dependants. One was born on May 3, 1978 and the other on April 19, 1983.

[5]

On
    December 31, 1987, the husband and wife purchased the matrimonial home for
    $246,490. They took title as joint tenants. The husband made a down payment of
    $31,490 and the couple assumed a mortgage in the amount of $215,000. The
    property was refinanced in August 1990 and the couple entered into a new
    mortgage in the amount of $225,000.

[6]

The
    marriage was a traditional one. The husband worked for an insurance company and
    took responsibility for the finances. The wife stayed at home and raised the
    children.

[7]

On
    January 8, 1994 the couple separated. The wife and children remained in the
    matrimonial home and the husband moved out. The husband and wife were divorced
    on March 23, 1995 and the husband remarried later that year.

[8]

The
    husband retained counsel who prepared various draft separation agreements in
    1995. The wife refused to sign these agreements and the couple never did enter
    into a formal separation agreement. They did, however, trade correspondence
    back and forth and eventually settled on an agreement which saw the husband pay
    the wife $2,500 per month from 1994 to January 1998 and $2,000 per month
    thereafter until June 2001, when he unilaterally terminated the payments.

[9]

In
    September 1995, the husband, now remarried, moved to England. In 2001, the
    husband wrote to the wife and told her that he could no longer keep up the
    payments. He asked her to sell the house and share the proceeds with him; in
    the alternative, he suggested that she could buy out his 50 percent interest.
    The wife replied that she was not willing to sell the house. She planned to
    remain in it and pay off the mortgage over the next ten years. She would then
    sell the home and the proceeds would be available for his and her retirement.
    Notably, she did not relieve the husband of his financial obligations to her
    and the children.

[10]

The
    husband did not respond to the wifes letter. Indeed, she did not hear from him
    again until 2008 when he commenced the application for Partition and Sale,
    almost a year after he had returned from England to Canada.

Issues and Analysis

[11]

On
    the application, the husband and wife disagreed as to how the payments previously
    made by the husband should be characterized. The wife claimed that they were
    solely for child support; the husband maintained they were for child and
    spousal support and that they were to be used in part by the wife to make the
    mortgage and tax payments on the matrimonial home.

[12]

The
    application judge sided with the wife on this issue and found that the payments
    made by the husband to the wife from 1994 to 2001 were for child support only.

[13]

In
    light of that finding and the husbands failure to make any payments to the
    wife after 2001, the application judge concluded that the husband was not
    entitled to share in the capital appreciation of the property because he did
    not make any contributions to preserve the asset after 1995.

[14]

The
    husband submits that the trial judge erred in law in concluding that he was not
    entitled to share in the capital appreciation of the property. He further
    submits that the trial judge failed to give adequate reasons for finding that
    the payments he made to the wife were for child support only. In support of
    this, he points out that the trial judge effectively ignored his evidence on
    the subject and gave no reason for rejecting his testimony in which he
    explained various items of evidence that he claimed only appeared, on their
    face, to contradict his position and support the wifes position.

[15]

We
    think there is much to be said for the husbands position on both of these
    issues.

[16]

We
    are also troubled by the manner in which the application judge disposed of the
    husbands claim for occupation rent. The husband complains that the application
    judge erred in drawing on the equitable doctrine of laches to defeat his claim.
    Whether he is right or not on this is something we need not finally decide.

[17]

On
    our view of the case, occupation rent and the other two issues raised by the
    husband  the proper characterization of the payments and his entitlement to
    share in the capital appreciation of the property  have no bearing on the
    outcome of the appeal. In so concluding, we do not disagree with the outcome
    reached by the application judge; we simply approach the case from a different
    perspective.

[18]

Based
    on the record, it is apparent to us that in 1995, after the wife and husband separated,
    they entered into an agreement whereby the husband agreed to pay the wife
    $2,500 per month.  Obviously, this amount
    would decrease as the children became self-sufficient.

[19]

For
    present purposes, we are prepared to accept the husbands position that the
    payments made by him were meant to include child and spousal support and that the
    wife was to use the funds, in part, to pay the mortgage and taxes on the
    matrimonial home. In return, the wife could continue to reside in the home rent
    free and at some future time, when the home was eventually sold, the couple
    would share equally in the net proceeds.

[20]

In
    preparation for the application, the husband had the home appraised in October
    2008 and it was valued at $380,000. At that time, it was encumbered by a
    mortgage in the amount of $101,658 which the wife had carried
on her own
since 2001. Hence, on a sale of the home, the
    gross proceeds would have been approximately $278,000. Taking real estate
    commissions, solicitor fees and other expenses into account, the net proceeds
    would likely have been somewhere in the vicinity of $265,000 to $270,000.

[21]

On
    that scenario, all other things being equal, the husband would have been
    entitled to receive approximately $135,000 on the sale for his share of the equity.

[22]

But
    all other things were not equal. The husband breached the agreement when he
    unilaterally stopped making monthly payments to the wife in 2001. By the time
    he brought on the application for Partition and Sale in 2008, assuming that
    after 2001, he was only required to pay $1,500 per month, he owed the wife at
    least 7 years worth of payments plus interest. Interest aside, that comes to
    $126,000. With interest, the amount owed by the husband would exceed the $135,000
    he was entitled to receive for his share of the equity.

[23]

It
    follows, in our view, that the application judge came to the right result and
    we would not interfere with his disposition.

[24]

In
    approaching the matter as we have, we have not ignored the other grounds of
    appeal raised by the husband. In particular, we have considered his submissions
    regarding the down payment he made on the home and the mortgage payments he
    made prior to 1994, the estoppel issue emanating from the wifes second
    marriage, contributions made to the property by third persons and the
    application judges refusal to order Partition and Sale.

[25]

Of
    those grounds, the only one that may have had an impact on the outcome is the
    ground relating to the down payment on the home and the mortgage payments made
    by the husband prior to 1994, when the couple separated. The application judge
    found however that those payments were gifts from the husband to the wife and
    we see no basis for interfering with that finding.

Disposition

[26]

In
    the result, the appeal is dismissed. In the circumstances, we believe the
    parties should bear their own costs of the appeal. Accordingly, there will be no
    order as to costs.


Signed:           M.
    Rosenberg J.A.

M.
    J. Moldaver J.A.

K.
    Feldman J.A.

RELEASED:  MR June
    10, 2011


