



COURT OF APPEAL FOR ONTARIO

CITATION:  Martin v. Sansome, 2014 ONCA 14

DATE:  20140110

DOCKET: C55798

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Delmer Bearinger Martin

Applicant (Appellant in Appeal)

and

Linda Lorraine Sansome

Respondent (Respondent in Appeal)

Aaron Franks and Michael Zalev, for the appellant

Pamela L. Hebner and Patrick W. Jocsak, for the
    respondent

Heard: October 8, 2013

On appeal from the judgment of Justice G.A. Campbell of
    the Superior Court of Justice, dated June 26, 2012.

Hoy A.C.J.O.:

I. overview

[1]

This appeal arises out of a dispute following marriage breakdown. The
    dispute centred on the validity of a domestic contract and the ownership of a
    non-operating farm that had been in the family of the husband, the appellant
    Delmer Martin, for over 180 years. Retroactive child support for the parties
    daughter, who was 23 years of age at the time of trial, was also at issue.

[2]

The trial judge denied the appellant an adjournment to retain counsel. A
    difficult eleven-day trial followed. Ultimately, the trial judge set aside the
    domestic contract and declared the appellants wife, the respondent Linda
    Sansome, owner of an undivided one-half interest in the farm. The trial judge
    also ordered the appellant to pay retroactive child support from the date of
    separation, together with interest at the rate of ten percent. Further, the
    trial judge ordered the appellant to repay one-half of a $27,000 loan advanced
    by his mother-in-law.

[3]

The appellant argues that the trial judge erred in denying his adjournment
    request and that the trial judges conduct of the trial gives rise to a
    reasonable apprehension of bias. The appellant effectively concedes that, on
    the evidence adduced at trial, the trial judge did not err in setting aside the
    domestic contract. However, the appellant argues that the trial judge erred in
    concluding that the respondent was unjustly enriched and entitled to a 50
    percent interest in the farm through the proprietary remedy of a constructive
    trust, and that he provided inadequate reasons for his conclusion. The
    appellant further submits that the trial judge erred by not equalizing the
    parties respective net family property. The appellant also argues that the
    trial judge made a number of errors in ordering retroactive child support and
    erred in ordering him to repay one-half of the loan advanced by his
    mother-in-law. The appellant also says that the trial judge did not give him an
    adequate opportunity to respond to the respondents cost submissions. The
    appellant submits that a new trial must be ordered.

[4]

I am not persuaded that the trial judge erred in denying the appellants
    request for an adjournment, or that the record raises a reasonable apprehension
    of bias. I accept that the trial judge erred by impressing the farm with a
    constructive trust in favour of the respondent and by not equalizing the
    parties net family property. I would order the appellant to pay the respondent
    an equalization payment in the amount of $390,646.77, plus pre- and post-judgment
    interest, and grant her a charge against the property to secure payment, as
    detailed below. I would also reduce the rate of pre- and post-judgment interest
    on the arrears of child support to three percent. The respondent properly
    concedes that the trial judge erred in ordering the appellant to repay one-half
    of a loan advanced by her mother before the appellants bankruptcy, and such
    provision should accordingly be set aside. I would not interfere with the trial
    judges costs award.

[5]

I first provide some background, and then address each of the
    appellants grounds of appeal.

II. background

[6]

The appellant is currently 52 years old; the respondent is 53. They met
    in 1985 and began living together in 1988. Their daughter, Brittany, was born
    in 1989. They married in 1996 and separated on February 27, 2007, after an
    eighteen-year relationship and a ten-year marriage. At the time of separation,
    Brittany was one day shy of her eighteenth birthday.

[7]

The appellant grew up in a Mennonite family, on the farm at issue. The
    appellant stopped going to school and started working on the farm after grade eight.
    Around 1980, the appellant left the farm and tried his hand at a number of
    jobs. He ultimately started buying and renovating properties, and then renting
    them, through his company DBM Inc.

[8]

Except for a brief maternity leave when Brittany was born, the respondent
    worked throughout the relationship, including for the appellants company, DBM
    Inc. The money that the respondent earned through employment was deposited into
    a business account in the name of DBM Inc. and comingled with other money.

[9]

The appellants business floundered. The parties took out a second
    mortgage on their jointly owned matrimonial home so that the appellant could
    complete renovations on some of his properties. Ultimately, the parties
    defaulted on the mortgage and, in or about 1996, both the appellant and DBM
    Inc. made assignments in bankruptcy. The second mortgagee foreclosed and
    obtained a judgment of approximately $50,000 for the shortfall against the
    respondent, who had not declared bankruptcy.

[10]

The
    appellants parents offered the parties the opportunity to live on and manage
    the farm, on the condition that they marry. The appellants parents agreed that,
    after an initial three-year proving period, the parties would be able to buy
    the farm for $450,000. The parties married on July 27, 1996, and from August
    1996 until December 1999 or January 2000, they worked on the dairy farm, in the
    words of the trial judge, shoulder to shoulder. Among other tasks, the
    respondent milked the herd of dairy cattle twice a day by herself.

[11]

In
    December of 1999 or January of 2000, the appellants parents sold the farms
    milk quota and the dairy herd. The farm ceased to be an operating farm.
    According to a letter written by the appellant to his parents in June of 1999,
    the milk quota had increased in value since the time he and the respondent took
    over the farm due to the couples management and hard work.

[12]

The
    congregations of some Mennonite churches take directing roles in the affairs of
    church members, and the parents church took an interest in the sale of the
    farm to the parties. The church assigned members of the congregation to form a
    committee to advise the parents on the sale. Negotiations began at the end of
    1999 and were conducted by committees comprised of members of the parents
    church and the parties church, and not directly by the parties and the
    appellants parents. An agreement was finally reached that the farm was to be
    purchased by the appellant and the respondent, jointly, for $500,000. All
    involved, including the appellant and the respondent, signed a document
    embodying the key terms of the agreement, including that the agreement was
    subject to satisfactory financing. The appellants parents lawyer
    subsequently drafted an agreement of purchase and sale reflecting that both the
    appellant and the respondent were to be the purchasers, and that their share of
    the sale proceeds from the milk quota and the dairy herd ($119,000) was to be
    paid to both of them, and credited against the purchase price.

[13]

Without
    the respondents knowledge, her name was stroked out as one of the purchasers
    on a subsequent draft. On the morning of April 13, 2000, the day before the
    purchase of the farm was to close, the appellant and the respondent attended
    their lawyers office to sign the documents required to purchase the farm. The
    respondent was told, for the first time, that she was required to sign a
    domestic contract waiving all rights to the farm. She was given two reasons for
    this. First, the judgment of the second mortgagee of the parties former
    matrimonial home was still outstanding against her and the proposed mortgagee
    of the farm would not advance the necessary financing if the respondent was on
    title. Second, the committee from the appellants parents church would not let
    the sale proceed unless she did so.

[14]

That
    same morning, the parties lawyer sent the respondent for independent legal
    advice to a lawyer who was effectively blind. That lawyer could not and did
    not read the domestic contract or review it with the respondent. The lawyer
    spent a total of twenty minutes with the respondent, who cried throughout but
    ultimately signed the domestic contract. She did so knowing that the domestic
    contract was not good for her. The lawyer did not charge the respondent.

[15]

The
    evidence before the trial judge was that, at the time that the parties entered
    into the domestic contract, the respondents only asset was a one-quarter
    interest in a family cottage that she inherited on the death of her father in
    1982, with an estimated value of $50,000. That was offset by the outstanding
    judgement against her in favour of the second mortgagee. The respondent would
    be left with nothing; the appellant  who, the trial judge found, did not make
    full disclosure of his assets in the domestic contract  would get the farm,
    and what the trial judge described as his secret cache of money.

[16]

The
    trial judge found that both the circumstances surrounding the execution of the
    domestic contract and the result were unconscionable.

[17]

After
    the milk quota and herd were sold, both parties again worked off the farm. The
    respondent deposited her income into a joint account from which she first paid
    all household expenses. She transferred the remaining amount to an account in
    the appellants name alone. This arrangement continued until the parties separated.
    The trial judge found that between the time that the milk quota and herd were
    sold and the date of separation, the respondent contributed all of her funds to
    the joint betterment of the family interests.

[18]

The
    trial judge found that the respondent had believed that when the second
    mortgagees judgment against her was no longer outstanding, she could have her
    name on title as a half-owner. However, when the couple received a clear
    execution certificate showing that the second mortgagees judgment against the
    respondent was no longer outstanding, the appellant refused to add the
    respondents name on title to the farm.

[19]

The
    parties separation on February 27, 2007 was triggered by Brittanys discovery
    of graphic sexual images of the appellant and a woman who was not the
    respondent on the appellants computer.

[20]

Following
    separation, the appellant  then a long-distance trucker  initially slept in
    the living room, when not on the road. After his mother died, he moved into the
    doddy house  the separate living quarters attached to the main farm house,
    with access to the main house through adjoining doors on each floor that his
    parents had lived in. The appellant has paid all of the homes expenses since
    separation.

[21]

The
    appellant paid no child support for Brittany. Brittany did not graduate from high
    school in June 2007. She was very upset by the separation and finished the year
    two credits short. She returned to high school for the fall term to obtain the
    two credits she needed. She worked full-time at Home Hardware for about six months
    and continued to live at home. In September of 2008, she moved to Toronto and
    started a two-year program at Humber College. Brittany financed her tuition
    with student loans and worked part-time. The respondent continued to maintain a
    home on the farm for Brittany, and provided her with some financial assistance,
    including paying for clothing, transportation, a cell phone, and groceries, and
    making payments towards her visa bill. Brittany graduated from Humber College
    in May of 2010 and has been working since, making minimum wage. She owes
    approximately $14,600 in student loans.

[22]

Since
    2009, the appellant has received a total of $420,000 from his mothers estate
    and has dissipated virtually all of it.

[23]

On
    May 21, 2009, the appellant issued an Application for a divorce. He did not
    request any corollary relief. Several months later, the respondent filed an
    Answer seeking, among other things, an order setting aside the domestic
    contract and granting her a 50 percent interest in the farm, an order that the
    equalization of the parties net family property be determined, and an order
    for child support. The appellant filed a Reply asking that the domestic
    contract be upheld and that the respondents claims be dismissed.

III. denial of adjournment

[24]

On
    June 4, 2012, a week before the trial was scheduled to begin, the appellant
    sought an adjournment of the trial. The case management judge refused to grant
    an adjournment. Then, on June 11, 2012, the first day of trial, the appellant
    brought a second motion for an adjournment. The trial judge also refused to
    adjourn the trial. The appellant argues that the trial judge erred in refusing
    to grant an adjournment.

[25]

From
    the time that the appellant issued his Application (May 21, 2009) until
    November 18, 2011, the appellant had counsel. On November 18, 2011, the
    appellant served a notice of intention to act in person. On that date, he
    confirmed under oath that it was his intention to proceed both to the pending
    settlement conference and to trial without a lawyer. At the settlement
    conference held on December 19, 2011, the case management judge fixed June 11,
    2012 for the start of the trial and told the appellant that the trial would
    proceed on that date whether he had a lawyer or not. By the scheduled trial
    date, the appellant had not filed an updated financial statement, tax returns,
    or a written opening statement, as required by the by practice direction.

[26]

The
    appellant was represented by counsel at the outset of trial for the purpose of
    seeking an adjournment. Counsel indicated that the appellant had contacted one
    other lawyer.

[27]

The
    trial judge considered the last-minute nature of the appellants request for an
    adjournment, the fact that the appellant had not done any of the things that a
    party who represented himself and was intending to proceed to trial would have
    done, and what he characterized as the parties untenable living circumstances.
    (The appellant and his girlfriend live in the doddy house. The appellant has
    locks on his side, ensuring his privacy, but would not permit the respondent to
    install locks. He violates the respondents privacy by entering the side of the
    house in which she resides.) The trial judge concluded that the appellants
    last-minute adjournment request was a deliberate ploy.

[28]

The
    decision of a trial judge to grant or refuse an adjournment is highly
    discretionary. Having regard to the evidence before, and the submissions made
    by counsel to, the trial judge as to what had transpired prior to the start of
    trial, there is in my view no basis to interfere with his decision to deny the
    adjournment sought. I would not give effect to the appellants first ground of
    appeal.

IV. reasonable apprehension of bias

[29]

The
    appellant argues that the trial judges interventions in the examination of
    witnesses, particularly his statement that the appellant had been an idiot in
    an exchange with appellants counsel during the motion for an adjournment at
    the outset of trial, created a reasonable apprehension that the trial judge was
    biased in favour of the respondent. The appellant submits that a new trial must
    be ordered.

[30]

Counsel
    for the respondent says the trial judges comments reflect his frank and
    sometimes sharp manner of expression with counsel and litigants generally, and,
    reading the transcript as a whole, do not reflect bias. She submits that the
    trial judges conduct must be viewed in context: a set of facts that cried for
    justice and a five-day trial the respondent could not afford that ran to ten
    days because of the appellants unreasonable approach. Moreover, she argues,
    the trial judge attempted to help the appellant.

[31]

Bias
    is a predisposition to decide an issue or cause in a certain way that does not
    leave the judicial mind open and impartial:
Wewaykum Indian Band v. Canada
,
    2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias
    is on the party arguing that it exists. The test, found in
Wewaykum
,
    at para. 60, is long-established:

[W]hat would an informed person, viewing the matter
    realistically and practically  and having thought the matter through 
    conclude[?] Would he think that it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide fairly[?]

[32]

There
    is a strong presumption of judicial impartiality. The threshold is high for
    finding an apprehension of bias:
Wewaykum
, at para. 76.

[33]

In
Chippewas of Mnjikaning First Nation v. Chiefs of Ontario
, 2010 ONCA
    47,
265 O.A.C. 247,
leave to appeal to S.C.C.
    refused, 33613 (July 18, 2010), at para. 230, this court provided additional guidance:

A determination of whether a trial judges interventions give
    rise to a reasonable apprehension of unfairness is a fact-specific inquiry and
    must be assessed in relation to the facts and circumstances of a particular
    trial. The test is an objective one. Thus, the trial record must be assessed in
    its totality and the interventions complained of must be evaluated cumulatively
    rather than as isolated occurrences, from the perspective of a reasonable
    observer throughout the trial.

[34]

And
    again at para. 233:

The reasons a trial judge may properly intervene include the
    need to focus the evidence on the matters in issue, to clarify evidence, to
    avoid irrelevant or repetitive evidence, to dispense with proof of obvious or
    agreed matters and to ensure that the way a witness is answering or not
    answering questions does not unduly hamper the progress of the trial.

[35]

This
    trial required a more proactive approach than is customary. I have reviewed
    those instances in which the trial judge intervened in the examination of
    witnesses. In most cases, they were motivated by an effort to focus the
    evidence on the matters in issue, clarify evidence and move a difficult trial
    along. In a few instances, the trial judges questions were inappropriate, his
    language was ill-advised, or he transmitted his reaction to the distressing
    evidence that he heard.

[36]

Some
    of the trial judges conduct reflected his impatience and annoyance. The trial
    judge acknowledged this. In his orally delivered reasons, he apologized to the
    parties for his impatience at times. He explained: I heard far too much
    evidence about things that were irrelevant, most of which Mr. Martin insisted
    upon presenting, despite my frequent entreaties to focus on the main issue.

[37]

While
    judges are expected to conduct the proceedings before them in a courteous and
    civil manner, and I cannot condone the trial judges expressions of impatience
    and annoyance, [i]solated expressions of impatience or annoyance by a trial
    judge as a result of frustrations  do not of themselves create unfairness:
Chippewas
,
    at para. 243.

[38]

As
    the respondent argues, the trial judge made clear efforts to assist the
    appellant. For example, he provided instructions on how to call and subpoena
    witnesses, gave the appellant an extension of time to provide a list of
    witnesses, and attempted to help the appellant to focus his evidence and
    structure his questions. He also interrupted the evidence to ensure that the appellant
    understood the main issues in the proceedings and the implications of the
    proceedings.

[39]

I
    have also considered those instances in which the trial judges comments or
    questions were inappropriate. If taken alone, these statements could create the
    impression that he favoured the respondents case over the appellants. However,
    I am not satisfied that when considered in the context of the trial, as a
    whole, a reasonable person would have the impression that the trial judge was
    predisposed to decide the issues before him in favour of the respondent.

V. THE DOMESTIC CONTRACT

[40]

The
    appellant acknowledges that the evidence that was adduced at trial raises
    issues about the domestic contract. In my view, he effectively concedes that,
    on the record before him, the trial judge did not err in setting aside the
    domestic contract. Nonetheless, I will briefly address the trial judges
    decision to set aside the domestic contract.

[41]

Subsection
    56(4)(b) of the
Family Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
)
    provides that [a] court may, on application, set aside a domestic contract or
    a provision in it ... if a party did not understand the nature or consequences
    of the domestic contract.

[42]

In
    this case, the trial judge found that the respondent had in effect no independent
    legal advice and held the mistaken belief that it did not matter whether her
    name was on the property or not and that it did not matter that she willingly
    signed a formal agreement. He found that the respondent had no clue about
    what the implications of such a significant legal document really meant. All
    she knew was that she had to sign it if the deal was going to close. As noted
    above, the trial judge also found that she mistakenly believed at the time that
    she signed the contract that once the couple received a clear execution
    certificate such that having her name on title no longer posed a barrier to
    financing, she would at that time go on title.

[43]

The
    evidence supporting these findings was overwhelming. It included evidence from
    the lawyers who acted on the sale transaction and provided independent legal
    advice to the respondent.

[44]

In
    effect, the trial judge found on the evidence that the respondent did not
    understand the nature or consequences of the domestic contract as provided by
    s. 56(4)(b) of the
FLA
.

[45]

The
    fact that the respondent appreciated that the domestic contract was not good
    for her does not mean that she understood either the nature or consequences of
    the domestic contract. I see no error in the trial judges finding that she did
    not.

VI. unjust enrichment and constructive trust

(1)

A Framework

(a)

Relevance to married spouses

[46]

The
FLA
is a detailed statutory scheme for resolving issues arising out of
    marital breakdown. Section10(1) provides for the determination of questions of
    title between married spouses. This includes consideration of any beneficial
    interests in property arising pursuant to the imposition of a remedial
    constructive trust:

A person may apply to the court for the determination of a
    question between that person and his or her spouse or former spouse as to the
    ownership or right to possession of particular property, other than a question
    arising out of an equalization of net family properties under section 5.

[47]

In
Rawluk v. Rawluk
, [1990] 1 S.C.R. 70, Cory J., writing for the
    majority of the Supreme Court, relied on s. 10(1) of the
Family Law Act, 1986
(which is identical to s. 10(1) of the current Act) to confirm that the
    statutory scheme for the equalization of spouses property on marriage
    breakdown does not completely supersede the remedial constructive trust. Before
    property can be equalized under the
Family Law Act
, a court must first
    determine the net family property of each spouse. This exercise requires first
    that all questions of title be settled.

(b)

Analysis arising from Kerr v. Baranow

[48]

The
    Supreme Court reiterated existing principles of unjust enrichment in
Kerr
    v. Baranow
, 2011 SCC 10, [2011] 1 S.C.R. 269, in the context of a dispute
    between unmarried persons in a domestic relationship.
Kerr
reaffirmed
    that where unjust enrichment is established, the first remedy to consider is
    always a monetary award. A court will impress a proprietary remedy  normally a
    constructive trust on property  only if the plaintiff satisfies it that a
    monetary award would be insufficient in the circumstances and that there is a
    sufficiently substantial and direct link between his or her contributions and
    the acquisition, preservation, maintenance or improvement of the disputed
    property.

[49]

The
    Supreme Court in
Kerr
also grappled with how monetary damages should
    be quantified where unjust enrichment occurs in the context of a domestic
    relationship between unmarried persons.
Kerr
abolished the dichotomy
    between a
quantum meruit
assessment of damages and a proprietary
    remedy. Justice Cromwell explained the new approach at para. 87:

My view is that when the parties have been engaged in a joint
    family venture, and the claimants contributions to it are linked to the generation
    of wealth, a monetary award for unjust enrichment should be calculated
    according to the share of the accumulated wealth proportionate to the
    claimants contributions. In order to apply this approach, it is first
    necessary to identify whether the parties have, in fact, been engaged in a
    joint family venture.

[50]

He
    made clear that there is no presumption that wealth will be shared equally:
    para. 85.

[51]

At
    para. 100, Cromwell J. summarized the Courts holding as follows:

1. The monetary remedy for unjust
    enrichment is not restricted to an award based on a fee-for-services approach.

2. Where the unjust enrichment is most
    realistically characterized as one party retaining a disproportionate share of
    assets resulting from a joint family venture, and a monetary award is
    appropriate, it should be calculated on the basis of the share of those assets
    proportionate to the claimants contributions.

3. To be entitled to a monetary remedy
    of this nature, the claimant must show both (a) that there was, in fact, a
    joint family venture, and (b) that there is a link between his or her
    contributions to it and the accumulation of assets and/or wealth.

4. Whether there was a joint family
    venture is a question of fact and may be assessed by having regard to all of
    the relevant circumstances, including factors relating to (a) mutual effort,
    (b) economic integration, (c) actual intent and (d) priority of the family.

[52]

In
    this way, the framework established in
Kerr

requires the court
    to ask the following questions:

1) Have the elements of
    unjust enrichment  enrichment and a corresponding deprivation in the absence
    of a juristic reason  been made out?;

2) If so, will monetary
    damages suffice to address the unjust enrichment, keeping in mind bars to
    recovery and special ties to the property that cannot be remedied by money?;

3) If the answer to
    question 2 is yes, should the monetary damages be quantified on a fee-for
    service basis or a joint family venture basis?; and,

4) If, and only if monetary
    damages are insufficient, is there a sufficient nexus to a property that
    warrants impressing it with a constructive trust interest?

(2)

The Trial Judges Reasons

[53]

The
    trial judge found that there was clear and persuasive evidence of a joint
    family venture from 1988 until the date of separation, and a nexus between the
    respondents deprivation and the farm. He held that a person does not have to
    make an actual financial contribution to the purchase of the property to have a
    constructive trust in that property. He concluded that the respondent had a
    constructive trust in the farm, and declared the respondent the owner of an
    undivided one-half interest in the farm.

(3)

The Parties Submissions

[54]

The
    appellant argues that the trial judges reasons are almost completely silent on
    the issue of unjust enrichment and do not address why the remedy of a
    proprietary constructive trust was appropriate in the circumstances, or why, if
    appropriate, the respondent should receive a 50 percent interest in the farm. He
    submits that any remedy for unjust enrichment should reflect that the purchase
    of the farm was financed, up to almost 42 percent, by what the trial judge
    found were a gift to the appellant of $119,000
[1]
and an advance against his inheritance in the amount of $90,000, both received
    after marriage.

[55]

The
    respondent argues that the evidence supports the trial judges finding of a
    joint family venture, and his conclusion that there was a nexus between the
    respondents efforts and the farm.

(4)

Analysis

[56]

I
    agree with the appellant that the trial judge failed to first specifically
    consider whether the appellant was unjustly enriched. However, reading the
    reasons as a whole, it is clear that the trial judge did find unjust enrichment
    in this case. The respondent contributed homemaking, child care and other
    support services for the duration of the relationship.  She worked on the farm
    shoulder to shoulder with the appellant for three years. She made improvements
    to the farmhouse while she and the appellants were tenants.  Her salary helped
    to finance the household, and she provided funds to the respondent. The
    appellant was enriched by her contributions. There was no juristic reason for the
    appellants enrichment and the respondents corresponding deprivation.

[57]

The
    trial judges main error  and an error of law  was that, having found unjust
    enrichment, he failed to consider the first avenue of remedy, namely a monetary
    award, and instead went straight to a finding of a nexus to the farm.

[58]

As
    noted above, once unjust enrichment has been found, the court must first
    consider the sufficiency of a monetary remedy. In most cases, money will be
    sufficient; the challenge is in calculating the amount. It is only if a
    monetary award is inappropriate or insufficient, and the plaintiff can
also
demonstrate
    a sufficiently substantial and direct link or causal connection between her
    contributions and the acquisition, preservation, maintenance or improvement of
    the property, that the court may make a proprietary award by impressing the
    property with a constructive trust.

[59]

Kerr
,
    at para. 52, makes clear that the onus is on the plaintiff to establish that
    monetary damages would be insufficient, and instructs that the court may take
    into account the probability of recovery, as well as whether there is a reason
    to grant the plaintiff the additional rights that flow from recognition of
    property rights in determining whether damages would be insufficient in the
    circumstances.

[60]

From
    my review of the record, the respondent did not lead any evidence, or make any
    submissions, that a monetary award would be insufficient. Given the appellants
    ownership of the farm, and the possibility of using the farm property as
    security for any monetary award pursuant to either s. 9(1)(b) or 10(1)(d) of
    the
FLA
, I am not satisfied that recoverability is an issue. Nor do I
    see any basis for recognizing additional property rights. The fact that the
    respondent was initially a party to an agreement of purchase and sale for the
    farm does not, in my view, warrant granting her a proprietary interest. That
    agreement included a financing condition which could not be satisfied if the
    respondent were on title. Moreover, this is not a situation where, for example,
    there is an operating farm that the wife continues to want to operate, or the
    wife has an attachment to
this particular
property that cannot be
    replaced with money. While the respondent would enjoy the post-separation
    increase in property value as an additional right flowing from the recognition
    of a property interest, this benefit is clearly a monetary one and cannot be
    used as a rationale for finding a monetary award insufficient.

[61]

Had
    the trial judge considered whether monetary damages would have been sufficient,
    he would (or should) have found on the facts of this case that a monetary award
    would suffice.

[62]

The
    next question is how, in the case of married persons, such an award should be
    calculated.

[63]

Section
    5(7) of the
FLA
makes clear that the express purpose of the equalization
    provisions of the
FLA
is to address the unjust enrichment that would
    otherwise arise upon marriage breakdown:

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

[64]

In
McNamee v. McNamee
, 2011 ONCA 533, 106 O.R. (3d)
    401, at para. 66 this court stated that, in the vast majority of cases, any
    unjust enrichment that arises as the result of a marriage will be fully addressed
    through the operation of the equalization provisions under the
Family Law
    Act
.

[65]

The
    calculation of monetary damages under the principles in
Kerr
is an
    imprecise exercise. As noted above, under
Kerr
there is no presumption
    that wealth will be shared equally; unlike the
FLA
,
Kerr
does not
    presume an equal contribution to the property acquired in the course of the
    family venture. Nor is it clear to me that
Kerr
contemplates special
    treatment where the property at issue is a matrimonial home.

[66]

In
    my view, if unjust enrichment as the result of a marriage has been found, and it
    has been determined that monetary damages can suffice, the aggrieved partys
    entitlement under the equalization provisions of the
FLA
should first be
    calculated. Where appropriate, s. 5(6) of the
FLA
, which provides for an
    unequal division of net family properties where equalization would be
    unconscionable, should be invoked.

[67]

Below,
    I calculate the respondents entitlement under the equalization provisions of
    the
FLA
. I conclude that, in this case, the unjust enrichment arising
    out of the parties marriage is addressed through the operation of the
    equalization provisions under the
FLA
. I leave for another day the question
    of what should be done in those rare cases where monetary damages for unjust
    enrichment arising out of marriage cannot be adequately addressed by the
    equalization provisions of the
FLA
.

VII. equalization

[68]

At
    trial, the respondent submitted that if the domestic contract were set aside
    and she were not entitled to a 50 percent interest in the farm through a
    constructive proprietary trust, she was entitled to an equalization payment in
    the amount of $534,130.77. This calculation assumes that the entire farm
    constitutes a matrimonial home.

[69]

This
    assumption  which is challenged by the appellant  is significant. The
    acquisition of the farm was financed as to almost 42 percent by what the trial
    judge found were a gift to the appellant in the amount of $119,000 and an
    advance against his inheritance in the amount of $90,000. The fact that
    property acquired by a spouse was funded by gift or inheritance is a factor in
    the equalization scheme under the
FLA,
and in my view would also be a
    factor in calculating monetary damages on the basis of a joint family venture
    under
Kerr
.


[70]

Subsection
    4(2) of the
FLA

states, in relevant part, the following:

The value of the following property that a spouse owns on the
    valuation date does not form part of the spouses net family property:

1. Property, other than a matrimonial home, that was acquired
    by gift or inheritance from a third person after the date of the marriage.



5. Property, other than a matrimonial home, into which property
    referred to in paragraphs 1 to 4 can be traced.

[71]

Under
    s. 4(2)(5) of the
FLA
, in effect, an otherwise excluded asset that is
    invested in the matrimonial home loses its status as an excluded asset:
Ward
    v. Ward
, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 73. However, the
    special treatment of the matrimonial home for the purpose of s.4(2)(5) extends only
    to property that is so-deemed; where the matrimonial home is found not to extend
    to the entire property, a gift or inheritance that can be clearly traced into a
    part of the property that is
not
the matrimonial home would allow that
    portion of the property to be excluded from the net family property as set out
    in s.4(2)(5).   At the same time, s. 4(3) of the
FLA
squarely places the
    onus for proving an exclusion from the net family property on the person
    claiming it.

[72]

As
    indicated above, it is not clear to me that a joint family venture analysis
    under
Kerr
would treat a matrimonial home differently from another property.
    In other words, where the acquisition of a matrimonial home  or the portion of
    a property that constitutes a matrimonial home  was financed in whole or in
    part by a gift or an inheritance, an equalization payment calculated under the
FLA
could be greater than monetary damages calculated on the basis of a joint
    family venture under
Kerr.

[73]

I
    agree with the appellant that in this case the entire farm does not constitute
    a matrimonial home.

[74]

Subsection
    18(1) of the
FLA

provides as follows:

Every property in which a person has an interest and that is
    or, if the spouses have separated, was at the time of separation ordinarily
    occupied by the person and his or her spouse as their family residence is their
    matrimonial home.

[75]

Subsection
    18(3) of the
FLA
speaks specifically to the treatment of residences on
    farmland, etc. and their designation as a matrimonial home:

If property that includes a matrimonial home is normally used
    for a purpose other than residential, the matrimonial home is only the part of
    the property that may reasonably be regarded as necessary to the use and
    enjoyment of the residence.

[76]

In
Young v. Young
, 1999 CarswellOnt 2706 (Ont. S.C.), affd [2001] O.J.
    No. 42 (C.A.), MacKenzie J. interpreted ss. 18(1) and (3) as placing the onus
    upon the party seeking to rebut the presumption created by s. 18(1) to
    establish on the balance of probabilities that the subject lands on which the
    residential dwelling is located were used in the ordinary course for purposes
    other than residential. In my view, the appellant has rebutted that
    presumption. According to the appraisers report, the tillable land on the farm
    comprised a total of 114 acres and was used for agricultural crop production. The
    undisputed evidence is that, from the time the property was purchased, the
    surrounding farm land was leased to third parties. Rent paid was applied to the
    mortgage. Indeed, the mere fact that the farm land was continuously leased is
    evidence that the parties did not regard it as necessary to the use and
    enjoyment of the residence.

[77]

I
    would infer that it was the 114 acres of tillable land that was leased.  The
    respondents appraiser valued this portion of the farm at  $991,800 at the date
    of separation. As to the remainder of the farm property  valued at $218,454 at
    separation  I find that the appellant has not satisfied his burden of showing
    that the land was used in the ordinary course for purposes other than residential.
    I would accordingly include this portion of the farm as part of the matrimonial
    home. On my calculation, the matrimonial home ($218,454) represented 18% of the
    total value of the farm ($991,800 + $218,454 = $1,210,254) at the date of
    separation. This is relevant to my calculations below.

[78]

When
    he purchased the farm, the appellant did not allocate his gift and inheritance
    as between the matrimonial home and the balance of the farm. Given that he did
    not do so, and that the rental income from the non-matrimonial home portion of
    the farm was applied to the payment of the mortgage, I would allocate the gift
    and inheritance first to the matrimonial home portion of the farm. To the
    extent the gift and inheritance exceeded the value of the matrimonial home at
    the time of purchase, I would allocate the balance to non-matrimonial home
    portion.

[79]

The
    purchase price of the entire farm was $500,000. Using the percentage derived
    from the respondents appraisers values at the date of separation, I would treat
    the matrimonial home as having a value at the time of purchase equal to 18% of
    that amount, or $90,000, and treat the non-matrimonial home portion of the farm
    as having a value at the date of purchase of $410,000.  I would treat the
    advance against inheritance in the amount of $90,000 as having funded the
    purchase of the matrimonial home. I would allocate the gift in the amount of
    $119,000  29% of the purchase price of the non-matrimonial home portion of the
    farm  to the non-matrimonial home portion of the farm.  As the purchase of the
    non-matrimonial home portion was funded, as to 29%, by a gift, I would exclude
    29% of the value of the non-matrimonial home portion of the farm at the date of
    separation (.29 x $991,800 = $287,622) from the appellants net family
    property. I would include the balance of the total value of the farm
    ($1,210,254 - $287,622 = $922,632) in the appellants net family property.

[80]

The
    remaining elements in the calculation of the equalization payment are not
    controversial. Having reviewed the record, including the parties Financial
    Statements, the respondent is entitled to an equalization payment in the amount
    of $390,646.77. I attach a Net Family Property Statement as Schedule A,
    supporting my calculation, and indicating the source of the amount relied on to
    effect the calculation.
[2]

[81]

I
    would accordingly order the appellant to pay the respondent an equalization
    payment in this amount, together with prejudgment interest at the rate of 2.3
    percent and post-judgment interest at the rate of three percent. As detailed in
    my Disposition, below, I would also order, pursuant to s. 9(1)(b) of the

FLA
,
    that a charge be placed on the farm property as security for payment of that
    amount. Because the farm is not an operating farm, s. 11 of the
FLA
 which effectively directs the court to
avoid
    forcing the sale of an operating farm
whenever
    possible
 does not apply.

[82]

According
    to s. 19(1) of the
FLA
, both spouses have an equal right to possession
    of the matrimonial home, and I order that the respondent shall continue to have
    the right to occupy her half of the matrimonial home until the earlier of (i)
    the closing of the sale of the farm property by the respondent, and (ii) 60
    days after the respondent has paid the equalization payment, all arrears of
    child support, and interest thereon, in full.

VIII. retroactive child support

[83]

The
    trial judge attributed income to the appellant in the amount of $52,000 per
    year, and ordered support based on the
Child Support Guidelines
from
    the February 27, 2007 date of separation to May 1, 2010. He determined that the
    total arrears were $18,278, and ordered them payable forthwith, together with
    interest on the arrears at the rate of ten percent.

[84]

The
    appellant argues that the trial judge made several errors:

1.

When the respondent made her
    claim for child support in July 2009, Brittany was no longer a child of the
    marriage. Child support is for children of the marriage, not adults who used
    to have that status:
D.B.S. v. S.R.G.
, 2006 SCC 37, [2006] 2 S.C.R.
    231, at para. 89.

2.

The trial judge did not
    consider any of the factors that were set out by the Supreme Court in
D.B.S.
for when retroactive child support may be ordered.

3.

The trial judge did not
    address why it was appropriate to order child support for the period before the
    date of effective notice that the respondent was seeking child support, or
    consider any of the factors relevant thereto.

4.

The trial judge did not
    explain why it was appropriate to order child support for the entire period from
    the date of separation until Brittany graduated from college.

5.

The trial judge did not
    explain why the child support that he ordered would bear interest at the rate
    of ten percent, as opposed to the applicable post-judgment interest rate of
    three percent.

[85]

I
    deal with the appellants arguments in turn.

[86]

First,
    at the date that the respondent filed her Answer claiming child support,
    Brittany was a student at college, and therefore had been unable to withdraw
    from her parents charge. Accordingly, the trial judge did not err in treating
    Brittany as a child of the marriage and finding that he had jurisdiction to
    order support: see
D.B.S.,
at paras. 88-89.

[87]

Second,
    while the trial judge did not specifically address all of the factors
    identified in
D.B.S.
in his reasons, the trial judge made findings of
    fact in relation to key factors based on which retroactive child support was
    clearly appropriate.

[88]

In
D.B.S.
,
the Supreme
    Court instructed that before exercising its discretion to award retroactive
    child support, the court should consider four factors: whether the payee parent
    delayed unreasonably in seeking child support, whether the payor parent engaged
    in blameworthy conduct, the present and past circumstances of the child, and
    any hardship the payor parent would suffer as a result of a retroactive award.
    None of these factors is decisive. As Bastarache J. wrote at para. 99, At all
    times, a court should strive for a holistic view of the matter and decide each
    case on the basis of its particular factual matrix.

[89]

Furthermore,
    Bastarache J.s reasons in
D.B.S.

distinguish between
    situations in which there is an existing support order or agreement and what is
    sought is a retroactive
increase

in support versus situations
    in which there has not already been a court order for child support to be paid.
    This is because, unlike the payor who paid support in reliance upon an existing
    order or agreement, the non-custodial parent who has paid
no
support
    had no reasonable basis for his actions; he knew or ought to have known that he
    should have been paying something. As Bastarache J. stated at paras. 80-81 of
D.B.S.
,
    regarding cases where no child support has been paid:

[T]he
status quo

does not involve any existing
    payment of child support. This fact immediately differentiates the present
    context in a very important way: absent special circumstances (e.g., hardship
    or
ad hoc
sharing of expenses with the custodial parent), it becomes
    unreasonable for the non-custodial parent to believe (s)he was acquitting
    him/herself of his/her obligations towards his/her children. The non-custodial
    parents interest in certainty is generally not very compelling here.

[90]

In
    this case, at the date of separation, Brittany was a high school student,
    living at home. The trial judge found that the appellant absented himself from
    Brittanys life from the time of separation. Despite receiving $420,000 from
    his mothers estate and presumably earning an income from his trucking job, he
    made
nothing

available to Brittany for her education or her
    daily needs. He spent it all on himself. The trial judge found in his reasons
    that Martin hadnt paid a dime in child support.

[91]

It
    is clear that the trial judge considered the appellants conduct blameworthy.
    The evidence revealed a child of the marriage who needed financial help. Given
    the appellants assets and income, it was apparent from the record that he
    would not suffer material hardship as a result of a retroactive award. In all
    of these circumstances, neither the lack of a direct explanation why the
    respondent waited some two years before claiming child support, or the trial
    judges failure to comment on this factor, is fatal.

[92]

Turning
    to the appellants third argument, I do not agree that the trial judge erred in
    ordering child support from the date of separation. Under s. 31(1) of the
FLA
,
    a parent has a free-standing obligation to support any child who is enrolled in
    a full-time program of education. A parent who entirely fails to meet this
    obligation should not be rewarded for his conduct by a future release from his
    obligation in the face of non-payment. At para. 81 of
D.B.S.
,
Bastarache J. stated that in the case of the non-custodial parent who has not
    paid any support, there is no restriction in the
Divorce Act
, R.S.C.,
    1985, c. 3 (2nd Supp.) as to the date from which the court may order that the
    award take effect.

[93]

I
    agree with the trial judges conclusion that in this case child support should
    be awarded retroactive to the date of separation.

[94]

Fourth,
    I also agree that it was appropriate to order child support for Brittany for
    the period from the date of separation until Brittany graduated from college.
    The respondent claimed child support under the
Divorce Act

and
    the
FLA
. Under s. 2(1) of the
Divorce Act
, child of the
    marriage means a child of the two spouses or former spouses who, at the
    material time,

(a) is under the age of majority and who has not withdrawn from
    their charge, or

(b) is the age of majority or over and under their charge but
    unable, by reason of illness, disability or other cause, to withdraw from their
    charge or to obtain the necessaries of life.

[95]

Subsection
    15.1(1) of the
Divorce Act
states that a court may make an order
    requiring a spouse to pay for the support of a child of the marriage. I am satisfied
    that Brittany was unable to withdraw from the charge of her parents, and
    continued to qualify as a child of the marriage within the meaning of the
Divorce
    Act
, until she finished college. She required the respondents support 
    financial and otherwise  as she grappled with the fall-out from her parents
    separation, completed high school, worked for six months while living at home and
    presumably saving for college, and while in full-time attendance at college.

[96]

Finally,
    I accept the appellants argument that the trial judge erred in ordering
    post-judgment interest at the rate of ten percent on the arrears of child
    support. I would reduce the rate of interest to three percent.

[97]

Under
    s. 130(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, the
    court may, where it considers it just to do so, in respect of the whole or any
    part of the amount on which interest is payable under s. 128 (prejudgment
    interest) or s. 129 (post-judgment interest), allow interest at a rate higher
    than that provided for in either section. In doing so, the court is required to
    take into account the factors listed in s. 130(2). They include the
    circumstances of the case and the conduct of any party that tended to shorten
    or to lengthen unnecessarily the duration of the proceeding.

[98]

The
    interest awarded is on the arrears of child support. The trial judge recognized
    the appellants wrongful conduct in deciding to award retroactive child support
    and considered that the appellants conduct unnecessarily lengthened the trial
    in fixing the costs of trial. He did not explain why he awarded interest at a
    rate higher than that provided for in ss. 128 and 129. In the absence of
    reasons explaining the factors underlying his decision to allow interest at a
    rate of ten percent, I would reduce the rate of interest on the arrears of
    child support to the rate of three percent proposed by the appellant.

[99]

I
    would also grant a charge on the farm property pursuant to s. 15.2(1) of the
Divorce
    Act
to secure payment of the arrears of child support and interest
    thereon, as detailed in my Disposition, below.

IX. costs at trial

[100]

The appellant
    argues that the trial judge failed to give the appellant adequate time to
    consider the issue of costs, and that his costs order accordingly cannot stand.
    I disagree.

[101]

Immediately
    after delivering his oral reasons, the trial judge invited submissions on the
    issue of costs. The trial judge reviewed the Bill of Costs respondents counsel
    presented: approximately $73,000, inclusive of disbursements and HST, for a
    ten-day trial, calculated on a substantial indemnity scale from January 13,
    2012, on the basis of an unaccepted offer to settle.

[102]

When the trial
    judge asked the appellant if he wished to make responding submissions, the
    appellant responded: Absolutely nothing, Im disgusted right now. This is
    unconscionable.

[103]

The trial judge
    proceeded to award costs in accordance with the bill of costs that respondents
    counsel had presented to him, noting that in his view the appellant had wasted
    a full five days of trial time by his decision not to prepare during the six
    months prior to trial. He noted that the appellant had not complied with any
    rules of the Court, made any disclosure, or prepared a trial record, an agreed
    statement of facts or affidavit of documents.

[104]

The appellant
    declined the opportunity to make responding submissions. He did not request
    additional time to review the respondents costs submissions. In my view, there
    is no basis for interfering with the trial judges award of costs.

X. disposition

[105]

In disposing of
    the appeal, I would:

·

Set aside the trial judges order declaring the respondent the
    owner of an undivided one-half interest in the farm.

·

Order the appellant to pay the respondent an equalization payment
    in the amount of $390,646.77, together with prejudgment interest at the rate of
    2.3 percent and post-judgment interest at the rate of three percent.

·

Order, pursuant to s. 9(1)(b) of the

FLA
and s.
    15.2(1) of the
Divorce Act
, that a charge be placed on the farm
    property as security for payment of the equalization amount, arrears of child
    support, and interest thereon. The respondent may register this charge on title
    to the property. If the appellant does not pay all such amounts in full within
    60 days, then the respondent shall have the power to sell, or concur with any
    other person in selling, the farm property by public auction or private
    contract, provided that no such sale shall be made until after 30 days notice
    in writing has been given to the persons and in the manner provided by Part III
    of the
Mortgages Act
, R.S.O. 1990, c. M.40. The provisions of the
Mortgages
    Act
shall, except as provided below, otherwise apply, mutatis mutandis, to
    the exercise by the respondent of her power to sell the farm property. If the
    appellant does not pay the full amount owing under the order within 60 days,
    the respondent is entitled to sell the property to satisfy the full amount of
    the award, and any arrears of child support, as provided above.

·

Order that the respondent shall continue to have the right to
    occupy her half of the matrimonial home until the earlier of (i) the closing of
    the sale of the farm property by the respondent, and (ii) 60 days after the
    respondent has paid the equalization payment, all arrears of child support, and
    interest thereon, in full.

·

Reduce the rate of prejudgment and post-judgment interest on the
    arrears of child support to three percent.

·

Set aside the trial judges order requiring the appellant to
    repay one-half of a loan advanced by the respondents mother before the
    appellants bankruptcy. The respondent properly concedes that the trial judge
    erred in so holding.

[106]

I would
    otherwise dismiss this appeal.

[107]

If the parties
    are unable to agree on the issue of costs, I would permit them to make brief
    written submissions within the three weeks following the release of these
    reasons.

RELEASED: AH  JAN 10 2014

Alexandra Hoy
    A.C.J.O.

I agree John I.
    Laskin J.A.

I agree M. Tulloch
    J.A.





SCHEDULE A



ONTARIO









Court
          File Number





(Name of court)





at



Form 13B:  Net Family

Property Statement





Court office address



Applicant(s)



Full
          legal name & address for service  street & number, municipality,
          postal code, telephone & fax numbers and e-mail address (if any).



Lawyers
          name & address  street & number, municipality, postal code,
          telephone & fax numbers and e-mail address (if any).



Martin Delmer











Respondent(s)



Full
          legal name & address for service  street & number, municipality,
          postal code, telephone & fax numbers and e-mail address (if any).



Lawyers
          name & address  street & number, municipality, postal code,
          telephone & fax numbers and e-mail address (if any).



Linda Sansome











My
          name is
(full legal name)





The
          valuation date for the following material is
(date)

February 27, 2007



(Complete
          the tables by filling in the columns for both parties, showing your assets,
          debts, etc., and those of your spouse.)



TABLE 1:  Value of assets owned on valuation date



(List in the order of
          the categories in the financial statement.)



ITEM

APPLICANT

RESPONDENT



1.
Farm (Trial Transcript, vol. 1, p. 447)

$

1,210,254.00

$





2. Several automobile vehicles "not
          operable" (Martin's financial statement, p. 5)

$

1,500.00

$





3. Account at Mennonite Savings Credit
          Union (ibid, p. 6)

$

139.24

$





4. Tools and Farm Equipment (ibid, p. 8)

$


15,000.00

$





5. Farm Bank Account (ibid, p. 9)

$

4,372.30

$





6. Mennonite Savings Credit Union,
          Account No. 598896 (ibid, p. 9)

$

2,500.00

$





7. Antique milk bottles, cow bells,
          genealogical files and books (ibid, p. 9)

$

750.00

$





8. Cottage Property (Sansome's financial
          statement, p. 5)

$



$

65,000.00



9. Account at Mennonite Savings and
          Credit Union (ibid, p. 6).

$



$

600.00





$



$





TOTAL 1

$

1,234,515.54

$

65,600.00























Form 13B:

Net Family Property
            Statement

(page 2)

Court
            File Number




















TABLE 2:  Value of debts and liabilities on
          valuation date



(List in the order of
          the categories in the financial statement.)



ITEM

APPLICANT

RESPONDENT



1.
Mortgage on farm property (Trial
          Transcript, vol. 5, p. 153)

$

151,000.00

$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$





TOTAL 2

$

151,000.00

$

0







TABLE 3:  Net value of property (other than a
          matrimonial home) and debts on date of marriage



(List in the order of
          the categories in the financial statement.)



3(a)

PROPERTY ITEM

APPLICANT

RESPONDENT



1. Cottage Property (Sansome's financial
          statement, p. 5)

$



$

50,000.00



2. 1984 Pontiac Fiero (ibid,
          p. 5)

$



$

1,000.00





$



$







$



$







$



$







$



$





TOTAL OF PROPERTY ITEMS

$

0

$

51,000.00



3(b)

DEBT ITEM









$



$







$



$







$



$







$



$







$



$







$



$





TOTAL OF DEBT ITEMS

$

0

$

0



NET TOTAL 3
[
3(a)
minus
3(b)
]


$

0

$

51
,000.00






















Form 13B:

Net Family Property
            Statement

(page 3)

Court
            File Number




















TABLE 4:  Value or property excluded under
          subsection 4(2) of the
Family Law Act



(List in the order of
          the categories in the financial statement.)



ITEM

APPLICANT

RESPONDENT



1. Non-matrimonial portion of farm
          financed by inheritance (29%)

$

287,622.00

$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$







$



$





TOTAL 4

$

287,622.00

$

0







TOTAL 2
(from
          page 2)

$

151,000.00

$

0



TOTAL 3
(from
          page 2)

$

0

$

51,000.00



TOTAL 4
(from
          page 3)

$

287,622.00

$

0



TOTAL 5
(
[Total 2]
+
[Total 3]
+
[Total
          4]
)

$

438,622.00

$

51,000.00







TOTAL 1
(from
          page 1)

$

1,234,515.54

$

65,600.00



TOTAL 5
(from
          above)

$

438,622.00

$

51,000.00



TOTAL 6:  NET FAMILY PROPERTY

(
[Total 1]
minus
[Total 5]
)


$

795,893.54

$

14,600.00











Date of signature

Signature




















[1]
The $119,000 amount was one-quarter of the proceeds
    of sale of the milk quota and the farms herd. The appellants three siblings
    received a cash gift in an equal amount.



[2]
I note that a discrepancy exists as to the value of
    the mortgage on the farm at the date of separation. The appellants financial
    statement indicates that the mortgage was worth $181,000 at separation and
    $151,000 at the date of trial. However, at trial, the appellant testified that
    the mortgage was worth $151,000 at separation. The appellant provides a similar
    figure ($150,000) in Schedule E of his factum. Accordingly, I assumed a
    mortgage value of $151,000 for the purposes of my equalization calculation.


