Tarrabain v. Tarrabain, 2016 ABQB 224

Court of Queen ’ s Bench of Alberta Citation: Tarrabain v. Tarrabain, 2016 ABQB 224 Date: 20160418 Docket: 4803 162628 Registry: Edmonton Between: Theresa Florence Tarrabain Plaintiff - and - Danny Clayton Tarrabain Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [1] I issued Reasons for Judgment dealing with all but one of the issues arising in this divorce and matrimonial property action on March 4, 2016 ( 2016 ABQB 128 ).

The remaining issue is the distribution of matrimonial property. I stated in my previous Reasons that I was not satisfied that the information revealed at trial was sufficient to reach just conclusions on that issue. [2] At the time I issued my previous Reasons, I wrote to Counsel to inquire whether they wished to reconsider or supplement the information provided at trial in relation to the matrimonial property issues. I sent them a memorandum which set out my impressions regarding the items listed on the Statement of Proposed Distribution submitted by Counsel for Ms. Tarrabain at trial.

I set out my tentative conclusion as to how each asset and debt should be dealt with and indicated in several cases that the information provided at trial was insufficient to reach a conclusion, or was otherwise wanting. That memorandum is attached as Appendix A to these Reasons. Unless otherwise indicated below, my disposition with respect to each of the assets and debts to be dealt with is as stated in the “Impression” with respect to that asset or debt as set out in Appendix A.

[3] Appendix B to these Reasons is the Distribution of Matrimonial Property which I now order. Rental Property (Appendix A, Item 2) [4] In Appendix A, I concluded that an exemption of $106,000 should be allowed to Mr. Tarrabain in respect of this asset, I wrote: Whatever value the house had at the time of the marriage in 2001 would be exempt from division. However there is no evidence as to what that value was. Presumably it would not be less than the value at the time the property was purchased [in 1994], $106,000.

In the absence of any evidence to support a different conclusion, I would set its exempt value at $106,000. [5] In subsequent correspondence, Ms. Tarrabain’s Counsel observed: Ms. Tarrabain is not trying to reargue this point, but the $106,000 exemption is in issue. Although she agrees the house was purchased for $106,000, a mortgage was registered with the TD bank for $87,720 as well (Exhibit 20(b)). There was no evidence as to when the mortgage against the property was paid out other than Mr. Tarrabain’s evidence of having it paid in 10 years after the date of purchase. Mr.

Tarrabain did not provide any evidence to show how much was owing on the property at the time of marriage. Therefore there was 3 further years wherein the mortgage existed. [6] Mr. Tarrabain’s Counsel responded: I have to follow-up on my request to confirm the particulars as to when the Mortgage was paid out on the Hollyrood house while in the name of Amy Tarrabain to better determine Danny’s partial exemption claim on this property. I expect to have this this week. [7] No further information has been provided.

More than a week has passed. [8] It is not in dispute that the purchase price of the property was $106,000 some 7 years before the marriage and $250,000 6 years after. The balance owing on the purchase mortgage at the time of marriage is not in evidence. Indeed, there is no documentary evidence concerning that mortgage whatsoever. (The certificate of title for the property when it was held by Mr. Tarrabain’s mother in trust for Mr. Tarrabain is not in evidence. Contrary to Ms.

Tarrabain’s Counsel’s observation quoted in paragraph 5 above, there is no mention of a TD mortgage in “Exhibit 20(b)” which I take to be a reference to Tab 20B of the Plaintiff’s Documents.) Neither is the value of the property at the time of marriage in evidence. If these amounts were known, the exemption would be the value at marriage less the outstanding balance of the mortgage at marriage. [9] I infer that the value 7 years after acquisition would have been significantly more than $106,000.

I also infer that the balance owing on the mortgage, assuming there was a mortgage, 7 years after it was granted, would be less than the original mortgage loan amount. In my view, given the state of the evidence, my tentative conclusion set out in the Appendix continues to be appropriate. Mr. Tarrabain should have an exemption of $106,000 in respect of this property. Business Property (Appendix A, Item 3) [10] In Appendix A, I addressed the commercial property out of which Mr. Tarrabain operates a pawn shop.

I observed that, in the evidence and submissions, both sides ignored the fact that this property is owned by a corporation, 1330615 Alberta Ltd., in which the parties are equal shareholders. The parties addressed the asset as if it were owned by the parties themselves. I also noted that neither the evidence nor the submissions dealt with capital gains tax liability that I assumed would apply to the disposition of this property if (again ignoring the corporation) one party is required to transfer their interest to the other. [11] Ms.

Tarrabain in response provided a report concerning the possible capital gains tax liability. The report indicates that the capital gains tax which the sale of the property would attract would be in the range of $182,915 to $249,200. I received no submissions as to how I should take that information into account in determining the distribution of matrimonial property. [12] As the parties have presented it, the issue in respect of the commercial property is as to which party should buy the other party’s interest. It would be logical for Mr. Tarrabain to purchase Ms.

Tarrabain’s interest since he operates the business by which he earns his livelihood in the building. The logical, however, does not appear practical. Mr. Tarrabain cannot finance the purchase. At least, to date, his efforts to secure financing have been unsuccessful. Accordingly the practical, if illogical, solution would be for Ms. Tarrabain to purchase Mr. Tarrabain’s interest. [13] In my view it is not appropriate to ignore the legal character of this asset. Each party owns shares in a corporation. They each own the same number of shares.

It is the corporation which owns the commercial real property, not the parties. [14] The evidence does not establish the value of the shares. The most recent financial statement in evidence is for 2011. It shows a liability “due to shareholder” of $98,988. Whether that liability still exists is not in evidence. It does not appear that the financial statement recognizes that the purchase of the commercial property was financed by mortgaging the rental property owned by Mr. Tarrabain. The evidence indicates the outstanding balance on that mortgage is $201,400.95.

It may be that the company in fact owes that amount to Mr. Tarrabain. [15] The 2011 financial statement also references significant accounts receivable which I expect would affect the value of the shares. [16] As to debts of the company, it appears no income tax return has been filed for the company for several years. The evidence is silent as to potential income tax liability. As to property tax, the evidence indicates there are significant arrears owed to the City. Further Ms.

Tarrabain, after separation, made payments in respect of property taxes, insurance, utilities, bank overdraft and the mortgage that would, I expect, be treated in a share valuation as a debt owed by the company to her. There is no evidence as to whether there are other debts which might affect the value of the shares.

[17] There is no evidence as to whether the potential capital gains tax implications of a disposition of the shares would be the same as the capital gains tax implications of a sale of the building. Only the latter was addressed in the supplementary evidence provided post trial by Ms. Tarrabain. [18] I have concluded that it is not possible for me to justly deal with this asset in these proceedings given the state of the evidence.

As each party owns an equal number of shares in the company, there is, in a sense, no need to deal with the distribution of this asset in this matrimonial property action in order to accomplish a just distribution of the matrimonial property. Each party already owns a 50% interest in the company. Practically, I expect, there is a need for one party to acquire the shares of the other in order for there to be a “clean break” between the parties. [19] However, the evidence does not permit me to make any order in respect of the parties’ respective and equal shareholding in the company.

I expect that in the absence of agreement, and assuming there is no unanimous shareholders agreement, one or other of the parties may need to invoke the remedial provisions of the Alberta Business Corporations Act to realize their interest in the company. [20] I conclude as well that other items referenced by the parties at trial, which relate to the commercial property and which would figure in determining the value of the shares should not be considered in the division of matrimonial property. This includes the mortgage on the rental property, the liability for unpaid municipal taxes, and the payments Ms.

Tarrabain has made since separation for property taxes, insurance, utilities and mortgage payments. Pawn Shop Inventory (Appendix A, Item 16) [21] In Appendix A I concluded that the available evidence does not permit me to reach a conclusion about how to treat either the pawn shop inventory or the true asset, Mr. Tarrabain’s shares in 137797 Alberta Ltd. That is the company through which Mr. Tarrabain operates the pawn shop. Mr.

Tarrabain is the sole shareholder. [22] Neither party sought to offer further evidence or submissions in relation to this point. [23] It continues to be impossible to take this asset into account in the calculations leading to an equalization payment. I will therefore order that Mr. Tarrabain transfer one half of the shares in 137797 Alberta Ltd. to Ms. Tarrabain immediately. Thereafter, if the parties are not able to reach agreement one or other may need to invoke the remedial provisions of the Alberta Business Corporations Act to liquidate and realize the value of their shares.

Mexico Condo (Appendix A, Item 22) [24] In Appendix A I noted that the evidence as to the value of the vacation condominium in Mexico which the parties co-own, is weak. In response to that observation, Counsel for Ms. Tarrabain provided a letter from a Mexican realtor providing an opinion as to the value of the condominium. The value was lower than that suggested at trial. Counsel for Mr. Tarrabain has not objected or otherwise commented on that information. I assume that the parties are content to use that value for purposes of matrimonial property division.

That value is $US 90,000. [25] The opinion letter was dated March 9, 2016. The parties have not addressed the exchange rate. I have consulted http://www.bankofcanada.ca/rates/exchange/10-year-lookup/. It indicates the exchange rate at noon that day was $C 1.3236 for $US 1. $US 90,000 was $C119,124. That is the figure I direct be used in the calculations leading to an equalization payment amount. [26] In Appendix A I tentatively concluded that the fee which must be paid to transfer Mr. Tarrabain’s interest in the condo to Ms.

Tarrabain, and the outstanding balance of the loan which financed the purchase of the condo should all be “in Ms. Tarrabain’s colunn” in the calculations leading to an equalization payment. I confirm that conclusion. [27] I also tentatively concluded that the costs associated with the use of the condominium since separation should be split between the parties proportionally to the extent of their respective uses of the condominium since separation, unless the evidence did not permit a determination of the respective amounts of use. The evidence does not permit that determination.

The costs, $10,380.54, which were paid by Ms. Tarrabain, will be put in her column in the calculations leading to an equalization payment. RBC Avion Credit Card Dept (Appendix A, Item 37), RBC Line of Credit (Appendix A, Item 38) [28] These items were listed as separate debts on the Statement of Proposed Distribution submitted by Ms. Tarrabain at trial and discussed in Appendix A. I have re-examined the exhibits submitted (Tabs 27 and 29 in the Plaintiff’s Documents) and have concluded that they are not properly treated as two debts.

Those exhibits indicate that at the time of separation, or very near to that time, on September 17, 2012, the balance owing on the RBC Avion credit card account was $26,933.18. The record indicates that balance was paid on September 26, 2012. The record for the RBC Line of Credit indicates that the payment of the credit card was made by way of a transfer from the line of credit in the amount of the credit card debt, $26,933.18. [29] As I interpret the records in evidence, the credit card debt at the time of separation was paid by transfer from the line of credit for which Ms.

Tarrabain thereafter assumed responsibility. That amount should show as a liability in her column in the calculations leading to an equalization payment. [30] The credit card records also indicate that after separation Mr. Tarrabain continued to use the co-applicant credit card on the RBC Avion credit card account. Charges to his card are shown on the statements to October 16 and November 16. There were no charges on his card in statements for months following that. The total amount charged on his card in those 2 periods was $2536.27. I assume that Ms.

Tarrabain also paid those charges since she was the primary card holder. Ms. Tarrabain should have a credit in that amount against the equalization payment. Disposition

[31] I order the disposition of the various items of matrimonial property as indicated on the table which is attached as Appendix B. Where the value of an asset which still exists is listed in the column headed “Husband” I direct that Ms. Tarrabain take such steps as are necessary to transfer any interest she has in that asset to Mr. Tarrabain. Where the value of an asset which still exists is listed in the column headed “Wife” I direct that Mr. Tarrabain take such steps as are necessary to transfer any interest he has in that asset to Ms. Tarrabain.

All of the liabilities listed on Appendix B which still exist are to be assumed by Ms. Tarrabain. Subject to the stay of enforcement ordered below, Ms. Tarrabain shall pay Mr. Tarrabain $34,632.41 by way of an equalization payment. [32] As indicated above, I also direct that Mr. Tarrabain transfer one half of his shares in 137797 Alberta Ltd. to Ms. Tarrabain. [33] Also as indicated above I make no order in respect of the parties’ shares in 1330615 Alberta Ltd. or the debts and liabilities associated with the commercial building which is owned by that company. [34] I further order that Mr.

Tarrabain’s rights to enforce payment of the equalization payment by Ms. Tarrabain to him shall be stayed pending

a) determination of any proceedings commenced before December 31, 2016, by either party, to realize the value of their interests in 137797 Alberta Ltd. and 1330615 Alberta Ltd.,

b) agreement of the parties before December 31, 2016, or

c) further order of the court. [35] The parties may arrange to speak to costs, if necessary. Heard on the February 1, 2 and 3, 2016. Dated at the City of Edmonton, Alberta this 18 th day of April, 2016. B.R. Burrows J.C.Q.B.A. Appearances: Collista A. Coles for the Plaintiff G. Randy Hogle for the Defendant APPENDIX A Tarrabain v. Tarrabain Matrimonial Property Division Impressions re Items on Statement of Proposed Distribution submitted by Ms.

Tarrabain 1 . “Matrimonial Property” – This is the house in which the parties were resident for most of their marriage and at the time of separation, the matrimonial home, located at 3815 110 Street Edmonton. Ms. Tarrabain continues to live in this house. Title is in the names of the parties as joint tenants. An appraisal dated September 29, 2015 states the value to be $465,000. The parties agree that value should be used for division purposes. There is no dispute that this house should go to Ms. Tarrabain in the distribution of matrimonial property.

There is a mortgage with a balance of $19,090.25 on this house [ Item #25 ]. This should be a liability in Ms. Tarrabain’s column. Ms. Tarrabain testified that when the parties purchased his house around the time of their marriage, they each put $25,000 into the

purchase of the house. Any exemptions to which they are entitled therefore cancel each other. Impression: This item should be distributed to Ms. Tarrabain. It shall be valued at $465,000 in the distribution accounting. The mortgage will show as a liability distributed to Ms. Tarrabain. 2 . “Rental Property” – This is a house at 9211 81 Street which Mr. Tarrabain owned beneficially prior to marriage. Title is in his name alone. This house was purchased in 1994 and title was put in the name of Mr. Tarrabain’s mother. At the time Mr. Tarrabain was employed in his father’s pawn shop.

Though legal ownership was in his mother’s name, she held title as a trustee for Mr. Tarrabain. Mortgage payments were paid in lieu of part of Mr. Tarrabain’s salary. In 2007 legal title was transferred into Mr. Tarrabain’s name. The parties agreed (in argument) that $106,000 was paid for the house in 1994. Title was transferred into Mr. Tarrabain’s name in 2007 so that the house could be mortgaged to finance the purchase of the commercial property owned by the parties’ corporation. The value at the time of that transfer was recorded as $250,000.

During the marriage, and for about a year after separation, the house was rented to tenants. About a year after separation Mr. Tarrabain moved into the house and continues to reside there. Ms. Tarrabain has been paying the taxes and insurance on the house since separation. An appraisal dated October 26, 2015 states the value to be $363,000. The parties agree that value should be used for division purposes. There is a mortgage registered against the property [ Item #24 ]. The parties borrowed $238,000 on the security of this property and used it in the purchase of the commercial property [ Item #3 ].

The evidence indicates that the balance owing on that mortgage as of January 17, 2016 is $201,400.95. I do not know whether Ms. Tarrabain has any personal liability on that mortgage loan – given that the property against which it is secured is in Mr. Tarrabain’s name alone. But it appears that the corporation which owns the commercial building, and which is owned by the parties equally, had the benefit of the mortgage. The parties appear to treat the mortgage as if it were a charge on the commercial property and not the “rental property”. There is no dispute that this house should go to Mr.

Tarrabain in the distribution of matrimonial property. Depending on what distribution or disposition is made of the commercial property, the distribution of this house to Mr. Tarrabain will likely involve removal of this mortgage. Whatever value the house had at the time of the marriage in 2001 would be exempt from division. However there is no evidence as to what that value was. Presumably it would not be less that the value at the time the property was purchased $106,000. In the absence of any evidence to support a different conclusion, I would set its exempt value at $106,000.

Current Impressions: This item should be distributed to Mr. Tarrabain’s at a value of $363,000 in the distribution accounting. Mr. Tarrabain should have an exemption of $106,000 in respect of this property. 3 . “Business Property” – This is a commercial property located at 15347 Stoney Plain Road, Edmonton, and owned by 1330615 Alberta Ltd. The parties each own half of the issued shares of that company and they are the two directors. The company was struck in 2009 apparently for failure to file annual returns. Mr. Tarrabain operates a pawn shop in the building.

He does that through a corporation, 1377979 Alberta Ltd. of which he is the sole shareholder and director. That company has not filed annual returns for several years and as of the date of the corporate search which is in evidence, April 2013, the Registrar of Corporations had begun the process of having it struck. The property went into the name of 1330615 Alberta Ltd. in September 2008 and its value was recorded at the time of transfer at $325,000. The property was appraised as of October 30, 2015 at $1,115,000.00. The parties agree that value should be used for matrimonial property division purposes. Ms.

Tarrabain proposes that the property be put in her name. Mr. Tarrabain proposes that he be given time to attempt to finance a purchase of Ms. Tarrabain’s interest in the building, though at trial he testified that he is unlikely to qualify for a mortgage on his own merits. There was a suggestion in argument that his mother may be in a position to assist him in this regard.

The parties have ignored the existence of 1330615 Alberta Ltd., the fact that it is the legal owner of the building, and the fact that their property is shares in that company and not the building, in their submissions regarding division of matrimonial property. The evidence includes an unaudited financial statement for the company for 2011 which has references to shareholders loans and other matters which I expect could affect the share value in addition to the building.

I do not know whether the parties tacit proposal to ignore the existence of the company in the matrimonial property division is intentional, prudent, unwise, or an oversight. Further they have said nothing about capital gain tax liability that might be initiated by a change in ownership of the commercial building. I am not certain whether this is because the mechanics of the transfer would not attract capital gain tax or because the parties have neglected to consider this possibility. It appears there has been a substantial capital gain in the time the company has owned the building.

There are 3 liability items that relate to this asset: The mortgage against the “Rental Property” [ Item #24 ], the liability for unpaid

municipal taxes [ Item #26 ] and the payments Ms. Tarrabain has made since separation for property taxes, insurance, utilities and mortgage payments [ Item #30 ]. How these will be treated in the division accounting should be left for determination after the parties have reconsidered their positions regarding this asset. Impressions : The parties should be invited to reconsider their positions on the treatment of the commercial property in the matrimonial division before I make a final decision.

Possibly they will wish to seek leave to introduce further evidence or submissions or both. 4 . “Advance from Mexico Bank account” – The evidence indicates that the parties held a joint bank account in Mexico in connection with their ownership of a vacation condominium there, and that it had a balance of the equivalent of $C 8000. Mr. Tarrabain took $7000 of that balance after separation. There is $1000 left in the account. The documentary evidence in relation to this item is in Spanish. That it reflects the statements in the preceding paragraph is, as I understand it, admitted by both parties.

Impression: Assuming that my understanding is correct, the division accounting should show that $7000 went to Mr. Tarrabain and that the remaining $1000 in the account will go to Ms. Tarrabain. 5 . “Advance on Rental Income” – In the year following separation, Ms. Tarrabain received the $1400 per month rent on the “Rental Property” for 2 months and Mr. Tarrabain received the same for 10 months. Impression: The division accounting should show that Mr. Tarrabain received an advance of $14,000 and Ms.

Tarrabain received an advance of $2800 post separation. 6 . “ Monies receive for sidewalk build interference” – After separation Mr. Tarrabain received payment from the City as compensation for construction interference with the sidewalk of one or other of the houses. He did not share this with Ms. Tarrabain. Impression: The division accounting should show that Mr. Tarrabain received an advance of $5000. 7 . “ATB General Account TFSA ” – see Item #9 below. 8 . “ RBC personal account 2840” – see Item #9 below. 9 . “RBC chequing account #2010” – Items 7, 8 and 9 are bank accounts held by Ms.

Tarrabain at the time of divorce. Their total value is less than $13,000. They are mentioned in Ms. Tarrabain’s Statement of Proposed Distribution for the sake of completeness. An exemption is claimed in respect of each of them on the basis that their balances did not exist at the time of separation – that is they are entirely post separation assets. Impression: These items should not be divided (MPA s. 8(

f) and need not be mentioned in the division accounting. 10 . “RBC #00039 RSP @ 20% reduction” – Ms. Tarrabain has a RSP with a balance of 49,554.03 after reducing it by 20% for the tax that would be payable if it were cashed in. Of that, $11,520.00 (also after a 20% deduction) was contributed since separation. Impression: The RSP and the exemption should be distributed to Ms. Tarrabain in the division accounting. (exemption: MPA s. 8(f)). 11 . “RBC #0216 RRSP @20% reduction” -- This is another small RSP ($1394.35) which apparently existed at the time separation.

No part of it was contributed post separation so no part of it is exempt. Impression: The RSP should be distributed to Ms. Tarrabain in the division accounting. 12 . “RBC Whole Life Insurance” – There is a life insurance policy on Mr. Tarrabain’s life. Mr. Tarrabain is shown as the owner of the policy and the person entitled to the capital benefits of the policy. The beneficiary is shown as “Terry Tarrabain”. The cash surrender value is $1227.07. The evidence is that Ms. Tarrabain has paid the premiums on this policy since separation.

The evidence does not indicate how much of the cash surrender value has accumulated since separation. There was some doubt expressed in argument as to whether the beneficiary “Terry Tarrabain” was the Plaintiff or Mr. Tarrabain’s father, whose name is also Terry Tarrabain. The policy appears to have come into existence in 2002 at a time when it is much more likely, in my view, that he would have named his wife as his beneficiary than his father. In the absence of contrary evidence I proceed on that basis. The cash surrender value should be shared equally. As it is Mr.

Tarrabain who can claim it, it should be shown as being distributed to him in the division accounting. As Ms. Tarrabain is the beneficiary of the policy any benefit that flowed from the payment of the premiums since separation flowed to her. I assume that she could maintain the policy after divorce. Whether she does so or not might depend on whether she has any control over whether he surrenders the policy for its cash surrender value.

In any event, in my view her claim [ Item #31 ] that her post separation premium payments should be treated as a liability she has paid and for which she should get credit in the division accounting, is incorrect. Impression: The cash surrender value should be shown as distributed to Mr. Tarrabain in the division accounting. Ms. Tarrabain’s post separation premium payments should not be shown as liability for which she gets credit in the division accounting, or at all. 13 . “2012 Mercedes GLK” – Ms. Tarrabain acquired this before separation – but not very long before. Its value is shown as $65,000.

The evidence of that value is not strong – it is a letter from the dealer which states that value but qualifies it by saying that the writer would need to see the vehicle to give a confident appraisal.

The liabilities

section shows the amount owing on the car loan used to buy this car as a liability assigned to Ms. Tarrabain [ Item #27 ]. The liability is greater than the value of the vehicle. Impression: This asset and the liability attached to it should not be accounted for in the division accounting since it is essentially post separation property (MPA s. 8(f)). 14 . “2004 Minnie Winnebago” – This was acquired post separation. It is shown as distributed to Ms. Tarrabain and as an exempt item.

Impression : This asset and the exemption relating to it should not be accounted for in the division accounting since it is essentially post separation property. (MPA s. 8(f)). 15 . There is no item 15 in the Statement of Proposed Distribution. 16 . “137797 Alta Ltd. (inventory)” – This is inventory of the pawn shop which Mr. Tarrabain runs through 137797 Alta Ltd. The value in the Plaintiff’s proposed division accounting is $298,236.00. That comes from a document entitled “Inventory Totals Report” which has the date October 22, 2015 written on it in handwriting and has the number $298,236.00.

As proof that the value of the inventory is that amount, the document is extremely weak. Other evidence of the value of the inventory is Mr. Tarrabain’s testimony that it might have been $200,000 at one point as might be $100,000 now. There is no good evidence of the value. The inventory is owned by 137797 Alberta Ltd. which is solely owned by Mr. Tarrabain. His shares in that company, not the inventory itself, is the asset which should be taken into account in division of matrimonial property. There is one financial statement for that company – for 2009 – in evidence. It statements show the inventory at $38,095.

I expect no financial statements after that year have been produced. There could well be other assets and liabilities other than the value of inventory which could affect the true value of Mr. Tarrabain’s shares. Further, the evidence suggested that Mr. Tarrabain has been living off the inventory rather than business profits since separation. It might be the value of the inventory at the time of separation which would be relevant for division purposes. Impression: This available evidence does not permit me to reach a conclusion about how to treat either the inventory or the true asset, Mr.

Tarrabain’s shares in 137797 Alberta Ltd. in the division accounting. 17 . “Dodge Truck” – This is a vehicle in Mr. Tarrabain’s possession. Impression : For division accounting it should be distributed to Mr. Tarrabain and valued at $16,000.00. 18 . “Harley Davidsons (2)” – The evidence indicates Mr. Tarrabain owned 2 Harleys. He still owns one. It is worth $10,000. His evidence is that he sold the other for $13,000 but he does not remember when. Apparently it took several years for the purchaser to pay the agreed price. I assume all or at least a substantial portion of the payment was after separation.

Impression: The Harleys should be shown as distributed to Mr. Tarrabain and to have a value together of $23,000 in the division accounting. 19 . “Cargo Trailer” – This was sold by Mr. Tarrabain post separation. At one point he testified that he received $2800 for it. At another he testified he received $2000. I expect that later evidence was a rounded off number. Current Impression: The Cargo Trailer should be shown as distributed to Mr. Tarrabain at a value of $2800.00. 20 . “1993 Volkswagon Eurovan” – This was owned during the marriage. Mr. Tarrabain’s evidence is that he sold it post separation for $8500.

Impression: The Eurovan should be shown as distributed to Mr. Tarrabain at a value of $8500.00. 21 . “Skidoo” – This was owned by Mr. Tarrabain pre-marriage and is acknowledged to be exempt from distribution. Impression: The skidoo should not be shown in the division accounting. 22 . “Mexico Condo” – The parties own a vacation condo in Mexico. The evidence of its value is weak. They purchased it (I do not know when) for $C 155,000. There is evidence which apparently shows a similar condo sold for $US 99,000 recently. There is no appraisal. Ms.

Tarrabain used a value of $141,392.79 in her proposed division accounting. She proposed that it be distributed to herself. I understood Mr. Hogel to admit the values of the real property were as submitted by Ms. Tarrabain – though I am not sure whether or not he was including this property in that admission. There are 3 liabilities relating to the Mexico Condo: 1) transfer fees - the cost of getting the property in the name of whoever ends up with it ( Item # 28 ); 2) the loan which financed the purchase of the condo [ Item #30 ]; and 3) the costs Ms.

Tarrabain has paid in connection with the condo since separation. [ Item #29 ]. The documents produced shows those at $4,170.54. The statement shows them at 9,495.00. I understood the difference to be that Ms. Tarrabain forgot to include condo fees since separation - $230.00 a month. They were however included the 12 months of 2013 That leaves 2 months of 2012, 12 months of 2014, 12 months of 2015 and 1 month of 2016 or 27 months @230 = 6210.00. That would make the total expense $10,380.54. Impression: The condo, the transfer fees and the loan should be in Ms. Tarrabain’s column.

As to the distribution of that – my memory

of the evidence is that Mr. Tarrabain has used the condo once since separation and Ms. Tarrabain a number of times. The distribution of this liability should be proportional to the amount of use by each party since separation, unless

a) it was equal or

b) the evidence does not permit a determination of the respective amounts of use. (I have not checked my notes of the evidence on this point yet.) 23 . “Coin Collection” – This is a coin collection that was in the safe at or around the time of separation and which Mr. Tarrabain took with him. Ms. Tarrabain testified that he at one time said it was worth $40,000. He testified that he sold it for $4000. There is nothing in the evidence to substantiate either number. Impression: The coin collection should be in Mr.

Tarrabain’s column at a value of $4000 in the absence of any other evidence about it. 24 . “CWB Account #3236 – debt on commercial property” – see Item #3 above. 25 . “Mortgage on Matrimonial Property” – see Item #1 above. 26 . “Commercial prop. Taxes” – see Item #3 above. 27 . “Mercedes Payout” – see Item #13 above. 28 . “Transfer fees for Mexican property” – see Item #22 above. 29 . “Maintenance and repair fees on Mexico property since sep.” – see Item #22 above. 30 . “CWB Account #3236 – debt on Puerto Vallarta property” – see Item #22 above. 31 . “Whole Life for Denny @ 165.00 per mos.

For 40 mos.” – see Item #12 above. 32 . “Overdraft payout on Business account for #615” – Ms. Tarrabain paid $4947.06 in February 2013 to cover the overdraft on this bank account for the company which owns the commercial building (and in which the parties are equal and only shareholders). The account was closed at that time. Impression: This liability should be in Ms. Tarrabain’s column unless it is taken into account in the share evaluation which should be done as noted in Item #3 above. 33 . “Matrimonial Property renos and improvements” – Ms.

Tarrabain has incurred expense for the maintenance and improvement of the matrimonial home since separation. The total cost was $51,542.88. There is no evidence as to whether and if so how much these expenditures affected the value of the house. Ms. Tarrabain’s position is that they the time of divorce value of the house which is the value being used for division includes these costs so Mr. Tarrabain should contribute to them. Impression: This should be shown as a liability of Ms. Tarrabain in the division accounting. 34 . “Commercial property taxes . . .” – Ms.

Tarrabain paid the property tax bill for the commercial property, insurance for the building, the Direct Energy bill and made the mortgage payments. Her total expenditure was $96,592.00. Impression: This liability should be in Ms. Tarrabain’s column unless it is taken into account in the share evaluation which should be done as noted in Item #3 above. 35 . “9211 81 Street Insurance” – Ms. Tarrabain paid for the insurance on the Rental Property (post separation, I assume). Impression: This liability should be in Ms. Tarrabain’s column. 36 . “MBNA Account #2791” – This is a credit card in Ms. Tarrabain’s name.

It did not exist at the time of separation. Impression: This is entirely a post separation debt. It should not appear in the division accounting. 37 . “RBC Avion #9975” – This is a credit card now in Ms. Tarrabain’s name. The balance owing at separation was $30,000.00. Impression : This should appear in Ms. Tarrabain’s column in the division accounting. 38 . “RBC Creidt Line account #69-001” – This was a matrimonial debt of $36000 at the time of separation. Impression : This should appear in Ms. Tarrabain’s column in the division accounting. 39 . Exemptions: See Item #2 and Item #10 above.

Impression: The only exemptions that should appear in the division accounting are for the RRSP contributions made by Ms. Tarrabain post separation, and for the pre-marriage value of the Rental property.

APPENDIX B DISTRIBUTION OF MATRIMONIAL PROPERTY ITEM HUSBAND WIFE TOTAL ASSETS Real Property Matrimonial Home 465,000.00 465,000.00 Holyrood Rental House 363,000.00 363,000.00 Mexican Condo 119,124.00 119,124.00 Received after separation Mexico Bank Account 7,000.00 1,000.00 8,000.00 Rental House Income 14,000.00 2,800.00 16,800.00 Sidewalk Compensation 5,000.00 5,000.00 Financial Assets RSP#1 (20% discount) 49,554.03 49,554.03 RSP#2 (20% discount) 1,394.35 1,394.35 Life Insurance 1,227.07 1,227.07 Vehicles Dodge Truck 16,000.00 16,000.00 Harley Motorcycle (still owned) 10,000.00 10,000.00 Harley Motorcycle (proceeds of sale) 13,000.00 13,000.00 Cargo Trailer 2,800.00 2,800.00 Volkswagon Van 8,500.00 8,500.00 Other Coin Collection 4,000.00 4,000.00 TOTAL ASSETS 444,527.07 638,872.38 1,083,399.45 EXEMPTIONS Holyrood House Value at Marriage 106,000.00 106,000.00 RBC #0039 RSP (80% of post sep contributions) 11,520.00 11,520.00 LIABILITIES Mortgage on Matrimonial Home 19,090.25 19,090.25 Cost of Post Sep.

Matrimonial Home Improvements 51,542.88 51,542.88 Transfer fee, Mexican Condo 5,191.00 5,191.00 Costs of Mexican Condo since separation 10,380.54 10,380.54 Debt for purchase of Mexican Condo 98,342.48 98,342.48 Holyrood House Insurance since separation 3,007.63 3,007.63 RBC Avion Credit Card – balance at separation 26,933.18 26,933.18 TOTAL EXEMPTIONS and LIABILITIES 106,000.00 226,007.96 332,007.96 Total Assets minus Liabilities 338,527.07 412,864.42 751,391.49 Each party receives 50% 375,695.75 375,695.75 751,391.49 EQUALIZATION PAYMENT 37,168.68 -37,168.68 Husband’s Post Sep Avion CC Charges -2,536.27 2,536.27 ADJUSTED EQUALIZATION PAYMENT 34,632.41 -34,632.41