Mitchell v McVittie, 2018 ABQB 1010

Court of Queen’s Bench of Alberta Citation: Mitchell v McVittie, 2018 ABQB 1010 Date: 20181212 Docket: 1104 00668 Registry: Grande Prairie Between: Jacqueline Ann Mitchell Plaintiff - and - David James McVittie Defendant _______________________________________________________ Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ Background [ 1 ] Jacqueline Ann Mitchell (“Jackie”) and David James McVittie (“David”) are an unmarried couple who cohabitated and had five children together between 1994 and 2011.

Although separating in May 2011, they have remained inextricably connected to one another by reason of a protracted and acrimonious property dispute. At the heart of the dispute is a Property Agreement reached in October 2012, following JDR, but never implemented in full.

[ 2 ] The parties blame one another for engaging in conduct that has delayed and prevented effective implementation. At one point, Jackie had taken the position that the sheer elapse of time had negated the Agreement. Justice Wilson, in Part One of a

Summary Trial on October 10, 2018, determined that the Agreement is still valid, binding and enforceable. Now the parties ask me, in Part Two, to sever their property connection once and for all. They each claim adjustments to the distribution contemplated in the Agreement arising from events subsequent to the Agreement’s formation and seek direction as to final implementation. [ 3 ] By way of

summary, the Agreement dealt with two main classes of assets: • the assets of two companies operated by David, Saffron Construction Inc. and David McVittie Portable Welding Ltd.; and • two adjacent pieces of land in the County of Grande Prairie. [ 4 ] The assets of the two companies were sold at auction in April, 2013 and the net proceeds were used to pay a secured creditor and the CRA, in accordance with the Agreement. A third creditor, unsecured, received no payment. [ 5 ] The two real properties each had commercial shops located on them.

The first property is called the Home Property as the family had also lived on that property. The second property is called the Acreage Property. The Agreement contemplated that the properties would be listed for sale and, pending sale, listed for rental. While awaiting sale of the Home Property, David was permitted to occupy that property while paying the associated mortgage, insurance and utilities. In October 2013, a renter was found for the Home Property, resulting in David and the children then living with him relocating to two mobile homes located on the Acreage Property.

He remained in occupation of the Acreage Property, under various court orders, until being required to vacate in July 2016. Rental proceeds from either property were to be paid into, and expenses in respect of the properties were to be paid out of, a joint rental account. [ 6 ] Various steps contemplated in the Agreement were not carried out. As said, the parties point the finger at one another for being dilatory and uncooperative in carrying out these steps. David also took some four years to provide a signed copy of the Agreement to his lawyer, during which Jackie had considered the Agreement to be voided.

However, as noted earlier, Justice Wilson thought otherwise. [ 7 ] I have had regard to the submissions of counsel at Part Two of the

Summary Trial and the written briefs, and have reviewed the Affidavits and questioning transcripts of the parties filed in support thereof. I propose now giving directions on each of the issues raised by counsel. Discussion of Jackie’s Issues [ 8 ] In the

Summary Trial brief filed on behalf of Jackie, her counsel catalogued eight areas for which Jackie seeks relief. During oral argument before me, the list had been pared down to five issues. For the sake of completeness, I will address all eight areas. All of the areas were characterized as breaches of the Agreement. Breach No. 1 – Accounts Receivable [ 9 ] Jackie stated in her August 22, 2018 Affidavit at para 27 there was approximately $70,000 in receivables owed to the two companies that had been offered by David to a third party as part of a conspiracy to cause economic harm to Jackie.

Jackie deposes that the third party declined to participate in the conspiracy and warned Jackie about it along with threats that David had made against her person. In the brief, the amount increased to between $78,000 and $83,000. [ 10 ] At para 16 of his September 27, 2018 Affidavit, David denies any discussion with the third party in this regard. [ 11 ] I find that Jackie has failed on a balance of probabilities to establish the existence of these accounts receivable. First, there is no documentation. Second, the reported conversation with the third party is double hearsay.

It is alleged that David first made the statement to the third party and then that the third party repeated David’s statement to Jackie. I cannot accept this evidence under any principled approach to exceptions to the hearsay rule. Further, any missing receivables would not accrue for Jackie’s benefit but rather for the benefit of the creditors of the companies. Breach No. 2 – Ski Gear and Snowboarding Equipment [ 12 ] Jackie claims that David never returned these items as he was obliged to do under s.2(

b) of the Agreement. David says that he did so. She makes a claim of $905.00 as a replacement cost. In the face of David’s statement that he did return the items, I am not satisfied that Jackie has established this claim. There is also no evidence before me as to value. I do not allow the claim. Breach No. 3 – Missing Corporate Assets [ 13 ] Jackie alleges that, contrary to s.3(

a) of the Agreement, David failed to provide all of the corporate assets to the auction company as required. During the hearing, Jackie’s counsel produced a list of the assets thought to be missing. The list was derived from comparing the two lists from undertaking 10 and undertaking 21, responded to on April 24, 2012, with the list of assets sold by the auction company. Jackie suggested that David disposed of the unaccounted for assets for his personal benefit. This had the effect of reducing the value of the shareholder’s loans, of which she was entitled to a half-share.

She estimates her loss in this regard to be $47,000. [ 14 ] I must admit to not being able to fully follow the logic of this claim. The documents (Exhibits 16 and 17 of David’s July 26, 2018) indicate the total net proceeds from the sale of the corporate assets went to pay the secured creditor in full, and CRA in part, with a

third party unsecured creditor receiving nothing. There was no repayment of shareholder’s loans. Any corporate assets beyond those sold at auction would have gone toward paying the companies’ creditors. Even if corporate assets were missing, I do not see how Jackie would have benefited. [ 15 ] I note that this covers much the same ground tilled by Justice Wilson during his oral decision of October 10, 2018. At the time of argument before me, I did not know that.

The new list of purportedly missing assets produced by Jackie’s counsel at the November 8, 2018 hearing was shown to David’s counsel for the first time that day. Much time was spent before me mulling over whether these assets were in fact missing. It turns out that Justice Wilson had dealt with many of the same allegations in David’s favour. [ 16 ] Apart from Justice Wilson’s findings, I am satisfied by reading paras 32 through 41 of David’s July 26, 2018 Affidavit along with the associated exhibits, that all of the assets have been accounted for.

I also accept the explanation provided at the hearing that the assets listed by the auction company, Ritchie Brothers, had different descriptions from the corporate listings and also that some of the assets were sold in lots. I further accept the supplementary explanation provided in para 18 of David’s September 27, 2018 Affidavit. [ 17 ] It is somewhat puzzling why a 2002 Chev Silverado truck would show up on a corporate asset list in 2011 when it was crashed and written-off in 2002. One surmises that accountants cannot reflect what they are not told.

In any event, Jackie and David were together between 2002 and 2011. His businesses were operated from the jointly owned properties. One would have thought Jackie would have noticed, and could have deposed to, the existence of a 2002 Silverado truck had it been there. [ 18 ] Jackie also alleges under this heading that clean-up costs of $29,700 are recoverable from David. These costs were necessary, says Jackie, because of junk and garbage that David had left on the property and she was required to remove in 2016. She claims these costs under s.3(

b) of the Agreement which requires David to be responsible for the cost of transportation and repair for getting the corporate assets to auction. [ 19 ] If anything, the junk and garbage left on the property were items that had no value for auction purposes and were not part of the auction. Such costs would not fall under s.3(

b) of the Agreement. However, as Jackie accepts that the junk and garbage arose from the operation of the companies, then she must accept that, at least in part, the junk and garbage originated during their relationship. I recognize that David solely occupied the Acreage Property between October 2013 and the summer of 2016. Jackie has been able to establish out-of-pocket costs for cleanup and junk removal in the sum of $22,141.35. I attribute that cost two-thirds (or $14,760.90) to David’s account and one-third (or $7,380.45) to Jackie’s account.

Breach No., 4 – David’s Occupation of the Properties [ 20 ] Jackie claims against David the sum of $67,250 for his occupation of first the Home Property and then the Acreage Property during a period some 3.5 years longer than contemplated, which she says resulted in lost rentals. She also complains that David failed to maintain the properties adequately and permitted illegal activities to occur thereon.

David acknowledges his occupation of the properties but denies the other allegations. [ 21 ] In order to determine whether Jackie has suffered loss as a result of David remaining on either of the properties, it is necessary to examine the Agreement and the Court Orders in question. The Agreement states at s.4(

c) that David may remain in occupation of the Home Property pending its sale. Further, under s.4(d), the commercial shops located on both properties were to be listed for rental. [ 22 ] Following separation, there were attempts to sell either property in 2011 and 2012, but these were not successful. Thereafter, the parties blame one another for either obstruction or lethargy with regard to listing the properties for sale.

In October 2013, a tenant was found for the Home Property, which resulted in David decamping to the Acreage Property. [ 23 ] A court application took place on October 25, 2013 to deal with, among other things, David’s occupation of the Acreage Property. Justice Verville ruled that David could remain on the Acreage Property for a period of at least four months, after which Jackie was at liberty to bring an application compelling David to vacate if the property had not sold.

Justice Verville stated at page 14, lines 18 and 19, of the transcript: “I’m not saying he will have to, but you will be at liberty to bring that application.” [ 24 ] A Court Order embodying Justice Verville’s ruling was never entered as Jackie’s then counsel ceased to act. There were continued attempts to list the properties for sale in 2013 and 2014 but the parties disagreed as to the listing price and the listing never occurred. It was not until April 2016 that Jackie, now with new counsel, brought an application to force David to vacate the Acreage Property.

That Order was granted by Justice Brooker on April 27, 2016, requiring David to leave by May 31, 2016. The deadline for doing so was subsequently extended, first by Justice Verville and then by Justice Michalyshyn, with the end result that David did vacate by the end of July, 2016. [ 25 ] The above chronology shows that David was permitted, first under the Agreement and second under a series of Court Orders, to occupy first the Home Property and then the Acreage Property.

As pointed out to Justice Verville on October 25, 2013, David moved to the Acreage Property into two mobile homes in order to house himself and four of the children who were living with him at different times. The fact is that David was permitted to remain on the Acreage Property through a series of court orders. There is no evidence before me that any prospective tenants for the commercial shop on the Acreage Property were turned away as a result of David and some of the children living in the mobile homes.

It is simply a matter that the commercial shop on the Acreage Property was not rented out at the instance of either party. [ 26 ] As stated, David denies any illegal activity on the Acreage Property on his own part. He cannot vouch for any third party whom he allowed to temporarily stay on the property in a holiday trailer, as David was out-of-town for work on some occasions. Jackie said that she did not directly observe any unlawful acts but avowed that she saw drug paraphernalia in the holiday trailer.

Even if true, it is unclear to me as to the degree and duration of the presence of drug paraphernalia and it is unknown whether any prospective commercial tenants were deterred by it.

[ 27 ] In the result, I cannot accede to Jackie’s claim for economic loss due to foregone rentals arising from David’s occupation of either property. Breach No. 5 – Failure to List [ 28 ] Based on the Affidavits I reviewed, I have concluded that both parties are, in measure, responsible for the failure to list the properties for sale in a timely or successful manner. In any event, Jackie did not ascribe a particular claim for damages in respect of this alleged breach.

Breach No. 6 – Default in Payment of Mortgage, Insurance, Property Taxes and Utilities on the Home Property [ 29 ] I will deal first with the property taxes. David should be, and I find that he is, solely responsible for payment of the property taxes during that period of time in which he occupied the Home Property, being January 2012 until that property was rented to a commercial tenant commencing October 2013. [ 30 ] The property taxes for the whole of the disputed period June 2011 to the end of 2013 amount to $5,528. The taxes were paid from the rental account.

Since Jackie and David have an equal interest in both the properties and the rental account, David is deemed to have already paid 50% of the taxes or $2,764. He is agreeable to paying another 35% or $1,935 to represent his occupancy of the Home Property. I consider this to be a more than fair resolution and direct David to make the payment. [ 31 ] With regard to the mortgage arrears on the Home Property that accrued to the end of September 2013 in the sum of $2,700, I find that David is solely responsible for the payment thereof.

He recalls (para 60 of his Affidavit of July 26, 2018) relocating to the Acreage Property sometime prior to October 2013. He also deposes that the Home Property was leased commencing October 15, 2013 by a lease agreement dated October 10, 2013. Jackie cannot recall when David transferred from the Home Property to the Acreage Property in 2013. In the absence of precise evidence on this point, I will consider that David occupied the Home Property until the end of September 2013.

Since the arrears have been paid out of the rental account, David owes another 50% or $1,350. [ 32 ] The Direct Energy bill of $3,800 relates to the pre-JDR period. The Agreement makes the parties each 50% responsible for this debt. Since Jackie paid it in full, David owes her $1,900. Breach No. 7 – Interest on Lost Rentals [ 33 ] I declined to recognize above Jackie’s claim for lost rentals on both properties. The claim for interest is similarly disallowed.

Breach No. 8 – Legal Costs [ 34 ] In the brief filed on her behalf, Jackie appears to make a claim for full indemnity legal costs arising from the various breaches of the Agreement claimed against David.

During argument, Jackie’s counsel argued that the unnecessary costs incurred by Jackie as a result of David’s various defaults should sound in damages, or more precisely a different distribution of the net proceeds from the sale of the properties than is contemplated in the Agreement. [ 35 ] I mention that as part of my own due diligence, I listened to the official record of Justice Wilson’s oral decision on October 10, 2018. Justice Wilson found that there is a valid, binding and enforceable Agreement that arose from the JDR before Justice Hall on October 18, 2012.

In view of that finding, I am doubtful whether I can vary the distribution which is precisely stipulated in the Agreement.

Further, Justice Wilson specifically found that: • David had not misled Jackie regarding the disposition of the corporate assets; • David had done precisely as required in getting the corporate assets to auction and paying corporate creditors; • Jackie had displayed indifference to the provision in the Agreement that the lands were to be listed for sale; and • both parties had failed to implement the Agreement in an expedient manner and, therefore, both parties should accept the consequences of the lack of such expediency. [ 36 ] The matter of missing corporate assets was raised for a second time in the hearing before me although in a slightly different manner and to the extent necessary I made a similar finding to that of Justice Wilson. [ 37 ] I find that both parties, in their own way, are responsible for the litigation arising from David’s occupancy of the Acreage Property and the inability of both parties to fully implement the Agreement.

I therefore find there is no basis to award legal costs in the form of damages to Jackie for what she perceives are defaults in performance on the part of David. Post JDR Adjustments raised by David Uncontested Adjustments [ 38 ] David has agreed to reimburse Jackie for the following:

• 50% of $376.01 for lock installation or $188.01; • 50% of the 2016/2017 property insurance in the sum of $5,049 or $2,524.50; • 50% of the 2016 Acreage Property utilities of $1,062.54 or $531.27; and • In respect of the January to July 2016 Acreage Property tax, David will reimburse Jackie half of the total of $1,123.99 or $5621.00, as he occupied the Acreage Property solely during that time. • In respect of the property insurance discussed above, I direct that David be named in the policy as an equal loss payee since he is a joint owner of the properties pending their sale.

Window Repair or Replacement [ 39 ] Jackie received quotes totalling $1,949.24 to repair or upgrade windows on the properties, which she claims that David damaged. As of her August 28, 2018 Questioning (page 64 lines 1 to 7), the repairs had not as yet been effected, despite which both properties were rented. In the event that Jackie actually incurs the cost to improve the windows, they will enhance the value of the properties. If this occurs prior to the sale, then David will reimburse her one-half of $1,949.24 or $974.62 or one-half of any actual lower cost.

Furnace Repairs [ 40 ] The two invoices from Lee’s Sheet Metal for furnace repairs, under Tab 29 of David’s July 26, 2018 Affidavit, were actually paid by the tenant on the Home Property whose rent was reduced accordingly (transcript, page 64 line 8 to 25). Under Questioning, Jackie agreed that David had already paid 50% of the furnace repairs through the rent reduction. Junk Removal [ 41 ] This was dealt with under Breach No. 3 above. Sewage Cleanup [ 42 ] There is an invoice for $1,812.57 from Enviromarc Services Ltd. under Tab 29 of David’s July 26, 2018 Affidavit.

Initially, Jackie said this related to cleanup of a sewage spill left by David. Under Questioning, she stated that a vacuum truck was not required to clean up sewage but instead the soil was tested and the ground raked. This appears to be an effort directed at improving the property. Accordingly, I direct that David pay 50% of this cost or $906.29. Mobile Homes [ 43 ] Jackie realized $1,712 in sale proceeds from disposing of the two mobile homes left on the Acreage Property after David departed. These are assets of the relationship and the sale proceeds should be shared equally.

Therefore Jackie owes David the sum of $856. CRA Writ [ 44 ] CRA registered a writ against both properties on March 9, 2016 for $41,266.12 relating to David’s unpaid taxes for the taxation years 2006 and 2007. The dates of assessment were July 20, 2010 for the 2006 taxation year and July 30, 2013 for the 2007 taxation year. Both assessments arose because dividends paid by one of the companies, David McVittie Portable Welding Ltd., to David had not been properly reported for taxation purposes.

The unpaid taxes are a personal liability of David. [ 45 ] During the hearing, Jackie’s counsel argued that the unpaid taxes are actually a corporate liability and that David should have dealt with it at the time the corporate assets were sold. His failure to do so, according to Jackie’s counsel, should not be visited upon Jackie. [ 46 ] It is true that the Notice of Assessment bears the corporate account number but it is also clear that David himself is liable for the assessments and not the corporation.

This is the result of David not paying taxes on dividends realized from the corporation. [ 47 ] While it is true that one assessment took place during the relationship and the other occurred after the separation, the taxes should have been paid during the respective actual taxation years, that is, 2006 and 2007. As such, the debts were incurred during the course of the relationship. I accept David’s counsel’s submission that the family unit would have benefitted from higher net dollars received as a result of David’s failure to pay proper taxes on the dividends.

If David had actually paid the taxes on time, the payment would have come from family assets. The Agreement speaks at s.5(

a) to each party being responsible for their respective individual debts but only takes effect, at earliest, from the date of the JDR which is October 18, 2012. [ 48 ] I therefore find that the CRA Writ is a debt of the relationship payable from the body of assets of the relationship prior to any distribution to the parties. ATB Joint MasterCard

[ 49 ] David has learned the ATB has written off this debt, so it is no longer an issue. Rental Account [ 50 ] The Agreement contemplated at s.4(

d) that rentals from the two properties would be held in trust for the mutual benefit of the parties pending the respective sales of the properties. On October 25, 2013, there was discussion in the attendance before Justice Verville of a joint bank account being set up at Scotiabank requiring joint signatures, into which revenue from the properties was to be deposited and expenses related thereto paid out. The Scotiabank joint account was in fact was created.

However, as noted, since Jackie’s counsel at the time withdrew, the draft order emanating from the appearance before Justice Verville was neither approved nor entered. Approximately three years later, David determined that Jackie had not deposited all rental revenues into the joint rental account. In consequence, the parties put in place a Consent Order, signed by Justice Simpson and filed on November 6, 2016, requiring deposit into the joint rental account of the revenue and payment out of expenses related to maintenance of the properties.

The Consent Order further provided that Jackie was to give David three days’ notice of her intention to enter into or vary any tenancy agreement, within which time he was to consent. Failure on David’s part to consent or object permitted Jackie to proceed unilaterally. [ 51 ] Jackie admitted under questioning (transcript, page 52, lines 14 to 27 and page 53 lines 1 to 10) that some $254.61 in personal insurance costs were taken from the joint rental account.

David is entitled to the return of 50% of that amount or $127.31. [ 52 ] With respect to the Home Property, Jackie missed depositing rentals for the months of June, July and August of 2016 (total $9,600), August and October of 2017 (total of $7,600) and January, April, July and August of 2018 (total of $15,200) for a grand total of missed deposits on the Home Property of $32,400. Accordingly, Jackie owes David 50% of that grand total or $16,200. [ 53 ] Jackie also rented the Acreage Property to Gorbahn and Sons for the period of October 2016 until September 2017 at a monthly rental of $2,200.

Only the first month of rent was collected and it was not deposited into the joint rental account. Jackie says that in lieu of rent for the remaining 11 months of the tenancy, Jackie accepted 14 loads of gravel from the tenant, which she says was necessary to provide access to the Acreage Property shop. Jackie was unable to respond to an undertaking from Questioning to provide the quote for the gravel she received from the tenant.

She did not amend the lease to reflect the trade of gravel for rent and refused to provide personal bank account statements for the remainder of the lease period with that tenant to show whether she had or had not received any lease payments for the period November 2016 to July 2017. [ 54 ] An extract (cover page and

summary page) of the appraisal completed by Plant and Associates Appraisal Services Inc., found under Tab 25 of David’s July 26, 2018 Affidavit, has a colour photograph of the driveway leading to the Acreage Property shop. The appraisal was completed on October 3, 2017. The picture clearly depicts a quantity of gravel on the driveway. It is impossible to determine when that gravel was deposited.

While this is not ideal evidence, David did not deny Jackie’s assertion that gravel was supplied for the driveway. [ 55 ] Beyond the mention of 14 loads, I have no information about the quantity of gravel provided, nor the cost of its supply and transport. I accept that gravel may not be cheap. I am prepared to give Jackie the benefit of the doubt that some gravel was received. However, in the absence of meaningful information regarding the value of the gravel, the Court is left engaging in guess work.

I am prepared to ascribe a value of $10,000 to the gravel and accept that it resulted in an appreciation in the value of the Acreage Property. Accordingly, there is $2,200 x 12 months - $10,000 = $16,400 missing from the joint rental account from the Gorbahn and Sons tenancy. Therefore Jackie owes David 50% of this amount or $8,200. [ 56 ] Furthermore, the Acreage Property was rented to Trustfield Inc. effective October 17 at a monthly rental of $2,000. That lease continues to the present. No rents under this lease have been deposited by Jackie into the joint rental account.

To the end of 2018, the amount missing is $2,000 x 14 months = $28,000.

Jackie owes David half of this amount, or $14,000. [ 57 ] As a result of all of the foregoing, the post-JDR adjustments are as follows: David pays to Jackie Breach 3 – Cost of Cleanup $14,760.90 Breach 6 • 2011-2013 property taxes on Home Property • 2013 mortgage payments on Home Property • Direct Energy Bill $1,935.00 $1,350.00 $1,900.00 Lock Installation $188.01 Property Insurance $2,524.50 2016 Acreage Property Utilities $531.27 2016 Acreage Property Taxes (January to July) $562.00 Sewage Cleanup $906.29 Total: $24,657.97 Jackie pays to David Sale of Mobile Homes $856.00 Deduction of Personal Insurance $127.31

Home Property – missed deposits 16,200.00 Acreage Property - missed deposits • Gorbahn and Sons • Trustfield Inc. $8,200.00 $14,000.00 Total: $39,383.31 [ 58 ] When the above amounts are set off against one another, Jackie must make a net payment to David of $14,725.34. Finally, if Jackie does replace the windows in question prior to the date of sale, then she may deduct a further $974.12 or the actual lesser amount from the amount she must pay David.

Disposition of the Properties [ 59 ] There are two possible scenarios for the disposition of the properties in order to finalize the financial separation of the parties. The first scenario envisions Jackie buying out David’s interest in the two properties. David has no objection to her doing so. In consequence, I give Jackie 60 days from the date of this decision within which to obtain the necessary financing and purchase David’s interest. [ 60 ] In the event Jackie chooses not to purchase the properties or is unable to obtain the necessary financing, the properties shall be listed for sale and sold.

Scenario 1 – Jackie buys the Properties [ 61 ] The October 2017 appraisals of Plant and Associates are accepted by both parties.

Therefore the total assets are as follows: Assets Jackie David Notes Acreage Property $365,000.00 Per Oct/17 Plant & Associates Appraisal Home Property $600,000.00 Per Oct/17 Plant & Associates Appraisal Notional add-on $43,000.00 Per para 4(e)(ix) of Property Agreement Total Assets $1,008,000.00 [ 62 ] The debts against the assets are as follows: Debts Jackie David Notes ATB Mortgage $220,750.99 Jackie to refinance in her name CRA Writ $41,266.12 Jackie to obtain financing to payout and discharge ATB MasterCard $0.00 Debt written off by bank Total Debts $262,017.11 Net Assets $745,982.89 [ 63 ] The Agreement at para 4 provides that David will receive $77,000 and Jackie will receive $32,000.

The remaining net assets will then be divided between the parties with David receiving 55% of the remaining net and Jackie receiving 45%. [ 64 ] The net payable to David is therefore calculated as follows: Net assets $745 982.89 $77,000 to David ($77,000.00) $32,000 to Jackie ($32,000.00) Net balance $636,982.89 [ 65 ] Net Payable to David: Para 4 $ 77,000.00 55% of $636 982.89 which is $350,340.59 Net of post-JDR adjustments $ 14,725.34 Net balance $442,065.93 [ 66 ] The legal fees incurred as a result of the transfer of the properties to Jackie and the refinancing will be paid from the rental account or otherwise shared equally by the parties.

Any remaining balance in the joint rental account including deposits made to the date

of transfer will be divided equally between the parties. Scenario 2 – Sale of the Properties [ 67 ] The parties will agree on the listing agent, the asking price and the acceptance of any offer.

In the event no agreement can be reached on any or all of the matters discussed in this paragraph, then either party is at liberty to seek an order from me for directions. [ 68 ] As a result of the Property Agreement and the rulings made in this decision, the following will be paid from the proceeds of sale: • ATB Mortgage; • CRA Writ • any outstanding property taxes; • legal fees associated with the sale; • the sum of $77,000 to David; and • the sum of $32,000 to Jackie. [ 69 ] Thereafter the sum of $43,000 shall be notionally added to the remaining proceeds under s.4(e)(ix) of the Agreement.

The respective shares of 55% for David and 45% for Jackie will then be calculated. The further sum of $14725.34 for post JDR adjustments will be deducted from Jackie’s 45% share and paid to David. Costs [ 70 ] Justice Wilson had left the decision for costs of the

Summary Trial, Part One to the judge hearing the

Summary Trial, Part Two. David was entirely successful at Part One and mostly successful at Part Two. Costs are always discretionary and I award the lowest scale here because David is partially responsible for the delay that has resulted in this litigation. Accordingly, I award David his costs of two days of

Summary Trial based on Column 1 of

Schedule C. In the event Jackie buys the Properties, these costs may be added to the Net Payable to David. In the event the properties are sold to a third party, these costs may be paid from Jackie’s share of the net proceeds. Heard on the 8 th day of November, 2018. Dated at the City of Grande Prairie, Alberta this 12 th day of December, 2018. Douglas R. Mah J.C.Q.B.A. Appearances: Patrick L. Wilson Gurevitch Burnham Law Office for the Plaintiff Lesley R. Kroeker Bishop & McKenzie LLP for the Defendant