2023 MBKB 87, 2023 MBKB 87

Date: 20230607 Docket: FD 15-01-10333 (Winnipeg Centre) Indexed as: Duncan v. Magnusson Cited as: 2023 MBKB 87 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) ) WILLIAM STANLEY DUNCAN, ) JURGEN W. FELDSCHMID petitioner, ) for the petitioner - and - ) ) LISA ANNE MAGNUSSON, ) MARIA M. MITOUSIS respondent. ) for the respondent ) ) ) JUDGMENT DELIVERED: ) June 7, 2023 HORST J. INTRODUCTION [ 1 ] WILLIAM STANLEY DUNCAN and LISA ANNE MAGNUSSON began living together on November 1, 1993. They married August 23, 1997 and separated August 31, 2009.

The combined period of cohabitation and marriage is just under 16 years. At the time of trial, the parties had been separated nearly 14 years. At the date of separation, the petitioner was employed by Canadian Pacific Railway (CP Rail) and the respondent was receiving Canada Pension Plan (CPP) disability. There are no children of the relationship. The parties were divorced by Divorce Judgment pronounced June 15, 2017. The petitioner has since remarried. The remaining issues between the parties are property matters.

ISSUES [ 2 ] Although initially there were other issues raised, through the course of the trial, a number of agreements were reached. As a result, the remaining issues to be determined are as follows: • Preliminary motions and amendment to pleadings; • Equal division of family assets pursuant to The Family Property Act , C.C.S.M. c. F25 (the FPA ) including: A. Valuation of assets; B. Pension division; C. Determination of equalization payment; and D.

Method of payment of equalization. • Accounting for net sale proceeds of 187 Borebank Street, Winnipeg (Borebank); • Accounting for Joint Line of Credit; • Pre-judgment and post-judgment interest; • Partition or sale of 2 Grove Avenue, (Grove) and 175 Gimli Road, (Gimli Rd.); and • Costs.

PRELIMINARY MOTIONS AND AMENDMENTS TO PLEADINGS [10] At the commencement of the trial, there were four motions filed by the parties. [11] I dismissed motion document #76 of the petitioner to withdraw or discontinue the Petition for Divorce. I dismissed motion document #79 of the respondent for

summary judgment. [12] I allowed motion document #81 of the respondent to amend the Answer to re-instate the claim for equal division of family property and granted leave to extend time for the claim pursuant to s. 19(3) of the FPA . [13] The motion document #83 of the petitioner seeking leave to request partition or sale was allowed. The parties continue to own two pieces of real estate jointly. If the amendment for partition or sale had not been allowed this would have required further litigation.

At the end of the trial the parties agreed to an order of sale the terms of which are set out later in these reasons. [14] The remaining requests for amendments in the petitioner’s motion document #83 were adjourned to the end of the trial. [15] The issues raised in the various motions were to address the matter as a result of the decision of Thomson J. on the motion to dismiss for delay. [16] I stated my reasons on record for the determination of each motion.

In the written argument submitted at the conclusion of the trial, it was suggested that I did not apply the same test to the determination of the request to amend at the beginning of the trial as to the test for the further amendments. [17] I am satisfied that it was proportionate and reasonable to allow the amendments. There was no real prejudice to the parties by allowing the amendments to reinstate the family property and the partition or sale. The parties had agreed in their pleadings since 2015 that an equal division of property was going to occur.

The petitioner’s request to withdraw or discontinue his pleadings was first disclosed in the hearing before Thomson J. and was referred to in his reasons as “litigation mischief”. This paved the way for the request for the amendment by the respondent. As I dismissed the request to discontinue or withdraw the pleadings by the petitioner, the original claim for and the agreement to equal division of property remained before the Court. I have not yet considered the issue of costs, but I am satisfied that costs can adequately compensate either party for any prejudice.

After the determination of the motions, an adjournment was granted, albeit of only one day, to allow counsel to prepare and be ready to proceed on the issues. Neither party sought a new trial date. Neither sought an adjournment pending appeal. EQUAL DIVISION OF FAMILY PROPERTY [18] After determination of the preliminary motions, I directed counsel to prepare a Comparative Family Property Statement. The Comparative Family Property Statement was filed as Exhibit #1 in this proceeding.

This document clarified which valuations and property issues were in dispute. [19] At the conclusion of trial, the only valuations left to be determined for an accounting pursuant to the FPA were the following items: household goods, Volkswagen (VW) Jetta and the corresponding VW Jetta loan. A. Valuation of Assets (

i) Household Goods [29] The petitioner’s position is that the household goods in his possession, at the date of separation, had a value of $3,480.00, and the household goods in the possession of the respondent had a value of $12,300.00. The petitioner based his valuation on an appraisal he had obtained. The appraisal was not filed as evidence. The appraiser did not testify as a witness. The reference to the appraisal in the Comparative Family Property Statement indicates that it was dated September 7, 2016, some seven years after the date of separation. [30] The petitioner’s evidence simply states these values.

The petitioner did not identify any assets of significant value, or any assets generally. The petitioner stated in his evidence that, the parties each had the opportunity to attend to all jointly owned properties after the separation to retrieve or retain any assets they wanted. Although he acknowledges that the household goods were divided, his position is that they were not divided equally. [31] The respondent’s position is that the household goods should be valued at nil or an equal value for each party. The respondent disputes that she had any greater value of household goods than the petitioner.

The respondent’s position is that the household goods were divided equally or alternatively, given the time since separation their accurate value cannot be determined and therefore, there should be no value included in the accounting. [32] The evidence was insufficient to demonstrate that the household goods had the value ascribed to them by the petitioner. I have concluded that the household goods were divided equally and therefore, the value, in the accounting of assets and liabilities, is zero dollars for each party. (ii) 2006 Volkswagen Jetta and Jetta Car Loan

[34] The 2006 VW Jetta was purchased by the parties prior to separation and retained by the respondent after separation. Exhibit #3, introduced into evidence by the petitioner, contains three relevant documents. [35] The position of the Petitioner is that the car’s value at the date of separation was $24,959.00 based on the average on page 4 of Exhibit #3. The petitioner does not acknowledge the debt at the date of separation but claims it as of October 1, 2010 as he made the payments from the date of separation.

His position on the loan is that it should be accounted for at $8,397.80 as of October 1, 2010. [36] The position of the respondent is that the car was a joint asset and joint debt and is therefore already shared and should not be entered into the accounting. Alternatively, the respondent maintains that the value of the car did not exceed the debt. [37] The first three pages of Exhibit #3 are the Conditional Sale Contract for the purchase of the vehicle.

This document confirms the purchase price, the date of purchase and that both parties were involved in the purchase. [38] Page 4 is a computer printout of a search done by the petitioner to estimate the value. It states that the estimated depreciation over three years on the vehicle would be $13,158.00, based on the purchase price of $34,099.00. At the bottom of the page there is reference to the average of two estimates. However, only the one estimate of $20,941.00 is provided as part of Exhibit #3. The vehicle was purchased new on January 1, 2007. The vehicle was a 2006 model.

The actual depreciation may have been less than the estimated amount stated as the car had not yet been owned for three full years at the date of separation. The amounts the petitioner used to calculate the “average” value were not provided, therefore I do not accept that average. I accept the valuation of $20,941.00 as it is the only “independent” evidence provided to support any valuation of the vehicle. [39] The final page of Exhibit #3 is a document titled “Amortization”. This document shows the balance on the loan for the VW Jetta each month starting in January 2009 and ending November 1, 2010.

The balance on August 1, 2009 was $13,510.40. This is the balance closest to the date of separation that does not include any payments made after separation. After the date of separation, the petitioner made payments on the VW Jetta car loan, however, the provisions of the FPA ascribes value at the date of separation. [40] It is clear that the car was purchased by the parties together. The car was retained by the respondent; she had sole use and enjoyment of the vehicle and was able to dispose of it herself many years later. Therefore, I concluded that it was not a joint asset.

I am satisfied that the car and the liability are properly accounted for by the respondent at the date of separation. [41] Based on the evidence before me, the respondent will account for the value of the 2006 VW Jetta as $20,941.00 and the VW Jetta car loan as $13,510.40, at the date of separation. B. Pension Division [42] The petitioner’s CP Rail pension is a federally regulated pension plan pursuant to the Pension Benefit Standards Act , 1985 ( R.S.C., 1985, c. 32 (2nd Supp .)) (the PBSA ). I heard evidence from two actuaries and received a written report from a third. i.

Valuation [43] In closing arguments, the parties agreed that the value of the shareable portion of the pension at the date of separation was $339,808.00. The respondent is entitled to one half of this amount. ii. Interest [44] Given that the pension was not divided at the time of separation and 14 years have now passed, the amount payable to the respondent will accrue interest. This is consistent with s. 20(3) “Interest where equitable” of the FPA and the caselaw submitted by the petitioner.

The respondent has been deprived of her interest in the pension for 14 years and was denied the opportunity to have a withdrawal from the pension and invest at her discretion. [45] The letter from CP Rail, dated January 16, 2015 and marked as Exhibit #12, confirmed “Interest will continue to accrue until date of payment.” In the valuation of the petitioner’s first actuary, filed as Exhibit #14, the following statement appears on page 5: “The above capitalized values should be accumulated with interest to a future date of settlement at 4.50% per annum for the first 15 years and 6.00%, thereafter.” I heard evidence from the respondent’s actuary that the respondent would be entitled to one half of the agreed value plus interest.

I also heard evidence confirming that the interest percentages referenced in Exhibit #14 are the standardized actuarial interest rates and would apply. In the email dated August 31, 2022, filed as Exhibit #27, the petitioner’s second actuary confirmed that interest would be added and at the same rate. [46] With the valuation agreed, I have concluded that the interest rate of 4.50% will be applied to the amount owed to the respondent for the first 15 years and 6.00% thereafter. iii.

Method of Division [47] Despite agreeing on valuation, the parties do not agree on the appropriate method of dividing the pension. [48] The petitioner’s position is that the total valuation agreed should be inserted into the family property accounting, discounted by 30% for tax, and that interest should not be added. The petitioner does not want the pension divided at source.

The petitioner argues that to divide the pension at source would be too unpredictable. [49] The respondent is seeking the pension be divided at source based on the percentage which represents the number of months of the relationship against the petitioner’s total months of employment. The respondent’s position is that this would allow the pension plan to determine interest and be the most equitable. This method would not account for the payments already received by the petitioner. [50] There are two remaining options for division at source. These are set out in the correspondence from CP Rail which were filed

as Exhibits. The first option is to have a monthly payment made to the respondent from the petitioner’s current benefits. This is the “spousal support method”. The second option is to have the pension plan administrator set up a separate pension for the respondent which would allow her to receive benefits for her own life. The second method would also allow the petitioner to have a survivor pension for the benefit of his new spouse. This second option is the “separate pension method”.

The parties agree that, if I decide that division at source is appropriate, they both prefer the separate pension method. [51] My conclusion, after having heard the evidence at trial, is that the petitioner’s entire conduct during this matter from the date of separation has been to avoid the division of his pension. The petitioner’s position has been to ensure that the respondent does not access that asset, or to minimize the amount she receives.

The valuation and pension division were clearly the main issues that required a trial. [52] I heard no evidence as to the petitioner’s ability to pay out the respondent’s interest in the pension, or how he proposed to satisfy any equalization, if the pension is not divided at source. I am only aware of the petitioner’s monthly pension and his interest in the jointly held properties. There are continuing disputes over sharing of the equity in the joint assets.

The separate pension method will allow for certainty, finality and eliminate the need for any ongoing disputes between the parties about the pension. [53] I am satisfied that division at source, using the separate pension method, is the most appropriate method of pension division to satisfy the respondent’s entitlement to equal division of the pension asset. [54] It was suggested in argument that the pension could not be divided at source under the FPA , and that I was required to include the pension in the determination of the equalization payment. I rely on the authority of s. 17 (

b) of the FPA that the Court may satisfy an accounting under s. 15 “by the transfer, conveyance or delivery of an asset or assets in lieu of the amount”. My

interpretation of this

section is supported by the Manitoba Court of Appeal in Horch v. Horch , 2017 MBCA 97 (Tab 7 Petitioner’s Book of Authorities), at para 58: “a family court does have the power to affect property rights by ordering the transfer of property from one spouse to another to satisfy an equalization award (see s. 17 (b))” (emphasis added).

The MBCA states (at para 59): “The general intent of the FPA is that the value of family property be shared equally”, and (at para 60): “Satisfaction of the debt based on the accounting occurs by an order for payment of the amount (in lump sum or instalments); a transfer, conveyance or delivery of assets; or a combination of the two (see s. 17 of the FPA ; and generally, Schreyer v. Schreyer , 2011 SCC 35 (at paras 13-18 )”(emphasis added). [55] The respondent is entitled to one half of $339,808.00, plus interest. I hereby order that CP Rail create a separate pension for the respondent based on this valuation.

This option is one that was set out in the letter from CP Rail dated May 15, 2019, and entered as Exhibit #24. To comply with the “Documents Required for Division of Pension”, I order that the base amount of the respondent’s entitlement is $169,904.00, plus compound interest at a rate of 4.50% for the first 15 years from the date of separation, and 6.00% thereafter. If CP Rail will not calculate the interest, then I have calculated the respondent’s total entitlement as $314,652.86, inclusive of interest to August 31, 2023.

This amount represents the base amount of $169,904.00 plus 4.50% compound interest for 14 years. If the pension division is not done by August 31, 2023, for any reason, I order that compound interest be added in accordance with the actuarial report of 4.50% up to 15 years (August 31, 2024), and thereafter 6.00%. iv.

Payments already received [56] The final issue with respect to the pension is to address the portion of the pension that the petitioner has already received. [57] The amount being transferred to the respondent represents her one-half share of the pension accumulated during the relationship and is not reduced by payments made to the petitioner. This means that the respondent is receiving her full entitlement to the pension accumulated during the relationship.

If I was ordering a percentage amount, on a prospective basis only, then a retroactive adjustment of the amounts received by the petitioner would be appropriate. Based on the determination that the respondent is entitled to the full amount of the pension accrued during the relationship, plus interest, there is no additional entitlement. C. Calculation of Equalization [58] Based on the determination of values, the equalization payment owed by the respondent to the petitioner is $12,676.47. The calculations I have made are as follows:

Asset/Liability Petitioner (Husband) Respondent (Wife)Household goods $0.00 $0.001992 Honda Accord $1,200.00 1964 Valiant $5,000.00 1996 Suzuki ATV $1,425.00 2006 VW Jetta $20,941.00Jetta Car Loan ($13,510.40)RRSP (30% discountrate applied) $6,911.10 $42,764.12 RBC Pension $14,550.06CP Pension Divided at source CP Shares $24,574.62 HBC Credit Card ($281.13)187 Borebank Street $0.00 $0.00NET TOTALS $39,110.72 $64,463.65 TOTAL NET ASSETS = $39,110.72 + $64,463.65 = $103,574.37 ½ OF TOTAL = $103,574.37/2 = $51,787.19 EQUALIZATION TO PETITIONER = $12,676.47 D.

Method of Payment of Equalization [59] The equalization payment owed by the respondent shall be paid from her share of the net proceeds of sale realized upon the saleof the two jointly held properties. If upon conclusion of the sale there are insufficient net sale proceeds, the respondent shall pay thebalance outstanding forthwith. NET PROCEEDS OF SALE 187 BOREBANK STREET [60] The preliminary issue is whether to allow the petitioner to amend his pleading as sought in his motion, document #83.

The firstamendment sought is “Judgment or an order of restitution against the respondent in an amount equal to half the net proceeds of sale ofthe former family home located at 187 Borebank Street in Winnipeg”. Pursuant to KB Rule 26.01: On motion at any stage of an action the court may grant leave to amend a pleading on such terms as are just, unless prejudice wouldresult that could not be compensated for by costs or an adjournment. [61] KB Rule 26.01 has been considered on multiple occasions. In Winnipeg (City) v.

Caspian Projects Inc. et al., 2020 MBQB 129,(at para 102) Joyal C.J. sets out the relevant facts that are to be considered as part of a KB Rule 26.01 analysis as follows: The relevant factors to be considered are as follows:

a) The seriousness of the prejudice to the other party;

b) Whether the prejudice that would result could be compensated for by costs or an adjournment;

c) Whether there was a delay on the part of the party moving for the amendments and if so, whether the delay has been satisfactorilyexplained; and

d) The nature of the proposed amendment and whether it raised a valid, arguable point that has merit. [62] In Manitoba Metis Federation Inc. et al v. Attorney General of Canada et al, 2002 MBQB 52, former Oliphant A.C.J. stated (atpara 23): The law relative to the granting of leave to amend pleadings is clear and succinct. Such amendments are to be allowed at any stage of theproceedings unless the result will be prejudice to the opposing party that cannot be compensated for by costs or an adjournment. [63] The Manitoba Court of Appeal in Ranjoy Sales & Leasing Ltd. V.

Deloitte, Haskins and Sells, (1990), (MBCA), 63 Man. R. (2d) 248 set out (at para 11 and 12): [11] Queen’s Bench Rule 26.01 … the language used makes the decision a discretionary one… The rule provides that on a motion madeat any time the court may grant leave to amend the pleadings on such terms as are just unless prejudice would result, and that suchprejudice cannot be compensated either by costs or by an adjournment.

[12] The general practice is to allow amendments virtually at any time up to the date of trial. Amendments granted during the trial, at the conclusion of the trial or even at the hearing in the Court of Appeal are not unusual. [64] I am satisfied that the petitioner has met the test to allow the amendment. It is clear to me that the issue of the sale proceeds was raised years ago. There was much evidence of disclosure made throughout the litigation about the expenses the respondent claims were owed to her by the petitioner for the Borebank property.

I am satisfied that although the formal request to amend was made on the first day of trial, that the issue was very much known and identified throughout the litigation and so it was not prejudicial to place the issue formally before the court. Therefore, I am allowing this amendment. [65] The Borebank property was jointly owned therefore, there is a presumption of entitlement to equal sharing. There is no dispute that the respondent received more than one half of the net sale proceeds.

The issue is whether or not this was an unjust enrichment to the respondent and therefore that the petitioner should receive “judgment or an order of restitution”. [66] The property was sold in 2011, two years after the date of separation. The proceeds were deposited into a joint account upon receipt from the lawyer. The total net sale proceeds received were $114,355.10. Each party would have been entitled to one half, or $57,177.55. [67] The respondent withdrew $100,000 of the $114,355.10 received and deposited it into her own account.

The total net sale proceeds were clearly deposited to a joint account to which both parties continued to have legal access. I am satisfied that the respondent received $100,000.00. I am not satisfied based on the evidence, as to what occurred with the remaining balance of $14,355.10. As the funds were deposited to a joint account, I have concluded that those monies were equally shared.

Therefore, the additional amount that the respondent received is $50,000.00. [68] As set out in the case law provided to establish unjust enrichment the petitioner must show 1) an enrichment to the respondent; 2) a corresponding deprivation to the petitioner; and 3) the absence of any juristic reason for the enrichment. [69] The petitioner claims that the respondent was enriched by receiving more than her half of the proceeds of sale.

The respondent denies that she was enriched on the basis that she incurred expenses to complete and repair the Borebank property and because she used the funds to improve a second jointly owned property (Grove). In addition, the respondent claims that the petitioner agreed to her receipt of the funds. [70] The respondent’s evidence was that the home was still 35% incomplete at the date of separation on August 31, 2009. Exhibit #44 shows that an advance of $25,000.00 was made on the builders’ mortgage dated August 28, 2009, and a final advance of $21,511.80 on October 22, 2009.

The details of the mortgage and the mechanism for determining when and how much would be advanced were not placed in evidence. [71] The petitioner disputes the percentage of completion claimed by the respondent. The petitioner claims that only baseboards and trim work were required at the date of separation. However, the petitioner did not recall if an occupancy permit had been issued at the date of separation.

The two mortgage advances would suggest that more than baseboards and trim work were required. [72] In addition to completion costs, I heard evidence of a failure in the HVAC system in 2010 that caused water damage to the property. The position of the petitioner is that this damage occurred while the respondent was occupying the property and therefore, she is responsible for all costs of repairs. There is no suggestion that the respondent caused the water damage. I accept that the water damage was because of the defective HVAC system.

Although the respondent was in possession of the property, these repairs exceeded normal maintenance that would have been required by a joint tenant to protect the other joint tenant. The repairs described would be accounted for between joint tenants. [73] The receipts provided by the respondent as Exhibit #32 are not entirely useful in determining what expenses were incurred and for what purpose. Many of the receipts were illegible and therefore the items and dates of purchase are unclear. Additionally, some of the submitted receipts were duplicated.

The total claim by the respondent in her evidence is for $85,734.60. It is indistinguishable which receipts are for completion and which receipts are for repair. I am not satisfied that all the expenses are shareable. [74] Due to the passage of time, there is no clear evidence of what costs over and above the mortgage advances were incurred by the respondent to complete the property and what costs were incurred as a result of damage repairs.

I am satisfied that the respondent incurred some costs that should be shared, however, valuing those costs is impossible based on the evidence. [75] I find that there was an enrichment to the respondent, but I am unable to quantify it. Even if I accept the respondent’s full claim, the petitioner would not necessarily be responsible for the full one half of that claim. It appears that some costs were decorative, and given the respondent initially intended to retain the property, she made choices for her personal taste which may have been more costly than if the parties were simply completing the home for sale.

It is not clear what the costs were for repairs, although I do find that the petitioner would be responsible for half those costs. [76] Having found an enrichment to the respondent, the petitioner has a corresponding deprivation as he did not receive the full one half of the net proceeds for sale of Borebank but I am unable to quantify the deprivation. [77] I am satisfied that there is a juristic reason for the enrichment, specifically an agreement and spousal support. The parties separated in 2009 and their banking clearly remained comingled. The petitioner’s income exceeded the respondent’s.

It is also clear that the parties had not separated their property matters and that the respondent required additional support to transition herself from the marriage. The evidence of the petitioner was clear, the respondent required funds to obtain a new home. The evidence of the respondent was clear, she required the funds to purchase a home and pay her expenses and the petitioner agreed to her receiving the funds for those reasons. I am satisfied that at the time the respondent received the funds it was with the petitioner’s knowledge and agreement.

I am satisfied the amount the respondent received by agreement was partly to cover the expenses that were legitimately shareable, and the

remaining balance provided her with a lump sum of spousal support. Therefore, there was a juristic reason for the respondent’s enrichment. [78] The claim of the petitioner for judgment or an order of restitution in an amount equal to half the net proceeds of sale of the former family home located at 187 Borebank Street in Winnipeg is dismissed.

JOINT LINE OF CREDIT [79] The second amendment sought by the petitioner in his motion document #83 is for “Judgment or an order for restitution against the respondent in an amount equal to half the difference between what the petitioner paid versus what the respondent paid toward the joint Royal Credit Line debt”. This has been another long-standing issue. The Comparative Family Property Statement entered as Exhibit #1 in this proceeding sets out differing amounts being claimed by each party.

I am satisfied that there was no delay in raising this issue between the parties, although the formal amendment did not arise until trial. I am prepared to allow this amendment. [80] At trial, the parties agreed that if the amendment was allowed, the respondent would owe the petitioner $7,000.00 for the line of credit. Having allowed the amendment, the amount of $7,000.00 shall be paid by the respondent to the petitioner from her share of the net sale proceeds from the jointly held property.

PRE-JUDGMENT AND POST-JUDGMENT INTEREST [81] The final amendment sought by the petitioner in his motion document #83 is for pre-judgment and post-judgment interest on the net proceeds of sale of Borebank and on the line of credit. As I have allowed the amendments for the accounting of the net proceeds of sale and the joint line of credit, I am allowing the amendment to claim pre-judgment and post-judgment interest. [82] I have dismissed the claim for restitution of the net sale proceeds of Borebank. The parties have agreed that the respondent owes the petitioner $7,000.00 for the line of credit.

I must now determine if the petitioner is entitled to pre-judgment and post-judgment interest on the $7,000.00 for the line of credit. [83] Pursuant to s. 20(3) of the FPA , on making an order for one spouse or common-law partner to pay an amount under s. 17 (equalization payment), the court, if satisfied that it is equitable under the circumstances, may order the spouse or common-law partner to pay interest on all or a portion of the amount at a rate fixed by the court and calculated from a date which is not earlier than the valuation date.

The payment of the line of credit is not pursuant to s. 17 as the line of credit was a joint debt and is not included in the equalization payment. As a result, section 20(3) does not apply. I would not allow interest pursuant to s. 20(3) as it would be inequitable in the circumstances. [84] Pursuant to The Court of King’s Bench Act , C.C.S.M. c. C280 s. 80(1) : Subject to sections 81 and 82, an order shall include an award of interest at the prejudgment rate on the principal sum calculated, (

a) where the order is made on a liquidated claim, from the date the cause of action arose to the date the order is made; and (

b) where the order is made on an unliquidated claim, from the date the successful party gives written notice of the claim to the party liable for payment to the date the order is made . [85] Pursuant to s. 81(1) the court retains jurisdiction “Where a judge considers it just to do so,” to disallow interest, allow a higher or lower rate or allow a period other than the period described. Pursuant to s. 81(2) “a judge shall have regard to (

a) changes in the quarterly interest rate; (

b) the circumstances of the case; and (

c) the conduct of the proceedings.” Pursuant to s. 82 “Sections 79, 80 and 81 do not apply where (

a) an order is made on consent, unless application of this

Part is agreed to by the parties;”. [86] Although the parties agreed at trial to the amount to be paid by the respondent, there was no agreement on interest. The amount to be paid would be an unliquidated amount as it was not determined until the agreement was reached at the conclusion of the trial. [87] I am satisfied that it is just to exercise my discretion under s. 81. The petitioner was not owed any additional amount until 2021 when he paid the balance, and the line of credit was extinguished. Prior to that time, the respondent had been servicing her share of the debt, including interest and insurance.

At trial, the respondent acknowledged the debt owed to the petitioner and did not dispute the amounts paid on her behalf. The petitioner denied that the amounts paid for his benefit of insurance should be deducted and claimed the full amount, but for the disagreement of the petitioner, the amount owed was acknowledged. The amount of the claim was not known until the conclusion of the trial. There was no evidence of written notice regarding the amount of the claim agreed to at trial.

The first notice given that I am aware of was the request to amend the pleadings at trial. [88] I rely on the petitioner’s reference to interest in Gates v. Hrynkiw , 2005 MBQB 123 ( Gates ) (Tab 6 in the Petitioner’s Book of Authorities). This case refers to Mateychuk v.

Mateychuk , 2001 MBQB 219 (at para 100 ) for the general rule under s. 20(3) of the FPA , “that interest should be awarded to place the payee of a judgment in the same position that party would have been had the required payment been made at the time of separation.” As already stated, s. 20(3) does not apply to the line of credit as it is excluded from the accounting. Further, at the date of separation the petitioner did not pay the line of credit, it was not paid until 2021.

I note in particular, after considering an extensive list of precedents on interest, Master Harrison summarized (at para 34) in the Gates decision: The common theme contained in them all is an effort on the court’s part to levy interest only in those cases in which it was equitable to do so and then only in an amount reasonable under the particular circumstances of that case.

[89] I have concluded, based on the conduct of the proceedings, and the totality of the evidence in the particular circumstances of this case, that interest on the amount for the line of credit would be inequitable. I would not allow interest prior to the payment in 2021 in any event. The claim for pre-judgment and post-judgment interest is dismissed. PARTITION OR SALE [90] At the conclusion of the trial the parties agreed that the jointly held properties known as 2 Grove Avenue and 175 Gimli Road would be sold.

There will be an order by consent that the properties be sold with reference to the Master for conduct of the sale. The petitioner shall have carriage of the reference for 175 Gimli Road and the respondent shall have carriage of the reference for 2 Grove Avenue. The Master shall make such inquiries, hear such evidence, assess such costs as may be appropriate, and shall make a Report and Order on Sale when the subject properties are sold. Title of the subject property shall vest in the name of the purchaser named in the Master’s Report and Order on Sale.

The parties may advance claims for unequal division of the net sale proceeds. The net sale proceeds will be held in trust pending determination of claims other than equal division by consent or court order. The petitioner’s equalization payment, plus $7,000.00 for the joint line of credit, shall be paid from the respondent’s share of the net proceeds of sale. [91] I am seized of any further hearing for determination of the distribution of the net sale proceeds. COSTS [92] Costs may be addressed in writing, if there is no agreement. _______________________________ J.