Jennifer Lynn Husk-Sweet, Petitioner, – v. –, 2022 NBKB 196

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON FAMILY DIVISION 2022 NBKB 196 FDM-644-1996 BETWEEN: Jennifer Lynn Husk-Sweet, Petitioner, – and – James Burton Sweet, Respondent. DECISION BEFORE: Justice Colette M. d’Entremont AT: Moncton, New Brunswick DATE OF HEARING: September 28, 2022

DATE OF DECISION: October 17 th , 2022 APPEARANCES: Patrick C. Grew, for the Petitioner Sarah Peel, for the Respondent INTRODUCTION [ 1 ] Although the parties separated in early 2005, the trial relating to the division of the marital home and marital debts occurred in late September of 2022. The main issue before the court relates to the date to be used to determine the value to be attributed to the marital home, in the context of a division of assets. The petitioner, Ms. Husk-Sweet, argues that the valuation date for the marital home should be the date of the trial in 2022. The respondent, Mr.

Sweet proposes that the valuation date to be used should be the date of separation in 2005. Otherwise, there are minor disputes relating to the division of marital debts and furniture. [ 2 ] The matter is based on the Divorce Act , R.S.C. 1985, C.3 (2 nd supp .) and the Marital Property Act , 2012, S.N.B., CH 107 CREDIBILITY [ 3 ] Both parties testified at the trial. They were not good historians. Each appeared to exaggerate her or his perspective of how the events unfolded during the marriage and after the separation. However, the following are the facts as I understand them to be.

FACTS [ 4 ] The parties were married October 25 th , 1996. They separated on February 1 st , 2005. The divorce was granted on the first day of the trial, that is September 28 th , 2022. [ 5 ] In November of 1996, the couple purchased a home located at 440 Charles Lutes Road, in Lutes Mountain, New Brunswick. The title to the real property was registered in joint tenancy. A mortgage, having the original principal amount of $72,700 was registered against the residence. [ 6 ] The parties had two children during the relationship. Ms.

Husk-Sweet had a child from a previous relationship who also lived with this family. [ 7 ] The relationship between the parties was not without turmoil. The parties had numerous disagreements, and altercations ending with the RCMP officers attending the home numerous times. Each party claimed that the other spouse was abusive toward her or him. During the marriage, the children were placed in foster care for a number of months and then returned to the parents’ care.

[ 8 ] Following the separation, Mr. Sweet remained in the marital home. He paid the outstanding mortgage, the real property taxes, and the household insurance. During this period, he had two children living with him. As time went by, one by one the children returned to live with Ms. Husk-Sweet. [ 9 ] After the separation, Ms. Husk-Sweet collected social assistance benefits for a number of years. When the children returned to live with their mother, Mr. Sweet paid child support in favour of the province of New Brunswick, which was subrogated in Ms.

Husk-Sweet’s right to receive child support. [ 10 ] In the spring of 2005, the sum of $71,278, was owing on the mortgage. As well, around this period of time the provincial assessment for the property was $97,200. This is the value that Mr. Sweet is requesting that I attribute to the marital home. [ 11 ] Toward the end of the relationship Mr. Husk-Sweet opened a line of credit, in her name only, with the Royal Bank of Canada. By September 9 th , 2005, the Bank obtained a judgement in the amount of $12,664 against Ms. Husk-Sweet. For her part, Ms.

Husk-Sweet argued that the funds from the line of credit were used for the benefit of the family. Mr. Sweet did not know what the funds were used for but acknowledged that the line of credit was obtained prior to separation. [ 12 ] Mr. Sweet testified that in early 2005, he had a number of credit cards debts, which he paid following separation. He estimated that these totaled $5,000. However, he had no receipts for these credit card debts. Mr. Sweet was of the view that these were incurred for the benefit of the family during the relationship. [ 13 ] During the period of July 2005 to February 2013, Ms.

Husk-Sweet obtained the services of the New Brunswick Legal Aid Services Commission. As a result, five liens were registered by the Commission against the marital home. As of May 2 nd , 2022, these liens totaled $3,425. Ms. Husk-Sweet recognized that she is solely responsible for these debts. [ 14 ] After moving out of the family home, Ms. Husk-Sweet rented an apartment. She then contacted NB Power asking that the electricity be connected at her new residence. At the time, she was made aware, by the NB Power representative that $1,093 was owing for previous bills.

She alleged that the sum related to an unpaid power bill pertaining to the marital home which was now occupied by Mr. Husk. It is not clear, as to when this overdue account was incurred. In any event, NB Power reduced the account by $720 which is the amount that Ms. Husk-Sweet paid. For his part Mr. Sweet stated that nothing was owing to NB Power in relation to the Charles Lutes Road property. [ 15 ] Following the separation, Mr. Sweet had renovations carried out at the home. Generally, he bought the materials and did the work himself. More specifically he installed a new roof, costing $3,000.

As well, he replaced the garage doors which he bought for $500. The deck was replaced at a cost of $3,500. Mr. Sweet redid the basement including the drywall, the insulation, and the flooring for which he paid about $5,000. He replaced siding on the home which cost around $1,000. [ 16 ] As well, Mr. Sweet replaced the refrigerator, the stove, the dryer and the washer. He estimates that the appliances cost about $3,900. However, generally appliances are not fixtures and do not increase the value of the property.

Therefore, I will not consider the cost of the appliances as part of the value to be attributed to the improvements to the residence since the separation. [ 17 ] Ms. Husk-Sweet made arrangements to have the property appraised by Conrad Babineau of Babineau Appraisals Ltd. as of February 2 nd , 2009. At the time, the market value of the property was determined to be $135,000. Ms. Husk-Sweet paid $396. for the appraisal. [ 18 ] On May 26 th , 2022, Mr. Babineau carried out a second appraisal at the request of Ms. Husk-Sweet. Mr.

Babineau indicated that the occurrence of the global pandemic, starting in March of 2020, had impacted global financial markets. Mr. Babineau observed that there had been an increase in the pricing, and the demand in the property market. He determined that the appraised value of the property was $250,000. Once again, Ms. Husk-Sweet paid $575 for the second appraisal. [ 19 ] When Ms. Husk-Sweet was asked during the trial why she waited so long to proceed with her present claim, she replied that she was afraid of the reaction from Mr. Sweet if she started legal proceedings.

As well, she stated that for many years she could not afford a lawyer as she was a recipient of the social assistance benefits.

[20] As for Mr. Sweet, he testified that throughout the previous years, he retained several lawyers who attempted to negotiate asettlement to this matter but were unable to do so. [21] In closing arguments, and in her trial brief, Ms. Husk-Sweet requested the return of an antique rocking chair, an antique mirror, a bigwall mirror, a snowblower, a camcorder, and the photos and the videos of the children when they were small. There was no testimonyrelating to any of these items by either side. I do not know if these items still exist or what their values are, given that the separationoccurred seventeen years ago. ISSUES [22] The issues in this matter include the following: (

a) Which date should be used for the purposes of attributing a value to the marital home in the context of the division of marital assetsand debts? (

b) Are the RBC line of credit and the NB Power bill marital debts? (

c) Has Ms. Husk-Sweet made out her case for an order that specific furniture and other items be returned to her. [23] Finally, both parties are asking for an award of costs in the event that they are successful. VALUATION DATE AND VALUE OF THE MARITALHOME [24] Both parties agree that the equity in the marital home should be divided equally. [25] Mr. Sweet proposes that the valuation date for the home should be the spring of 2005, being a few months after the separation. Herelies on the real property assessment of $97,200 attributed to the home by the province of New Brunswick. [26] The decision of LeBouthillier v. LeBouthillier,

(1992) CanLii 4211 NBCA indicates that in some cases, the property assessmentproduced by the province of New Brunswick may be used when determining the value of a residence in the context of a division ofmarital assets. However, it is generally recognized that the provincial property assessment does not reflect the true market value of realproperty. A property appraisal carried out by an independent professional appraiser is better evidence in relation to determining the truevalue of real estate.

In this case, there are two appraisals carried out by a professional appraiser establishing a market value for thesubject property. I am of the view that relying on one of these appraisals is more appropriate in the within circumstances. [27] As well, Mr. Sweet argues that I should use March of 2005 as the valuation date as this is two months after the date of separation. He relies on Carrier v. Ponn, 2013, NBQB 146. In the said case neither party produced expert evidence relating to the value of themarital home. In carrying out her analysis, Justice B.

Robichaud used the date of separation as the date of valuation of the familyresidence. In paragraph 152 of her decision, she refers to Khoury v. Khoury, (1994) (NB KB), 149 NBR (2d)1, inwhich it is stated that as a matter of practice, property is valued as of the date of separation given that the marital property is the propertyacquired during the period of cohabitation. The value as of the date of separation is acceptable when the date of the trial is shortly afterthe date of separation. In the within matter, it is unfair to use the value of the marital home at separation which occurred seventeen yearsago.

Since then, the home has significantly increased in value mostly due to the housing market.

[ 28 ] In paragraph 153 of the Carrier v. Ponn decision, Justice Robichaud goes on to explain that if the Court opted for a valuation date as of the date of the trial, the court would have to carry out a calculation to take into account the value added by improvements made in relation to the residence. [ 29 ] In L.T.G. v. C.J.G. , 2011 NBCA 12 , the New Brunswick Court of Appeal dealt with the issues of the valuation date of the marital home and the value to be attributed to the marital home in the context of the division of marital assets and debts.

In paragraph 8 of the said decision the court recognized that a proper approach was to use the evidence of the appraiser as of the date of the trial and then subtract the cost of the renovations to the property carried out after the separation. [ 30 ] Taking into consideration Fraser v. Fraser (supra) and L.T.G. v. C.J.G. (supra), I conclude that a proper formula to determine the division of the equity in the marital home in this matter would be the following: Appraised value of the marital home as of the trial date. Less the mortgage balance at the date of separation.

Less property improvements after the separation Equals net value to be divided by two. [ 31 ] In the within matter the professional appraised value of the marital home closest to the date of trial is $250,000. [ 32 ] The balance of the mortgage as of the date of separation was $71,278. [ 33 ] I conclude that since the separation the improvements or renovations carried out by Mr.

Sweet total about $13,000 (This amount does not include the cost of new appliances which are not fixtures and do not add to the market value of the property.) [ 34 ] Applying these numbers to the above formula, the following depicts my calculation in relation to the division of the marital home. Appraised Value $250,000 Less Mortgage $71,278 Less Improvements $13,000 Equals Net Value $165,722 Divided by two $82,861 [ 35 ] As such, I have determined that Ms. Husk-Sweet’s share of the marital home is $82, 861. However, I must make further adjustments for the marital debts.

MARITAL DEBTS [ 36 ] I conclude that the RBC line of credit was a marital debt as it was incurred during the relationship and used for the benefit of the family during the marriage. The debt remains unpaid. Therefore, the judgement amount of $12,644 should be shared equally by the parties. Consequently, one half of the amount $6,322 will be deducted from Ms. Husk-Sweet’s share of the marital home. [ 37 ] During his testimony, Mr. Sweet indicated that following the separation, he paid credit cards and bills of about $5,000 incurred for the benefit of the family during the relationship.

This amount should also be shared equally as a marital debt. Therefore, the sum of $2,500 will be deducted from Ms. Husk-Sweet’s share of the marital home.

[ 38 ] As for the NB Power debt, it appears to have been already divided by the power corporation as Ms. Husk-Sweet paid one half of the invoice and Mr. Sweet said there was nothing owing to NB Power in relation to the marital home. I will not make any adjustments with respect to the NB Power invoice. [ 39 ] As for the liens registered against the property by the Legal Aid Commission totaling $3,425, Ms. Husk-Sweet agrees that she is solely responsible for this account and that this is not a marital debt.

Therefore, an adjustment should be made for this item, such that the full amount of $3,425 will be deducted from Ms. Husk-Sweet’s share of the marital home. [ 40 ] Therefore, the rest of the calculation relating to the division of the marital home and marital debts is the following: Equity in the marital home $82,861 Minus ½ of the RBC line of credit $6,322 Minus ½ of the credit cards paid by Mr. Sweet $2,500 Minus Legal Aid liens incurred by Ms. Husk-Sweet $3,425 Total $70,614 [ 41 ] Ms. Husk-Sweet is also asking that Mr. Sweet pay one half of the cost of the property appraisals totaling $970.

More specifically she is requesting that Mr. Sweet pay $485 in this regard. I agree. Therefore, the sum of $485 will be added to the $70,614, for a total of $71,099. [ 42 ] Consequentially, Mr. Sweet shall pay an equalization payment of $71,099 to Ms. Husk Sweet. This payment shall be made within 90 days of the date of these reasons. [ 43 ] In the event that the said amount is not paid by Mr. Sweet to Ms. Husk-Sweet within 90 days of this decision, then the property located at 440 Charles Lutes Road shall be listed for sale and sold for a reasonable price. Following the sale of the said property, Ms.

Husk Sweet’s share as determined in the above paragraph shall be paid from the proceeds of the sale. FURNITURE AND OTHER ITEMS [ 44 ] As for the return of the furniture and items requested by Ms. Husk-Sweet, I make no order regarding same as there was no evidence on this topic by either side. The request relating to these was raised in the pre-trial brief and in closing arguments. Considering that it has been seventeen years since the separation, it is doubtful that these things exist. COSTS [ 45 ] As Ms. Husk-Sweet has been successful in this matter, she is entitled to an award of costs.

Relying on Rule 59 of the New Brunswick Rules of Court and Yorke v. Yorke 2011 NBCA 79 , at paragraph 56 , Ms. Husk-Sweet argues that costs in the within matter should be based on the amount claimed and recovered as contemplated by Rule 59.02(

a) and then determined according to the amount

involved pursuant to Rule 59.09 for the purposes of applying a Tariff “A”. [ 46 ] I agree that in the within matter the issues were purely monetary. The litigation related to the value of the marital home and the marital debts. [ 47 ] Rule 59 of the Rules of Court provides that an award of costs is at the discretion of the trial judge. In fixing costs, the court may consider the amount claimed and the amount recovered, the complexity of the proceedings and the importance of the issues. [ 48 ] In the within matter, Ms. Husk-Sweet was claiming about $93,000 In the end, she was awarded approximately $71,000.

The main issue before the court related to the valuation date to be used when determining the value of the marital home. This was not a complex case. The trial hearing lasted less than a day. [ 49 ] Taking into consideration the factors outlined in the previous paragraphs, Ms. Husk-Sweet is awarded costs of $5,000 Consequently, Mr. Sweet shall pay $5,000 in costs in favour of Ms. Husk-Sweet. DISPOSITION [ 50 ] I order as follows: (

a) Mr. Sweet shall pay the sum $71,099 in favour of Ms. Husk-Sweet, resulting from the division of the marital home and the marital debts. The amount shall be paid to Ms. Husk-Sweet within 90 days of this decision. In the event that this amount is not paid, the marital home located on 440 Charles Lutes Road, Lutes Mountain, New Brunswick, shall be listed for sale and sold for a reasonable price. (

b) Ms. Husk Sweet’s claim for the return of the furniture and other items is denied. (

c) Mr. Sweet shall pay costs of $5,000 in favour of Ms. Husk-Sweet DATED at Moncton, N.B., this 17 th day of October 2022. ______________________________ Justice Colette d’Entremont Justice of the Court of King’s Bench of New Brunswick