In a recent Ontario divorce case, a husband accused his soon-to-be ex-wife of stealing $100,000 worth of jewellery from a safety deposit box after their separation. The court rejected his claim after he failed to prove the jewellery had ever existed.
The husband and wife were married on June 9, 2007 in Mississauga and had two children. They separated in April 2014.
After their separation, the wife moved to her parents home in Toronto with the children.
Issues of custody had been resolved, but the husband brought an application for an order for equalization between the values for all net family property owned by him and his wife. In particular, there was a dispute about jewellery that was apparently stored in a safety deposit box registered in the name of both parties. Specifically, the husband accused the wife of secretly removing jewellery worth $100,000 from the joint safety deposit box around the time of their separation.
After disposing of other financial matters, the court turned towards the issue of the equalization of household items, which turned mainly on the issue of the missing jewellery.
The husband had claimed that the jewellery belonging to the wife had a value of $100,000, and that this value should be attributed to her. The wife refuted the existence of jewellery kept in the safety deposit box or otherwise owned by her on the date of separation. Additionally, she testified that the only jewellery she owned had a value of $5,985.
At the outset, the court stated that it preferred the evidence given by the wife over the evidence the husband gave at trial. It stated that the wife’s evidence was given directly, and it was consistent with the documentary evidence entered as exhibits. In contrast, it found that the husband was often evasive in his answers and his answers were vague, and non-committal. It found the husband’s overall credibility lacking when he gave evidence on matters relating to equalization.
The court explained that the onus in a family law case of proving that one spouse owned property as of the valuation date, and the value of that property is on the person seeking to establish ownership and value under section 4(3) of the Family Law Act. Each of the parties have the burden of establishing the value of property he or she claims as of a particular date, even to the extent of calling expert evidence on value.
As a result, the husband had the burden of proof to provide evidence that established, on the balance of probabilities, that the wife owned the alleged jewellery, and the value that should be attached to it for the calculation of her net family property.
However, the court found that there was no evidence called at trial by the husband to prove these facts. It stated that there had been no photograph provided of the jewellery, nor had the husband provided any invoices, receipts or appraisals of the property he claimed the wife owned on that date. All that was given in evidence was an appraisal from a jewellery company dated June 17, 2014 prescribing a value for one pair earrings at $115, one piece diamond band at $1,200, five pieces of coloured bangles at $2,485, one long chain and pendant at $1,285, and diamond multi-colour stone earrings at $900 for a total $5,985, which was the amount claimed by the wife at the time of separation.
Additionally, the husband did not provide the court with any video recordings of their wedding at which he said the wife was wearing jewellery having a value far in excess of this amount. None of the donors or vendors of the jewellery were called, including members of the husband’s own family. The court noted that the existence of the jewellery, and the value that the husband had ascribed to it was made all the more suspicious by an offer he made that he would be agreeable to allowing the wife to retain the jewellery and exempting it from the equalization process if she agreed to hold the jewellery strictly in trust for the children. The court stated:
“In doing so, [the husband] betrayed the true motive behind alleging that [the wife] owned jewellery of this kind and having this value: to apply leverage on her so that she would capitulate on other issues.”
Additionally, the court noted the husband had also accused the wife of forging his initials on the sign-in sheet to gain access to the safety deposit box at the bank to remove jewellery around the date of separation, but he had not called any employee from the bank to give evidence about the process for signing in to access a jointly held safety deposit box, nor had he called any bank employee about the wife’s attendance at the bank on the particular day. He also failed to produce the results of the investigation that he asked the bank to conduct.
The court stated that in a previous similar case, the court had held that where there is no credible evidence to prove the value of the jewellery in question, it becomes moot to make findings of fact as to who may have taken it.
The court concluded that the husband had not met the burden of proof required of him to prove the existence of the jewellery he claimed the wife removed from the safety deposit box, or its value. The court found that the wife did not own jewellery on the date of separation having a value of $100,000. As a result, the court found that there was no legal basis to ascribe that value to the alleged jewellery unless there was other evidence to the contrary.
The court therefore dismissed the husband’s claim and excluded the claimed amount from its equalization determination.
Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.
At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.
We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.