In a recent Ontario decision, Jacobs v. Jacobs, Justice Nolan was asked to make a decision regarding a date of marriage deduction for a house that the husband owned on the date of marriage. The wife argued that the court should apply strict rules of evidence when making findings of fact about the value of assets for which a deduction was claimed.                   The husband’s evidence was not ideal. There was no expert evidence regarding the value of the property. The documents produced contradicted the husband’s testimony, and there was a significant gap in time between the date of the purchase of the property and the value on the date of the marriage.  The evidence provided left the Court to speculate as to the value of the deduction at date of marriage. Justice Nolan states that when one party has an onus to establish a deduction that party to obtain and present the best evidence available and the rules of evidence must apply.

The person asserting a deduction has the onus of proof on the balance of probabilities. There must be proof that the property existed at the date of the marriage and its value. Simply having the deponent testify as to his or her estimate of the value of the property is most unsatisfactory.In this case, Justice Nolan decided to apply a percentage increase of 7.5 per cent per year for the property in order to determine the value at the date of marriage.

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