What is the proper time to value the lands and premises in a personal injury action?

I have come to the conclusion that the proper time to value the lands and premises will be upon entry of the judgment in this matter. I have come to this conclusion by applying the reasoning of Toy J. in his decision in Powell v. Powell, supra. Neither the plaintiff nor the defendant pressed for a determination of their interests in this property until the action was commenced by the plaintiff. As I mentioned earlier, the opening words in para. 5 of the separation agreement indicate that both parties contemplated a further agreement or adjudication on their rights with respect to the property and, as neither had moved for a determination of their interests in the property until now, I am ordering that the effective date for valuation shall be the date of entry of the judgment herein. Question 2

Counsel for the plaintiff argues that, as neither the plaintiff nor the defendant considered the sale of the property at the time that the agreement was entered into, and as the agreement is silent in that respect, I should adopt the wording used in the Mastron v. Cotton decision, supra, and make such an order "as will do complete equity between the parties" [p. 768]. On the other hand, counsel for the defendant argues that the agreement clearly states that the wife is to pay the mortgage, taxes, utilities and maintenance costs and, as she has agreed that the agreement was fair to both parties at the time it was signed, it could not be said to be unconscionable. Therefore she is not entitled to set off any portion of the mortgage payments or any other payments that she may have made with respect to the house.

Firstly, I have come to the conclusion that the agreement should stand. I have considered the circumstances of the parties at the time that the agreement was signed and, although the wife was not represented, I do not consider it to be unconscionable. I have also considered whether the agreement can be said to be enforceable after the divorce of the parties in 1972. The evidence as to what happened at the time of the divorce is not as complete as I would have liked. However, it is clear that there was no attempt at the time to obtain an adjudication as to the rights of the parties with respect to the matrimonial home and, indeed, the parties continued to follow the terms of the agreement after the divorce, even though they did not expressly state that they were doing so. Therefore I consider the agreement to be binding upon both parties. The agreement states that the wife is to "pay and discharge the mortgage". It does not say how the interests of the parties are to be affected by the fact that the wife is making the mortgage payments, or how the interests of the parties are to be determined on the sale of the property. I have come to the conclusion that, as the agreement is silent in this respect and as both parties agree that determination of their interests upon the sale of the property was not contemplated at the time the agreement was signed, the matter of their present interests should be determined as though there was no separation agreement. I have applied the reasoning in the decision of Mastron v. Cotton, supra, and I am ordering what I consider will be just and equitable between the parties. The plaintiff and defendant shall be entitled to equal shares in the property, subject to the following: (a) the plaintiff shall be entitled to one-half of the total payments on the mortgage principal, to be deducted from the defendant's share; and (b) the plaintiff shall be entitled to one-half of the cost of finishing the basement and one-half of the expenditures for landscaping and for the sun-deck, to be deducted from the defendant's share. This follows from the decision in Mastron v. Cotton, supra, at p. 769, where it is stated as follows: "Again, if one tenant has made improvements which have increased the selling value of the property, the other tenant cannot take the advantage of increased price without submitting to an allowance for the improvements".