The Queen (Plaintiff)
v.
Norman Daniel Sonnenberg and Mary Sonnen-
berg (Defendants)
Trial Division, Kerr J.—Welland, May 10;
Ottawa, June 16, 1971.
Expropriation—Dower right—Expropriation of farm—
Wife's inchoate right of dower—Valuation of—Payment
forthwith of present value—Expropriation Act, R.S.C. 1952,
c.106, s.30.
S's farm in Ontario was expropriated for $18,708. His
wife claimed, and S conceded, that she was entitled to a
portion of that sum as compensation for her inchoate right
of dower in the land. According to the tables in Cameron's
Law of Dower (Toronto, 1882), for calculating the value of
dower rights which, according to the Ontario Court of
Appeal in Re Smith [1952] O.R. 135, are still usable in
Ontario, the value of her dower right as of the date of
expropriation "provided she survives her husband" was
$1,234.60. Its value if paid forthwith (using the same tables)
was determined to be $734.59.
Held, having regard to the relatively small amounts
involved and the expense of putting $1,234.60 in trust for
the wife until her husband's death, she should be paid
$734.59 forthwith together with interest thereon at 5% per
annum from the date she gave up possession of the land
until the date of judgment. The Court had power to make
such order under s. 30 of the Expropriation Act, R.S.C.
1952, c. 106.
EXPROPRIATION action.
E. A. Bowie for plaintiff.
D. Johnston for Mr. Sonnenberg, defendant.
A. H. Goodman, Q.C., for Mrs. Sonnenberg,
defendant.
KERR J.—This is an Information in respect of
certain property in the Township of Humber-
stone, in the County of Welland, Ontario,
expropriated on December 6, 1965, with the
prior approval of the Governor in Council given
by Order in Council P.C. 1965-2174 dated
December 2, 1965, pursuant to s. 18 of the St.
Lawrence Seaway Authority Act, R.S,C. 1952,
c. 242, for the purposes of the said Act, in
particular in connection with the diversion of
the southerly section of the Welland Canal, by
the deposit of a plan and description in the
Registry Division of the County of Welland on
December 6, 1965.
There was no dispute at the trial that the
expropriation of the lands in question was valid
ly effected. In any event the evidence proves
that such expropriation was validly effected and
that the lands became vested in the St. Law-
rence Seaway Authority on the 6th day of
December, 1965.
The issues in dispute arise out of a claim by
the defendant Mary Sonnenberg that at the time
the lands were expropriated she, as the wife of
the defendant Norman Sonnenberg, had an
inchoate right of dower in the lands and conse
quently was entitled to compensation; and that
the amount offered by the Crown as compensa
tion to all persons was too low and unduly
reduced the compensation to which she was
entitled.
Norman Sonnenberg does not dispute the suf
ficiency of the amount of $18,708.00 offered
by the Crown as full compensation. Initially in
his pleadings he disputed his wife's claim that
she had an inchoate right of dower in the lands,
but by an amended Defence admitted that she
had such right and is entitled to a portion of the
total compensation payable for the taking of the
lands.
There are thus two principal issues to be
determined, namely, (1) the total amount of
compensation payable, and (2) the portion
thereof to which Mary Sonnenberg is entitled.
A subsidiary issue is whether she is entitled to
payment now of a determined amount or wheth
er the present value (i.e. as of the date of the
expropriation) of her right of dower, provided
she survives her husband, should be held in
trust for payment to her only if and when she
survives her husband.
The lands consist of about 14.5 acres, of
which about 11 are in hay, 2 in bush and 1.5 in
pasture. Buildings on the land were a 6-room, 1
3/4 storey frame dwelling house, barn, garage,
small granary and small poultry shed. Norman
Sonnenberg worked on the railway and operat-
ed the property as a part-time farm. The build
ings were usable, but quite old. The property is
on the north side of Forkes Road, about &mile
east of the Welland Ship Canal and about
midway between the City of Welland and Port
Colborne. The property is served by municipal
water, hydro electric power and gas, but not by
sewers. Forkes Road is a well-travelled east-
west county highway. Photos of the property
were received in evidence.
The defendant Mary Sonnenberg testified
that she thought the offered $18,708.00 is far
less than the value of the property, looked at as
their home. She did not put any figure on what
she thought it was worth or offer any evidence
of value except her own opinion. She had left
the property and was working and living in
Hamilton for a considerable period after it was
expropriated but later moved back in to the
dwelling house and refused to give up posses
sion until a warrant of possession was ordered
by the Exchequer Court and served on her in
July 1969.
Norman Sonnenberg was the registered
owner of the lands and he agreed with the St.
Lawrence Seaway Authority to accept $18,-
708.00 in full settlement of the compensation
payable for the taking of the property; and he
was paid $13,708.00 by the Seaway Authority
on May. 2, 1968, to be deducted from the
amount otherwise adjudged owing to the
defendants or any other person as a result of
the taking, and delivered possession of the
property to the Seaway Authority at that time.
He also gave a warranty deed of the property to
the Seaway Authority dated March 7, 1968.
Franklyn M. Griffiths, Judge of the County
Court of the County of Welland, issued on May
10, 1968, on the application of Norman Son-
nenberg, an order under the Dower Act, R.S.O.
1960, c. 113, unconditionally dispensing with
the concurrence of Mary Sonnenberg for the
purpose of barring her dower in the subject
lands.'
Evidence as to the market value of the prop
erty was given by W. H. Burton, a qualified real
estate salesman, broker and appraiser in the
Welland area, who had appraised the market
value for the plaintiff. His report was received
in evidence under Exchequer Court Rule 164B.
In his opinion the highest and best use of the
property at the time of its expropriation was for
commercial or industrial uses, based upon a
division of the property into 2 parcels, one
consisting of the dwelling and garage and the
66' x 165' lot on which they were located, the
other consisting of the remaining 14.236 acres
of land. In such a division he felt that the barn
and other outbuildings would not be of service
and would not add to the value of the property.
He gave a value of $8,000 to the dwelling house
and garage property; and a value of $500 per
acre to the remaining 14.236 acres, for $7,118;
making a total valuation of $15,118. Despite
vigorous and searching cross-examination by
counsel for Mrs. Sonnenberg, Burton held to his
opinion.
I find that Burton's valuation of the property,
based on its highest and best use, is reasonably
close to the mark. No evidence of value was
offered by Mrs. Sonnenberg except her own
opinion. She obviously did not feel competent
to place a definite or approximate value on the
property and did not give evidence otherwise of
its value.
I determine the compensation payable for the
taking of the property at the amount offered by
the Seaway Authority and accepted by Mr. Son-
nenberg, namely, $18,708.
An old authority, Cameron on The Law of
Dower, published in 1882 in Toronto, was used
by all counsel in this case. That book contains
tables for calculating the value of the right of
dower, and the Court of Appeal of Ontario held
in Re Smith [1952] O.R. 135, that those tables
are still usable in Ontario for calculating dower
values.
The parties agreed at the trial that, using the
Cameron tables and assuming a total compensa
tion award of $18,708, the "present value of the
right of dower" of Mrs. Sonnenberg as of the
date of expropriation, "provided she survives
her husband", is $1,234.60. 2
Counsel for Mrs. Sonnenberg argued that she
is entitled to payment of that amount now, with
interest, and that payment should not have to
await or be dependent upon her surviving her
husband. Counsel for Mr. Sonnenberg argued
that the said "present value" is qualified in the
Cameron Table of Value, Appendix H, by the
words "provided she survives her husband",
and that the present value of Mrs. Sonnenberg's
right of dower without being subject to the
qualification of survival must be less than its
value subject to survival, for the qualification is
such that payment is dependent upon her sur
viving her husband, an eventuality that possibly
may not occur.
A calculation was put before the Court (again
using the Cameron tables and making an adjust
ment in the amount of present value to give
effect to the qualification of survival) of the
present value of Mrs. Sonnenberg's right of
dower, if it is paid now, showing a value of
$734.59.
There was no dispute as to the accuracy of
the calculations. No other calculations of dower
values or methods of calculating such values
were offered.
Counsel for Mr. Sonnenberg proposed 2
alternatives, (1) payment of $734.59 now to
Mrs. Sonnenberg, or (2) setting aside $1,234.60
in trust until survivorship is determined by the
death of either Mr. or Mrs. Sonnenberg, to be
paid to her if she becomes the survivor, to him
if he becomes the survivor, with the annual
income to be paid to him while both are alive.
This latter alternative is along the lines of an
order made in Taylor v. Taylor [1971] 1 O.R.
715.
In my opinion the present value of Mrs. Son-
nenberg's dower interest, provided she survives
her husband, is $1,234.60; and if it is not sub
ject to that provision and is payable now, it is
$734.59.
I sensed a feeling on the part of all parties
that payment now of whatever amount is deter
mined by the Court would be preferable to
putting money in trust with distribution to await
and be dependent upon survivorship. In any
event, having regard to the relatively small
amounts involved and the inconvenience and
expenses that putting the money in trust and
administering it would involve, I think that the
ends of justice would be better served by pay
ment to Mrs. Sonnenberg now of $734.59
rather than requiring $1,234.60 to be held in
trust to await survivorship. She will also be
entitled to payment of interest on $734.59 at 5
per cent per annum from July 15, 1969, when
she gave up possession, to the date of judg
ment. Mr. Sonnenberg received $13,708 on
May 2, 1968 and gave up possession at that
time, and he will be entitled to payment now of
$4,265.41 3 with interest at 5 per cent from that
date to the date of judgment. Judgment will be
to that effect. I think that the Court has power
to make such an order by virtue of s. 30 of the
Expropriation Act, R.S.C. 1952, c. 106, which
reads as follows:
30. Such proceedings, so far as the parties thereto are
concerned, bar all claims to the compensation money or any
part thereof, including any claim in respect of dower, or of
dower not yet open, as well as in respect of all mortgages,
hypothecs or encumbrances upon the land or property; and
the Court shall make such order for the distribution, pay
ment or investment of the compensation money and for the
securing of the rights of all persons interested, as to right
and justice, and according to the provisions of this Act, and
to law appertain.
As to costs, Mrs. Sonnenberg testified that no
one from the Seaway Authority ever negotiated
with her or made an offer to her. Counsel for
the plaintiff submitted that the dispute between
the defendants respecting distribution of the
compensation was not attributable to the plain
tiff. However, Mrs. Sonnenberg found it neces
sary to defend her right in court, and there was
a real issue between the defendants respecting
distribution of the compensation money and an
absence of agreement between them and the
plaintiff, as to such distribution. In the circum
stances, I think that the defendants should have
their costs of these proceedings, to be taxed.
Judgment will, therefore, be rendered
(1) declaring that the lands described in para
graph 2 of the Amended Information became
vested in the St. Lawrence Seaway Authority
on the 6th day of December, 1965;
(2) that the amount of compensation payable
for the aforesaid lands and for all damages
resulting from the expropriation thereof is
$18,708;
(3) that the defendant Mary Sonnenberg,
upon her delivering to the plaintiff a valid and
sufficient release of all or any claims in respect
of her inchoate right of dower or other interest
in the said lands that may have existed upon the
lands at the time of the said expropriation, is
entitled to be paid by the plaintiff the sum of
$734.59, with interest thereon at 5 per cent per
annum as from July 15, 1969, to the date of
judgment herein;
(4) that the defendant Norman Daniel Son-
nenberg, upon his delivering to the plaintiff a
valid and sufficient release or releases of all and
any claims, liens, charges or encumbrances of
any kind or nature whatsoever (other than
claims by the defendant Mary Sonnenberg
referred to in the next preceding paragraph 3)
that may have existed upon the said lands at the
time of the said expropriation, is entitled to be
paid by the plaintiff the sum of $4,265.41 with
interest thereon at 5 per cent per annum as
from May 2, 1968, to the date of judgment; and
(5) that the defendants are entitled to be paid
by the plaintiff their respective costs of this
action, to be taxed.
1 At the trial, counsel for Mary Sonnenberg submitted
that the lands had been expropriated before that order was
issued and therefore the order was not effective. I do not
need to rule on that point.
2 Adjustable according to the amount of compensation
actually awarded.
3 Being $18,708 minus the aggregate of $13,708 and
$734.59.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.