“The issue of notional costs was canvassed in Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), by the Court of Appeal. Satisfactory evidence must be led of a likely disposition date before the Court can take into consideration disposition costs. The Supreme Court of Canada in Rick v. Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 29, refused to grant a debt to the owner of a business for capital gains where he tendered no evidence as to the likelihood or date of the eventual sale. Specifically, the Court stated, at para. 56:
In fact, the husband tendered no evidence as to the likelihood or date of an eventual sale. While it is true that at some point capital gains tax may become payable, in the absence of evidence from the husband of an imminent or eventual sale so as to justify any deduction, the trial judge’s decision not to make a deduction was completely supportable. [Emphasis in original.]
The applicant submits that I should allow some amount for capital gains. She relies on Schild v. Kassian, 2010 ABQB 572 (CanLII), where Strekaf J. allowed half of the capital gains requested because capital gains would inevitably be incurred despite no evidence of any current intention to sell.
There is no evidence from the applicant as to her plans on selling the cottage. I am not prepared to allow a claim for disposition costs for possible capital gains without some evidence as to a potential sale. Consequently, I reject the applicant’s request for the $3,000 debt for anticipated capital gains as she has not met her evidentiary burden of proof.”