“The test for deducting disposition costs from NFP as set out in Sengmueller v. Sengueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at pp. 213, is as follows:
In my view, it is equally appropriate to take such costs into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as deduction of a liability: the result is the same. While these costs are not liabilities in the balance sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves. This is consistent with McPherson but goes beyond it. [Emphasis added.]
This court had, in the earlier case of Starkman v. Starkman (1990), 1990 CanLII 6793 (ON CA), 75 O.R. (2d) 19 at pp. 23 and 26, adopted the approach from McPherson v. McPherson (1988), 63 O.R. 2(d) 641, as set out in the following passage from McPherson, at p. 647:
… an allowance should be made in the case where there is evidence that the disposition will involve a sale or transfer of property that attracts tax consequences, and it should not be made in the case where it is not clear when, if ever, a sale or transfer of property will be made and thus the tax consequences of such an occurrence are so speculative that they can safely be ignored. [Emphasis added.]
The test used by the application judge is stricter than the tests in Sengmueller and McPherson. The application judge looked to whether the disposition of the assets was inevitable. Instead, she should have determined whether it was more likely than not that the assets would be sold, at which point disposition costs would inevitably be incurred.”