THE DEBRESSER WINTRIP COMMITMENT

In explaining his disposition, the trial judge stated that he awarded [the Wife] the amounts requested “based on the evidence of Mr. DeBresser and the [respondent’s] testimony”.  He stated that he was satisfied theirs was the “best evidence possible in the circumstances.” [From the Court of Appeal for Ontario in Purcaru v. Purcaru, 2010 ONCA 92 (CanLII)]

Thank you so much for all of your time and effort to support my case. I know you went above and beyond and I truly appreciate it. As I’ve said before, this situation took a major toll on me and so I’m grateful to all of you for educating me and arming me with the resources I needed to make good decisions and come to a fair resolution.

I just wanted to extend my deepest appreciation for all that you and your team did for us during this whole sale process. It was great having you in our corner. Your guidance was exceptional. Very well done.

Your report was instrumental in obtaining this decision and I want to thank you very much for your assistance.

I wanted to let each of you know that your attendance was very helpful, and to thank you for your contribution to the process. I am not sure we could have settled without your input.

Many thanks for all your work and expertise. I’m on my way to the next chapter of my life.

I was impressed with the evidence of Mr. DeBresser for the plaintiff. I found him to be very precise and very convincing. He avoided the opportunity to exaggerate or to take his client’s position further than his views permitted.

We also have to remember that Mr. DeBresser in his analysis discovered the fraudulent transfers that took place in the years prior to separation; were it not for him, that issue may have remained undiscovered.

It was after the wife presented her evidence at trial – after Mr. DeBresser testified – that the parties resolved the issues between them, and they did so on terms very close to those suggested by Mr. DeBresser.

DeBresser testified that the appellant refused to answer questions during his examination for discovery regarding the Competition Act charges, which forced DeBresser to consider the range of possible outcomes. In his opinion, the litigation risk weighed down the multiple at the date of marriage and conversely the absence of risk elevated the multiple at the valuation date. The appellant testified at trial that as at the date of marriage a settlement of the charges had been reached. The trial judge rejected the appellant’s evidence that the litigation was settled at the date of the marriage and accepted DeBresser’s evidence.

I agree with Mr. DeBresser that to average the income over a number of years is much more useful to that determination than would be an analysis of only two particular years which were the years leading up to separation when major capital transfers were taking place in the context of a troubled marriage.

Mr. DeBresser prepared a “lifestyle” income analysis from this data which addressed the difference between the family expenses and the amount of declared income that [the Husband] said that he had earned… I find Mr. DeBresser’s report to be much more compelling for a number of reasons.  In a situation where unclear and unreliable evidence is provided as to a support payor’s income, often the lifestyle of a family is the only place where an accurate finding of that income can be determined.  In the present case, that is definitely the situation.

Mr. DeBresser discovered as well, while doing his report, that [the Husband] had paid a further $149,000 to his mother in the guise of Visa payments posted to the business account… As mentioned, [the Husband’s] evidence was incomprehensible as to both why he did things in this manner and as to the amounts paid to his mother by these means … I therefore find that the transfer of $149,000 by [the Husband] to [his mother] was done with the intent of defeating [the Wife’s] claims in these matrimonial proceedings.  Therefore, I find that the transfer of these funds was a fraudulent conveyance within the meaning of s. 2 of the Fraudulent Conveyances Act.

The trial judge concluded that the evidence of Mr. DeBresser, the respondent’s valuator, was more reliable. [From the Court of Appeal for Ontario in Debora v. Debora, 2006 CanLII 40663 (ONCA)]

I accept Mr. DeBresser’s opinion with respect to the value of the husband’s business. I do so because it was not undermined on cross-examination and there was no evidence called to contradict it.

I have concluded that Mr. DeBresser’s evidence is more reliable and I accept it in preference to [the other expert’s] evidence, except where specifically noted.

I was impressed with Mr. DeBresser’s thoroughness and organization in what was a very difficult job in piecing together bits and pieces of often contradictory disclosure made over a prolonged time period.

Assets in the amount of $4,179,297 at the separation date are imputed to the husband and assets totaling $2,175,350 that were omitted from his net family property at the separation date are added, in accordance with Mr. DeBresser’s evidence.

The evidence of James DeBresser, the wife’s valuator, is more persuasive and I accept it in preference to the evidence of [the other expert], the husband’s valuator, except where specifically noted.

“The evidence of James DeBresser, the wife’s valuator, is more persuasive and I accept it in preference to the evidence of [the other expert], the husband’s valuator, except where specifically noted.”

“In explaining his disposition, the trial judge stated that he awarded [the Wife] the amounts requested ‘based on the evidence of Mr. DeBresser and the [respondent’s] testimony’.  He stated that he was satisfied theirs was the “best evidence possible in the circumstances.’”