Court File and Parties

Date: 2004-11-08 Docket: C42058

Superior Court of Justice - Ontario (Divisional Court)

Re: Peter Young Eastmure (Petitioner) (Respondent) – and – Aster Shifraw Eastmure (Respondent) (Appellant)

Before: Weiler, Simmons and Juriansz JJ.A. (sitting as Divisional Court)

Counsel: Joseph Kary, for the appellant Peter Eastmure, the respondent in person

Heard & Released Orally: November 4, 2004

On appeal from the order of Justice Hugh M. O’Connell of the Superior Court of Justice dated June 8, 2004.

Endorsement

[1] This is an appeal by the appellant wife, Aster Shifraw Eastmure, from the order of O’Connell J. dated June 8, 2004, ordering the sale of the matrimonial home and a distribution of $75,000 of the proceeds to each party. Although the wife originally made a claim to have the matrimonial home vested in her name alone, in the end, she did not oppose the sale of the matrimonial home.

[2] The issue on this appeal is whether the distribution order impairs the wife’s claim for an unequal division of the proceeds of sale from the matrimonial home. The other issue on this appeal, an allegation of bias or appearance of bias, was not pursued on appeal. The motion judge had previously conducted a settlement conference with the parties. No evidence was filed that would indicate that the issues discussed at the settlement conference were the subject of the order under appeal.

[3] We were concerned with our jurisdiction to hear the appeal relating to the distribution order. While the order for the sale of the matrimonial home was a final order, the order respecting the distribution of a portion of the proceeds was an interim order. We have taken the unusual step of obtaining a designation from the Chief Justice of the Superior Court and of constituting ourselves as the Divisional Court in order that we might dispose of the appeal without additional delay. See: McCorkell v. Ontario Lottery Corp. (1992), 90 D.L.R. (4th) 276.

[4] Insofar as the substance of the appeal is concerned we are of the opinion that the motion judge erred in making the order that he did. He should not have ordered a distribution of a specified amount from the proceeds of sale of the matrimonial home without knowing its sale price. Rather, he should have ordered that a specified amount be held back from the proceeds of sale to cover the wife’s claim for an unequal distribution or ordered that the proceeds be held in trust pending the determination of her claim at trial.

[5] The house has now been sold and the closing took place a few days ago. There is no dispute as to what the approximate proceeds of sale were. Counsel for the wife does not oppose a distribution of a modest amount of the proceeds in the range of $10,000 to $20,000. Accordingly, paragraph. 2 of the order below is varied to provide that the sum of $15,000 be distributed to the husband from the proceeds of sale of the matrimonial home without prejudice to the wife’s rights. In addition, we would order that the sum of $75,000 be distributed to the wife. The balance of the proceeds are to be held in trust pending trial or other resolution of the issue.

[6] We understand that the trial will take place in December of this year. In the event that the trial is postponed for any reason, our order is without prejudice to the husband to apply to the Superior Court for a further interim distribution order.

[7] The appeal is allowed to the extent indicated above. Because this appeal was brought in the wrong forum we are not inclined to award any costs.

“Karen M. Weiler J.A.”

“Janet Simmons J.A.”

“R.G. Juriansz J.A.”