CITATION: Oz v. Oz 2012 ONSC 3909
COURT FILE NO.: 242/12
DATE: July 4, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Tessie Oz
Deborah MacKenzie for the Moving Party
Applicant/Responding Party
- and -
Ran Oz
Moving Party/Respondent
Corinne Muccilli for the Responding Party
HEARD: June 19, 2012 at Toronto
PERELL J.
REASONS FOR DECISION
A. INTRODUCTION AND OVERVIEW
[1] Tessie Oz and Ran Oz are the parties to matrimonial litigation. By Order dated April 28, 2012, Justice Greer ordered that Mr. Oz continue to pay $2,500 for the expenses of the matrimonial home, which payment had been ordered on consent by Justice Backhouse. Justice Greer also ordered Mr. Oz to pay child support based on an imputed income of $90,000, and she ordered that he list for sale an investment property at 9 Rosemarie Drive, Toronto, Ontario.
[2] Mr. Oz seeks leave to appeal Justice Greer’s order to the Divisional Court and a stay of the order pending the appeal.
[3] For the reasons that follow, I grant leave to appeal and I stay the April 28, 2012 order on terms, as set out below.
B. FACTUAL AND PROCEDURAL BACKGROUND
[4] Tessie and Ran Oz were married in 2000. They have three children, Maia (born 2002), Noa (born 2005), and Evan (born) 2007.
[5] Mr. Oz is a self-employed painter carrying on business through Wiz Renovations Inc. During his marriage, Mrs. Oz was the primary caregiver and a stay at home mother and Mr. Oz was the primary wage earner. He is the registered owner of two properties, the matrimonial home and an investment property, 9 Rosemarie Drive, Toronto, Ontario.
[6] The marriage relationship broke down in early 2010, and the parties separated in May 2010. Mr. Oz resides in the basement of the investment property. The children reside with him every second weekend and every Wednesday overnight. Otherwise, Mrs. Oz has custody of the children and continues to be the primary caregiver.
[7] After the commencement of the matrimonial litigation, on January 17, 2011, Mr. and Mrs. Oz attended a case conference. On consent, Justice Backhouse made an interim order under which Mr. Oz was obliged to pay the mortgage, taxes, insurance, utilities and the Internet and TV-cable expense for the matrimonial home and $172.00 monthly as his contribution to s. 7 expenses. This order was made in lieu of a specific order designating child and spousal support.
[8] The order made by Justice Backhouse also included a provision that two real estate agents provide written opinions as to the value of the matrimonial home and of the investment property.
[9] In November, 2011, Mrs. Oz moved for a more specific order imputing Mr. Oz’s income and specifying amounts for child support, spousal support, and payment of Mrs. Oz’s retraining costs. She also sought an order requiring the sale of the matrimonial home, subsequently abandoned, and of the investment property, which properties were said to be owned by the parties but actually are registered only in the name of Mr. Oz.
[10] In November, 2011, Mr. Oz brought a cross-motion to vary Justice Backhouse’s order. He sought to pay child support of $1,323 per month based on an income of $68,000 from and after December 1, 2011, spousal support in the amount of $366 per month plus the mortgages, taxes, and all utilities for the matrimonial home.
[11] On December 8, 2011, the motion and cross-motion was heard by Justice Greer, who reserved judgment but directed the parties to provide her with additional financial information.
[12] On January 12, 2012, pursuant to Justice Greer’s direction, Mrs. Oz delivered an affidavit, which Mr. Oz submits contained evidence beyond what had been directed by Justice Greer. His counsel wrote Justice Greer and requested an opportunity to make further argument.
[13] On April 28, 2012, Justice Greer released her decision. In her endorsement, she noted Mr. Oz’s objection that Mrs. Oz had raised new issues and his request for a further attendance. She stated that she did not see that as necessary at this time.
[14] In her endorsement, Justice Greer reviewed and considered the material that had been provided by the parties and directed that various support orders be made. For present purposes, the pertinent parts of her order are as follows:
The Applicant, Tessie Oz, shall have exclusive possession of the matrimonial home for her and the children to occupy on an interim basis until further Court Order and no earlier than one year from date hereof, April 28, 2012;
The Respondent, Ran Oz shall continue to pay all expenses for the house, including mortgage, utilities and insurance monthly, in the appropriate amount of $2,500, without prejudice to the parties agreeing on a settlement or by this Court that part of all of these payments represent interim spousal support or part payment on equalization of net family property;
For purposes of child and spousal support, these shall on an interim basis, be based on imputed income of $90,000. Child support shall be in the amount of $1,678.00 per month, based on the Child Support Guidelines, for the three children of the marriage namely …
The Respondent, Ran Oz, shall list the property municipally known as 9 Rosemarie Drive in the City of Toronto for sale with a broker of his choice within thirty (30) days of this Order. The Applicant, Tessie Oz, and her counsel shall be provided with a copy of the listing agreement. If an Offer, acceptable to the Respondent, Ran Oz, is agreeable to him, the Applicant, Tessie Oz, as spouse shall not unreasonably withhold her signature.
The parties may in six month’s time, review the issues of interim spousal support and section 7 expenses. They shall prepare Net Family Property Statements and exchange them within thirty (30) days hereof.
[15] The practical effect of Justice Greer’s order is that with the continued payment of $2,500 per month plus child support payments of $1,687 per month, Mr. Oz must pay $4,187 monthly or $50,244 yearly with the tax treatment of these payments yet to be determined.
[16] Mr. Oz seeks leave to appeal Justice Greer’s order to the Divisional Court. He submits that Justice Greer erred in three ways. First, he submits that the court does not have the jurisdiction to order the sale of his investment property. Second, accepting the imputation of income at $90,000, which for the purposes of any appeal, he does not dispute, the support payments under the order would require him to pay 82.8% of his net disposal income, which is so high as to indicate that Justice Greer must have failed to consider the Spousal Advisory Guidelines, which indicates, he submits, that there is good reason to doubt the correctness of the order. Third, he submits that he was denied procedural fairness because Justice Greer rejected his request to make further argument.
[17] By way of resisting the motion for leave to appeal, Ms. Oz argued that there was no reason to doubt the correctness of Justice Greer’s order, and relying on rule 14 (23) Mrs. Oz submitted that Mr. Oz had not obeyed the original consent support order made by Justice Backhouse and, therefore, he was not entitled to any further order from the court. The alleged non-compliance concerns the cancellation of the TV and internet cable service.
C. DISCUSSION
1. Rule 14 (23) and Compliance with the Consent Support Order
[18] Rule 14 (23) of the Family Law Rules states:
Failure to Obey Order Made on Motion
(23) A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules, … (c) make any other order that is appropriate, including an order for costs.
[19] Mrs. Oz alleges that Mr. Oz did not comply with Justice Backhouse’s order with respect to the payment of the TV-cable company’s charges with the result that the cable and internet services were cancelled and, therefore, she submits that pursuant to rule 14 (23), Mr. Oz is not entitled to any further order. In response, Mr. Oz submits that Mrs. Oz unilaterally changed the cost of the cable subscription and he did not believe that he was responsible for those costs and could not afford them.
[20] It would appear that part of the problem is that paragraph 2 of Justice Greer’s order is vague about whether Mrs. Oz can increase the costs of the cable services, and in these circumstances, I do not think that Mr. Oz should be barred from seeking leave to appeal.
[21] In the circumstances of this case, I exercise my discretion to make an order that subrule 14 (23) does not apply. I shall deal with the alleged non-compliance as part of my discretion to impose terms for a stay of Justice Greer’s order.
2. Leave to Appeal
[22] Under Rule 62.02 (4), leave to appeal may be granted in two circumstances. One of the circumstances is if the judge hearing the motion has reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that in his or her opinion, leave to appeal should be granted. In my opinion, on two points, this circumstance is satisfied in the case at bar.
[23] On the first point, it is doubtful that there is jurisdiction to order the sale of the investment property in the circumstances of this matrimonial litigation or that there is jurisdiction to just have the property listed for sale which is another and less intrusive interpretation of the order.
[24] For the purposes of this leave motion, Mrs. Oz did not suggest a source of jurisdiction, and Mr. Oz submitted that two sources of jurisdiction in matrimonial litigation to order a sale of property were not available. He argued that the jurisdiction available under the Partition Act, R.S.O. 1990, c. F.3 was not available because the spouses were not co-owners . And he argued that it was premature to order a sale under the Family Law Act, R.S.O. 1990, c. F.3 because the court has yet to make an equalization order.
[25] If the order is interpreted as just requiring the property to be listed for sale without compelling a sale, it is not much different than the provision in Justice Backhouse’s order that evaluations for the property be obtained. That seems a helpful provision. However, whether or not the term directing the property to be listed for sale is a good idea is off the point of whether the court has the jurisdiction to make the order. I was not able to find a source of jurisdiction, and, therefore, I think there is good reason to doubt the correctness of this order and in my opinion this point is of sufficient importance to justify granting leave to appeal.
[26] On the second point, it is not clear from Justice Greer’s endorsement how she used the Spousal Support Advisory Guidelines in reaching her decision and given the apparent effect of her order may be that Mrs. Oz will receive 82.8% of Mr. Oz’s imputed net disposal income, there is good reason to doubt the correctness of the order and in my opinion this is a matter of sufficient importance to justify granting leave to appeal.
[27] I note here that I do not grant leave on the point that Mr. Oz was denied procedural fairness. Mr. Oz was unable to show that his concerns about the order; namely, the sale of the investment property or the extent of the support payments, had anything to do with making further submissions nor was he able to demonstrate that he had been prejudiced by not making further argument.
D. STAY PENDING LEAVE TO APPEAL
[28] Pursuant to rule 63.02 of the Rules of Civil Procedure an interlocutory order many be stayed on such terms are just. I am satisfied that the test for a stay set out in R.J.R. MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.) at para. 43 is satisfied.
[29] The remaining issue then is what terms for the stay are just in the circumstances.
[30] In this regard, I think that it is just that Mr. Oz pays to restore the bundle of services provided by the cable company. By this term, I mean that he should pay any arrears and any activation charges required to restore the services. Then, any ongoing expense will be a matter for Mrs. Oz to budget from the monthly payments from Mr. Oz that I shall order below.
[31] In that last regard, Mr. Oz proposed that Justice Backhouse’s order of $2,500 monthly be revived pending the appeal, but he conceded that the court has the jurisdiction to fashion an order providing for child and spousal support payments other than those ordered by either Justice Backhouse or Justice Greer.
[32] I see no need to restore Justice Backhouse’s order, and as far as Justice Greer’s order is concerned, the appeal concerns only paragraphs 2 and 4 of her order, and, in my opinion, only those paragraphs of the order should be stayed.
[33] With respect to paragraph 2, practically speaking, the appeal involves whether the continuation of the obligation to pay $2,500 per month to carry the matrimonial home, some of which expense benefits Mr. Oz as the registered owner of the home, and the obligation to pay child support payments of $1,687 per month, includes some double counting for child or spousal support.
[34] In these circumstances, in my opinion, it would be appropriate as a term of the stay to substitute for paragraph 2 of Justice Greer’s order the following provision:
The Respondent, Ran Oz shall pay $1,650 monthly (on account of spousal support and for the expenses for the matrimonial home, including mortgage, utilities and insurance) without prejudice to the parties agreeing on a settlement or by this Court that part of all of these payments represent interim spousal support or part payment on equalization of net family property;
[35] The result is that pending the appeal, Mrs. Oz will receive $3,337 monthly, and it will become her responsibility to pay the carrying charges on the house and otherwise to budget the use of the money.
[36] For Mr. Oz, the result is that pending the appeal with the payment of $1,650 per month plus child support payments of $1,687 per month, Mr. Oz must pay $3,337 monthly or $40,044 yearly with the attribution of and the tax treatment of the $1,650 per month yet to be determined.
[37] In understanding the exercise of my discretion to impose terms of the stay, it may be helpful to point out that I am not disturbing paragraph 6 of Justice Greer’s order that provides that the parties may review the issues of interim spousal support in six month’s time; i.e., after October 28, 2012, which is just four months away.
E. CONCLUSION
[38] Order accordingly.
[39] The costs of the leave to appeal motion shall be in the appeal.
Perell, J.
Released: July 4, 2012
CITATION: Oz v. Oz 2012 ONSC 3909
COURT FILE NO.: 242/12
DATE: July 4, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Tessie Oz
Applicant/Responding Party
‑ and ‑
Ran Oz
Moving Party/Respondent
REASONS FOR DECISION
Perell, J.
Released: July 4, 2012.