Court File and Parties

CITATION: Hoshowosky v. Linhares, 2015 ONSC 2680

DIVISIONAL COURT FILE NO.: 426/14

SUPERIOR COURT FILE NO.: FS-13-386658

DATE: 20150420

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LARA IRENE HOSHOWSKY Applicant/(Respondent)

AND: FELIX MANUEL LINHARES Respondent/(Appellant)

BEFORE: Lederer J.

COUNSEL: Pamila Bhardwaj, for the Applicant/(Respondent) Nelson E. Cavalheiro, for the Respondent/(Appellant)

HEARD at Toronto: In Writing

Endorsement

[1] This is a motion for to leave to appeal an interlocutory order. It is a family law matter.

[2] In such circumstances, the Family Law Rules[^1] r. 38(1)(b) incorporate r. 62 of the Rules of Civil Procedure.[^2] Rule 62.02(4) provided the applicable tests. There are two. “One of two tests, each of which includes two requirements, must be satisfied. Leave to appeal will be granted if there is a conflicting decision and, in the opinion of the judge hearing the motion, it is desirable that leave be granted. In the alternative, leave to appeal will be granted where there is good reason to doubt the correctness of the order and that the proposed appeal involves matters of such importance that, in the opinion of the judge, leave to appeal should be granted.”[^3]

[3] The prospective appeal is from an order which, among other things:

a) dismissed the motion of the husband for “temporary sole custody” of the two children “of the marriage” both of whom have special needs;

b) confirmed two orders which provided that the interest of the husband, in the matrimonial home, was to be transferred to the wife, assuming a sale price of $629,000; and,

c) granted the motion of the wife seeking financial relief in respect of the matrimonial home by calculating that the interest of the husband in the home was ($629,000 being the agreed upon purchase price, minus $18,870 on account of “notional” real estate commission, minus $418,000, which represents the value of the outstanding mortgage, minus a further $9,000 in property tax arrears, totalling $183,130, which was divided by 2 equalling) $91,565.00 and requiring that the wife pay that amount into the trust account of the lawyer acting on the transfer. Upon that being done, the husband was to transfer his interest in the home to the wife. If he failed to do so, the interest of the husband in the home was to be expunged and his name deleted from the title.[^4]

[4] The substance of the motion for leave is that the husband was denied procedural fairness, in that the judge refused to allow that submissions be made on his behalf, indicated that no decision would be made as to custody and decided to grant sole custody to the wife. Further, it is said that the judge made errors with respect to the calculation of the husband’s share of the matrimonial home. In particular, it was submitted that the judge accounted for all of the cost of the “notional” real estate commission by deducting it all from the husband’s interest and not half from each of the husband and the wife. It is suggested that the value of the mortgage was accepted as indicated by the wife without any proof. The husband believes the value is less, meaning that the equity to be split between the parties is more. Finally, the husband submits that the motion judge erred in ordering that, if he fails upon payment of his interest in the home to transfer title to the wife, his name could be deleted from the title.

[5] I will not grant leave to appeal.

[6] It is not suggested that there is any conflicting decision. Such a conflict must be with respect to the enunciation or, the improper application of a legal principle, not the exercise of discretion, which is dependent on the facts of the case. Here, the reliance must be on r. 62.02(4)(b) of the Rules of Civil Procedure. There must be “good reason to doubt the correctness of the order in question…”[^5] There is no such reason.

[7] I start with the premise that the husband was denied any opportunity to make submissions. The husband had been requested to fill out the forms necessary to involve or seek the participation of the Ontario Children’s Lawyer. He failed to do so and, yet, sought custody. The motion judge was concerned. How could the husband, ignore the request, fail to account for the interests of the children on the motion and still expect to be heard? The judge made clear that she gave little credence to the motion:

As far as I’m concerned, his motion has no air of reality at this point, and it should not have been brought.[^6]

[8] Nonetheless, the issue was raised and the judge considered what should be done. She acknowledged that the husband sought temporary custody. She considered that the children had continuously been in the custody of the mother. The judge noted that the children had special needs which required that decisions be made in circumstances where the husband and wife were unable to co-operate. The judge granted temporary custody to the wife, subject to access to the husband, as had been ordered by another judge almost a year earlier.

[9] It should never be forgotten that the primary concern on a motion such as this is the interest of the children. The husband failed to follow the direction of the court. He cannot have expected that he could avoid its instruction with impunity. As the motion judge observed:

We sought assistance. We requested that the O.C.L. become involved, and then it just all comes back, so, you now, we can’t have that.[^7]

[10] The judge went on to say:

So I’m not prepared to hear the motion.[^8]

[11] Before accepting this to be a determination that no decision as to custody would be made, it is important to read a further in the transcript. The wife wanted custody to be dealt with. The judge heard submissions from both sides.[^9]

[12] I am not prepared to find that there is any reason to doubt the correctness of the decision of the motion judge concerning custody.

[13] Insofar as the sale of the house is concerned, based on the calculation relied on by the husband, the notional real estate commission was not subtracted solely from his interest. As shown in the calculation already noted (see: para. [3(c)], above), the commission was subtracted before the equity was divided by 2 to arrive at the interest that remained for each of the husband and the wife. Although it is not clear, it may be that the concern of the husband is that because the “sale” is to the wife, no commission will be paid; thus, the calculation lowers what will be paid to him, leaving more in the hands of the wife. There is some indication in the file that there was a real estate agent involved who insisted on being paid. The wife waited out the life of the listing agreement and the three-month grace period that followed before the purchase could be completed.[^10]

[14] The judge asked to be advised of the value of the mortgage on the property. She was told that the value of the mortgage was $418,000.[^11] Counsel for the husband did make some submissions as to the sale of the home, but did not question the value of the mortgage. If he did not do it there, I do not see how he can question it on a motion for leave to appeal.[^12]

[15] There is no reason to doubt the correctness of the decision of the motion judge. There is no reason to suggest that there is an error in her calculations. To put it differently, there is no reason to find that the award made is not exactly what she intended. Ultimately, any of these concerns can be addressed, if necessary, through the calculation of net family property and equalization payments.

[16] Finally, I am not prepared to find that the motion judge overstepped her authority when she ordered that if the husband, following payment of the funds representing his interest in the home failed to transfer his interest to the wife, she could act to have his interest expunged and his name deleted from the title. The transfer was contemplated by the Agreement of Purchase and Sale the parties entered into. The issue before the motion judge was the lack of co-operation of the husband in proceeding with the transaction. The motion judge did nothing other than allow for the completion of what the parties had agreed to.

[17] The motion for leave to appeal is dismissed.

[18] No submissions were made as to costs. There is no reason why costs should not follow the event. The motion was in writing. Counsel did not appear. In the circumstances, I award cost to the wife in the amount of $750.

LEDERER J.

Date: 20150420

[^1]: O. Reg. 114/99. [^2]: O. Reg. 194/90. [^3]: Park v Myong, 2015 ONSC 2287, at para. 18, where the writer of these reason included this explanation of the two tests. [^4]: Order of Madam Justice Backhouse, dated September 11, 2014. [^5]: Supra, (fn. 2) r. 62.02(4)(b). [^6]: Transcript: Proceedings Before the Honourable Madam Justice N. Backhouse (September 11, 2014), at pp. 1-2. [^7]: Ibid, at p. 2. [^8]: Ibid, p. 2. [^9]: Ibid, at pp. 15-17 and 19-21. [^10]: Factum of the Respondent, at para. 18(vii) and (viii). [^11]: Transcript: Proceedings Before the Honourable Madam Justice N. Backhouse (September 11, 2014), at pp. 12 and 13. [^12]: Ibid, pp. 17-18.