Court File and Parties
COURT FILE NO.: FS-18-2429 DATE: 20200406 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Adam Rothschild, Applicant AND: Amanda Rothschild, Respondent
BEFORE: Kiteley J.
COUNSEL: Richard Niman, counsel for the Applicant Amanda Rothschild, Self-Represented
HEARD: In writing from Applicant dated March 26, 2020 and from the Respondent dated March 30, 2020
Endorsement Arising From In-Writing Submissions
[1] The parties were married in July 2012. Their children were born in October 2014 and October 2017. They separated in late 2017 but remained occupying the matrimonial home until the Applicant moved out in October 25, 2018 and commenced legal proceedings. Monahan J. heard submissions on motions for interim orders and released a decision dated January 28, 2019. [1]
[2] The trial was scheduled to start on Monday, January 20, 2020. Following extensive settlement negotiations on January 20 and 21, 2020, the parties entered into Minutes of Settlement that addressed parenting, property and other financial issues. At the request of counsel I agreed that they could include a sentence that I had approved the Minutes of Settlement. In addition, I consented to paragraph 35 set out below.
[3] The terms of the Minutes of Settlement relevant to the issues before me are as follows:
The matrimonial home will be listed for sale by April 1, 2020 with a closing date no earlier than June 30, 2020. The parties shall select a mutually agreeable real estate agent by February 29, 2020 who must be at arm’s length to the parties and their families. The listing price shall be at the recommendation of the mutually agreeable real estate agent. Any dispute between the parties with respect to the selection or termination (subject to their contractual obligations) of the real estate agent, listing price, acceptance of an offer, or any repairs or updates that are required to the matrimonial home, shall be addressed using the dispute resolution section below on an urgent and summary basis. The parties shall accept all reasonable offers from arm’s length purchasers.
Any repairs necessary to effectively market the sale of the matrimonial home as recommended by the listing agent shall be paid for jointly by the parties and performed by trades who are at arm’s length. If Amanda does not have the funds to front her one-half share, then Adam shall front her one-half share and be reimbursed at the time of closing. In any event, the repairs will not exceed $20,000 without consent of the parties or court order.
Amanda will be entitled to continue living in the matrimonial home on an exclusive possessory basis and on a rent and/or mortgage free basis, including with the children when they will be in her care, until the closing of the pending sale of the matrimonial home. Adam hereby indemnifies and saves Amanda harmless from any claims/liabilities for rent/mortgage payments of principal and interest in this regard.
Any issues with respect to the listing (including the appointment of an agent), marketing, or sale of the matrimonial home will be resolved by way of an urgent Case Conference before Justice Kiteley and, if need be, a motion thereafter on short notice to be managed by Justice Kiteley. Emphasis added
[4] I received a letter dated March 9, 2020 from Richard Niman asking for an urgent case conference in accordance with paragraph 35. I scheduled a telephone case conference on March 20, 2020. The material that was before me on March 20 raised four issues: selection of a listing agent; the Applicant’s access to the matrimonial home for the purpose of viewing the home and any issues related to its marketability; repairs; and whether the listing date should be extended given the current restrictions as a result of COVID-19.
[5] In that brief case conference I gave directions (confirmed in a written endorsement) for the parties to make submissions in writing on two of those topics:
(a) the selection of the listing agent provided that each shall attach a resume of the agent s/he proposes; (b) whether the listing date of April 1, 2020 should be extended and if so, for how long.
[6] There are two contextual issues. The first is that following the separation in December 5, 2017, the relationship between the parents has been acrimonious. The settlement negotiations started on Monday January 20, 2020, the day that the case was scheduled for trial. The parties continued their negotiations on Tuesday January 21, the date the Minutes of Settlement were signed. The Minutes of Settlement are detailed and were intended to address the proliferation of issues that might arise. The Minutes of Settlement called for the appointment of a Parenting Co-ordinator, and created dispute resolution mechanisms including arbitration with respect to the contents of the home. In addition, paragraph 35 was added.
[7] The second context is the COVID-19 pandemic. In January 2020, there was no reason for the parties to be informed or concerned about the events unfolding in China. In February 2020, based on the emails provided by the parties in relation to the telephone case conference and their written submissions, disagreement quickly surfaced about the identity of the listing agent and repairs that might be required. On March 11, 2020, the World Health Organization declared that COVID-19 was a pandemic. On Sunday March 15, 2020, Chief Justice Morawetz issued a Notice to the Profession, the Public and the Media that, effective Tuesday March 17, 2020, regular court operations would be suspended. Since then the court has addressed urgent matters remotely by telephone conference call, video-conference call or in writing. As events unfolded, all layers of government have established protocols for self-isolation and physical distancing. As a result of protocols for physical distancing, all but essential workers are to remain in their residence except for narrow purposes such as groceries and other personal needs.
[8] These two contexts inform the decision set out below.
Identity of Listing Agent and Listing Date
[9] In his written submissions, the Applicant indicated that the issue of selecting a listing agent had largely been resolved on the basis that the parties agreed to extend the listing date to April 15, 2020 and to re-evaluate the COVID-19 restrictions at that time. According to the Applicant, if it is still not possible to list the home at that stage, the date will be extended another two weeks and so on until it can be listed.
[10] In her written submissions and as reflected in the email dated March 23, 2020, the Respondent wrote as follows: “I am agreeable to extending the date until April 15, 2020 and then reassessing the situation at that time.” In her written submissions, she indicated that she would “check in with Counsel every two weeks, however, the constant legal letters and threats of taking me to Court need to stop, and I am pleading with the Courts to help me with this.”
[11] In other words, while the parties agree about extending to April 15 for re-assessment, they do not agree to continue to extend at two week intervals until the property is listed.
[12] I see no point in only one extension of the listing date to April 15, 2020. Re-assessing the situation at two week intervals is reasonable. There needs to be clarity as to the expectation of re-assessment so that another court intervention is not required on or after April 15, 2020.
[13] As for the listing agent, the emails provided in connection with the telephone case conference and the written submissions indicate that various real estate agents have been considered. In her email dated March 23, 2020 the Respondent indicated that she was agreeable to meeting with C.K. [2] The Respondent’s willingness to meet with her was “subject to being in receipt of the letter we discussed outlining the nature of her, [or M.K.], relationship and past work experience with the Rothschilds”. In Exhibit A to his written submissions, the Applicant has provided a copy of an email dated March 23, 2020 in which C.K. confirms that neither C.K. nor M.K., “have ever had any business or social dealings with either Adam or Amanda Rothschild, nor any member of their respective families”. So that “condition” imposed by the Respondent has been met.
[14] However, the material does not indicate that they agree on C.K. In her March 23 email the Respondent wrote that “I will fully cooperate with her attendance once the COVID-19 Pandemic has ended”. As I understand her material, whether C.K. becomes the listing agent is still outstanding.
[15] That issue is within paragraph 35 of the Minutes of Settlement. The parties having failed to agree to a listing agent by February 29, 2020, I will make an order. I do not accept the time frame imposed by the Respondent. When the pandemic “ends” is relative. Indeed, it is probably a scientific term. There is the possibility that it never “ends” but, in some form or other, a “new normal” is established. It is not reasonable to indefinitely extend the Respondent’s obligation to list and sell the home by indefinitely extending the choice of listing agent.
[16] In my view, the trigger for proceeding with the sale will be when real estate agents in Toronto resume having open houses. On March 24, the industry regulator, the Real Estate Council of Ontario (RICO) strongly recommended to brokerages and salespeople to decline to host or participate in open houses. The professional association, the Ontario Real Estate Association (OREA) adopted that recommendation and urged its members to comply. Based on those actions, I am confident that RICO and OREA will take similar initiatives when it comes time to resume hosting open houses.
[17] Without determining whether this is a matter of which the court can take “judicial notice”, I am aware that the real estate professionals appear to have acquiesced that it is not feasible to hold open houses at this time. I infer that the market is still active but without physical inspection of premises. In lieu of accepting the submission of the Respondent that would delay indefinitely the selection of the agent and the listing date, I am satisfied that those organizations will not take such steps without proper consideration of the interests of their clients and members of the public and I will trigger the commencement of the listing period when they do so.
[18] I am assuming the agent can enter into a listing agreement with the duration of the list period to commence on the happening of a future event as described in paragraph 17 above.
Repairs Prior to Sale
[19] As indicated above, both parties made reference to the subject of repairs even though I did not include it as one of the two issues on which I asked submissions. That suggests that they are of the view that repairs are contemplated in paragraph 35 of the Minutes of Settlement.
[20] Paragraph 32 refers to dispute resolution on an “urgent and summary basis” consistent with paragraph 35. The item “repairs” is included in the list of issues highlighted in paragraph 32.
[21] In paragraph 33 of the Minutes of Settlement, the repairs are specifically mentioned as those “recommended by the listing agent”. In paragraph 35, the list of issues for resolution on an urgent basis includes the appointment of the agent, marketing, or sale but not repairs.
[22] In other words, there is an inconsistency between paragraph 32 which suggests that repairs are before me and paragraph 33 which clearly indicates that the listing agent is to make recommendations. I am governed by the terms of paragraph 35 to which I consented. It is not reasonable for the court to wade into the specifics of repairs and not appropriate to interpret paragraph 35 otherwise. In my view, the parties intended that that be resolved by the listing agent.
[23] Notwithstanding the extension of time to list the home for sale, I intend to create a framework in which the parties can agree in the immediate future what repairs will be undertaken, by whom and at what cost so that they can act on that agreement as soon as the list period begins to run.
[24] Given the instructions by public health authorities to continue to be vigilant about physical distancing of at least 2 metres, that poses a challenge to the real estate agent entering the home to view the premises and to consider and make recommendations with respect to repairs as contemplated by paragraph 33 of the Minutes of Settlement, I will not order the Respondent to provide immediate access to C.K. However, as indicated below, the repairs need to be addressed. It may be that with input from the agent, and using photographs and measurements of the areas by the Respondent that she proposes be undertaken, that the list of repairs can be established by C.K. (if the parties cannot agree), and the contractors lined up so as to begin the repairs as soon as RICO and OREA or either of them recommend the resumption of open houses. To set that process in motion, the parties must sign a listing agreement to give C.K. the authority contemplated in paragraph 33 of the Minutes of Settlement.
[25] I note that in her submissions, the Respondent makes reference to repairs that she has already done and for which she seeks a contribution of 50% in accordance with paragraph 77 of the decision by Monahan J. Pre-existing repairs are not contemplated in paragraphs 32 to 35 of the Minutes of Settlement and will not be considered.
Applicant’s access to the matrimonial home
[26] Although I had not included it in the endorsement dated March 20, 2020, the Applicant included this issue in his written submissions and he is adamant that he requires access to the home so that he can “make decisions relating to the listing, marketing and sale of the home”. The Respondent refuses to agree.
[27] Pursuant to paragraphs 73 and 81(n) of the decision of Monohan J. dated January 28, 2019, the Respondent has exclusive possession of the home. As indicated above, that was continued in paragraph 34 of the Minutes of Settlement. In other words, the Minutes of Settlement did not make any provision for the Applicant to enter for purposes of making decisions about repairs. The narrow jurisdiction established in paragraph 35 of the Minutes of Settlement does not allow me to make such an order. The Applicant will have to make whatever repair decisions are required without having access to the home.
[28] I conclude with this observation. The older child will be 6 years old in October and the younger child will be 4 years old. I assume that the agreed upon listing date of April 1, 2020 and closing date no earlier than June 30, 2020 was intended to accommodate the end of the normal school year. Unless mandated school closings extend beyond the end of this school year, those children will be resuming school in September 2020. Notwithstanding the historical and current conflict between the parents, once open houses resume and the matrimonial home is on the market, they may be able to come to an agreement to expedite the sale so as to enable the Respondent to have the children accommodated before resumption of school.
[29] The written submissions were brief. “Success” was divided. There is no reason to inflame the dispute by making an order as to costs.
Order
[30] The listing of the sale of 338 Cortleigh Boulevard, Toronto is extended to April 15, 2020 at which time the parties will re-evaluate the COVID-19 restrictions. If not possible to list at that time, the parties shall re-evaluate at two week intervals thereafter until listed.
[31] Unless the parties agree otherwise, and no later than April 13, 2020 at 5:00 p.m. ET, the parties shall sign a listing agreement with C.K. and her brokerage firm, unless C.K. refuses to participate in the sale of the home. That listing agreement will provide for a listing period of no less than 90 days.
[32] If C.K. refuses to participate in the sale of the home, either party may contact the Trial Co-ordinator to arrange a telephone conference call with me for the limited purpose of establishing a timetable for the parties to make written submissions as to an alternate listing agent.
[33] Within five days of RICO and or OREA recommending the resumption of open houses, C.K. will take steps to market the home including arranging open houses.
[34] With respect to repairs to the home prior to listing:
(a) by April 13, 2020, the Respondent shall send to the Applicant and to C.K. an email with a numbered list of all of her proposed repairs along with an image or images of the location of the proposed repair and such measurements as are relevant to whether the repair is reasonable; (b) if by April 20, 2020, the Applicant and Respondent have not agreed as to whether the repair is/are to be undertaken, at what cost and by what contractor, then by April 22, 2020 C.K. shall make recommendations as required by paragraph 33 of the Minutes of Settlement and inform the Applicant and the Respondent by email; (c) within 5 days of RICO and or OREA recommending the resumption of open houses, the Respondent shall give to the contractor whatever access is required to effect the repairs; (d) the parties shall share/pay the cost of the repairs in accordance with paragraph 33 of the Minutes of Settlement.
[35] Neither party shall pay or receive costs from the other in connection with the telephone conference call on March 20, 2020 and the written submissions required in the endorsement dated March 20, 2020.
[36] This order takes effect without a formal order being signed and entered.
KITELEY J. Date: April 6, 2020
Footnotes:
[1] 2019 ONSC 568 [2] Given the conflict between the parties, it is not necessary to use C.K.’s full name in this endorsement since both parties refer to the same person.