Court File and Parties
COURT FILE NO.: FC-19-887 DATE: 20230607 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tiffany Melissa Edey Applicant Wife – and – Antonio Beccati Respondent Husband
Counsel: Audrey Lee, as agent for the Applicant Vince Di Vito, for the Respondent
– and – 5034389 Ontario Inc. Respondent (the “corporation”) – and – Susanna Beccati An Added Respondent as a result of this Decision (the “sister”)
Counsel: Vince Di Vito, for the Corporation Not in Attendance (for Susanna Beccati)
HEARD: June 5, 2023 RELEASED: June 7, 2023
Reasons for Decision on a Motion
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS MOTION
[1] The Applicant wife brings a motion for various orders. She seeks an order permitting her to further amend her Amended Application, to claim for a Certificate of Pending Litigation (a “CPL”) against a property in Uxbridge, Ontario that used to be the matrimonial home (the “former matrimonial home”). She also asks that a CPL be issued and registered on title to that property. She asks for an order that 5034389 Ontario Inc. (the “corporation”) be removed as a party to this proceeding, since title to the former matrimonial home is no longer held by the corporation. She says this aspect of her motion is on consent. She instead seeks to add as a new Respondent the husband’s sister, Susanna Becatti (the “sister”), who now holds title to the property. Lastly, the wife seeks costs of this motion.
[2] The wife’s motion for a CPL is tied to her underlying claims for both an interest in land and related security. She asserts that there have been two fraudulent conveyances. In her affidavit material, she says the first one occurred on August 20, 2020. That was the closing date of the sale of the former matrimonial home, which the Court had ordered sold on March 2, 2020. The wife since learned that the husband retained a lawyer to secretly bid on the property on his behalf, and then to take title in a corporation that the husband owns. The wife says that this deprived her of her right to sell the property on the open market, and perhaps she lost value.
[3] The wife says that the second fraudulent conveyance occurred on January 4, 2021. On this date, the husband transferred the former matrimonial home out of the corporation, to his sister. This occurred after the wife discovered what happened on August 20, 2020, and following comments by the Court in an Endorsement on December 9, 2020 about the husband’s income for child and spousal support.
[4] The wife only learned about the second transaction in April of 2023, when the husband was questioned. Meanwhile, by the time the wife first amended her application in the summer of 2021 to claim relief in connection with the first transaction, the husband had already effected the second transaction. Notably, he consented to the first amendment, without disclosing that the second transaction had already been implemented by him.
[5] The wife’s motion is opposed by the husband. The husband says that the wife does not have a reasonable claim to an interest in land. He says he paid fair market value for the former matrimonial home in the first transaction. He says there is no underlying triable issue to warrant the Court granting a CPL. Thus, leave to amend should not be granted, a CPL should not be issued, and his sister should not be added as a party to this proceeding.
[6] The sister did not file any responding material. She did not attend and make submissions.
[7] At the conclusion of argument on June 5, 2023, I granted paragraphs 2 and 3 of the wife’s Notice of Motion dated May 23, 2023, so that the CPL could issue and be registered right away. I indicated I would release written reasons later respecting that decision, and respecting the balance of the wife’s Notice of Motion. These are the written reasons.
PART II: BACKGROUND
A. Relationship and Property Ownership History
[8] According to the existing Amended Application and Amended Answer, the parties were married for a little over a year, between August 19, 2017 and their separation on October 30, 2018. They cohabited for a bit longer before that. They started living together on August 16, 2016. Their total cohabitation for the purposes of the wife’s claim for an unequal division of net family property was just over 2 years and 2 months.
[9] The parties have one child together, a girl named Angelica. Angelica is currently four years old. She resides primarily with her mother.
[10] The wife purchased the former matrimonial home about one year before the marriage, around the time that the parties commenced cohabitation. The wife took title in her name alone. She was also the sole mortgagor.
[11] It is not disputed that the wife contributed $343,000.00 towards the purchase. She used funds from the sale of a former residence that she used to own. The husband contributed $97,000.00. Because of their subsequent marriage and that fact that the new property acquired in August of 2016 became a matrimonial home, the parties lost the ability to deduct equity at the date of marriage in the calculation of their net family properties.
[12] The husband claims that his disparate contribution was agreed to. He further says that title was taken in the wife’s name “due to [his] self-employment” but that “it was understood that [he] would hold a beneficial interest in the property given the number of renovations and upgrades that he undertook to perform/complete”. The latter is disputed.
[13] The husband claims that he undertook a number of renovations to the house after its purchase. He chose not to list them all in his affidavit sworn May 29, 2023 for this motion. What he did explain, is that he renovated a bathroom, re-painted the interior, installed some drywall, replaced some doors and frames, replaced the pool lining, and repaired or replaced some lighting fixtures. The husband is apparently going to provide a “comprehensive list” of the tasks that he undertook later. Given that one of his arguments is that this motion is brought late in the day when the parties should be proceeding to trial, and given the import of this evidence to his trust claim and to the wife’s claim for an unequal division of net family property, he ought to have had all of this evidence organized and presented, if in fact there is other work that he says he undertook.
B. The Order of Leef J. dated March 2, 2020 for the Sale of the Matrimonial Home
[14] Following the parties’ separation on October 30, 2018, the parties lived separated and apart under the same roof for a time. On September 1, 2019, the wife moved out of the house with Angelica and went to her parents’ home. The husband remained in the former matrimonial home.
[15] The wife says she continued to be responsible for the carrying costs of the former matrimonial home, and while the husband would give her funds towards the mortgage payments, he did not do so consistently. She says he was not always on time. She also says that the husband was not paying child support.
[16] The husband says that this is a high conflict case. For example, even though this motion has nothing to do with parenting, he chose to file the report prepared by the Office of the Children’s Lawyer pursuant to section 112 of the Courts of Justice Act. In addition to discussing the parenting dispute in his affidavit material, the husband says the wife vindictively disconnected the hydro and gas utilities when she moved out of the former matrimonial home in September of 2019.
[17] The husband says that the mortgage expired in or around September of 2019, around when the wife moved out. He says this forced him to pay approximately $7,000.00 per month to maintain an open mortgage and associated penalty costs, I gather because the parties could not agree on a sale or renewing the mortgage. He also says the wife then returned to the former matrimonial home in the fall of 2019, and remained. Contrary to the wife’s assertion, the husband says that the wife did not contribute after her return, and moreover, she had not paid for the expenses during the relationship either. The Endorsement of Leef J. dated March 2, 2020 ordering the sale refers to the husband continuing to pay expenses, as he had been doing. Without a transcript of Leef J.’s oral reasons, I do not know the extent of that finding.
[18] The wife as the sole titled owner wanted to divest herself of the property, but she could not do so on her own, as the property was a matrimonial home. The husband’s spousal consent was required.
[19] The wife says that although the husband agreed to the sale of the former matrimonial home in his Answer, he did not cooperate in reality. The documents before the Court reveal that he registered a matrimonial home designation on title. The wife had to bring a motion for its sale.
[20] According to the husband, his resistance to the sale was because the wife would not agree that the husband could have any more than his initial contribution of $97,000.00 on closing. In the end result though, that is exactly what the Court ordered on March 2, 2020. The balance of the sale proceeds of about $254,000.00, over which the wife has a claim based on ownership as well as an unequal division of net family property, [1] remain in trust.
[21] In ordering the sale, Leef J. put in place various terms, including that there be a neutral agent, that neither party was required to incur any expenses or do any work to repair or renovate the home prior to it being listed, and that the parties were to follow the reasonable recommendations of the agent.
[22] Leef J. granted the husband exclusive possession until the closing, but he was prohibited from interfering with the sale. He was required to make the house available for showings when requested and to ensure the home was presentable and ready for showings at all times. She did not however prohibit either party from bidding on the property on the open market, or through an agency relationship.
[23] There are now disputed facts, which I imagine will be fleshed out at trial, as to whether the husband did in fact interfere with the sale, in spite of Leef J.’s Order. According to the wife:
(a) The husband did not allow the realtor that they selected to attend the former matrimonial home until May of 2020, and as such the house was not put onto the market until June of 2020; (b) He left belongings out in the open when photographs of the former matrimonial home to use for the listing were being taken. This included leaving clothing on the bed and dirty dishes in the sink; (c) He did not clean the pool or trim the grass prior to showings; (d) He left trash on the property before and while the property was listed for sale; and (e) He declined showings.
[24] The wife’s counsel said that the wife has photographs of the state of the home, but they were not filed as part of her motion material. Regardless, if it is found that the husband did these things, it is still disputed as to whether these actions had a financial impact on the eventual sale.
C. The First Transaction: the Sale of the Former Matrimonial Home in the Summer of 2020
[25] The parties’ agent recommended a list price of $999,999.00. Apparently, the agent’s goal was to generate a “bidding war”. The husband says that the agent was of the view that the property was worth between $1,100,000.00 and $1,200,000.00. In her Amended Application, the wife states that the realtor felt the house was worth at least $1,200,000.00.
(1) The Offers to Purchase the Former Matrimonial Home
[26] The agent proposed that there be a designated night upon which offers would be presented and reviewed. That was set for June 12, 2020. The husband says that there were numerous viewings prior to this offer night, and multiple offers came in over the course of two days starting on June 12, 2020, a fact that the wife omitted from her sworn affidavit. Although it is not in evidence, during oral submissions, counsel for the wife said that no offers were made at the designated time, but the real estate lawyer then proceeded to drum up some offers after the deadline.
[27] In any event, the following offers came in:
(a) a first offer for $989,000.00 on June 12, 2020 from the first prospective purchasers. This offer was from a real estate agent, who first attempted to buy the property under list price in the event that there were no other offers; (b) a second offer for $1,040,000.00 on June 13, 2020 from the first prospective purchasers; (c) a third offer for $1,140,000.00 on June 13, 2020 from the second prospective purchasers. These were arms’ length purchasers; (d) a fourth offer for $1,148,000.00 on June 13, 2020 from Matthew Mahoney, who as I will explain in more detail was secretly acting for the husband; (e) a fifth offer for $1,160,000.00 on June 13, 2020 from the second prospective purchasers; and (f) a final offer for $1,200,000.00 from Mr. Mahoney. This was the Offer that was accepted.
[28] The husband points out that wife acknowledged in her Amended Application, that she was prepared to accept the first Offer, if no other offers were received. The husband also points out, that in the end, the final, accepted offer (his offer) resulted in him paying $211,000.00 more than the first offer. This, he says, benefitted the wife and it is evidence that he paid fair market value.
(2) The Assignment Clause
[29] The offers submitted by Mr. Mahoney both contained the following clause at Schedule “A” to the Agreement of Purchase and Sale:
The Buyer shall have the right at any time prior to closing, to assign the within Offer to any person, persons or corporation, either existing or to be incorporated, and upon delivery to the Seller of notice of such assignment, together with the assignee’s covenant in favour of the Seller to be bound hereby as Buyer, the Buyer herein before name shall stand released from all further liability hereunder.
(3) The Closing Date Was Extended from August 13, 2020 to August 20, 2020
[30] The initial closing date was scheduled for August 13, 2020. It was extended to August 20, 2020. The wife says that occurred when Mr. Mahoney asked for a brief extension due to “financing issues” just before the original closing date. The wife agreed to the extension, during which time the husband structured his affairs further, to take title to the property.
(4) The Creation of the Corporation to Take Title
[31] The wife would later find out that the husband had engaged Mr. Mahoney to act as a “straw purchaser”. According to the wife, Mr. Mahoney assigned the contract to the husband’s company, prior to the original closing date of August 13, 2020. The husband admits this happened “after a period of time” [undefined]. The husband’s evidence is that Mr. Mahoney formed an Ontario corporation, appointed himself the “sole director and CEO” and exercised the assignment clause, “which was within his contractual rights”.
[32] While neither party filed a document showing the Court just exactly when the assignment was done, the exhibits attached to the husband’s affidavit reveal that it was on June 29, 2020, about fifteen days after the final offer was accepted, that Mr. Mahoney incorporated the corporation. The wife obtained a corporate profile report on the original closing date of August 13, 2020, that reveals that Mr. Mahoney was the only director. The husband had signed a document the day before, that said otherwise.
(5) The Lawyers Involved in Closing the First Transaction
[33] It seems that there were three lawyers involved in this transaction, in addition to Mr. Mahoney.
[34] The lawyer acting for the wife was Stanley Clapp.
[35] Although Mr. Mahoney originally acted for “himself” respecting the purchase, by the time of the closing, a new lawyer, named Natalie Hope-Selkin, now acted for Mr. Mahoney. In his affidavit of May 29, 2023, the husband referred to Ms. Hope-Selkin as his lawyer, yet there is no evidence from either side that this was communicated to the wife. For example, Ms. Hope-Selkin’s closing letter dated October 23, 2020 is addressed to the corporation, to the attention of Mr. Mahoney.
[36] There was a third lawyer named Edward Merryfield, who independently acted for the husband, and his sister, who would become implicated in securing the financing for this deal. There is also no evidence that Edward Merryfield’s retainer by the husband and his sister was ever brought to the wife’s attention.
(6) The Closing Documents
[37] The wife later received a number of closing documents. The husband supplied some to the Court with his affidavit of May 29, 2023. Those he attached accompanied Ms. Hope-Selkin’s closing letter dated October 23, 2020, sent to Mr. Mahoney. These attachments reveal that Mr. Mahoney signed a number of real estate documents prior to the original closing date of August 13, 2020, and others in the week that followed leading up to the eventual closing date. Mr. Mahoney signed these documents, still in his capacity of director of the corporation. The husband is not identified on most of these documents.
[38] In particular, Mr. Mahoney signed:
(a) a solemn declaration on August 11, 2020, that he was the director of the corporation, among other things; (b) an undated undertaking to the two mortgage companies, which would later provide financing for the purchase, discussed further below; (c) various other undertakings to the mortgage companies dated August 12, 2020; (d) three acknowledgements and directions, now dated August 18, 2020, after the closing date was extended; (e) a direction re: title also on August 18, 2020, stating that title was to be taken in the name of the corporation; and (f) an undertaking to readjust on August 18, 2020.
[39] The transfer document was prepared by Ms. Hope-Selkin on August 19, 2020, the day before the new closing date. It too lists the corporation as the purchaser taking title. The husband is not identified on the transfer document.
[40] The husband signed some documents during this period as well. The husband says that although “the corporation” was to be “the purchaser”, his credit was not stellar so he had to apply for the mortgage. He says that Mr. Mahoney was not involved in that, because “the lender rightfully recognized that it was [him] who would be responsible for repaying the mortgage”. The husband further says that because he needed to finance the entire purchase amount, his “parents and sister” offered their house as collateral to accommodate a “debt-to-equity ratio satisfactory to the lenders”.
[41] Indeed, the husband obtained a first mortgage in the amount of $786,925.14 in favour of Brassroots Capital Loan Corp. and a second mortgage of $421,525.25 in favour of NHE Capital Corp. to close this transaction. Part of these mortgages were secured against what the parties have referred to as the husband’s parents’ house in Scarborough (the “Scarborough property”), although a title search later obtained by the wife reveals that the husband’s sister is actually the only registered owner of the Scarborough property.
[42] There is only one Charge/Mortgage document included in the affidavit material before the Court on this motion. It pertains to the former matrimonial home, not the Scarborough property. It says it was “receipted” on August 21, 2020. This was the day after the ultimate closing date.
[43] This Charge/Mortgage documents a mortgage in the amount of $840,000.00, split 90% in favour of Brassroots, and 10% in favour of NHE. The husband is listed as its guarantor. It seems that the balance of these mortgages taken out back in 2020 were registered against the Scarborough property, but that particular Charge has since been deleted from the Scarborough property’s parcel register that the wife subsequently obtained.
[44] Other closing documents that indirectly identify the husband (by mentioning his sister) are the undated undertaking referred to above, and three other undertakings signed on August 12, 2020. While Mr. Mahoney signed these documents, they refer to the husband’s sister as a mortgagor.
[45] The husband himself signed a “Certificate of Incumbency and Non-Restriction” on August 12, 2020, stating that both he and Mr. Mahoney were the duly elected or appointed and qualified as directors. He signed this even though as of the corporate search the wife obtained on August 13, 2020, only Mr. Mahoney was identified as a director.
[46] Each of Mr. Merryfield, the husband and the husband’s sister signed a Certificate of Independent Legal Representation on August 12, 2020. In it, the husband is said to be both a guarantor of the loan and director of the corporation. But again, the corporate search that the wife obtained on August 13, 2020 revealed otherwise, as to the question of who was a director.
[47] Perhaps the wife ought to have undertaken another corporate search as of the ultimate closing date or asked to see the documentation, but that is not what happened, it seems. [2] In any event, there is no evidence before the Court that the husband’s involvement, including respecting these closing documents, was brought to the wife’s attention prior to closing. The only information before the Court that I am aware of, that might suggest some knowledge on the part of the wife, or at least that she ought to have asked questions, is contained at paragraph 46 of the wife’s Amended Application. There, she says that prior to closing, her lawyer Mr. Clapp was copied on a strange email from Mr. Mahoney to Ms. Hope-Selkin. The email said that, “Antonio is driving the documents over to Carter’s office as we speak”. The wife did not understand why the husband was delivering documents for Mr. Mahoney.
(7) The Completion of the Closing and Net Proceeds of Sale
[48] The sale closed on August 20, 2020, with title taken by the corporation. Upon closing, Ms. Hope-Selkin sent the sum of $1,176,904.37 to Mr. Clapp. [3] Neither party provided the Court with an accounting of the existing mortgage then registered on title to the former matrimonial home that Mr. Clapp had to discharge. As each party received an advance of $97,000.00 after that pursuant to Leef J.’s March 2, 2020 Order, and as it is agreed that approximately $254,000.00 still remains in trust, I presume the existing mortgage, any fees and penalties to discharge it, and any of Mr. Clapp’s legal fees, would have cost around $730,000.00.
D. The Wife’s Discovery of the Assignment and the Subsequent Consent Order of Hughes J. dated June 30, 2021 to Add the Corporation as A Respondent
[49] The wife initially commenced this proceeding on June 3, 2019, a little over a year before the sale closed. For some reason, well before any of this had occurred, the wife had already claimed relief under the Fraudulent Conveyances Act and the Assignment and Preferences Act setting aside “all transfers, conveyances and encumbrances made by the [husband], if any…”, if undertaken for the purposes of impacting her family law claims. The wife also claimed various parenting orders, child support retroactive to the date of the child’s birth (post-separation), spousal support retroactive to the date of separation, an equalization of net family property or an unequal division in the alternative, and the sale of the former matrimonial home.
[50] On September 4, 2020, the wife’s counsel sent a Requestion for Information to the husband seeking details of the first transaction and a tracing of funds. By December 9, 2020, the husband had not answered it.
[51] After a Settlement Conference held on December 9, 2020, Hughes J. released an Endorsement commenting on the husband’s failure to have complied with his disclosure obligations, relating to the determination of his income. Hughes J. wrote that it was not possible for the Court to conference the issues of child and spousal support, given the inadequate disclosure. She observed that the husband had just purchased a home in excess of $1 million, that he was currently carrying a mortgage of approximately $800,000.00, and that it was unlikely that the Court would accept his suggestion at the time that his annual earnings were just $25,000.00. She ordered the husband to pay costs of $500.00.
[52] On June 30, 2021, Hughes J. granted the wife leave to amend her application to claim relief in connection with the first transaction. Notably, this was on consent of the husband.
[53] The wife amended her Application on August 20, 2021. Now for the second time, she advanced claims under the Fraudulent Conveyances Act, but she specifically named the corporation as a respondent, and she specifically asked for an Order setting aside the transfer of the matrimonial home to the corporation. Among other amendments, the wife also made her claim for an unequal division of net family property her principal position, rather than an alternative claim as in the initial Application.
[54] Unbeknownst to the wife, on January 4, 2021, some six months before she obtained leave to amend, the husband had already transferred the property out of the corporation, to his sister. The husband did not disclose this, either to the wife or to the Court, when he consented to the amendment on June 30, 2021.
[55] Regardless of the wife’s other claims that would later be specified in the Amended Application, the husband undertook the second transaction divesting himself of title to the former matrimonial home less than one month after Hughes J.’s December 9, 2020 comments about the husband’s ownership of the former matrimonial home being relevant to the determination of his income for support.
E. The Second Transaction: the Husband’s Transfer of the Former Matrimonial Home to His Sister on January 4, 2021
[56] The wife says that she only learned about the second transaction on April 20, 2023, during the husband’s questioning. The wife then had her lawyer undertake title searches of the former matrimonial home and the Scarborough property.
[57] The new title search reveals that the mortgages in favour of Brassroots and NHE on both the former matrimonial home and the Scarborough property had been discharged. The sister took out new mortgages with Royal Bank in the sum of $825,000.00 against the former matrimonial home, and in the sum of $615,000.00 against the Scarborough property.
[58] The Land Transfer Tax affidavit pertaining to the second transaction reveals that no consideration was paid by the sister for the transfer. The explanation statement for that, is there had been a transfer from a “beneficial owner to trustee (evidence required to be submitted)”.
PART III: ISSUES AND ANALYSIS
A. The Test for a CPL Respecting the First Transaction
[59] Section 103(1) of the Courts of Justice Act provides that the commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a CPL is issued by the Court and the certificate is registered in the proper land registry office under subsection (2).
[60] Section 2 of the Fraudulent Conveyances Act provides that every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons or their assigns.
[61] To obtain a CPL, an interest in land must be claimed. The request for the CPL must also be pleaded. An allegation of a fraudulent conveyance normally puts title to a property into question: see Jodi L. Feldman Professional Corporation v. Foulidis, 2018 ONSC 121633 ¶ 10.
[62] In regards to the first transaction, the wife must establish with sufficient evidence, that she has a “reasonable claim” to an interest in land. She may do so by setting forth facts upon which she could succeed at trial. The threshold is low.
[63] If that threshold is met, the Court then considers the equities between the parties in determining whether the CPL should be granted: see Singh v. Gouveia, 2018 ONSC 6059 ¶ 9-11.
B. Analysis Respecting the First Transaction
[64] The wife makes two principal arguments in relation to the first transaction. She says that she lost the right to sell the former matrimonial home on the open market. She also says the husband acted to depress its value before the sale. For example, she says it was purchased for $1,135,000.00 in 2016 and it is inconceivable that it was only worth $1,200,000.00 four years later given the market forces in the GTA at the time, but for his interfering conduct.
[65] The husband has attempted to justify his actions, now after the fact. He says that he acquired the property in a manner which “may appear, on its face, distasteful.” But he says he approached Mr. Mahoney looking for a solution “to save his home”. He says that he undertook “major renovations” and “expended a significant share of [his] personal wealth to maintain and upgrade the property throughout the period of ownership”. He says that the wife “vindictively” refused to sell the home to him out of spite. He says he didn’t disclose his relationship with Mr. Mahoney because of the wife’s “unreasonable and malicious actions post-separation”.
[66] These excuses are by no means uncontested. The claim that he contributed to the property through upgrades entitling him to any monetary relief or a proprietary interest is disputed. And attached as Exhibit “A” to her reply affidavit of May 31, 2023, the wife included a letter from her counsel dated January 17, 2020 in which she invited the husband to provide a revised buyout proposal failing which she would bring a motion for the sale of the home. She also said that she made offers for the husband to purchase her interest, before all this occurred.
[67] There may be some merit to the wife’s argument that she lost the right to sell the property on the open market, or perhaps more aptly stated, she lacked fuller information and was deprived of the option of refusing to sell to the husband on the open market. For example, Leef J. did not grant the husband a right of first refusal, nor could she have: see Dibattista v. Menecola; see also Martin v. Martin; and see Maguire v. Maguire. [4]
[68] However, according to A. W. La Forest, “Anger & Honsberger, The Law of Real Property”, 3rd ed., Volume 3, Canada Law Book: 2014 at p 21-14, unless there is provision to the contrary, Mr. Mahoney was entitled to assign his interest in the Purchase and Sale Agreement contract to anyone. He was entitled to do that without the consent of the vendor.
[69] The authors of “Anger & Honsberger, The Law of Real Property” write that a purchaser can even turn around and immediately resell the property in a rising real estate market. If a vendor wishes to avoid something like this from happening, explicit provision must be made: see also King v. Urban & Country Transport Ltd (1973), 40 D.L.R. (3d) 641 (Ont. C.A.).
[70] So on the one hand, while Leef J. did not and could not have ordered a right of first refusal when she ordered the sale of the property, she could have made an order prohibiting the husband from bidding: see Hobbs v. Hobbs, 2008 ONSC 6957; see also Allan v. Dabor, 2017 ONSC 5452, supra. She did not do that. She was not asked to do that. Likewise, the wife could have also made express provision when negotiating the Purchase and Sale Agreement that Mr. Mahoney did not have the right to assign, or that his right to assign excluded the husband. In this case, not only was no explicit provision made taking away the right to assign, per the commentary of the authors of “Anger & Honsberger, The Law of Real Property”, but the purchase and sale agreement actually specifically affirmed Mr. Mahoney’s right to assign.
[71] It is also is not clear to the Court yet, that the wife lost money in the first transaction, as the husband argued. The wife has tendered no evidence about the financial impact of the husband’s alleged interfering conduct leading up to the sale. She also failed to indicate in her initial affidavit material on this motion, that multiple offers had come in, although her counsel argued that really there was only one arms’ length bidder, because the first offeror was a different real estate agent, who made deliberately low bids trying to secure a good deal should there be no other offers. Regardless, I find:
(a) The wife has not yet adduced any evidence, such as an appraisal, indicating what the value of the property at the time it was listed for sale, to show that $1,200,000.00 was not its fair market value and that the fair market value was in fact higher; (b) The wife did not adduce the photographs and any other evidence to quantify how the husband’s alleged actions to interfere with the sale while the former matrimonial home was listed, operated to depress its value; and (c) The wife’s Amended Application itself states her own, neutral real estate, listed the property low, but targeted for a sale price of at least $1,200,000.00. The eventual sale price was $1,200,000.00.
[72] If the wife does not prove loss at trial, then I tend to agree with the husband that what he did does not amount to a civil fraud either. A civil fraud occurs where a false representation is made, knowingly, without belief in its truth, or reckless or careless as to whether it is true or false, that caused the other party to act, and resulted in a loss: see Russell v. Thompson, 2021 ONCJ 16 ¶ 17, 18.
[73] However, in the passages cited above, the authors of “Anger & Honsberger, The Law of Real Property” were not discussing the right to assign in the particular context of a high conflict family law dispute, where the sale of a matrimonial home was a particular area of contention between the parties. The evidence is overwhelming that the husband acted surreptitiously. He readily admits as much in his responding affidavit sworn May 29, 2023, although he tries to justify his conduct. I do not accept the husband’s attempts to justify his conduct. It was not necessary for him to have acted in this fashion. For example, had he just bid on the open market in a transparent fashion and then had the wife refused his offer as he says he feared, the Court could have approved the final Offer. That is what transpired in Allan v. Dabor, 2017 ONSC 5452 (Div. Ct.). It is more likely that the husband was trying to secure a good deal, and that is why he acted with so much deceit.
[74] Courts have commented about surreptitious conduct in family law in other contexts: see for example Hameed v. Hameed, 2006 ONCJ 274 ¶ 11. The husband’s conduct has just increased the conflict between the parties, when mistrust was already running high. There may very well be policy reasons to depart from the above analysis about the right to assign, but that was not argued.
[75] At trial, the wife may tender better evidence about the first transaction. She may call evidence about her loss. For example, her counsel said that the wife will tender the photographs of the state of the property at the time of the listing. She also anticipates that the real estate lawyer will give evidence about the impact of the state of the property on the sale, and on his prior ability to sell the property. Counsel is also in the process of sourcing expert appraisal evidence as well. The husband is also at liberty to challenge the evidence about the wife’s knowledge, or to present evidence about fair market value, or to call evidence about any other relevant matter. Both parties may end up making submissions about these issues at trial, on a fuller evidentiary record.
[76] But at this stage, the Court does not even need to base the CPL on the circumstances surrounding first transaction. The wife has satisfied the Court that a CPL should issue based on the circumstances surrounding the second transaction. What happened then is equally, if not more troubling.
C. The Test for a CPL in Relation to the Second Transaction
[77] The wife has a claim for an unequal division of net family property, retroactive child and spousal support on a final basis, prospective support, and costs. In regards to these additional, yet to be adjudicated claims, she is similarly situated to the plaintiff in Jodi L. Feldman Professional Corporation v. Foulidis: see ¶ 11. That is, she is an applicant with outstanding claims, but she is not yet a judgment creditor, because the trial of her claims has not yet been heard. Pending the trial, the husband is alleged to have participated in a fraudulent conveyance.
[78] In these circumstances, the test to obtain a CPL has been adapted from a two-part test, to a three-part one. The Court considers:
(a) whether the wife has satisfied the Court that there is a high probability that she will successfully recover judgment in the main action; (b) whether the wife introduced evidence demonstrating that the impugned transaction was made with the intent to defeat or delay creditors; and (c) whether the wife demonstrated that the balance of convenience favours the issuance of the CPL in the circumstances of the case.
[79] The high probability threshold only applies to the analysis under the first prong of the test. On the second question, the wife must just show a triable issue exists. On the third question, the Court also has broad discretion when examining the equities between the parties to determine the balance of convenience: see Gefford v. Fielding, 2004 ONSC 8709, 70 O.R. (3d) 371 (S.C.J.) ¶ 26; see also Jodi L. Feldman Professional Corporation v. Foulidis ¶ 17-25.
D. Analysis Respecting the Second Transaction
(1) Whether the Wife Has Satisfied the Court that There is a High Probability that She will Successfully Recover Judgment in the Main Action
(i) The Strength of the Wife’s Claim for an Unequal Division
[80] Despite the fact that a claim for an unequal division of net family property itself involves the high threshold of unconscionability, I find that the wife does have a high probability of success respecting this claim.
[81] Only the wife prepared a draft Net Family Property Statement. The husband did not prepare one of his own; he just filed and relied on the wife’s. The only asset of significance was the former matrimonial home, into which the wife invested the sale proceeds of the former home she owned before this relationship.
[82] At first blush, the wife appears to owe the husband an equalization payment of $259,747.13. But the wife’s net family property statement also appears to be inflated for two, and possibly three reasons.
[83] First, the wife calculated the equalization payment by valuing the former matrimonial home at $1,300,000.00, as at the date of separation in 2018. That is $100,000.00 more than the sale price at the time of the first transaction, which occurred almost two years later. The wife’s counsel says she put this higher value on the net family property statement, based on a guesstimate of where the market was at the time, perhaps in keeping with the wife’s argument that the husband acted to depress the value at the time of the first transaction. While the wife may call evidence to prove this at trial, there is no evidence before the Court right now, that the real estate market, or this particular property, declined in value between 2018 and the time of the first transaction, such that it was previously worth $1,300,000.00. Overvaluing the property on the date of separation inflates the equalization payment.
[84] Second, the wife has not included a value for the husband’s business on the net family property statement. She could not do so, based on the husband’s inadequate disclosure. Once the value is determined, the equalization payment she might owe will also come down.
[85] Third, the wife asserts that the husband’s family made a joint gift of land in Italy to the parties as a wedding gift. The husband is apparently denying that such a gift was ever made. Assuming the wife is able to prove this at trial, and while this would not necessarily impact net family property (for example the parties are either equal owners and/or the property was gifted during the marriage and is excluded), the wife still has equity in this property. It is not clear to me how this will be dealt with or realized, taking into account the wife’s version of events, that this gift came from the husband’s family and the property is located abroad. This may also be relevant to her claim for an unequal division.
[86] Once the equalization payment is determined, Section 5(6) of the Family Law Act provides that the Court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable having regard to a list of eight disjunctive factors.
[87] The wife is relying on section 5(6)(e). Section 5(6)(h) is also engaged. Section 5(6)(e) is the circumstance where a spouse would otherwise receive an amount equalization payment that is disproportionately large in relation to a period of cohabitation that is less than five years. Section 5(6)(h) refers to any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[88] Again, there are only $254,000.00 in sale proceeds remaining. Were there to be no unequal division, and were the husband to be awarded the equalization payment of $259,747.13, [5] then he would be entitled to another $162,747.13 from the sale proceeds held in trust (ie. $259,747.13 less the $97,000.00 advance already received), leaving only $91,252.87 available for release to the wife.
[89] That result would substantially reverse the parties’ positions at the time of the acquisition of the former matrimonial home, just 22 months prior to the date of separation. In other words, although the wife invested $343,000.00 of the total initial contribution of $440,000.00 towards the purchase of the former matrimonial home (ie. about 78%), she would leave with $188,252.87 (ie. the $97,000.00 advance plus $91,252.87), or about 43% of the total initial contributions, representing a loss to her of about 35% compared to her initial contributions at 78%. By contrast, the husband would leave with the above sum of $259,747.13, or 59% of the initial contributions, up 37% from his initial contribution at 22%.
[90] Now the husband does have a separate claim for post-separation adjustments. He also says that he paid for the expenses during the relationship too, to which Leef J. may have referred in the March 2, 2020 Endorsement. If proven, this could impact the above analysis. But balanced against this, there is the wife’s claim for occupation rent and her factual argument that the husband did not reliably contribute towards the carrying costs. Regardless of the outcome of these arguments, I note that the husband still remained in the former matrimonial home throughout the period of separation, and to this day, which is a benefit to him. Until trial, the Court cannot know which party will come out on top in this particular analysis.
[91] The husband has likewise launched a trust claim based in part on overlapping allegations of fact about his contributions to the carry costs. These facts, if proven, as well as those pertaining to his renovations and repairs, might very well also factor into the analysis respecting equalization, for example under section 5(6)(h). But as I have already said, the husband did not provide much evidence of this either, for the purposes of this motion. Even if he had, the husband did not address in his factum why a monetary award would be insufficient. He also failed to address why any unjust enrichment, to the extent that the wife was unjustly enriched, could not just be addressed in the above equalization analysis: see Martin v. Sansome, 2014 ONCA 14.
[92] Therefore, based on:
(a) the wife’s undisputed evidence that the former matrimonial home was acquired for $1,135,000.00 in 2016; (b) the undisputed evidence that the former matrimonial home sold to the husband for $1,200,000.00 in the first transaction; (c) the husband’s own position that he paid fair market value at $1,200,000.00; (d) the absence of better evidence, at this stage, about the husband’s labour and other contributions, and their impact; and (e) the short period of cohabitation of just 22 months;
the husband’s entitlement to a full equalization payment, resulting in a 37% profit above his initial contribution versus a 35 % loss to the wife, seems like an unlikely result to the Court.
(ii) The Strength of the Wife’s Support Claims
[93] Separately, there remains the wife’s outstanding claims for retroactive child and spousal support, and prospective support. In his Amended Answer of October 1, 2021 the husband says he is prepared to pay child support and section 7 expenses. He is not prepared to pay spousal support. He also wants credits for any amounts he already paid.
[94] But the husband’s income, necessary to quantify the wife’s support claims, is very much disputed. And the husband has yet to put a credible picture of his income before the Court.
[95] While the husband in his Amended Answer of October 1, 2020 said he earned between $70,000.00 and $80,000.00, a statement he repeated in his factum for this motion, [6] he has since made inconsistent and contradictory statements about his income. For example, more recently in his financial statement sworn May 11, 2023, the husband claims a lower income of 40,490.04. Now he does acknowledge other benefits of $32,311.64 that are perhaps paid for him by his business. Regardless, the income of $40,490.04 seems to be based on a 2020 tax return.
[96] There is no updated income documentation before the Court on this motion to show what he reportedly earned in 2021, or 2022. Hughes J. already commented, in her Endorsement of December 9, 2020, about the husband’s non-disclosure respecting income. In fact, there have been a number of disclosure orders made in this case. Both counsel agreed during the motion, that the husband has still not even produced basic tax returns since 2020, let alone the fact that there is likely other income disclosure respecting his business that will be required, post-2020.
[97] Although it was not in evidence before me, counsel for the wife said that she does have the husband’s business ledgers for 2019. Apparently they reveal that the husband had gross earnings of just under $500,000.00, and there are a myriad of personal expenses being run through the company. The latter is admitted, at least for 2020, as set out in the husband’s recent financial statement of May 11, 2023.
[98] It is the husband’s onus to prove his income. The wife should not have to be playing a game of “catch me if you can” with the husband. If the husband does not get his disclosure in order, and if this is the evidence that is called at the trial, the husband is at serious risk of having significant adverse inferences drawn against him. At ¶ 81 of Meade v. Meade, 2002 ONSC 2806, Kiteley J. held that it was incumbent on those who are self-employed to put forward adequate and comprehensive records of income and expenses, which means a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse confronted with the challenge of making sense out of the financial disclosure, and against the spouse who failed to meet his obligation.
[99] Although Kiteley J.’s comments were in her decision about whether to impute an income for support, I find her comments to be equally applicable in the context now before the Court. I am prepared to draw adverse inference against the husband, not to determine the husband’s income per se right now, but for the purposes of determining that the wife has a high probability of success at trial respecting the determination of income and income imputation, that flows through to the quantification of the wife’s outstanding support claims.
(iii) Costs
[100] Finally, there is costs. The wife, as the successful party on this motion, is entitled to costs. The parties agreed that the successful party should be awarded $5,000.00 in costs, and so I am ordering that amount be paid to the wife. If a finding of a fraudulent conveyance is made at a trial, either in relation to the first transaction or the second one, the husband may be facing significant additional cost exposure.
(2) Whether the Wife Introduced Evidence Demonstrating that the Impugned Transaction was Made with the Intent to Defeat or Delay Creditors
[101] In their facta, both parties cite the presence or absence of various “badges of fraud”, for the analysis under the second branch of the test. After considering the “badges of fraud”, I find that the wife has raised triable issues here, and satisfied the second branch of the test.
[102] In relation to the second transaction, I find that the wife has unequivocally established that:
(a) The husband has continued to be in possession of the property after the transfer to his sister. He even moved his new girlfriend into the property. The husband continues to benefit from residing in the property; (b) The second transfer occurred in the midst of these proceedings, after the circumstances surrounding the first transaction were revealed, while the wife was asking questions about that, and before the wife even amended for the first time; (c) The second transfer was undertaken in haste. It was undertaken less than one month after Hughes J. made the comments in the December 9, 2020 Endorsement about the determination of the husband’s income and its link to the husband’s ownership of the former matrimonial home. This is in addition to the fact that the wife was already pursuing disclosure about the first transaction; (d) Six months later, the husband consented to the wife’s first amendment, knowing that he had already effected the transfer to his sister, and without disclosing this fact; (e) There was no consideration for the transfer to the sister; and (f) As brother and sister, the husband clearly has a “close relationship” with the transferee.
[103] Moreover, according to his financial statement sworn May 11, 2023, the husband does not have any other assets to satisfy any judgment that might issue in favour of the wife. Other than the former matrimonial home that he has divested, and his business which he did not value, his net worth is negative. In addition to the mortgages on the property, he has around $40,000.00 in other debts. That includes debts to the Canada Revenue Agency.
[104] In her Amended Application, the wife said that the husband actually owed in excess of $120,000.00 to the Canada Revenue Agency. The wife likewise reported that the husband owed thousands of dollars to the CRA to the OCL clinician. This is contained in the section 112 report that the husband chose to file for this motion. The husband did not respond to this in his Amended Answer.
[105] If it turns out in the final analysis that the wife is entitled to the funds left in trust, or most of them, then there will be insufficient funds to satisfy her support claims, let alone if she proves damages or loss in relation to the first transaction.
(3) The Balance of Convenience
[106] I find the balance of convenience favours granting the CPL for at least five reasons.
(i) The Husband’s and His Sister’s Credibility
[107] My assessment of the husband’s and his sister’s credibility militates in favour of granting a CPL.
[108] In his affidavit of May 29, 2023, the husband claims that he transferred the former matrimonial home to his sister because he could not afford to carry the cost of the home and pay child support. The fact that he is in arrears of child support, discussed further below, may very well be because he preferred his own interests over the child’s, including by purchasing the former matrimonial home.
[109] Likewise, on his most recent financial statement sworn May 11, 2023, the husband also essentially says that his sister is the true owner of the former matrimonial home. He no longer lists this asset as his in the appropriate column. Yet he still lists 100% of both mortgages as debts as his responsibility. Nowhere does he address the fact that on the Land Transfer Tax affidavit, the sister said that she is holding title to the former matrimonial home in trust for him.
[110] By contrast, on his sworn financial statements of June 29, 2021 and July 29, 2021, the husband said that the former matrimonial home was a “personal residence”. In those documents, he placed a value of $1,200,000.00 for the home (being its purchase price in the first transaction) in the today column. He swore both of these financial statements after the transfer to the sister occurred, yet he did not mention that change in the legal title in either document.
[111] At his questioning on April 20, 2023, the husband admitted that he continues to live in the former matrimonial home. His new girlfriend moved into the home over a year ago. According to the financial statement sworn May 11, 2023, the monthly mortgage payments are $7,242.00 per month. Although he indicates in the budget section of the financial statement that the mortgage is “held/paid by sister”, the husband also claims in both his affidavit sworn May 29, 2023 and in this financial statement, that his girlfriend contributes $2,500.00 per month for the mortgage. On the budget portion of the financial statement, he further says that the girlfriend pays all of the utilities, for a total monthly payment between $4,800 and $5,200 per month. Apparently the sister pays for the property taxes and property insurance.
[112] Yet when asked at his questioning if he contributed to the mortgage, the husband claimed that he “contribute[s] to the mortgage”. He later said that he contributes what he is able. He said that was $5,000.00 or $6,000.00 [per month] although perhaps not every month. He also seemed to claim that this was rent. He said that he would produce a rental agreement. No rental agreement was attached to either party’s affidavit material. I presume that is because either no rental agreement exists, or if it does, it wasn’t produced.
[113] There are only two possibilities respecting this evidence. If the former matrimonial home is now the sister’s house, as the husband maintained at his questioning and in some of his sworn documents, then the true state of affairs on the Land Transfer Tax affidavit was misrepresented. Ontario may not have received the Land Transfer Tax to which it was entitled. Or, the more likely scenario, is that the former matrimonial home remains the husband’s. During submissions, counsel for the husband even advised the Court that the husband was in the process of producing a trust agreement to this effect.
(ii) The Absence of Evidence of Harm to the Husband or His Sister
[114] There is no evidence of harm to the husband or his sister if a CPL is put on title. The sister has not even responded to this motion, nor did she attend and make submissions.
(iii) Financial Harm to the Wife if A CPL Does Not Issue
[115] In contrast, financial harm may be occasioned to the wife if the CPL is not put in place. The husband has already demonstrated twice an ability to engage in secret dealings respecting this property. Given the husband’s asset position, the wife is at risk respecting her ability to collect any amounts owing to her over and above the funds in trust, assuming that any are even found at trial to be owing to the husband that could then be used in a set off.
(iv) The Wife Is Already Experiencing Financial Harm
[116] Fourth, the wife is already experiencing financial harm. The funds in trust are tied up until the trial can proceed. The husband already got 100% of his initial contribution of $97,000.00 back in the interim distribution. By contrast, in also receiving $97,000.00, the wife only received a fraction of her initial contribution. The wife’s counsel argued that the wife is incurring debt without access to the funds.
(v) Delay
[117] Both parties argue delay as being relevant to the Court’s assessment of the balance of convenience.
[118] The wife’s counsel argued that the wife has been trying to move this matter to trial, but has run into problems and delay, caused by the husband’s non-disclosure, and now, his conduct complained of in this motion. The husband argued that the wife brought this motion late in the day, and that if this Court now grants her relief, a June trial will not happen.
[119] I suppose the wife might have undertaken a title search earlier, and perhaps she would have then brought this motion earlier, but it must be remembered that the issues raised on this motion arise entirely out of the husband’s conduct. I have already found that at a minimum, the husband ought to have disclosed the second transaction at the time of the wife’s first request to amend, but he didn’t. The Court has separately released Endorsements about the husband’s problematic disclosure throughout this proceeding. The Trial Scheduling Conference has already had to be adjourned more than once in part due to these problems. In fact, most recently on May 15, 2023, Hughes J. specifically adjourned the latest Trial Scheduling Conference, to enable this motion to proceed.
[120] Its new date is June 12, 2023. Realistically, it may not be able to proceed, given the timetable below for the exchange of amended pleadings. Regardless, the June 12, 2023 date is just one week before the June sittings anyway. There is no guarantee that this case would be called in June, even if the parties were ready for it. The argument about a June trial being jeopardized has no merit, because a June trial is not likely. The husband, not the wife, is responsible for this.
[121] The husband is hard pressed to make a delay argument given his conduct. The parties will have to work towards a fall trial. The Court is not prepared to deny the wife relief, based on this delay argument from the husband, raised in these circumstances.
E. Other: Without Relief, the Wife is Left Without Security for Support, and Unable to Pursue It
[122] Quite apart from the fact that the wife has outstanding support claims, this Court has already made two temporary support Orders. The husband is in default of them. The Court has now made a costs order respecting this motion, too.
[123] Specifically, on September 28, 2020, Hughes J. ordered the husband to pay the wife temporary without prejudice child support in the amount of $750.00 per month commencing October 1, 2020. Although the wife says that this amount was premised on the husband’s statement that he makes $80,000.00 per year, Hughes J.’s Endorsement does not state that it is premised on any income determination. Rather, the Endorsement states that the Order was based on the husband’s statement, that he was paying the same amount for other children of a prior relationship. Hughes J. made a disclosure order that day. It included the obligation to produce the court order or separation agreement pursuant to which he is paying that amount, as well as proof of compliance with the obligation.
[124] On August 10, 2021, Hughes J. ordered the husband, also on a temporary without prejudice basis, to make a one-time payment of $680 to the wife for child care expenses, followed by $580.00 per month commencing October 1, 2021, towards ongoing child care expenses.
[125] The husband owes the wife costs of $5,000.00 for this motion.
[126] The wife says that the husband is in default of the temporary support Orders. She says that he owes her at least $5,320.00 in child support arrears as it is. [7] The husband did not dispute that he owes support arrears under the temporary Orders.
[127] The husband has put himself into a situation where he does not have assets, making it more difficult for the wife to collect what is owing to her. As a person already holding an Order that has gone unpaid, the husband owes a debt to the wife for child support arrears (and now costs). This makes the wife a creditor and the husband a debtor: see Colucci v. Colucci, 2021 SCC 24 ¶ 100, 138, 139 and 141. On any iteration of the test for a CPL, as the wife has asserted a fraudulent conveyance, title to the property is in question.
[128] By transferring this property to his sister, the wife lost the ability to claim security for support against the former matrimonial home, either under section 34(1)(k) of the Family Law Act (or under any other statutory provisions that might have been available to her). The dissipation of assets, the failure to honour an existing support obligation, and adverse credibility findings, are all findings that this Court has made against the husband on this motion, and they are factors that courts consider in deciding whether to order security for support: see for example Kumar v. Kumar, 1988 ONSC 4817).
PART IV: ORDER
[129] I have already granted paragraphs 2 and 3 of the wife’s Notice of Motion and the CPL has already been issued. I now repeat those Orders again here, and make the following additional Orders to dispose of the balance of the wife’s motion:
(a) Paragraphs 1 to 3 of the wife’s Notice of Motion dated May 23, 2023 are granted; (b) This includes the request at paragraph 1 to add the sister as a party to this proceeding. I make this order pursuant to rule 7(5) of the Family Law Rules. As the titled owner of the property subject to a claim under the Fraudulent Conveyances Act (and for a vesting Order), she is a necessary party pursuant to rules 7(1) and (3); (c) The wife shall have 14 days to amend her Application, again, to claim the CPL and to plead any additional facts relating to the second transaction that resulted in the property being transferred to the husband’s sister; (d) The husband shall have 30 days from the date of service to file an Amended Amended Answer if he sees the need to do so; (e) The sister shall have 30 days from the date of service to file an Answer; (f) The wife may file an Amended Amended Reply in accordance with the timelines set out in the Family Law Rules, after the later of the delivery of any Amended Amended Answer from the husband, and an Answer from the sister; (g) The parties may wish to file a 14B Motion to Hughes J.’s attention, seeking to reschedule the June 12, 2023 Trial Scheduling Conference, if they are of the view of that it should proceed later, given the timelines set out in the preceding paragraphs; (h) I decline to grant the order sought at paragraph 4 of the wife’s Notice of Motion to remove the corporation, even though this is stated to be on consent. If the wife is successful respecting her claim relating to the second transaction but not the first one, the corporation would still be a necessary party; and (i) The husband shall pay costs to the wife in the amount of $5,000.00, forthwith.
[130] I wish to thank counsel for their assistance with this matter.
Justice Alex Finlayson
Released: June 7, 2023
COURT FILE NO.: FC-19-887 DATE: 20230607 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Tiffany Melissa Edey Applicant – and – Antonio Beccati et al. Respondents
REASONS FOR DECISION ON A MOTION Justice Alex Finlayson
Released: June 7, 2023
[1] The husband has also launched a claim for an equalization of net family property and a trust claim in relation to the former matrimonial home, which I address below.
[2] Although not in evidence, counsel for the wife advised the Court that the wife had another corporate search done after the closing, when she discovered what had transpired. She also said the closing documents were only produced after the closing.
[3] This was the $1,200,000.00 purchase price, less certain sale adjustments.
[4] For a decision with a different outcome, see Shaw v. Shaw, 2003 ONSC 64335, [2002] O.J. No. 2782 (Ont. S.C.J.).
[5] I appreciate that above, I indicated that this amount is probably inflated, but I otherwise cannot determine by how much at this point. The parties or the Court will have to refine the statement at trial, based on the evidence.
[6] Specifically, the husband said in his factum that his income is $77,000.00.
[7] The amount stated in the wife’s factum is higher. The wife’s counsel said there was another accrual since the date of the wife’s affidavit.