WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

On June 7, 2011, Justice Paisley, the presiding judge, made an order directing that any information that could identify the parties or children involved in this proceeding shall not be published in any document or broadcast or transmitted in any way.

He also ordered that access to the court file shall be restricted to the parties, their counsel and the Office of the Children’s Lawyer.

This order has not expired and has not been rescinded by the court. As a result, the order restricting publication and access in this proceeding shall continue.

COURT OF APPEAL FOR ONTARIO

CITATION: M.V. v. T.T.T., 2013 ONCA 379

DATE: 20130606

DOCKET: C55499

Doherty, Goudge and Hoy JJ.A.

BETWEEN

M.V.

Plaintiff (Appellant)

and

T.T.T.

Respondent (Respondent)

Rod Byrnes, for the appellant

James B.C. Edney, for the respondent

Heard: December 13, 2012

On appeal from the order and the costs order of Justice Michael A. Penny of the Superior Court of Justice, dated April 13, 2012 and June 7, 2012.

ENDORSEMENT

[1] The appellant, a discharged bankrupt, appeals the order of Penny J. of April 13, 2012 striking the designation of matrimonial home that the appellant registered on title on January 25, 2012 as instrument number AT2928231, and prohibiting the appellant from registering another matrimonial home designation on title. The appellant also seeks leave to appeal the related costs order.

[2] Before the appellant and the respondent separated, the appellant made an assignment in bankruptcy. She voluntarily vacated the matrimonial home and has since taken no steps to obtain possession. The respondent and the appellant’s trustee in bankruptcy settled the appellant’s equalization claim, including her claim in relation to the matrimonial home. The trustee gave the appellant notice of the motion to approve the settlement. The appellant did not appear or oppose court approval of the settlement. The settlement was approved by the court. It provided, inter alia, that the respondent would be at liberty to alienate the matrimonial home.

[3] Following court approval, the appellant refused to remove the designation of matrimonial home that she had registered against the property. She argued that her claim for possession of the matrimonial home had to be resolved first. The trustee brought a motion, and Campbell J. ordered the removal of the designation. On January 25, 2012 the appellant registered a second designation – the one at issue on this appeal.

[4] Penny J. ordered the discharge of the second designation on the basis that it was contrary to Campbell J.’s order. He also prohibited the appellant from registering another order. Penny J. indicated that the appellant’s argument as to the alleged prejudice to her possessory rights was not compelling and that though she was still at liberty to pursue those rights, she would have to do so in compliance with court orders.

[5] The trustee in bankruptcy did not appear on this appeal and the respondent takes no position except to assert that the appeal is without merit.

[6] Section 19 of the Family Law Act, R.S.O. 1990, c. F.3, as amended provides that the right to possession of the matrimonial home is a personal right against the other spouse that ends when the parties cease to be spouses unless a separation agreement or court order provides otherwise.

[7] In our view, the appellant cannot in the circumstances of this case rely on the entitlement under section 19 to impede the effect of a court-approved settlement that was both on notice to, and unopposed by, her.

[8] We accordingly dismiss this appeal, and deny leave to appeal the related costs order. In the circumstance, there shall be no costs of this appeal.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Alexandra Hoy J.A.”