Court of Appeal for Ontario

Date: September 26, 2019 Docket: C66689 Judges: Juriansz, Benotto and Miller JJ.A.

Between

Andrew Stefan Makovskis Applicant/Appellant in Appeal

and

Megan Marie McKenney Respondent/Respondent in Appeal

and

Farrell & Boyle LLP Respondent/Respondent in Appeal

Counsel

Michael Stangarone and Stephen Kirby, for the appellant

Jonathan Miller, for the respondent Farrell & Boyle LLP

Heard & released orally: September 24, 2019

On appeal from: The order of Justice S.J. Woodley of the Superior Court of Justice, dated February 20, 2019.

Reasons for Decision

[1] The appellant was involved in protracted matrimonial litigation with his wife. The respondent law firm represented his wife from 2015 to 2016. She hired new counsel in 2017.

[2] The respondent then obtained judgment for its outstanding fees and filed a writ of seizure and sale against the matrimonial home, the title to which the appellant and his wife held jointly.

[3] In 2018, the appellant signed minutes of settlement whereby the wife transferred her interest in the home to him. His application to remove the writ on the basis that it contravenes s. 21 of the Family Law Act was dismissed. He appeals alleging that the writ constitutes an "encumbrance" which required his consent.

[4] We do not agree.

[5] Section 21 provides that "no spouse" shall encumber the matrimonial home absent consent of the other spouse. The wife did not encumber the matrimonial home. The respondent was an arm's length creditor at the time the writ was filed. It was entitled to file the writ. The fact that the wife owned the house was information readily available to any creditor at the time.

[6] The appellant's interest in the matrimonial home is subject to the writ.

[7] The appeal is dismissed. Leave to appeal costs is denied.

[8] Costs are fixed on a partial indemnity scale in the all-inclusive amount of $5,749.56.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.