SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-11-370
DATE: 20120327
RE: Glen Alfred Chapman v. Sabrah Soriyah Talib
BEFORE: J. Mackinnon J
COUNSEL:
Jennifer Jolly, for the Applicant
Ian Vallance, for the Respondent
DATE HEARD: March 26, 2012
E N D O R S E M E N T
[ 1 ] The Respondent moves for an order that the net proceeds of sale from the jointly owned matrimonial home be dispersed in equal shares to each party. The sale of the house closes March 28, 2012. The Respondent has purchased another house. Her purchase also closes March 28, 2012. The Respondent’s position is that she requires her equity in order to close her purchase. The Applicant opposes the motion. Although he did not bring a cross motion, he asks that his equity be released to him together with $65,000 being the equalization payment that he calculates the Respondent owes him.
[ 2 ] At the heart of this dispute is the form by which the equalization payment the Respondent will owe the Applicant should be paid. The Applicant wants to be paid in full by cash. The Respondent wants to retain enough cash in order to finance her house purchase. In order to do so, she says she would need to pay the equalization payment in part by cash and in part by pension rollover. Her estimate is that the equalization payment will be either $39,000 or $59,000. Based on what has been submitted in aid of the motion and for the purposes of the motion only, it appears to me that the Respondent will owe the Applicant either $59,000 or $65,000. The difference turns in the main on the value of the Applicant’s pension.
[ 3 ] The affidavit deposed by the Respondent does not include material information. She provides the purchase price of her new house, but not the date on which she made the purchase. She states that she has arranged as much financing as possible, but does not state the amount. Nor does she provide anything from her financial institution to back this up. It is known that the matrimonial home sold in February, yet her motion to distribute the proceeds was not served until March 19, 2012, returnable for March 23, 2012. The motion was put over to March 26, 2012 to accommodate Applicant’s counsel.
[ 4 ] This motion was not brought as one for summary judgment. As a motion judge, I have no authority to determine either the amount of the equalization payment or the method of payment.
[ 5 ] In my view, the only appropriate order that I can make on this motion is one that preserves the parties’ positions for determination at trial. Accordingly, an order will go that the Applicant receive his one-half of the net proceeds of sale, that the sum of $65,000 be held in trust in an interest bearing account to the credit of the action and that the balance of the net proceeds of the sale be released to the Respondent.
[ 6 ] Based on this outcome, my impression before hearing submissions is that the Applicant may be entitled to costs of the motion, in the cause and that $1,500 may be an appropriate award. If the parties wish to make submissions on costs, they may do so in writing within two weeks of this date, failing which costs will be awarded as noted.
J. Mackinnon J
RELEASED: March 27, 2012
COURT FILE NO.: FC-11-370
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Glen Alfred Chapman v. Sabrah Soriyah Talib BEFORE: J. Mackinnon J COUNSEL: Jennifer Jolly, for the Applicant Ian Vallance, for the Respondent ENDORSEMENT J. Mackinnon J
RELEASED: March 27, 2012