SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 247/11 - Cobourg
Date: 2012-06-07

RE: Tracie Lee Ward v. Jeffery Thomas Ward

Before: The Honourable Madam Justice M.J. Hatton

Heard: May 24, 2012

Counsel:
Stacy M. MacCormac, Counsel for the Applicant
Elizabeth Julien-Wilson, Counsel for the Respondent

E N D O R S E M E N T

[1] Two motions were heard on May 24, 2012:

1. The applicant wife’s motion at Vol. 2, Tab 18

2. The respondent husband’s motion at Vol. 3, Tab 22

[2] At the conclusion of the motions, I indicated that I was going to order the sale of the matrimonial home and re-adjust the financial arrangements between the parties.

[3] The reason for doing so was that it was not tenable for the husband to remain in the matrimonial home given the unfair financial burden on the wife and given the over-all debt situation of the parties.

[4] I provided the parties an opportunity to discuss in further detail how the matrimonial home would be listed for sale and how the party’s financial obligations would be re-adjusted. The parties agreed to confer further and a deadline of May 29, 2012 was set for counsel to advise me of issues resolved and not resolved. Counsel requested an extension, which was agreed to.

[5] I subsequently received written submissions as follows:

1. From the applicant, a letter dated May 30, 2012, a letter dated May 31, 2012 and a list of contents.

2. From the respondent, a letter dated May 28, 2012, a letter dated May 30, 2012 and a revised list of contents.

[6] Upon a review of all the evidence on the motions and the submissions on May 24, 2012 and the subsequent written submissions from both parties, the following temporary order shall issue:

Matrimonial Home Listing

[1] The jointly held matrimonial home located at 5078 Oak Hills Road, Bewdley, Ontario, K0L 1E0, described as Part of Lot 28 and 29, Concession 8 and part of the closed road allowance between the said lots, Township of Hamilton, County of Northumberland, shall be listed for immediate sale.

[2] John Clausen of Hockin Realty shall list the property in an “as is” condition. The property shall be listed on the MLS real estate listing service.

[3] The Respondent shall ensure that the property is cleaned and the home is generally in marketable condition notwithstanding the fact that the property is being sold “as is”. If the Respondent is unable or unwilling to attend to these chores he shall so advise the Applicant’s counsel forthwith. The Applicant shall then be provided the opportunity to do so without further delay to ensure the proper marketing of the property. This cleaning and property maintenance shall be performed at times mutually agreeable by the parties, but no later than within 7 days of the signing of this order. Times to be negotiated by counsel if required. If the Applicant wants the grass cut, she shall arrange same and she shall be reimbursed for the cost from the net proceeds of the sale of the matrimonial home.

[4] The parties agree to defer to and accept the expertise of the realtor with respect to the listing price of the home.

Key to Home

[5] The parties agree to provide the realtor with a key to the home for the purposes of showing the home to prospective buyers. If a lockbox is required by the realtor, the parties shall cooperate to ensure that a lockbox is installed without delay.

[6] The Respondent shall provide a key or any required entrance code to the matrimonial home to the Applicant if the locks have been changed by the Respondent. The Applicant shall not attend at the matrimonial home unless previously agreed to by the Respondent, while he is residing in the home. If the Respondent vacates the home, the Applicant shall have free and unfettered access to the home.

Showings

[7] The Respondent while residing in the home shall cooperate with the sale process fully and promptly return any calls made by the realtor requesting showings and returning calls within the same day.

[8] The realtor shall be provided free and clear access to the home by the Respondent upon notice of 24 hours unless otherwise agreed.

[9] The realtor shall advise both parties of any and all requests for showings. The realtor shall provide the parties 24 hour notice of a request for showing, unless a shorter period is otherwise agreed upon by the parties. The Respondent shall not deny a request for the showing of the home unless there are extenuating circumstances which are to be articulated through counsel. The realtor shall provide both parties information as to the status of a showing once completed.

[10] The Applicant shall have the opportunity to assist the realtor in providing access to the home for the purposes of showing the home if the Respondent cannot make himself available or if the Respondent is not available for some reason or the Respondent has vacated the home.

[11] The Respondent shall contact the Applicant if it is necessary for the children to be attended to while the home is being shown to a prospective buyer and the Applicant has the ability to care for the children at that time.

Offers

[12] Any offer on the home will be communicated to both parties promptly and the parties will accept any reasonable offer on the home. If an offer is received which either party declines, but the other party feels should be accepted, the parties will bring the matter to court promptly for an urgent determination as to the reasonableness of the offer.

[13] Any offer to purchase the home shall have a completion date no sooner than June 30, 2012 to allow the children to conclude their school year. While the Respondent is residing in the home, no offer shall include a closing date less than 45 days from the acceptance of the offer. If the Respondent has vacated the home, there is no limitation on the time of the closing except as negotiated by the parties through the realtor.

Respondent Vacating

[14] If the Respondent intends to vacate the home, he shall give the Applicant at least 21 days notice.

[15] If the Respondent vacates the matrimonial home, he shall only take the contents which the Applicant has not claimed as set out in Schedule A as revised.

Real Estate Lawyer

[16] A local third party solicitor in Cobourg or Port Hope shall act for the parties on the sale of the home and the parties shall agree upon a lawyer to complete the sale.

Mortgage Payments

[17] The monthly first mortgage payments on the matrimonial home shall not be paid as of June 1, 2012.

Closing of Home and Priority of Payments

[18] Upon closing of the sale of the matrimonial home the payments to be made with respect to the closing of the home shall include the outstanding jointly held property taxes, the jointly held first mortgage, filling of the oil tank, and the payment of legal fees and disbursements on the closing. The priority of payments shall be: registered encumbrances, taxes and legal fees and disbursements. The parties shall share all costs on closing including the payment of all registered encumbrances, taxes, filling of the oil tank and any other associated required closing costs. Any available net proceeds of sale once all registered encumbrances, taxes and legal fees and disbursements are paid shall be applied to the joint line of credit.

Contents

[19] The washer/dryer, fridge and stove will stay with the matrimonial home and be part of the real estate listing, as will all light fixtures and window coverings.

[20] The Respondent shall make the contents listed as attached on the Schedule A as revised available for the Applicant to retrieve from the matrimonial home in three stages, Parts 1 & 2 shall be made available within 3 weeks of the signing of this document. Parts 3 & 4 may be made available upon the Respondent vacating the matrimonial home or the closing of the matrimonial home whichever occurs first. The Respondent shall permit the Applicant to attend at the home for the purposes of picking up the Part 1 & 2 contents on Saturday, June 23. If necessary, both parties shall have a third party present. Neither party will engage the other party and the process of removing the contents shall not take place with the children in attendance. The crossed-out items shall not be removed by the Applicant.

RBC Line of Credit

[21] The parties shall approach the Royal Bank to ascertain the availability of funds to be paid to the Respondent in the amount of $2,000.00 from their existent joint line of credit for the purposes of securing first and last month’s rent for his new accommodations. If these monies are made available, the Respondent shall include them in any accounting of monies owed between the parties and the Respondent shall claim them as his own debt despite being part of the joint line of credit, he shall not make the Applicant responsible for those monies.

Matrimonial Home Expenses

[22] Provision 6 of Justice McDermott’s October 7, 2011 order requiring the Applicant to pay all of the essential expenses of the matrimonial home is hereby terminated effective May 31, 2012.

[23] While the Respondent resides in the matrimonial home the Applicant shall pay the following household expenses required to be paid in respect of the matrimonial home from June 1, 2012 forward: the hydro bill, the phone bill, the home insurance and water heater. These expenses shall be paid in lieu of temporary without prejudice spousal support until such time as the Respondent vacates the matrimonial home, at which time and upon the first of the month following the Respondent vacating the matrimonial home on 21 days notice to the Applicant, the Applicant shall pay the Respondent temporary without prejudice spousal support in the amount of $238.15 every two weeks. The Respondent’s income for these purposes is $5,547.00 and the Applicant’s income is estimated at $62,000.00.

Child Support

[24] The Applicant shall pay the Respondent temporary Guideline Table child support for the children, Isabel Ward and Frank Ward, in the amount of $425.08 every two weeks commencing June 1, 2012. The Applicant’s income for these purposes is estimated to be $62,000.00.

Joint Debt Servicing

[25] The Applicant shall be credited for half of the payments she has made on the joint consolidation loan since the date of separation, which payments have been made by the Applicant for which the Respondent has been and is responsible. The Respondent shall obtain his own information from the trustee with respect to the payments on the consolidation loan as he is jointly responsible for this debt. The Respondent’s one-half share of the joint consolidation loan is $411.50. Any credit owing to the Applicant shall be paid to the Applicant on the sale of the matrimonial home prior to any distributions to the Respondent. If no funds are available, the credit owing to the Respondent shall be paid as set out in paragraph 26 herein.

[26] Any debt which remains after the disbursement of the entire net proceeds of sale of the matrimonial home shall be equally shared by the parties and the parties shall engage counsel to undertake an accounting of the debt at the time including the servicing of any joint debt since the date of separation. If it is found that the Applicant has overpaid her share of the parties’ joint debt, the Respondent shall credit that amount to the Applicant and he shall repay her the amount found owing to him.

Mobility

[27] Neither party shall move the children’s residence outside Northumberland County. All attempts shall be made by the Respondent to remain near the children’s school, Plainville Public School in Plainville, Ontario, upon securing his new accommodation.

Motions

[28] Neither party shall bring a motion without leave of the court on the issue of custody and access prior to the release of the Section 112 report from the Office of the Children’s Lawyer clinical investigator, Michelle Walker.

Costs/Garnishment

[29] The Applicant agrees to waive her claim to costs of this motion. Accordingly, the Respondent shall forthwith and by no later than Thursday, June 7, 2012 advise the Applicant’s employer, Norag Resources, that the garnishment of her pay for costs of the motion on October 7, 2011 as set out in the Notice of Garnishment dated March 2, 2012 is effectively terminated. The garnishment shall be lifted permanently and without further delay. The monies already garnished from the Applicant’s pay shall remain the Respondent’s property, but no further money shall be garnished from the Applicant’s pay effectively from the date of this order. Any amounts garnished as of June 1, 2012 onwards shall be immediately re-paid by the Respondent to the Applicant.

[30] If the Royal Bank refuses to advance $2,000.00 from the parties’ existing joint line of credit as set out in paragraph 21 herein, the Applicant shall advance $1,000.00 to the Respondent towards rent for his new accommodation. The Applicant shall be repaid this amount from the proceeds of sale of the matrimonial home out of any distribution to the Respondent and prior to repayment of the joint lines of credit. If no distribution is available, she shall be repaid as set out in paragraph 26 herein.

[31] Any spousal support and child support payable by the Applicant to the Respondent pursuant to paragraphs 23 and 24 of this order shall be paid directly by the Applicant to the Respondent for the months of July and August 2012. FRO shall not enforce this order until September 1, 2012, although the order shall be sent to FRO forthwith.

[32] The temporary order of Justice McDermott dated October 7, 2011 is amended by deleting the reference to “spousal support” in lines 2 and 4 of paragraph 6 and substituting “support” only.

[33] All other claims in each party’s motion are dismissed.

Hatton, J

DATE RELEASED: June 7, 2012