SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 32775/10
DATE: 2012-09-05
RE: Constance Lynn Sandre, Applicant
AND:
William Gary Sandre, Respondent
BEFORE: MILLER, J.
COUNSEL:
S. Jaskot, for the Applicant
C. Rawn, for the Respondent
HEARD: August 22, 2012
REASONS FOR DECISION
[ 1 ] Constance Sandre brings a motion for an order striking the pleadings of William Sandre and for an order vesting in the Applicant the Respondent’s one-half interest in the matrimonial home.
[ 2 ] Mr. Sandre takes the position that an order striking his pleadings or a vesting order for any amount greater than he already owes Mrs. Sandre would be disproportionate to the acts complained of. He does not oppose a vesting order in respect of the $25,000 in outstanding spousal support payments and the $30,000 costs order owing. In the alternative Mr. Sandre argues that a vesting order covering the amount of spousal support that will be payable under the current order up to trial, would be sufficient to protect Mrs. Sandre’s interests.
[ 3 ] Mrs. Sandre initially based her motion on Mr. Sandre’s failure to comply with disclosure requests and orders, in addition to his failure to comply with orders for payment of spousal support and costs as well as with respect to a non-dissipation order. As at the date this motion was heard Mrs. Sandre advised that further disclosure had been provided and she was not taking the position anything further was required. She continues to argue that relief should be granted in respect of Mr. Sandre’s failure to comply with Court orders in respect of non-dissipation of property, payment of spousal support and costs.
[ 4 ] November 8, 2010 Snowie, J. made an order that, amongst other things, the Respondent:
shall be restrained from selling, mortgaging, pledging or otherwise encumbering or disposing of any property, whether owned personally or jointly, in trust for other parties or through a corporation, partnership or business entity pending trial of this Application save as may be agreed upon by the parties or ordered by this Court.
shall preserve all property in his possession, power or control and for the non-dissipation thereof pending trial.
shall be restrained from depleting, transferring or encumbering any property in which he may have an interest until the trial of this Application.
[ 5 ] Mrs. Sandre produced evidence that she discovered that on October 21, 2011 Mr. Sandre had purchased a property in Florida. The purchase price was $390,000 and the property was mortgaged in the amount of $200,000.
[ 6 ] Mr. Sandre acknowledges that he purchased this property, which is registered in his name, using $30,000 of his own money, $160,000 from his father and the remainder by way of a mortgage. Mr. Sandre acknowledges that he sold vehicle parts in order to come up with his portion of the purchase price. In his affidavit of August 17, 2012 Mr. Sandre indicated that he had sold parts of a 1988 Chrysler Daytona vehicle for approximately $27,000 U.S. and had sold a race engine, for an undisclosed price. Both of these items were listed in Mr. Sandre’s financial statements of September 21, 2010 and February 2, 2011. It is clear that these items were in Mr. Sandre’s possession at the time of Snowie, J.’s non-dissipation order.
[ 7 ] I note that the disclosure provided by Mr. Sandre in respect of the quantum he indicates was provided by his father does not, on its face, reveal the source of the wire transfer. I note as well that in purchasing this property Mr. Sandre represented himself to be a single man.
[ 8 ] Mrs. Sandre further produced evidence that following the discovery by her of the house in Florida, her counsel sent letters to all of the Respondent’s known banking institutions advising them of the order for non-dissipation of property. In response she received correspondence from Edward Jones advising that Mr. Sandre’s RSP account # 501 71624 had been closed and that Mr. Sandre no longer held any accounts or assets with that institution.
[ 9 ] The Edward Jones account was listed in Mr. Sandre’s financial statements of September 21, 2010 and February 2, 2011 valued at $115,746.58. It is clear that this was in Mr. Sandre’s possession at the time of Snowie, J.’s non-dissipation order.
[ 10 ] Disclosure provided by Mr. Sandre revealed that the balance in the Edward Jones account had been $120,234.17 as of August 31, 2011.
[ 11 ] On June 22, 2012 Mr. Sandre responded to an enquiry by Mrs. Sandre’s counsel by e-mail, advising that the Edward Jones funds had been removed and given to the parties’ daughter Chelsea for treatment for a life-threatening disease. Mr. Sandre did not respond to an enquiry as to why the transfer had not been disclosed and why Mrs. Sandre’s consent or a court order was not sought before withdrawing the funds.
[ 12 ] In his affidavit of August 17, 2012 Mr. Sandre indicated that on April 30, 2012 Chelsea had been admitted to hospital and was diagnosed with renal failure. She was placed on haemodialysis and was told that if she did not receive alternative forms of treatment the best outcome for her would be a kidney transplant. Mr. Sandre deposed that in early May he was advised that the kidney transplant waiting list in Ontario was approximately seven years. He was further advised that Chelsea’s rare blood type would make finding a donor more difficult.
[ 13 ] Mr. Sandre researched alternative treatments on the internet, discovering one in China. He arranged for Chelsea to attend the program in China July 1, 2012 where she remained for six weeks. As Mr. Sandre does not have a passport (suspended by FRO for non-payment of support) he arranged for a family friend to travel with Chelsea. Mr. Sandre deposed that he has spent $87,545.41 for Chelsea’s treatment, most of which he acquired through withdrawing the Edward Jones money on May 11, 2012.
[ 14 ] Mr. Sandre deposed that the May 11, 2012 balance of the Edward Jones fund was $122,314.41. After tax was withheld, he received $85,551.68.
[ 15 ] It is Mr. Sandre’s position that Chelsea’s treatment is a legitimate s. 7 expense for which Mrs. Sandre should contribute 35%.
[ 16 ] Mr. Sandre did not, in his affidavit, offer any explanation for failing to attempt to acquire Mrs. Sandre’s consent to the withdrawal of the funds or in the alternative, to seeking a court order for release of the funds. It is difficult to imagine, in the circumstances, that either option would have been unsuccessful.
[ 17 ] It is clear that Mr. Sandre breached the order made by Snowie, J. November 8, 2010 in both instances.
[ 18 ] In respect of the withdrawal of funds from the Edward Jones account, while it involved a substantial amount of money, Mrs. Sandre acknowledges that she would have consented to the use of those funds for that purpose. Mr. Sandre demonstrated a lack of judgment in failing to seek either Mrs. Sandre’s consent or a court order to withdraw the funds, and there remain some questions with respect to the timing of the withdrawal and the precise disposition of the funds received but I accept, for the purposes of this motion, that the urgency of the situation and concerns for the potential implications for Chelsea’s health led Mr. Sandre to act in a precipitous manner.
[ 19 ] The sale of his vehicle parts in order to purchase the Florida property and then to encumber that property, however, cannot but be described as a blatant violation of the order of Snowie, J. made November 8, 2010 and with absolutely no mitigating circumstance.
[ 20 ] I agree, however, that the quantum of money involved in this transaction is small relative to Mr. Sandre’s potential monetary interest in the outcome of these proceedings and that a striking of his pleadings would be a disproportionate penalty for him to pay. It is clear, however, that Mrs. Sandre has good reason to fear that Mr. Sandre, in his blatant disregard of the existing Court order, will dissipate property in which she has a potentially large monetary interest.
[ 21 ] In the circumstances, in order to properly protect Mrs. Sandre’s interests I find that it is appropriate that all Mr. Sandre’s current interest in the matrimonial home be vested in Mrs. Sandre pending trial of this action, and subject to the decision of the trial judge, taking into consideration monies owing to Mrs. Sandre as to the appropriate disposition of that asset.
[ 22 ] It is so ordered.
[ 23 ] The parties may exchange and file written submissions as to costs, if necessary, no later than October, 5, 2012.
MILLER J
Date: September 5, 2012