NEWMARKET COURT FILE NO.: FC-10-034809

DATE: 20121128
CORRIGENDA: 20121204

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TALIN KARAJIAN, Applicant

AND:

ARA KARAJIAN, Respondent

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL: M. Greenstein, Counsel, for the Applicant

A. Karajian, did not appear though served and paged

HEARD: November 27, 2012

REVISED SUPPLEMENTARY ENDORSEMENT

[ 1 ] On August 29, 2012 I released my Reasons for Decision. I released a supplementary endorsement September 12, 2012 clarifying points raised by both sides in response. I issued a supplementary endorsement on November 21, 2012 setting out changes to the draft judgment. Today I signed judgment responsive to my directions.

[ 2 ] I have arranged for a clerk in Barrie to complete the certificate required to process the divorce. I signed judgment for divorce today.

[ 3 ] I signed an order for OCL representation in the required format and counsel for the Applicant Mother informs me they are prepared to become involved.

[ 4 ] On November 22, 2012 I signed an ex parte order to facilitate sale of the matrimonial home in accordance with my judgment and restrain the Respondent Father from conduct interfering with sale.

[ 5 ] Today I heard an urgent motion served on the Respondent Father November 23 rd . He does not respond. The Respondent Mother seeks:

(1) An Order for short service of the materials included in this Motion;

(2) An Order that the net sale proceeds in respect of the sale of the matrimonial home being the property municipally known as 192 Raymerville Drive, Markham, Ontario, L3P 6S7, and legally described as PCL 87-1, SEC M1975; LT 87, PL M1975; MARKHAM, PIN 02904-0052 (LT), after the payment of the CIBC collateral mortgage, the tax arrears, the balance of commission owing and the real estate solicitor’s statement of account be released to the law firm of Krol & Krol, in trust on behalf of the Applicant as part of the net sale proceeds owing to her;

(3) An Order that the Respondent be required to forthwith pay to the Applicant $88,949.79 in respect of her share of the net sale proceeds that should have been paid to her had the Respondent paid the ongoing expenses relating to the above-noted property and had the Respondent paid out the CIBC mortgage prior to closing, calculated as follows:

a. $102,739.78 being the balance of the net sale proceeds of the above-noted property owing by the Respondent to the Applicant, calculated as follows:

i. $98,136.23 being the balance of the CIBC collateral mortgage that the Respondent is responsible for in excess of his share of the net sale proceeds which would have been paid to him on closing from the sale proceeds if he has paid out the mortgage prior to closing (i.e. $354,711.73 being the funds required to payout the CIBC collateral mortgage registered against the above-noted property less $256,575.50 being the net sale proceeds that the Respondent would receive had he paid off the CIBC mortgage prior to the closing of the sale of the above-noted property);

ii. Plus $4.603.55 being the property tax arrears owing on the matrimonial home of $4,891.72 less the credit of $288.17 given to the Vendors on the Statement of Adjustments;

Plus

b. $1,709.77 to reimburse the Applicant for Vi of the cost of the repairs she paid in respect of the A above-noted property;

Less

c. $499.76 being the equalization owing from the Applicant to the Respondent;

Less

d. $15,000.0 being the equalization payment that the Respondent has already paid to the Applicant;

(4) An Order that if the Respondent does not forthwith pay the Applicant $88,949.79 as set out herein, this Order is to be filed with the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the Order shall be paid to the Director, who shall pay them to the Applicant.

(5) An Order that the Respondent immediately attend at the MTO to transfer title of the family car. Being the Pontiac (VIN#1G2NF52E1YC556889) into the Applicant’s name, that the Respondent execute the appropriate sworn document so that no taxes are owing in respect of said transfer and that he provides the law firm of Krol & Krol with written evidence of the transfer, an executed copy of the sworn statement and the ownership of the vehicle and the plates;

(6) An Order that the Respondent immediately provide the law firm of Krol & Krol with written evidence that the above-noted property is properly insured for guaranteed replacement coverage;

(7) This Order bears interest at a rate of __% per year from the date of this Order. Where there is default in payments the default shall bear interest only from the date of the default;

(8) Costs of this Motion on a solicitor and client basis.

[ 6 ] With the exception of vacating the matrimonial home and providing residence for Karmig, seeking clarification of some paragraphs of my reasons for judgment, and providing cost submissions, the Respondent Father has not complied with orders I have made. The several subsequent steps summarized above have been necessary to move the circumstances of the family, as of the time of my judgment, to some finality. I regret the Respondent Father’s lack of participation because his non-compliance and statements in his written submissions suggest a continuing failure to acknowledge the reality of the family circumstances. Despite his unfailing politeness to me as Trial Judge, he does not appear to recognize he is bound, as we all are, by the rule of law, since his non-compliance goes beyond payments, which may have some basis in his reduced circumstances, but also includes non-co-operation with steps I have ordered.

[ 7 ] The history causes me to approve short service of the motion.

[ 8 ] The Respondent Father is, I note, mistaken in his cost submissions when he asserts that I found the Applicant Wife responsible for the line of credit which resulted in a collateral mortgage on the matrimonial home. The opposite is true.

[ 9 ] The effect of my judgment is calculated by the Applicant Wife. Using the format of her calculations I have accepted its document supported accuracy except as to the responsibility for property tax on the matrimonial home after the date of my judgment, which supplants the Kaufman order of 2011 for the Respondent Father to pay the taxes. From September 2012 to date of closing of the sale December 6, 2012, in the context of my spousal support order, tax is a shared responsibility to preserve the asset. The shortfall was recalculated after I ruled on that point and I now attach as Schedule A to my endorsement the Summary of Sale Proceeds. I order payment out of proceeds from the sale of the matrimonial home to the Applicant Mother in accordance with the calculation in the amount of $153,835.72. The shortfall owing to the Applicant Mother by the Respondent Father is $88,217.06.

[ 10 ] I am not persuaded that FRO has the mandate to enforce an order of this nature as it is not related to support. Usual enforcement methods must suffice.

[ 11 ] I find that the Respondent Father has the documents to transfer the vehicle and declaration for tax relief upon the transfer. I order that he attend within 14 days of service of this order at the MTO to transfer title of the family car, being the Pontiac (VIN#1G2NF52E1YC556889) into the Applicant’s name, that the Respondent execute the appropriate sworn document so that no taxes are owing in respect of said transfer and that he provides the law firm of Krol & Krol with written evidence of the transfer, an executed copy of the sworn statement and the ownership of the vehicle and the plates.

[ 12 ] The proof of property insurance for the home should have been provided but I make no order as the home is expected to be sold by December 6 th , 2012. This does not excuse the Respondent Father from maintaining the insurance but I am not persuaded that my order is timely to enforce prior to closing.

[ 13 ] Courts of Justice Act interest rates apply.

[ 14 ] As to costs I have the written previous cost submissions. I had further oral submissions today as to the motion before me.

[ 15 ] I agree with the Respondent Husband that he succeeded on the date of separation issue which took time at trial. I also note that the spousal support ordered is mixed success inasmuch as it is initially higher than the offer served by the Applicant Wife and has no automatic review. However, by imputing income to the Applicant Wife in future years it becomes more favourable to the Respondent Husband. There was mixed success on the custody issue which is continuing with the involvement of the OCL. Otherwise, the Applicant Mother succeeded beyond the offer.

[ 16 ] It was also obvious that the lawyer for the Applicant Mother was put to an disproportionate amount of work to make up for absences in the Respondent Father’s presentation. This phenomenon is an often observed effect of one side being represented and the other not.

[ 17 ] Trial was unfocussed and therefore longer. Late production of evidence and new issues raised by the Respondent Father as a result of instruction given by me in accordance with my duty as a Trial Judge generated work for the Applicant Mother’s counsel. The process of taking out orders and enforcement has been tortured, requiring many post trial procedures as summarized above.

[ 18 ] The Applicant’s cost submissions have deducted previous costs orders and no cost aspects of the history. The rate is partial indemnity calculated at 40% until the offer May 7, 2012.

[ 19 ] I have examined the rates charged, considered the complexity of the trial and the mixed success on some points and the offer which the Applicant Mother beat on several points.

[ 20 ] I have considered usual costs for a trial of between 5.5 and 6 days. The claim is for $54,377.50.

[ 21 ] I fix costs to trial, all in, at $50,000 payable by the Respondent Husband to the Applicant Wife.

[ 22 ] Today’s motion activity is well documented. Lack of co-operation in the face of my judgment demanded an ex parte order that required personal attendance in Barrie to steer it through.

[ 23 ] The circumstances of these post trial procedures justify a full indemnity cost order. $9,928.80 was claimed and $1,500 for four hours today required simply to tie up all the flying loose ends of the trial result. I fix costs for these two motions at $11,000 payable by the Respondent Husband to the Applicant Wife.

[ 24 ] The file is now being returned to the Newmarket Family Court filing office. I am not seized of any issue except custody AFTER it has been through conferencing.

EBERHARD J.

Date: December 4, 2012

CORRIGENDA

1. Paragraph 9 now reads: … I order payment out of proceeds from the sale of the matrimonial home to the Applicant Mother in accordance with the calculation in the amount of $153,835.72 . The shortfall owing to the Applicant Mother by the Respondent Father is $88,217.06.