SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-353-00

DATE: 2013-02-15

RE: VIRGINIA ROCAFORT, Applicant

AND:

LEGAL AID ONTARIO, Respondent

BEFORE: Justice E.R. Tzimas

COUNSEL:
Ron Sleightholm, for the Applicant

J. Stanley Jenkins, for the Respondent

HEARD: February 14, 2013

ENDORSEMENT

THE APPLICATION

THE APPLICATION

1This is an application to discharge and vacate a lien registered by Legal Aid Ontario, (LAO) on May 15, 2009 as Instrument number PR1639944 against the property municipally known as 6273 Prairie Circle, Mississauga, Ontario.

2The property vested in the Applicant as a result of family law proceedings and a court judgment that included a vesting order that was granted on October 4, 2011.

3Although it is not entirely clear on the record when it was that the Applicant became aware of the LAO lien, the submission is that, at the time of the judgment, it was discovered that there were two liens against the property, one in favour of the Canada Revenue Agency and the other by LAO. Both were against Jose Rocafort who was the former spouse of the Applicant. Mr. Rocafort was the owner of the property up until the judgment date of October 4, 2011. The liens were registered without the Applicant’s knowledge.

4The Applicant takes the position that the lien was void ab initio because it failed to set out the amount of money said to be due, even though section 48 of the Legal Aid Services Act, 1996, S.O. 1998, c.26 requires that the lien set out “the amount equal to the amount that he or she agreed to contribute against the person’s land in the proper land registry office.

5LAO responds that there is nothing wrong with the lien and its description of the nature of the charge against the property. The lien was registered before the property vested in the Applicant and it claims a priority over the vesting of the property.

THE FACTS

THE FACTS

6Mr. Rocafort sought and obtained legal aid in relation to his matrimonial dispute with Mrs. Rocafort, the Applicant. He entered into a contribution agreement with LAO for the sum of “$5,000.00” with the express proviso that the sum was an estimate only and that his final cost “may be more or less than the amount that we have estimated”. That agreement also included an agreement that LAO register a lien on Mr. Rocafort’s property.

7LAO says that it provided services at a cost of $7,358.51, although, by the time of the trial, Mr. Rocafort was unrepresented. After two days of trial, Justice Paisley declared a mistrial and required Mr. Rocafort to pay $10,000.00 in costs by June 30, 2011, failing which his Answer would be struck out.

8Mr. Rocafort did not comply with the order and eventually the Applicant obtained summary judgment on account of child support in the amount of $21,024.00, spousal support of $121,652,00, ongoing monthly support in the amount of $2,078.00, an equalization payment of $42,753.13, and costs of the action in the sum of $44,000.00. Recognizing that Mr. Rocafort had failed to make any payments whatsoever, the Applicant requested and obtained a vesting order against the matrimonial home.

9The matrimonial home was encumbered by Mr. Rocafort with two liens, one from Canada Revenue Agency and another by LAO. At the request of the Applicant, Canada Revenue Agency agreed to vacate its lien.

10LAO has not agreed to lift its lien.

THE ANALYSIS

THE ANALYSIS

11The Applicant relies on section 48 of the Legal Aid Services Act and sections 72 and 78 of the Land Titles Act, R.S.O. 1990, c. L-5 to argue that the lien is defective and should be vacated. The Applicant says that contrary to the requirements that the notice of lien be “for an amount equal to the amount he or she agreed to contribute against the person’s land”, the lien just says: “FOR THE FULL AND ACTUAL COSTS OF THE LEGAL AID SERVICES”. The Applicant further notes that what should have been registered is the Contribution Agreement between Mr. Rocafort and LAO which indicated that the contribution is for $5,000.00.

12LAO argues that the description of the lien is complete and that it complies with the requirements of section 6 of Ontario Regulation 19/99 on Electronic Registration pursuant to the Land Registration Reform Act which requires an electronic registration to contain a principal amount or other obligation secured by the charge.

13It is most unfortunate that Mrs. Rocafort, who continues to be owed significant sums of money by Mr. Rocafort, notwithstanding the vesting order, must also deal with this lien. The argument presented by her counsel is attractive because of the particular circumstances. However, on a close look of the relevant legislation and the instruments, the lien complies with the requirements of both section 48 of the Legal Aid Services Act, Land Titles Act, and the Land Registration Reform Act. The contribution agreement identifies an estimate of costs in the sum of $5,000.00 but it also has the express proviso that the sum may increase or decrease depending on the services that are rendered. In other words, the contribution agreement is for the full and actual costs to be incurred, with $5,000.00 being an estimate but not a cap. The corresponding description therefore in the lien “FOR THE FULL AND ACTUAL COSTS OF LEGAL AID SERVICES”, captures the requirement under section 48 of the Legal Aid Services Act that the lien be “for an amount equal to the amount he or she agreed to contribute against the person’s land”. The amount that Mr. Rocafort agreed to contribute was the full amount of the actual legal costs to be incurred. In the same vein, the lien that was registered could not reflect “a principal amount” as required by section 6(a) of the regulations concerning electronic, but it could and did reflect “[an] other obligation secured by the charge”, that “other obligation” being the cost of legal services.

14The lien existed on title prior to the vesting order of October 4, 2011. The record does not contain any evidence as to whether the Applicant’s counsel conducted a search prior to requesting a vesting order from the court. Nor is it clear from the materials before me if there was an attempt to frame the vesting order in a way that would isolate the lien. At this stage, as unfortunate as it is that Mrs. Rocafort has to contend with Mr. Rocafort’s debt, unless the LAO is willing to vacate the lien voluntarily, given the circumstance of this case, there is no other way to remove the lien, besides, of course, having it satisfied.

CONCLUSION

CONCLUSION

15The application is dismissed. The lien is not void ab initio. It meets the requirements of the relevant legislation as particularized above.

COSTS

COSTS

16Despite the dismissal of this case, there shall be no costs awarded to LAO. The circumstances are harsh enough as they are for Mrs. Rocafort. I find it interesting that the Canada Revenue Agency would agree to lift its charge even though we have no other evidence before the court on the circumstances of that lien and its quantum. The reality is that LAO is not without remedies against Mr. Rocafort for his indebtedness.

Tzimas J.