In the Superior Court of Justice at Toronto
FILE NO.: FS – 12 – 382490 DATE: 20131118
BETWEEN: Milena Jovanovic, Applicant (self-represented)
AND Milan Jovanovic, Respondent (Counsel: Garry J. Wise)
HEARD: October 24, 2013 BY: Kiteley J.
ENDORSEMENT
[1]. The Application was issued on November 9, 2012 when Gordon Vadum acted for the Applicant. As a result of a case conference on January 9, 2013, Kruzick J. made an endorsement that it was to continue on February 27^th^ and in the meantime the parties would proceed with disclosure and valuation of pensions and of the former matrimonial home.
[2]. The Applicant’s initial notice of motion was returnable March 21, 2013 and included requests for retroactive spousal support and other relief. Courtney G. Hughes was her counsel.
[3]. In March, the Respondent provided a letter of opinion as to the value of the matrimonial home and in April, the valuations of the Respondent’s pensions were produced.
[4]. The Respondent’s motion was originally returnable April 23, 2013 in which he asked for the following:
(a) An order for the immediate listing and sale of the matrimonial home; (b) An order appointing D. Eisenstein as listing agent at a listing price of $585,000; (c) An order that the Respondent continue to have temporary exclusive possession of the matrimonial home pending closing; (d) An order that the parties’ RRSP holdings be divided and equalized by way of spousal rollover; (e) An order that the parties non-RRSP savings be divided and equalized; (f) An order to strike the “Schedule of Further Facts” annexed to the Applicant’s Application; (g) Costs on a substantial indemnity basis.
[5]. On May 16, 2013, an order was made on consent removing Courtney Hughes as the Applicant’s solicitor.
[6]. On June 7, 2013 at a time when the Applicant was self-represented, she scheduled a case conference on short notice. Paisley J. made an endorsement that the relief she sought could only be done on a motion. He ordered that costs of that day be fixed by the judge who heard the next motion.
[7]. On August 29, 2013, Alison Book served and filed a notice indicating that she was acting for the Applicant.
[8]. On October 8, 2013, Ms. Book served an amended notice of motion returnable October 17, 2013 in which the following relief was sought:
(a) An order imputing income to the Respondent for purposes of determining his spousal support obligations; (b) An order for spousal support retroactive to the date of separation namely November 20, 2011 to February, 2013; (c) An order that the Respondent pay $15000 towards the Applicant’s interim legal fees, forensic accounting requirements and any other disbursements to be incurred by the Applicant pursuant to rule 24(12); (d) An order that the Respondent provide a further and better financial statement within 14 days; (e) An order that the Respondent provide disclosure of income tax returns from 2003 to 2008 and with respect to specified bank accounts and other holdings from specified dates, including some from the date the account was opened; (f) An order requiring the Respondent to execute authorizations to enable the Applicant to obtain information from five banks and one insurance company; (g) An order that the Respondent provide the Applicant with a set of keys to the matrimonial home; (h) An order permitting amendment to her Application to seek spousal support retroactive to the date of separation under both the Divorce Act and the Family Law Act and an order that the matrimonial home shall be vested in her name; (i) An order for costs on a full recovery basis.
[9]. On October 18, 2013, Ms. Book served a notice of change of representation that indicated that the Applicant would represent herself.
[10]. The Applicant did not have counsel when I heard submissions on the motions on October 24, 2013. She asked that her son be permitted to make submissions on her behalf and I refused that request. Based on the amended notice of motion, the Applicant relies on the following:
(a) Her affidavit sworn October 8, 2013; (b) The affidavit of the son of the Applicant and the Respondent namely Michael Borne sworn October 8, 2013; (c) The affidavit of Christine Di Battista, law clerk in the office of Baker and Baker, counsel for the Applicant until Notice of Change in Representation was served on October 18, 2013; (d) Application issued November 9, 2012; (e) Answer dated December 18, 2012; (f) Reply dated March 19, 2013; (g) Applicant’s financial statement dated October 8, 2013; (h) Respondent’s financial statement dated December 18, 2012; (i) Respondent’s Form 14B motion dated March 22, 2013; (j) Respondent’s affidavit sworn March 22, 2013; (k) Respondent’s financial statement dated March 22, 2013; (l) Applicant’s notice of motion returnable March 12, 2013; (m) Applicant’s affidavit sworn February 8, 2013; (n) The affidavit of Michael Borne sworn March 12, 2013.
Amendment to Application and Reply
[11]. The Applicant seeks to amend her Application to ask for an order for spousal support retroactive to the date of separation and to ask for an order vesting title to the matrimonial home in her name and to ask for relief under the Divorce Act (in addition to what was asserted pursuant to the Family Law Act). The affidavit of the Applicant sworn October 8^th^ also indicates an intention to seek an amendment to the Reply to ask for occupation rent if the Respondent is granted exclusive possession. The request to amend the Reply is not in the notice of motion. Since the Applicant is not represented, I will consider that amendment as well. In his affidavit sworn October 23^rd^, the Respondent opposes the motion to amend. However, Mr. Wise appropriately conceded that there is no substantive basis to oppose the amendments to the Application. I did not hear from him as to the amendment to the Reply to seek occupation rent. The affidavit of the Applicant also indicates that she wants to amend to claim a divorce. That too is not in the notice of motion.
[12]. Pursuant to rule 11(3) of the Family Law Rules it is mandatory that amendments such as those be permitted at this stage of the proceeding except for circumstances in which the Respondent would then be at a disadvantage. Counsel for the Respondent did not raise such disadvantage except for the cost of serving and filing an amended Answer which I will deal with below. Accordingly, I will allow all the amendments.
[13]. As for the motion by the Respondent to delete the Schedule of Further Facts annexed to the Application, I agree that virtually all are unnecessary given the legal issues raised in the Application. I am not prepared to order that they be removed at this stage because (a) the Respondent has already filed his Response; (b) if I were to order that the Schedule be removed and replaced with particulars that are consistent with the issues in the Application, given that the Applicant is not now represented, it would lead to further delay and unnecessary controversy. If there is no settlement, the trial judge will be able to assess the fundamentally different approaches taken by the parties and, if the serious allegations in the Schedule are not proven, that will position the Respondent to obtain an award of costs.
Spousal Support
[14]. The Applicant asks for spousal support retroactive to the date of separation, namely November 20, 2011 to February 30 (sic), 2013 at the high end of the range of the Spousal Support Advisory Guidelines. She also asks for an order that retroactive spousal support be paid as a lump sum by a spousal rollover of the balance of RRSP account number ending 710 or by any other means the court deems just.
[15]. The Applicant is now 68 years old and the respondent is now almost 70 years old. They married in 1966 and have two adult children. They were together for 45 years until separation on November 20, 2011. In her Application, the Applicant incorporated a summary of approximately six pages in which she detailed the treatment that she said she suffered at the hands of the Respondent, beginning on New Year’s Eve, 1964. In his Answer, the Respondent asserts a markedly different family life. In other words, there are many issues of credibility that surround the history of the relationship. Given the lack of complexity of the issues in the case, the issues of credibility may not have to be resolved. Indeed, they do not play any part in the disposition of the motions before me and served only to increase the Respondent’s costs.
[16]. The Applicant did not work outside the home after being laid off in 1990. At some point, the Applicant began receiving OAS and CPP in the amount of $679 per month. In paragraph 12 of her affidavit, the Applicant says that since June 2013, she has been receiving $1719 per month which consists of $600 in social assistance, $485 in CPP and $634 in OAS. She also said that she was not seeking ongoing spousal support since she was entitled to half of the Respondent’s pension assets.
[17]. Since the separation, when she said the Respondent locked her out of their mortgage-free matrimonial home, the Applicant has lived in a furnished condo owned by her son. She says that normally he would rent it for $3000 per month. The carrying costs are $1700 per month. She has signed a loan agreement which was produced and which she said demonstrated she owed him $44977. She also said that her son had loaned her $17000 to help with her legal fees. She said that her son had been forced to support her due to the Respondent’s failure to pay spousal support and because the Respondent caused her to incur high litigation costs by refusing to pay spousal support and provide adequate disclosure.
[18]. As an example of the credibility gap, the Respondent says that the Applicant left the matrimonial home voluntarily and has been living well in accommodation provided by their son. He challenges the alleged agreement between the Applicant and their son and denies that she owes him anything. For purposes of this motion, I need not resolve those factual differences.
[19]. In paragraph 16 of her affidavit, the Applicant said that she did not seek spousal support prior to filing her Application on November 9, 2012 because she believed the Respondent would not pay anything voluntarily and she was distraught from the breakdown of the relationship and the abuse she said she had suffered at his hands.
[20]. Based on the disclosure from the Respondent, the Applicant provided the following analysis:
| Year | Document/Description | Amount |
|---|---|---|
| January 1, 2009 to Dec. 31, 2009 | Statement of Business Activities – adjusted gross sales Total expenses including office, supplies, telephone and utilities, motor vehicle expenses ($9316) and capital cost allowance ($3802), occupancy expense and reference books Net loss |
$ 7075 $18497 ($11422) |
| January 2, 2010 to Dec. 31, 2010 | Statement of Business Activities – adjusted gross sales Total expenses similar to above Net loss |
$ 5000 $18968 ($13968) |
| January 2, 2011 to Dec. 31, 2011 | Statement of Business Activities – adjusted gross sales Total expenses similar to above Net loss |
$ 3000 $17940 ($14940) |
| January 1, 2012 to Dec. 31, 2012 | Notice of Assessment 2012 - Line 150 Refund |
$47030 $ 4903 |
[21]. The Applicant asserted that based on his income tax returns for 2009, 2010 and 2011, the Respondent earned an average of $5025 in business income and claimed an average of $18468 in expenses and other deductions for his business Progress Design Engineering Service.
[22]. For 2011, the Applicant takes the position that the Respondent’s income was $72126 which she calculated as follows:
| Employment Income | $23410 |
| Employment Income | $ 9353 |
| Messier Dowty and Bombardier Pensions | $12055 |
| OAS | $ 6368 |
| Self employment income | $ 3000 |
| Adjustments to income – expenses unreasonably deducted | $17940 |
| TOTAL | $72126 |
[23]. For that year, she showed her income as OAS ($6368) and CPP ($1700) for a total of $8068. According to the Spousal Support Advisory Guidelines, the Respondent’s support obligation was in the range of $2306 to $2690 to $2823. She asked for support in the amount of $2823 per month.
[24]. The Applicant asserted that the Respondent had failed to provide a copy of the 2012 tax return and, until the day before the motion, had only produced the notice of assessment. She did a similar calculation for 2012 and ended up with the Respondent’s income at $70524 and her income at $14921. According to the SSAG’s, the Respondent’s support obligation was in the range of $2051 to $2392 to $2500. She asked for support in the amount of $2500 per month.
[25]. Recently, a male person who I assume is the Applicant’s son, contacted my assistant and left a message that he wanted to bring to my attention that the “social assistance amount should not be included in the section that deals with the spousal support guidelines”. I have ignored this message because it was inappropriate for such a message to be communicated to me through my assistant.
[26]. The Applicant calculated the arrears as follows:
| Period and Calculation | Amount |
|---|---|
| November 20, 2011 to November 30, 2011 | $ 941 |
| December 2011 | $ 2823 |
| January to December 2012 $2500 per month | $30000 |
| January and February 2013 $2500 per month | $ 5000 |
| Total | $38764 |
[27]. The Applicant asks for an order that the Respondent pay her $38764 in retroactive spousal support as a lump sum so that she did not have to pay income tax and so that she did not lose her social assistance income which she said would be cut by two thirds if she received periodic payments. She also said that she had to start repaying her son the $44977 as soon as possible. She suggested that the Respondent satisfy the spousal support award by transferring the money he holds in his RRSP account which had a balance of $37727 on March 22, 2013 according to his financial statement.
[28]. The Applicant does not accept the evidence of the Respondent that he stopped his post-retirement part-time work as a bus driver and she pointed out the coincidence of his decision to stop shortly after Ms. Hughes informed Mr. Wise that a motion for spousal support would be brought. She asked for written confirmation from the employer that he had stopped working. In his affidavit sworn October 23^rd^, the Respondent indicated that he had had to return to his job as a part-time bus driver to pay his expenses including substantial legal expenses which he said were caused by the Applicant.
[29]. Mr. Wise concedes that the Applicant is entitled to spousal support. The issue is the amount and whether it should be retroactive. He takes the position that, after division of the two pensions received by the Respondent, the spouses are similarly situated and no amount should be paid. He strongly resists an order for retroactive spousal support on a motion for a temporary order.
[30]. The Respondent says that the adjustments to his income were made by the accountant, and that they would stop in 2013. I make no comment about the taxation issues that may have arisen as a result of deduction of those expenses during the time that the Respondent says he was an employee. Suffice it to say that I am not prepared to add back in expenses and deductions for 2011 and 2012.
[31]. I agree with Mr. Wise that an order for retroactive spousal support for the period November 20, 2011 to February 28, 2013 ought not to be made at this time for three reasons. First, the Applicant is clear that she does not want a retroactive order for periodic spousal support. She asks for an order for lump sum retroactive spousal support by rollover of RRSP’s. As indicated above, in his notice of motion the Respondent has indicated that he is prepared to transfer 50% of his RRSP’s as an aspect of the equalization of net family property. But that willingness does not mean I should order a transfer of the RRSP’s in consideration of a claim to retroactive temporary spousal support. The RRSP rollover is a matter for overall settlement or trial judgment.
[32]. The second reason for declining to order retroactive spousal support at a motion for temporary relief is that the court rejects the rationale advanced by the Applicant. She seems to think that the court would accommodate her request to award a lump sum to avoid the income tax consequences of periodic payments without taking into consideration two factors. First, that the SSAG’s assume that she would have paid tax and a lower amount would be required if the payment did not attract income tax. And second, without taking into consideration the reality that the court is not about to make an order designed to help her to defeat her obligations under social welfare legislation.
[33]. The third reason is the potential inconsistency in the positions taken by the Applicant. As indicated below, she is intent on purchasing the Respondent’s interest in the matrimonial home, which I will refer to as a long term objective. She also asks that the retroactive support order be satisfied by RRSP rollover which I will refer to as a short term objective. Those objectives are in conflict. Furthermore, she appears not to appreciate the income tax consequences of a rollover if she intends to liquidate them immediately to pay her son.
[34]. Under all the circumstances, I am not persuaded that I should make a retroactive order for temporary spousal support.
Net Family Property – Matrimonial Home: sale or exclusive possession
[35]. The Respondent had brought a motion seeking an order for sale of the matrimonial home. He had obtained a letter of opinion that indicated that the matrimonial home was valued at $585,000 as of March 2013. In her affidavit, the Applicant accepted that current value for the jointly owned home and took the position that she would owe the Respondent 50% of the value less 5% estimated real estate commission, less $1500 for estimated legal fees, leaving her owing him $277125 if she were to purchase his interest in the home.
[36]. In order to reduce the amount she would have to pay, the Applicant went on to make comments on and adjustments to the Respondent’s net family property calculation including:
(a) Not allowing $39728 as his date of marriage assets; (b) Not accepting his costs of disposition on RRSP’s; (c) Asking for an order that the RRSP’s be transferred as a lump sum spousal rollover to satisfy her claim for retroactive spousal support and as a result there should be no costs of disposition; (d) Accepting values of his pensions at $36594 (Bombardier) and $119011 (Messier Dowty) for a total of $155605. However, she takes the position that she will not be applying for a division of either pension and will waive her survivor benefits. On that basis, she asserts that the total disposition costs for both pensions is $31109. Furthermore, as indicated above, in paragraph 12 of her affidavit sworn October 8, 2013, she said she was not seeking ongoing spousal support since she was entitled to half of the Respondent’s pension assets; (e) Asserting that his minimum NFP is $461,651 not taking into consideration certain assets valued by the respondent at “TBD” or personal property.
[37]. At paragraph 42, the Applicant said that she had not applied to have the pensions split at source and had no intention of doing so. She intended to buy his interest in the matrimonial home using the equalization payment owed by him that included the value of his pension asset. In paragraph 10 of his affidavit sworn October 23^rd^, the Respondent says that the Applicant has already applied to divide the pensions and have the payments paid directly to her from the source.
[38]. On the basis of her calculation, she said that she could afford to purchase his interest in the matrimonial home at fair market value. She pointed out that the Respondent had agreed to provide authorizations and directions so that she could obtain disclosure directly from third parties but he had changed his mind, she said because he did not want her to discover that he had been dishonest. The Applicant took the position that once she had comprehensive disclosure and established the equalization payment, she would purchase his interest and that her son and daughter agreed to lend her as much money as she needed to purchase the Respondent’s interest in the matrimonial home. She strongly resisted sale of the matrimonial home, particularly without full disclosure from him. She pointed out that her claim for a vesting order would be prejudiced by a sale at this time and that she could not make an offer to purchase his interest without knowing what the equalization payment would be.
[39]. The Applicant appears not to understand the impact of the Respondent’s pensions vis-a-vis spousal support and net family property. As indicated above, she said she was not seeking ongoing spousal support since she is entitled to half of the Respondent’s pension. Yet she also says that she has no intention to have the pensions split at source because she wants to use the value of his interest in the pension to reduce what she would have to pay him for his share of the matrimonial home. She appears to think that she can make a unilateral decision about how to treat the Respondent’s pension. The Respondent is opposed to that approach. He takes the position that his pension payments should be divided at source and not form part of his net family property. It is not possible to make a determination as between those positions at this time on a motion for temporary relief.
[40]. In addition, it is not her decision alone whether the pension payments are divided or whether the value of the Respondent’s interest in the pension, net of disposition costs, remains part of the Respondent’s net family property. Indeed, the Applicant appears to be unaware of the provisions of s. 10.1(5) of the Family Law Act that provides that where the pensions are in pay at valuation date, as is the case here, the court can only make an order that provides for the division of the pension payments as opposed to the value of the Respondent’s interest in the pension.
[41]. The Respondent says that both he and the Applicant would like to purchase the interest of the other in the matrimonial home but realistically that is not financially feasible. He has asked for an order for the immediate listing for sale of the matrimonial home. I am not prepared to make the order at this time because I agree with the Applicant that an order for sale would prejudice her claim for a vesting order. However, I will leave open the possibility of such a motion after the imminent settlement conference.
[42]. The Respondent asks for temporary exclusive possession of the matrimonial home pending sale. The Applicant opposes such an order for the reasons set out in paragraphs 50 – 56 of her affidavit sworn October 8^th^. Pursuant to s. 24 of the Family Law Act, the court has the jurisdiction to make an order for exclusive consideration provided that the court considers a number of factors. I agree with the Applicant that the evidence before me does not support the application of any of those factors and for that reason I will not make an order.
[43]. The Respondent has a different version of the events that led to the departure of the Applicant from the matrimonial home. He does agree that after she left he changed the locks on the doors to the home. While resisting the order for temporary exclusive possession, the Applicant asked for an order that the Respondent be required to provide her with a set of keys to the home so that she might access the home and reside there if it becomes financially necessary for her to do so. Assuming I have the jurisdiction to make an order requiring the Respondent to provide her with a set of keys, I will not do so. That would simply create conflict between the spouses (and probably between the Respondent and his son) that ought to be avoided. If the house is ultimately ordered to be sold, the Applicant will have an opportunity to have access to the home for purposes of retrieving her belongings. If she is successful in purchasing his interest in the home, then there will likely be an opportunity to inspect before that transaction is closed. At this point, she has accommodation and there is no need to be concerned about her returning to the home to live.
Disclosure from the Respondent
[44]. The October 8^th^ affidavit of Christine Di Battista (Ms. Book’s law clerk) provides the context in which the request for disclosure is pursued. The affidavit of the Respondent sworn October 23^rd^ provides a comprehensive response. Mr. Wise takes the position that his client has provided voluminous disclosure, that the requests by the Applicant are really just a fishing expedition into their financial affairs throughout the many years of their relationship that will entail substantial unnecessary cost, and that no further order should be made.
[45]. The financial statements provided by both parties demonstrate that this is not a complex matter. After 4.5 decades as a family, the parties had a mortgage free home, the Respondent had acquired pensions after working for approximately 10 years at two difference places of employment, and they had accumulated modest cash and RRSP’s. The extent to which disclosure may be ordered must be proportional to the circumstances of the family. I am not persuaded by the Applicant that further disclosure is required.
Interim Legal Fees
[46]. In her amended notice of motion, the Applicant asks for an order that the Respondent pay the sum of $15000 towards her interim legal fees, forensic accounting requirements and any other disbursements to be incurred by the Applicant pursuant to rule 24(12) of the Family Law Rules. Paragraph 20 of the affidavit of Di Battista simply reiterates that request.
[47]. I am not persuaded by the Applicant that an order for interim costs is warranted. I agree with Mr. Wise that, as the Respondent points out, the Applicant has had three lawyers which has occasioned multiple adjournments of the motions causing him significantly higher legal expenses. If the termination of representation has caused cost to the Applicant, it ought not to fall on the Respondent to pay. Furthermore, given the lack of complexity in this case, I see no need for any forensic accounting work to be done. Once the equalization of the value of net family property is accomplished, they will be similarly situated. Their modest circumstances should be an incentive to both of them to try to achieve resolution of a not very complex case at the earliest opportunity.
Costs
[48]. The Applicant provided a bill of costs that included services rendered by Ms. Hughes in the amount of $4000 including fees ($3208.92), disbursements ($330.92). and HST ($460.18) and for services rendered by Ms. Book in the amount of $16021.24 including fees ($13940.95), disbursements ($237.14), and HST ($1843.15). Attached to the Form 57A were many pages of what appeared to be accounts rendered by Ms. Hughes and Ms. Book. During submissions I removed and returned to the Applicant the detailed invoices because, on a superficial review, they included privileged communications which ought not to be disclosed.
[49]. Mr. Wise provided a bill of costs in which he claimed partial indemnity costs of $8440.60, substantial indemnity costs of $12504.65, and full indemnity costs in the amount of $14083.20.
[50]. The Applicant would have made oral submissions on the issue of costs but I declined to permit her to do so and indicated that the obligation to pay costs would depend on the outcome of the motions.
[51]. The Applicant was successful on only one aspect of her motion, namely the modest amendments. I infer from the responding affidavit of the Respondent that while he had opposed those amendments, had the request been made in a vacuum of the other highly contentious claims, a motion would not have been necessary. The Applicant is not entitled to recover any costs of her motion. The Respondent was successful in resisting the most important part of the Applicant’s motion, namely retroactive temporary spousal support and further disclosure. He is entitled to costs of her motion. I will set a modest costs award to be paid by the Applicant that will include the costs reserved by Paisley J. on June 7^th^, 2013.
[52]. The Respondent was not successful in obtaining an order for sale or for exclusive possession. He is not entitled to recover any costs of his motion. While successful in opposing his motion, I will not award the Applicant costs. His motion was reasonable when it was originally launched and continued to be reasonable as the Applicant changed lawyers twice and precipitated multiple adjournments which increased his costs unnecessarily. I dismissed his motion for an order for sale largely because she had asked to amend her Application to seek a vesting order, although the amendment has not yet been formally made.
Conclusion
[53]. The Applicant would benefit from taking legal advice. She is advancing what seem to her as common sense arguments that would achieve her end without regard to the legal principles that apply and the inconsistencies in her positions. In addition, she is asking for relief that only a trial judge may grant. It may be that between the equalization payment and her claim for spousal support, there is a basis upon which she might be in a position to purchase the Respondent’s interest in the matrimonial home. However, on this record it is not financially feasible unless her son and daughter are in a position to advance to her as much as $268000.
[54]. The next step is a settlement conference scheduled for December 6, 2013 at 3:30 p.m. I expect that progress will be made if the Applicant takes legal advice that is independent of her son who does appear to have a vendetta against his father, and that is informed by the Divorce Act and particularly by s. 10.1 of the Family Law Act. I encourage the Applicant to make a comprehensive offer to settle all issues that reflects the applicable legal principles and resolves the inconsistencies in her current position.
ORDER TO GO AS FOLLOWS:
[55]. The Applicant may amend her Application to ask for a divorce; for an order for spousal support retroactive to the date of separation; for an order that the matrimonial home be vested absolutely in her name; and for relief pursuant to the Divorce Act. The Applicant shall by November 27, 2013 issue the Amended Application and serve it on the Respondent’s counsel.
[56]. To reflect the additional costs that the Respondent will incur as a result of filing an amended Answer, the Applicant shall pay costs to the Respondent fixed in the amount of $500 which shall be deducted from the equalization payment owed to her by the Respondent.
[57]. Within 20 days of service of the Amended Application, the Respondent shall serve and file an amended Answer.
[58]. Within 10 days of service of the amended Answer, the Applicant shall serve and file an amended Reply which may contain a request for occupation rent should the Respondent be granted an order for exclusive possession.
[59]. The motion by the Respondent for an order to list and sell the matrimonial home is dismissed without prejudice to renew the motion after the settlement conference scheduled for December 6, 2013.
[60]. The motion by the Respondent for an order for temporary exclusive possession of the matrimonial home is dismissed.
[61]. The motion by the Applicant for an order requiring the Respondent to provide keys to the matrimonial home is dismissed.
[62]. The parties shall attend a settlement conference on December 6th, 2013 at 3:30 p.m. provided that:
(a) By November 30^th^, 2013, each party shall serve and file a settlement conference brief which includes a comprehensive offer to settle; (b) By December 3^rd^, 2013, counsel for the Respondent shall confirm the settlement conference.
[63]. The Applicant shall pay the Respondent costs of the motion brought by the Applicant fixed in the amount of $4220 which represents 50% of the partial indemnity costs claimed by the Respondent, provided that such costs will be deducted from the equalization payment owed by the Respondent to the Applicant.
November 18, 2013
DATE KITELEY J.