SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS 4041/06
DATE: 20141120
RE: M.P.
Applicant
v.
W.P.
Respondent
BEFORE: Conlan J.
COUNSEL: Mr. Glen Carey, for the Applicant
Mr. Elli Cohen, for the Respondent
SECOND SUPPLEMENTARY ENDORSEMENT
Conlan J.
[1] I presided over a lengthy and protracted family law trial in Walkerton. The wife was largely successful.
[2] My Reasons for Judgment are reported at 2014 ONSC 5744.
[3] My Supplementary Reasons for Judgment and Decision on Costs are reported at 2014 ONSC 6393.
[4] The husband has been ordered to make an equalization payment to the wife. An Order has been made securing that payment through a Charge on the yellow house owned by the husband.
[5] Four issues remain. I have reviewed and considered the correspondence from counsel on these items. And I have considered the oral submissions of counsel made during our teleconference on November 18, 2014.
I. SECURITY OF PAYMENT – CHILD AND SPOUSAL SUPPORT
[6] It is agreed by both parties that, pursuant to subsection 34(1)(k) of the Family Law Act, I have the authority to secure payment of the child and spousal support awards against the husband through the Charge that I have ordered to be placed on the yellow house.
[7] So ordered.
II. SECURITY FOR PAYMENT – LAND RENT
[8] Pursuant to sections 10 and/or section 12 of the Family Law Act, the wife submits that the Court ought to secure payment of the land rent award against the husband through the Charge that I have ordered to be placed on the yellow house.
[9] The husband submits that the Court has no authority to make that Order.
[10] I agree with the husband. I am not ordering that the land rent owing by the husband be secured by way of the Charge on the yellow house.
[11] In my view, despite the able submissions of Mr. Carey for the wife, section 10 of the Family Law Act does not apply to the land rent ordered to be paid by the husband.
[12] That section deals with “the determination of a question…as to the ownership or right to possession of particular property…”. No such question underlies the land rent ordered to be paid by the husband. It is not due because the property was disposed of but the husband failed to compensate the wife for her interest in the property – subsection 10(1)(b). It is due because it ought to have been paid at the time of its receipt by the husband. The wife was a lawful joint owner of the property at the time.
[13] Similarly, section 12 of the Family Law Act does not apply to the land rent ordered to be paid by the husband. That section deals with applications under sections 7 and/or 10. As indicated above, section 10 is not relevant. And section 7 deals with equalization of net family properties under section 5 of the legislation; that has nothing to do with the land rent.
[14] For those reasons, the land rent ordered to be paid by the husband shall not be secured by way of the Charge on the yellow house.
III. SECURITY FOR PAYMENT – PREJUDGMENT INTEREST
[15] It is agreed by both parties that I have the authority to secure payment of the prejudgment interest owing by the husband applicable to the equalization claim through the Charge that I have ordered to be placed on the yellow house.
[16] So ordered.
[17] Regarding whether payment of the prejudgment interest owing by the husband applicable to the land rent ought to be secured through the Charge that I have ordered to be placed on the yellow house, for the same reasons given above, I decline to so order.
IV. SECURITY FOR PAYMENT - COSTS
[18] Pursuant to subrule 24(13) of the Family Law Rules, the wife submits that the Court ought to secure payment of the costs ordered against the husband through the Charge that I have ordered to be placed on the yellow house.
[19] The husband submits that subrule 24(13) is not applicable in these circumstances.
[20] I agree with the husband. Subrule 24(13) cannot be resorted to here. Simply put, there is no costs order against the husband that, as of now, remains unpaid. That subrule, in my view, is not designed to provide a mechanism to secure payment of costs ordered after a trial but before default has occurred.
[21] For those reasons, the costs ordered to be paid by the husband shall not be secured through the Charge on the yellow house.
V. POSTSCRIPT
[22] I can only hope, for their sake and that of their children, that the parties are ready to move on. The bell has sounded.
[23] If there are any issues with the form and/or content of the Final Order, I may be spoken to by counsel.
Conlan J.
Released: November 20, 2014
COURT FILE NO.: FS 4041/06
DATE: 20141120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.P.
Applicant
- and -
W.P.
Respondent
SECOND SUPPLEMENTARY ENDORSEMENT
Conlan J.
Released: November 20, 2014