Marchese v. Marchese, 2015 ONSC 117

COURT FILE NO.: FS-13-386181

DATE: 20150106

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Angela Marchese, Applicant

AND:

Guiliano Marchese, Respondent

BEFORE: Kiteley J.

COUNSEL: self-represented Applicant

Elaine Forbes McCallum for the Respondent

HEARD: January 6, 2015

ENDORSEMENT

[1] Ms. Marchese brought a motion returnable on December 18, 2014 which I adjourned to this date on terms. Mr. Marchese did file a responding affidavit and a financial statement form 13.1 as I ordered. He did not pay the costs outstanding in the amount of $10,000. In his affidavit he explains how he does not have access to credit. Ms. McCallum advises that his sister is in court today and she will provide him with $2500 as a contribution to the costs.

[2] In my endorsement dated December 18, 2014, I had ordered that Mr. Marchese was prohibited from bringing any motion for any relief in this court as long as the arrears of child support and spousal support and the costs order was unpaid. At the outset of the hearing today, I asked Ms. McCallum why I should give Mr. Marchese a “right of audience”. After hearing from her, I ruled that Ms. McCallum could make submissions in opposition to the motion brought by Ms. Marchese but she could not ask for any relief on behalf of Mr. Marchese.

[3] In her notice of motion Ms. Marchese asks for several orders for which I do not have jurisdiction and for which I did not hear submissions, namely her request for an order requiring Mr. Marchese to increase the mortgages on the jointly owned matrimonial home and jointly owned rental property and an order to vary a previous consent order requiring the listing and sale of the jointly held rental property.

[4] I heard submissions from Ms. Marchese and Ms. McCallum on the request that I transfer title to the jointly owned matrimonial home to Ms. Marchese.

[5] The separation occurred in July 2012 as a result of an incident in which Ms. Marchese called the police. Mr. Marchese was arrested and charged. In July 2012, he pleaded guilty, was sentenced to jail for 45 days (of which he served 30) and has been on probation for 2.5 years of the 3 year order. The probation terms have meant that communication directly and indirectly between the parties was prohibited. For extended periods, one or both of the parties has been without counsel.

[6] On August 21, 2013, Backhouse J. made an order that included a term that Ms. Marchese have temporary exclusive possession of the matrimonial home with the children aged 13, 17 and 19. She also ordered on a temporary basis that Mr. Marchese pay child and spousal support based on income of $96,457 retroactive to the date of separation in the amount of $1317 per month for spousal support and $1789 per month for child support. In addition, she ordered that Ms. Marchese had exclusive authority to manage the rental property including collecting all the rents and paying all the expenses.

[7] In November 2013, Ms. Marchese brought a motion to strike Mr. Marchese’s Answer for failure to comply with 2 orders. That motion was adjourned to December 2, 2013 at which time Czutrin J. adjourned it to the settlement conference on December 18, 2013. Since the adjournment of the motion, there are endorsements dated December 18, 2013, April 1, 2014, April 22, 2014, May 15, 2014, July 29, 2014, August 12, 2014, August 18, 2014, September 8, 2014. Most of the endorsements in 2014 by Justice Goodman have reflected the progress (or lack thereof) in arriving at a settlement of all outstanding issues.

[8] On April 14, 2014, Goodman J. made an order on consent which provided for the listing for sale of the jointly owned rental property at 37 Bentworth Ave. Mr. Marchese and Ms. Marchese blame each other for why the Bentworth property has not been sold.

[9] The matrimonial home was purchased less than a year before the separation in July 2012. I do not have a current appraisal of the matrimonial home but the consensus appears to be that it is valued at or greater than $1 million and has equity of $800,000 or $900,000. Mr. Marchese has prepared a financial statement form 13.1. His evidence is that because of the value of his pre-marital deductions, Ms. Marchese likely owes him an equalization payment.

[10] Mr. Marchese opposes the transfer of title of the matrimonial home to his wife. If the equity is as much as $900,000, Ms. McCallum points out that transfer to Ms. Marchese could deprive him of 50% or as much as $450,000. She also points out that if title is transferred, he loses his right to seek sale of the matrimonial home through the Partition and Sale Act.

[11] I agree with Ms. McCallum that there is sufficient equity in the matrimonial home and sufficient uncertainty as to who owes who an equalization payment, that I ought not to make an order to transfer title to Ms. Marchese alone arising from the property claims. As indicated below, I do make an order transferring title arising from Mr. Marchese’s support obligations but that order is subject to conditions that address his claim to share in the substantial equity in the home.

[12] Ms. McCallum acknowledges that Mr. Marchese owes child and spousal support and costs. She takes the position that the child and spousal support arose from a retroactive order as opposed to arrears. She points out that the Director of Family Responsibility is now garnisheeing to the maximum and currently Ms. Marchese receive 50% of his net income and Mr. Marchese receives the other 50%. She takes the position that he cannot pay the child and spousal support and the costs because he cannot access his equity in either of the properties. She argues that an order transferring his interest in the matrimonial home to Ms. Marchese would result in Ms. Marchese acquiring an asset the value of which is disproportionate to the amount that he owes for child and spousal support and for costs.

[13] I grant the order transferring title to Ms. Marchese for these reasons. First, Mr. Marchese is not permitted to seek any relief from the court as long as he is in arrears of child and spousal support and the costs which are being enforced as support. The total is approximately $50,000. It is in his interest that those obligations be discharged so that he can fully participate in the proceedings. He takes the position that the consent order for sale of the rental property should be enforced but until such time as he can fully participate, the court will not entertain his motion to enforce compliance.

[14] Second, based on the evidence of Ms. Marchese, her financial circumstances are very challenging. She has many creditors, including another creditor since she served her affidavit in support of this motion. The parties are incapable of arriving at any consensus. Indeed the consensus that they thought they agreed to in the April order has failed to be implemented. She has to be in sufficient control to enable her to deal with various creditors and achieve some stability for her and the children.

[15] Third, given his evidence and submissions that he has no ability to pay the child and spousal support and the costs except out of capital, I have the jurisdiction pursuant to s. 34(1)(c) of the Family Law Act to transfer title to Ms. Marchese.

[16] Fourth, Ms. Marchese has an order for temporary exclusive possession of the matrimonial home and until a Trial Judge so orders, Mr. Marchese is not likely to obtain an order for sale pursuant to the Partition and Sale Act. And I can reserve his right to make such an order.

[17] Fifth, I can also impose conditions on the transfer of title that will preserve his right to continue to look to the equity in the property in relation to the equalization of net family property.

[18] The order that I make with respect to title to the matrimonial home cannot be carried out unless Ms. Marchese retains a lawyer.

[19] As indicated above, I do not have jurisdiction to deal some aspects of Ms. Marchese’s motion. I do have jurisdiction to deal with her request that Mr. Marchese pay all of the arrears but the order below addresses that. I do have jurisdiction to deal with her request that I strike Mr. Marchese’s pleadings. However, I dismiss that motion because the evidence on which she relied was insufficient, particularly in view of the comprehensive response in Mr. Marchese’s affidavit. That aspect of the motion was without justification on this record. If Ms. Marchese wishes to pursue disclosure issues, she must start all over again. Because of the work Ms. McCallum did in order to comprehensively respond, I agree that Ms. Marchese should pay costs on that aspect of the motion.

ORDER TO GO AS FOLLOWS:

[20] Title to 3 Highland Hill, Toronto, Ontario M6A 2P7 shall be vested in Angela Marchese subject to the following conditions:

(a) Ms. Marchese retains a lawyer who will take all steps required to comply with this paragraph of this order, including preparing a draft of the order and sending it to Ms. McCallum for her approval.

(b) The lawyer retained by Ms. Marchese obtains an appraisal from a licensed appraiser (not a letter of opinion) as to the current value of the matrimonial home and provides a copy of the written appraisal to Mr. Marchese.

(c) Once paragraphs (a) and (b) have been complied with, Ms. Marchese may refinance the existing mortgage or obtain a new mortgage in addition to the existing mortgage without the consent of Mr. Marchese so long as the total of the refinancing and/or new financing does not exceed $500,000.

(d) Coincidental with the registration of the refinancing or new financing, all liens or other encumbrances shall be paid, including any such liens or other encumbrances relating to Mr. Marchese. In particular, Ms. Marchese shall obtain sufficient financing to pay the entire amount then due and owing by Mr. Marchese on account of the orders of Backhouse J. Counsel for Ms. Marchese shall ensure that the lien or encumbrance registered by the Director of Family Responsibility is discharged.

(e) From the funds advanced to Ms. Marchese, she shall pay to Mr. Marchese the sum of $10,000 for the purpose of enabling him to retain a lawyer in order to attempt to bring matters to a conclusion.

(f) From the funds advanced to Ms. Marchese, she shall pay to Mr. Marchese costs in the amount of $1500 with respect to the dismissal of the motion she brought to strike his pleadings for non-disclosure.

(g) Until further order of this court, Ms. Marchese may not transfer all or part of her title in the matrimonial home.

[21] As soon as the lien or encumbrance registered by the Director of Family Responsibility is discharged, Mr. Marchese may participate fully in these proceedings, including bringing a motion, if so advised, to enforce the consent order for sale of the jointly owned rental property.

[22] At trial, Mr. Marchese retains the right to continue to assert a claim for an equalization of net family property and including his interest as a joint owner of the matrimonial home as of valuation date and today.

[23] Notwithstanding this order, at trial, Mr. Marchese has the right to ask the Trial Judge for an order for sale of the former matrimonial home pursuant to the Partition and Sale Act as if he remained a joint owner.

[24] The balance of the motion brought by Ms. Marchese is dismissed.

Kiteley J.

Date: January 2015