Akwiwu v. Umeugo, 2015 ONSC 1842
COURT FILE NO.: FC-03-2603-4
DATE: 2015/04/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KELECHI AKWIWU (formerly Umeugo), Applicant
AND
NDUBUISI UMEUGO, Respondent
BEFORE: Kane J.
COUNSEL: Ezioma O. Nnorom, counsel for the Applicant
Jessica Abou-Eid, counsel for the Respondent
HEARD: March 19, 2015 (at Ottawa)
ENDORSEMENT
[1] Sheffield J. on February 13, 2013, determined the respondent was required to pay the applicant a net family property equalization payment of $152,068 (“Sheffield Order”) which remains unpaid today (the “EP”).
[2] The respondent owns a home known municipally as 17 Langholm Crescent, Ottawa, Ontario, K2J 1H1, being Parcel 128-1, Section M113 LT, Identification No. 04611-0062 LT (the “Property”). The Property is registered in the name of the respondent and is subject to a mortgage in favor of the Royal Bank of Canada (“RBC”).
[3] The applicant today seeks an order vesting the Property in her name absolutely in order to sell the same without the involvement of the respondent and apply the net proceeds of sale in payment of the EP. The applicant owes the respondent arrears of child support which amounts to at least $23,000. She incorrectly links that support obligation to the respondent’s obligation to pay her the EP.
[4] The applicant was unsuccessful with her similar request to vest the Property in her name before Parfett J. on December 16, 2013 (the “Parfett Order”) who determined that:
(a) The respondent must sell the Property within a reasonable time;
(b) Enforcement of the EP was suspended temporarily to allow a reasonable period to sell the Property;
(c) The respondent listed the Property originally at $499,900 but quickly reduced that to $474,900. Two offers since 2013 were received to buy the Property, one from his sister at $390,000 and another which the respondent apparently accepted at $450,000 which failed to close. The parties disagreed as to the market value of the Property with the applicant suggesting it was $475,000 while the respondent suggested it was between $390,000 and $410,000;
(d) Child support was set at $301 per month commencing January 1, 2013; and
(e) Child support arrears to that point totalled $23,616.
[5] The respondent is currently in Nigeria. He is expected to return April 5, 2015. He seeks an adjournment of today’s motion until his return. He has an outstanding claim with the WSIB which he hopes to have a decision on by July, 2015, which however if successful, will be insufficient to pay the EP.
[6] The parties are of limited means. The quantity of their litigation far exceeds their financial means and the monetary value of the issues between them. Determinations of fault have previously been made against each party, including their lack of accurate disclosure of the facts.
[7] The respondent has remarried. He and his new wife have an infant who is just under one year old. The 18 year old son of the parties resides with his father in the Property.
[8] The respondent offered in the interim, initially $400 and then $800 per month, to the applicant towards the EP. No such payments have been made.
Determination
(1) The respondent’s adjournment request is denied.
(2) The applicant is fully entitled to recover the EP.
(3) The sale of the Property must now proceed in an efficient manner, independent of the respondent’s case before the WSIB.
(4) Kane J. will remain seized of issues regarding the sale and sale closing of the Property and will hear motions and case conferences as required in relation thereto with counsel at 09:30 or 16:30 appointments scheduled by the Trial Coordinator. Such appointments are not to re-argue the terms of this order and are to last no more than 20 minutes. Either party may set such appointment on three days’ notice to the other party. Written materials for such motions or conferences are required but are to be as brief as possible. These appointments may include cost awards.
(5) On agreement of the parties, their agents for the appraisal, the listing for sale, sale and closing of the Property are: Joyce McGlinchey of Able Appraisals, Jocelyne Lauzon of Remax Realty as the listing agent and Mr. M. D’Aloisio as vendor’s lawyer.
(6) The applicant is hereby authorized to execute any appraisal or listing agreement of the property and execute on behalf of the respondent any listing agreement or offer to purchase acceptable to both parties or approved by this court.
(7) Ms. McGlinchey shall attend to examine and be provided access inside and throughout the Property at 14:00 hours on April 13 or 14, 2015 to conduct an appraisal. The applicant may attend that appointment with Ms. McGlinchey but may not communicate with anyone, including the appraiser, before, during or after that appointment. The appraisal report shall be sent to counsel for the parties within one week thereafter.
(8) The property is to be listed for sale with Ms. Lauzon no later than 17:00 hours on April 24, 2015. The term of the listing agreement shall be for 6 months unless that agent recommends a shorter period. The listing price shall be as agreed upon or determined by this court. The applicant alone shall execute the listing agreement and she alone shall instruct that agent.
(9) The respondent and his family must cooperate fully with the appraisal as well as the listing, the showings and the sale of the Property. They are prohibited from restricting access to the above appraiser, to the listing agent or other real estate agents to visit or sell the property. The respondent’s consent to the listing and sale of the property is hereby dispensed with subject to a motion as to terms of future agreements of purchase and sale.
(10) The respondent and his family must vacate the Property with all of their belongings, no later than June 26, 2015, regardless of progress towards the sale of the Property. The respondent is required to fully clean the Property and keep it in a clean and orderly manner between April 23 and June 26, 2015. He must fully clean the Property by June 26, 2015. The applicant may thereafter dispose of any personal property left on or in the Property by the respondent or his family as of June 26, 2015, and will not be liable to the respondent for doing that. The respondent shall on the date of their departure, deliver all keys to the Property to Ms. Lauzon. Upon vacating the Property, the respondent shall be prohibited from being within 200 meters of the Property.
(11) The applicant may not occupy, charge, dissipate, or sell the Property without consent of the respondent, or by court order.
(12) It is the applicant’s obligation to obtain and maintain standard home insurance on the Property from the date the respondent vacates the Property until the sale thereof.
(13) The applicant is required to make the existing monthly payments to RBC or obtain their written forbearance in relation thereto from the date of the respondent’s vacating the Property until its sale. The applicant hereby has authority to deal with the RBC in relation to its mortgage of the Property.
(14) The applicant from the date of the respondent’s departure of the Property shall be responsible to pay the ongoing regular utility costs of the Property, subject to reimbursement for the same upon the sale of the Property.
(15) From the date the respondent vacates the Property, he shall on the 1st of each month thereafter pay to the applicant the sum of $500 per month (being his last offer less something for child support) which shall be credited against the EP and the ongoing regular carrying costs of the Property until the sale thereof.
(16) The applicant shall provide the respondent with a copy of all offers of purchase of the Property within 12 hours of receipt thereof. The applicant may not accept any such offer of purchase unless the respondent consents thereto or authorized by court order.
(17) Subject to the foregoing authority of the applicant, each party shall immediately sign all documentation required to list the property for sale, the listing agreement, any offer of sale agreed to or court approved and thereafter to convey title to a purchaser.
(18) The respondent must provide on the day he vacates the Property proof of his new residential address to the applicant and communicate such information in writing to Michael D’Aloisio.
(19) The net proceeds of sale after payment of all normal adjustments shall be applied towards payment of the EP as determined and adjusted on consent or by court order. Until consent or order is obtained, Mr. D’Aloisio shall hold the net proceeds of sale in trust.
(20) The Ottawa Police Services are authorized and hereby requested if necessary to assist in obtaining vacant possession of the Property pursuant to the terms hereof.
[9] Order accordingly.
Kane J.
Date: April 10, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: KELECHI AKWIWU (formerly Umeugo), Applicant
AND
NDUBUISI UMEUGO, Respondent
BEFORE: Kane J.
COUNSEL: Ezioma O. Nnorom, counsel for the Applicant
Jessica Bou-Eid, counsel for the Respondent
ENDORSEMENT
Kane J.
Released: April 10, 2015