Bordin v. Bordin, 2015 ONSC 4206
COURT FILE NO.: FS-11-374574
DATE: 20150629
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: VICO BORDIN, Applicant
AND:
ELICE BORDIN, Respondent
BEFORE: C. Horkins J.
COUNSEL: Marcel Banasinski, for the Applicant
Matthew Armstrong, for the Respondent
HEARD at Toronto: Written Submissions
Addendum to Reasons for Judgment Released on June 12, 2015
[1] Following the trial in this matter I released my reasons for judgment (“reasons”) on June 12, 2105. On June 16, 2015, the applicant’s counsel sent a letter stating that in his view there is a mistake in the court’s reasons dealing with the trust monies and how they are to be divided between the parties.
[2] I requested a reply from the respondent’s counsel. I received a letter from the respondent’s counsel dated June 24, 2015 stating his position that a mistake was not made.
[3] Counsel declined the opportunity to attend in court to deal with the issue. They rely on the brief submissions set out in their letters.
[4] The issue of the trust money was identified as issue #5 for trial in para.3 of the reasons as follows:
(5) How should the money held in trust be shared?
[5] In paras. 160-167 the trust money issue is addressed and decided as follows:
Distribution of the Money in Trust
[160] After the parties equalized their property, they left money in trust with a real estate lawyer, Massimo D. Rolle. The court was told that Mr. Rolle has been charging the parties a monthly fee to hold the monies in trust pending resolution of the dispute. The total fee charged is not known. Apparently the parties agreed to this monthly charge. As of April 27, 2015, there is $59,476.35 left in the trust account.
[161] Mr. Rolle’s letter states that he will not continue to charge for holding the fees in trust given that the trial is over. He states that he will be charging a fee for the legal work required to disburse the trust funds as directed. He does not reveal what he will charge. It is unclear what legal work could be required since this judgment specifically directs to whom the money shall be released. It is surprising that the fees already paid would not cover the minimal effort that will be required to release the money to the parties as ordered.
[162] I am directing that the 100% of the money in trust be released as directed. If there is a final account to be paid, it should not be paid from the trust money. The parties can attend to payment of any final account, if one is rendered.
[163] Based on the decisions I have made, each party owes the other money. What they owe shall be paid from their share of the trust money. In my view, this is the fairest way to finalize this matter.
[164] The money in trust is an uneven amount. I allocate $29,738.17 to the applicant and $29,738.18 to the respondent.
[165] The respondent owes the applicant $27,830.91 and the applicant owes the respondent $13,944.96. The particulars are below:
• The respondent owes the applicant $12,179.44. This is what the applicant paid to discharge the second mortgage.
• The respondent owes the applicant $15,651.47 for overpayment of child support from 2009 through to March 31, 2015.
• The applicant owes the respondent $2,800 for past spousal support.
• The applicant owes the respondent $11,144.96. This is his share of past s. 7 expenses.
[166] When the amounts owed are set off against what each owes the other, the respondent owes the applicant $13,855.95. I deduct this from her share of the trust monies and add it to what the applicant receives. As a result, the trust monies $59,476.35 shall be divided between the parties and paid out to them as follows:
• The applicant shall receive $43,624.12
• The respondent shall receive $15,852.23
[6] The applicant states that pursuant to the consent order of Justice Archibald dated July 18, 2013, the sum of $60,000 that was held in trust was money that belonged to him. Para. 3 of this order is relevant and states as follows:
- The Respondent will pay to the Applicant for his 50% interest in the Home the sum of half the value of the Home as determined in paragraph 2 above less $60,000 on the transfer of the Applicant’s interest to the Respondent on or before October 16, 2013. The Applicant’s $60,000 will be held and invested in an interest bearing account in trust by an independent third party lawyer pending consent of the parties or order of this Court without prejudice to any of the parties.
[Emphasis added.]
[7] In the reasons I allocated 50% of the trust money to each party, made adjustments to account for what each party owed the other and then decided what each party would receive from the trust money. The applicant states that this approach is contrary to the order of Justice Archibald that describes the trust money as belonging to him. He states that since the respondent owes the applicant a net amount of $13,855.95, the applicant ought to receive 100% of the trust money.
[8] The respondent states that no mistake was made. She relies on para. 3 of the order of Justice Archibald that states the money shall be held “pending an order of this Court”. She states that I made such an order and therefore no mistake was made.
[9] The parties do not rely on any evidence to support their positions. Instead, they rely on the wording of para. 3 in the order.
[10] At the end of the trial, the parties made no submissions about how the trust money should be disbursed and no reference was made to para. 3 the Justice Archibald’s order. As a result, the applicant’s characterization of the trust money was not brought to the court’s attention.
[11] Paragraph 3 of Justice Archibald’s order shows that the trust money is the applicant’s money. This is not reflected in paras 163-166 of my reasons. I incorrectly started with the assumption that each party had the right to equal shares of this money.
[12] The order directs that the money shall be held in trust pending a court order. However, such a court order should reflect that it is the applicant’s money being held in trust. As a result, it is necessary to change the reasons and resulting orders as it relates to the trust money.
[13] As stated in para. 165 each party owes the other party money. When these amounts are set off against what each owes the other, the respondent owes the applicant $13,855.95. As a result, the applicant is entitled to receive all of the trust money.
[14] I order that the 100% of the monies held in trust by Massimo D. Rolle shall be released to the applicant.
[15] I add that if Mr. Rolle renders an account for his services, the applicant shall be responsible for 100% of this account. This reflects the fact that the trust money held in trust belongs to him and he is receiving 100% this money.
[16] To reflect the correction of this mistake, the following paragraphs in the reasons for judgment are struck: paras. 162,163, 164, 166 and 169(5) and (6).
[17] Finally, the amount in para. 169(2) contains a typographical error. It is corrected so that it is consistent with para. 138 of the reasons. The correction reads as follows:
The applicant shall pay the respondent $11,144.96 for s. 7 expenses incurred from 2008 to 2014.
C. Horkins J.
Date: June 29, 2015