SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-62862-00
DATE: 2015-09-03
RE: SARJIT JAGPAL, Applicant
v.
RAJAT NAYYAR, Respondent
BEFORE: FAIRBURN J
COUNSEL: Roman Botiuk, counsel for the Respondent
HEARD: September 3, 2015
ENDORSEMENT
[1] The respondent, applicant on this motion [“applicant”], moves on an emergency ex parte basis for a certificate of pending litigation [“CPL”] in respect to what he calls the “matrimonial home” of his former marriage to Sarbjit Jagpal.
[2] He says that his former wife listed it for sale at the beginning of August 2015. It was originally listed for $879,000. It was relisted on August 25, 2015 for $839,000. He says that this drop in price of $40,000 is reflective of his former wife’s desire to sell the home at a minimal amount and not fair market value. He says that he has an interest in the home. Not only is it the matrimonial home, but he has apparently put a great sum of money into the home, including installing granite, paying large sums for construction work and landscaping, and payment of certain other accounts. He says this gives him entitlement to a constructive claim on the property.
[3] He argues that the September long weekend, which starts tomorrow on September 4, 2015, is ripe for selling properties and that the home may be sold over the next few days.
[4] Some years ago, the applicant and his former wife were involved in family law litigation. This court issued a number of orders, including:
September 16, 2008: A disclosure order was made requiring the applicant in today’s proceeding to make best efforts to provide disclosure of various items.
October 31, 2008: A custody, access and child support order was made.
November 19, 2008: A divorce was granted.
January 22, 2009: An order was made dismissing the applicant’s motion (also the applicant in today’s proceeding) to set aside the order of October 31, 2008. Justice Seppi found that the applicant’s failure to make financial disclosure, combined with other evidence, gave rise to a “strong inference that the respondent’s income is greater than what he claims”. In the end, Seppi J. ordered as follows:
… the issues of equalization, OCL appointment, spousal support, freezing of assets, return of assets and balance of issues in the January 16, 2009 Notice of Motion are adjourned sine die returnable on 5 days’ notice but not to be heard until Mr. Nayyar is in compliance with the disclosure and costs orders made by this court. [Emphasis added]
[5] It would appear, and counsel confirmed today, that nothing occurred following Justice Seppi’s January 22, 2009 order. When asked why the motion is brought ex parte and so long after the house was listed for sale, I was told that it is because the applicant felt he needed to comply with Justice Seppi’s order first and lift what he called the “sine die order”. He said that he only received the financial disclosure materials, to comply with the September 16, 2008 order in the last few days. I understand that they still have not been disclosed, but are in a position to be provided.
[6] When asked why he had not complied with the disclosure order in the almost last seven years, he said it is because his former lawyer had the package of disclosure materials. I was told that there was a “solicitor’s lien” placed on those materials. Counsel clarified that this means that until the applicant paid his legal fees, his former lawyer would not give him the materials. Apparently, once he retained new counsel, the materials were then released to the new lawyer.
[7] I was also told that the applicant did not move quicker to comply with the disclosure order, and thereby lift the effect of Justice Seppi’s order, because he was “shocked”, “stunned”, “amazed” and “gun shy” after the various court orders that had been made.
[8] I reject the applicant’s explanation as to why he has done nothing in respect to complying with this court’s prior orders for the last almost seven years. I also note that the disclosure materials which he says he now has, still have not been disclosed. This means that Justice Seppi’s order, prohibiting him from seeking a freeze of his ex-wife’s assets, is still operative. A certificate of pending litigation is, in effect, a freeze of the home she is attempting to sell.
[9] Leaving aside the effect of Justice Seppi’s order which has not been complied with, I reject the applicant’s explanation as to why he says that this motion must be ex parte. He claims that his former wife once sold a property in similar circumstances where she was provided with notice. When asked for the evidence relied upon in respect to this assertion, I was pointed to a single sentence in the applicant’s 190 paragraph affidavit. It is nothing more than a bald assertion on the part of the applicant.
[10] Pursuant to Rule 14(12)(d) of the Family Law Rules, a motion may made without notice if “service of the notice of motion would probably have serious consequences”. Ex parte motions are to be granted only in exceptional and rare cases. I do not believe that service of a notice of motion in this case would have “serious consequences”. While I am prepared to accept for purposes of this application that 5166 Sunray Drive in Mississauga is the “matrimonial home”, I’m not prepared to accept that any adverse consequences would be visited upon the applicant if the home were to be sold.
[11] Surely Ms. Jagpaul is as highly motivated as the applicant to get the best price she can for the property. While the applicant makes an additional public interest argument, that he is concerned the home was previously used as a marijuana grow operation facility, and his ex-wife is not disclosing this fact, I do not find this argument compelling. It does not fall to the applicant to protect the public interest on this front. Given his track record in these proceedings, I approach his statements in this regard with great reserve.
[12] The ex parte application is dismissed.
[13] If the applicant is so advised, he may bring this matter back on notice to Sarbjit Kaur Jagpal. He shall serve this order on Ms. Jagpal’s counsel by tomorrow, September 4, 2015.
FAIRBURN J
DATE: September 3, 2015
COURT FILE NO.: FS-08-62862-00
DATE: 2015-09-03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SARBJIT JAGPAL v. RAJAT NAYYAR
COUNSEL: Roman Botiuk, for the Respondent
ENDORSEMENT
FAIRBURN J
DATE: September 3, 2015