Court File and Parties
COURT FILE NO.: FS-15-344
DATE: October 13, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Steven Arthur Young, Applicant
AND
Marion Lois Young, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Diana Aoun, Counsel for the Applicant
Christopher Merla, Counsel for the Respondent
HEARD: September 25, 2015
Endorsement
James J.
[1] On September 25th I heard two motions in this matter, one brought by the applicant and a second motion brought by the respondent. Some of the issues were agreed to in an interim agreement dated September 25th, 2015 which has been filed with the court. The remaining issues to be dealt with are as follows:
(A) For the Applicant
I. An order giving the applicant authority to control the sale of the matrimonial home.
II. An order requiring the respondent to pay child support arrears from October 1st, 2014 in the amount of $5,500, to be credited to the applicant from the proceeds of sale of the matrimonial home.
III. An order requiring the respondent to continue paying $316 bi-weekly to the parties consolidated debt;
(B) For the Respondent
I. Retroactive Spousal Support from October 1, 2014 in the amount of $7,140, payable now or later as a credit on the division of the proceeds of sale of the matrimonial home.
II. Ongoing spousal support of $595 per month commencing October 1, 2015.
Sale of the Matrimonial Home
[2] The applicant currently resides in the matrimonial home with the children. Usually the party in possession is responsible for the mortgage and upkeep costs on an interim basis pending trial or final resolution of the issues. He wishes to sell it as soon as possible so he can find a residence closer to his workplace and reduce his travelling time. This will likely require the children to change schools. The property has been listed since late June 2015 at an asking price of $309,000. There have been no offers. In early September the realtor suggested a price reduction to $298,000. The applicant proposes a reduction to $295,000 and says that this figure is supported by the realtor.
[3] The respondent is not opposed to a price reduction to $298,000. She says that the applicant is prepared to risk selling the property for an amount that is lower than its true value because he has, as one of his objectives in selling the property, the goal of reducing the respondent’s ability to exercise access.
[4] The respondent also says that the court does not have jurisdiction to set a listing price. I do not agree. A judge of the Superior Court of Justice can not only set a listing price but also has authority to authorize the sale of the matrimonial home (see Ivancevia-Berisa v. Berisa 2012 ONSC 4942 (S.C.J.) but should be reluctant to do so in the face of resistance by a joint owner prior to trial.
[5] While I am not prepared to order a forced sale at this stage, the respondent must recognize that when one joint owner wishes to sell, the other joint owner cannot undue delay the process. It is worth remembering that there are few, if any, defences available to a reluctant joint owner when the other owner applies under the Partition Act for the sale of jointly-owned property.
[6] It seems clear that a price reduction is warranted because of the large number of competitive listings and the lack of interest in the marketplace for this property at this price. The listing price should be reduced to $295,000. If the respondent is not prepared to promptly sign a revised listing agreement reducing the price, the applicant may schedule a teleconference motion with me on four days’ notice to the respondent’s counsel, returnable on a date to be set by the trial coordinator.
Child Support Arrears
[7] Now that ongoing child support has been agreed to in the interim agreement, my view is that the arrears issue should be postponed until trial when the financial position of the parties will be clearer.
The Consolidated Debt
[8] This item refers to the re-financing of various debts including the mortgage, truck loan, lines of credit and credit card debt into one loan of $210,000 that is paid at the rate of $649 bi-weekly. At present this is being paid by the applicant. The status quo should be maintained pending a further order or an agreement between the parties. It is difficult to see how the respondent can realistically contribute to these payments when she makes substantially less than the applicant, is now paying child support and doesn’t receive spousal support. The payments shall be without prejudice to the right of the applicant to claim a credit for some portion of these payments (because he is paying the respondent’s share of the mortgage and the truck loan) or as an off-set for potential spousal support liability.
Interim and Retroactive Spousal Support
[9] The respondent seeks spousal support but the evidence on the motion does not clearly establish a basis for its payment, whether compensatory or needs-based. Proving entitlement is a pre-condition to the use and applicability of the spousal support guidelines. Although most marriages of this duration and with significant income differences usually result in spousal support being payable, it is not automatic.
[10] At this time, at least temporarily, the applicant is providing primary parenting and is carrying the cost of the consolidated loan. The total monthly payment for the loan is about $1400.The guidelines indicate that assuming the respondent establishes an entitlement to spousal support, the applicant, even though he receives child support from the respondent, is potentially liable for spousal support that could amount to between $500 and $600 monthly. From one perspective it could be argued that the loan payment offsets the spousal support although I do not wish to be taken to be making a finding on this point.
[11] On interim motions the court is often working with incomplete information and the evidentiary basis for various claims is not as clear as at trial. In the circumstances present here, I am not prepared to make a temporary order for either retroactive or ongoing spousal support although it remains a live issue that will have to be addressed as part of an overall resolution whether through negotiation or at trial.
Disposition
[12] A consent order may issue incorporating the terms of the interim agreement between the parties.
[13] On the issue of legal costs, the applicant is requesting his costs of the motion and an award of costs from the adjourned conference a few weeks ago. I agree with the submission of counsel for the respondent that it is not desirable that case conference costs which were reserved at the case conference should be dealt with at this motion. Usually reserved costs are dealt with by the trial judge or as a negotiated item.
[14] My preliminary view, subject to receiving submissions from the parties if they wish to do so, is that there should be no order respecting costs in relation to this motion. Many of the items in dispute were agreed to on consent through discussion and negotiation and this ought to be encouraged. The results of the motion are somewhat mixed and a no costs order is common in these circumstances.
[15] A claim for costs is to be submitted within seven days and the responding party shall have a further seven days to reply.
Mr. Justice Martin James
DATE RELEASED: October 13, 2015
COURT FILE NO.: FS-15-344
DATE: October 13, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Steven Young, Applicant
AND
Marion Young, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Diana Aoun, Counsel for the Applicant
Christopher Merla, Counsel for the Respondent
ENDORSEMENT
James, J.
Released: October 13, 2015