SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-13-386181
DATE: 20151208

RE: Angela Marchese, Applicant

AND:

Guiliano Marchese, Respondent

BEFORE: Kiteley J.

COUNSEL: Self-represented, Applicant

Self-represented, Respondent

HEARD: December 8, 2015

ENDORSEMENT

[1] On January 6, 2015 I made a detailed order [2015 ONSC 117] in which I permitted Ms. Marchese to refinance the mortgage on the matrimonial home. Since then the parties have attended on March 31/15 (a without notice motion by Ms. Marchese), April 2, 2015 (motion with notice by Ms. Marchese), August 12, 2015 (settlement conference with Justice Goodman), October 22, 2015 (scheduled as a TMC) and this date which was supposed to be a TMC. Ms. Marchese continually raises the challenges that she has had in carrying out the order.

[2] Ms. Marchese did serve and file her TMC brief and her form 13.1. Mr. Marchese did not.

[3] Ms. Marchese also served and filed a notice of motion returnable at the TMC for a final order vesting title of the property at 3 Highland Hill to her unconditionally. That was served on Ms. McCallum on December 1. On December 2, Ms. McCallum served a notice of change of representation. She is not here today. Mr. Marchese has not filed any responding material.

[4] As explained in paragraph 2, of the endorsement dated January 6, 2015, Mr. Marchese is 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. He is still in arrears of child support and spousal support and the costs order is unpaid.

[5] The objective of the order dated January 6, 2015 has not been achieved. Mr. Marchese is prohibited from seeking any relief. The only way to break the logjam is to grant the vesting order requested.

[6] I am assuming that all encumbrances registered against title (including the legal aid lien, judgments(s) for costs in this proceeding), property taxes, and the lien by Director, Family Responsibility Office (on account of arrears of child support and spousal support) will be discharged as a result of the vesting order and the refinancing that Ms. Marchese intends to put in place. If any of these assumptions are proved incorrect, Ms. Marchese may, on notice to Mr. Marchese, bring a motion before me for directions.

ORDER TO GO AS FOLLOWS:

[7] Title to 3 Highland Hill, Toronto, Ontario M6A 2P7 vests in Angela Marchese.

[8] Angela Marchese has authority to discharge the existing mortgage(s) and register a mortgage or mortgages against title to 3 Highland Hill without consent of Guiliano Marchese, so long as the mortgage(s) does not exceed the principal amount of $500,000.

[9] On registration of the vesting order, the obligations on Mr. Marchese to pay child support arrears, spousal support arrears, and costs in this proceeding are deemed to have been fulfilled.

[10] 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.

[11] 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 and costs in the amount of $2500 as ordered in my endorsement dated April 2, 2015.

[12] On registration of the vesting order, Ms. Marchese is prohibited from transferring title to 3 Highland Hill or any part of it to any person.

[13] On payment of the sum of $10,000 referred to in paragraph 10, 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.

[14] 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.

[15] 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.

[16] Within 10 business days of registration of the later of the vesting order and the mortgage(s) referred to above, Ms. Marchese shall provide to Mr. Marchese an accounting of all of the receipts and expenditures.

[17] Within 10 business days of registration of the later of the vesting order and the mortgage(s) referred to above, Ms. Marchese shall obtain a date for a Trial Management Conference before me and she shall serve notice of that conference on Mr. Marchese.

[18] Ms. Marchese may take out this order without approval from Mr. Marchese.

Kiteley J.

Date: December 8, 2015