CITATION: Flowers v. Flowers, 2016 ONSC 2198
COURT FILE NO.: FS-15-82801-00
DATE: 2016 03 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kim Flowers (aka Kim Landry) v. Romeo Flowers
BEFORE: Fragomeni, J.
COUNSEL: Amrit Kaur Bhangu – for Kim Flowers
Shikha Sharda for Romeo Flowers
HEARD: March 3, 2016
E N D O R S E M E N T
[1] The respondent husband seeks the follow relief:
An order that the applicant pay to the respondent $23,500.00 for his share of the household contents removed from the property, municipally known as Unit 55-7475 Goreway Drive, Mississauga, ON L4T 3T3. This amount is to be deducted from the applicant’s share of the sale proceeds.
An order that he applicant pay to the respondent $12,000.00 for the 1973 Mercedes 450 SLE removed from the property. This amount is to be deducted from the applicant’s share of the sale proceeds.
An order that the applicant pay to the respondent the sum of $12,500.00, which amount is half of the $25,000.00 that should have been added to the sale price of the property. This amount is to be deducted from the applicant’s share of the sale proceeds.
An order directing that the sum of $6,991.00 be payable to “Donald Flowers” by way of certified funds. These funds are to be deducted from the total sale proceeds held in trust by the real estate lawyer Ravinder Mann.
An order to pay Enbridge $121.32 for arrears listed against account number 91 00 02 26641 6, said payment to be deducted from the total sale proceeds held in trust by the real estate lawyer.
An order to pay Enersource $797.04 for arrears listed against account number 521257-6, said arrears to be paid from the total sale proceeds held in trust by the real estate lawyer.
[2] The applicant wife submits that the husband’s motion must be dismissed on the basis that he has no standing to bring such a motion pursuant to Rule 10(5) of the Family Law Rules. The wife also relies on Rule 1(8.4) of the Family Law Rules.
[3] Rule 10(5) states:
(5) The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer. O. Reg. 322/13, s. 6; O. Reg. 142/14, s. 5.Add rule 10(5)
Rule 1(8.4) states:
(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.
[4] The wife also relies on the orders of Justices Baltman and Lemon with respect to how the net proceeds of the sale of the home were to be allocated.
[5] In her order dated August 14, 2015 Justice Baltman sets out the following at paragraph 8:
Para 8 – upon the closing of the sale of the matrimonial home, the net proceeds of the sale shall be divided equally between the parties after the following expenses have been paid from the proceeds of sale:
(a) Real estate commission;
(b) Real estate lawyer’s fees;
(c) Real estate lawyer’s disbursements;
(d) Any mortgages or encumbrances against the home; and
(e) Any costs awarded by this Honourable Court.
[6] In addition to what I have set out with respect to paragraph 8 of Justice Baltman’s order, Justice Baltman also ordered that the husband vacate the matrimonial home, gave exclusive possession to the wife and allowed her to sign all documents without the husband’s consent.
[7] The husband moved to set aside Justice Baltman’s order. At the time Justice Lemon heard the motion to set aside Justice Baltman’s order the husband had still not filed an answer. Justice Lemon released his reasons on October 16, 2015. At paragraph 20 of his Endorsement he states:
The only claim, other than a divorce, is for the sale of the jointly owned home. Mr. Flowers has not put forward any reason why it should not be sold and the proceeds divided equally. He does not appear to have any defence on the merits.
[8] At paragraph 23 Justice Lemon sets out the following:
Given Mr. Flowers’ failure to properly respond to the documentation served upon him, the integrity of the administration of justice would be damaged if he were allowed, at this late date, to defend the application.
[9] As at the hearing of this motion before me, the husband had still not filed an answer. The husband had not moved to set aside or appeal the orders of Justice Baltman and Justice Lemon. I am satisfied in all of the circumstance that he has no standing to bring this motion, pursuant to Rule 10(5) and 1(8.4) of the Family Law Rules.
[10] The wife did make submissions, in the alternative, on the issues raised by the husband. Both parties made submissions on the issues raised. As such I will deal with them.
Re: Sale Price of the Home
[11] The husband has not provided an evidentiary basis for a finding that the home was sold for $25,000 less than its market value. In fact the evidentiary record points to the opposite conclusion.
[12] At the time of sale the home was in a terrible state of disrepair. The home was in need of repairs and renovations.
[13] The home was listed for sale on September 15, 2015 for $249,888.00 and sold on September 27, 2015 for $266,100.00. There were four additional offers made to purchase the home and the wife agreed to sell it to the highest bidder.
[14] I agree with the wife’s position that the MLS document relied on by the husband states that the home has since been sold at a sale price of $339,900, however, the home had been completed renovated. The MLS document sets out the following:
Completely renovated top to bottom!! Beautiful Townhouse with 3 spacious bdrms, 2 wshrms, finished bsmt and large garage. Approx 30 K spent on renovations and upgrades featuring now laminate floor, new kitchen, renovated wshrms, some new doors, freshly painted, newer furnace and more and brand new stainless steel fridge and stove, brand new washer and dryer.
[15] The value of the home was sold at a much higher value because of all of those improvements. I also agree with the wife that she would have had no incentive to sell the property at below market value.
[16] The husband did not file a certified appraisal report setting out what the value of the home would have been in September/October 2015 when it was sold. To suggest it would have been worth what it was sold at subsequently after all of the renovations and improvements were made is unreasonable and without any evidentiary foundation.
[17] The husband’s claim for reimbursement for the sale of the home below market value is dismissed.
Re: Utility Bills
[18] The husband has provided three utility bills for periods when he alone was occupying the home. As such he should be responsible for those expenses. His claim that his wife pay half of those expenses when she was not in the home cannot succeed.
Re: Loan from his Brother Donald Flowers
[19] The husband claims that his brother Donald Flowers loaned him the sum of $5,721.45 to assist him in paying the mortgage arrears to London Life Assurance Company. The only evidentiary support for this claim is a letter from Maria DePrisco, counsel for London Life, addressed to the husband and dated November 30, 2009 stating that “Mr. Flowers attended on your behalf in our offices on November 30, 2009 to deliver funds in the amount of $5,721.45.
[20] There is no other documentary evidence to substantiate the fact that Donald Flowers actually loaned these funds to his brother. Although the letter form Ms. DePrisco references the delivery of funds there is no indication what the source of the funds were. There is no documentary evidence to support the claim that Donald Flowers entered into a loan agreement with his brother Romeo.
[21] There is no indication that Donald Flowers has ever proceeded to collect on this alleged loan.
[22] In all of those circumstances the husband has not established that this alleged loan ought to be paid from the sale proceeds of the home. The husband’s claim on this issue is dismissed.
Re: Husband’s failure to collect belongings and his vehicle
[23] At paragraph 2 of Justice Baltman’s August 14, 2015 endorsement she states:
The respondent shall remove all personal contents and furniture from the matrimonial home by September 14, 2015.
[24] In her affidavit, sworn February 29, 2016, the wife sets out the efforts made to contact her husband with respect to obtaining his belongings at paras. 74 to 85:
(74) On or about August 20, 2015, Ms. Bhangu sent a letter to the respondent at the matrimonial home requesting the respondent’s phone number and new address, advising the respondent of the aforementioned order and enclosing a copy of the same.
(75) Attached hereto and marked as Exhibit “T” to this my affidavit is a true copy of the letter sent by Ms. Bhangu to the respondent dated August 20, 2015.
(76) The respondent did not reply to Ms. Bhangu’s letter or provide any information as to how he could be reached once he vacated the matrimonial home.
(77) On or about September 15, 2015, I was granted exclusive possession of the matrimonial home and discovered that the respondent had not removed some of his belongings prior to his departure. Rather, the respondent had written on the wall “you will be going to Jail. Call me for my stuffs. 647-955-2759”.
(78) On or about September 21, 2015, at approximately 10:15 a.m., Ms. Bhangu attempted to contact the respondent at the telephone number he had written on the wall, however, there was no answer and she left a voicemail message identifying herself and requesting that the respondent call her. The respondent did not return Ms. Bhangu’s telephone call.
(79) On or about September 21, 2015, at approximately 10:21 a.m., I contacted the respondent’s sister-in-law, namely, Debbie Flowers, through Facebook and advised her that the respondent needs to move his stereo equipment, car, and other possessions from the home; Debbie Flowers advised that she would inform the respondent of the same.
(80) Attached hereto and marked as Exhibit “U” to this my affidavit is a true copy of the Facebook conversation between Debbie Flowers and I on September 21, 2015.
(81) On or about September 22, 2015, at approximately 12:00 p.m., Ms. Bhangu once again tried to contact the respondent at the aforementioned telephone number and there was no answer.
(82) On or about October 21, 2015, Ms. Bhangu sent an email to the email address on the respondent’s prior motion materials again advising him that his belongings were to be removed from the property prior to the closing of the sale of the home and that I could not guarantee safe keeping of the vehicle; no response was received to this email.
(83) Attached hereto and marked as Exhibit “V” to this my affidavit is a true copy of the email sent to the Respondent by Ms. Bhangu on October 21, 2015.
(84) On October 22, 2015, the closing day of the sale of the matrimonial home, the respondent’s vehicle was pushed into visitor parking as vacant possession of the property was to be provided to the purchases and I did not have storage available for the vehicle. The vehicle remained in visitor parking until December 11, 2015, at which point it was towed by the property manager.
(85) Attached hereto and marked as Exhibit “W” to this my affidavit is a true copy of the email I received from the property manager, namely, Milovan Bozovic, dated December 21, 2015, advising that the vehicle has been towed.
[25] The husband did nothing to retrieve his vehicle. From September 4 to December 11 he took no steps to attend at the home to retrieve the vehicle. It is clear from the efforts made by the wife to contact her husband that he took no interest in resolving that issue. The husband could have contacted Mr. Bozovic, the Property Manager, to obtain the details of where the vehicle was being stored. It cannot fall at the feet of the wife that she would be responsible for the husband’s inaction and total disregard of Justice Baltman’s order to obtain his belongings.
[26] The husband’s claim for reimbursement for his car is dismissed.
Re: Value of Household Contents
[27] The husband seeks reimbursement of $23,500 for his share of the household contents removed from the home.
[28] At paragraph 89 of her February 29, 2016, affidavit the wife sets out the following:
The respondent has not provided receipts for a single item on his list or evidence of any attempts to retrieve his alleged belongings that he has now falsely accused me of removing from the property. Since November 2014, when the respondent claims I removed the items, nearly 16 months have passed and prior to his Form 14A: Affidavit dated February 18, 2016, there has not been a single mention of the $47, 414.00 worth of items that the respondent is now claiming I removed from the matrimonial home.
[29] I agree with the wife’s position on this issue. The husband has not provided an evidentiary foundation to support his claim in this regard.
Conclusion
[30] The husband’s motion is hereby dismissed. The husband has not filed an answer and despite prior comment and findings by Justice Lemon on this issue he has still not filed an answer. The husband does not dispute that the prior orders made by Justice Baltman and Justice Lemon are valid orders. He takes the position that the motion heard by me is simply an accounting exercise within the context of the existing orders. I disagree. The prior orders are clear as to how the proceeds of the sale of the home are to be divided.
[31] Justice Baltman was clear as to how the net proceeds of the sale of the home would be distributed as set out at paragraph 8 of her order.
[32] Justice Lemon was also clear in his Endorsement of October 16, 2015.
[33] I am also satisfied that each of the husband’s claims are dismissed on their merits. There is no evidentiary support for the claims he makes.
Order to issue as follows:
that the net proceeds of the sale of the matrimonial home presently being held in trust be divided equally between the parties;
in the event that there are any outstanding costs orders not paid for by the respondent husband in favour of the applicant wife, those costs shall be paid to the wife out of the husband’s share of the net proceeds;
the parties shall file written submissions on costs within 10 days; and
the solicitor holding the net proceeds of the sale shall not distribute these funds until the issue of the costs of this motion has been determined by this court.
Fragomeni J.
DATE: March 31, 2016
CITATION: Flowers v. Flowers, 2016 ONSC 2198
COURT FILE NO.: FS-15-82801-00
DATE: 2016 03 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kim Flowers (aka Kim Landry) v. Romeo Flowers
BEFORE: Fragomeni J.
COUNSEL: Amrit Kaur Bhangu for Kim Flowers
Shikha Sharda for Romeo Flowers
ENDORSEMENT
FRAGOMENI J.
DATE: March 31, 2016