Kohler v Mlinarski, 2016 ONSC 5534

NEWMARKET COURT FILE : FC-16-50743-00 DATE : 20160901 ONTARIO SUPERIOR COURT OF JUSTICE

Iris Toby Kohler Applicant K. Nathens, for the Applicant

• and -

Monica Mlinarski Respondent J. Syrtash, for the Respondent

HEARD: August 31, 2016

RULING ON MOTIONS

JARVIS J.:

Introduction

1The parties, who cohabited for fifteen years, separated in February 2016. The respondent moves for an order for spousal support and related financial relief including the return of personal property and $35,000 for interim disbursements, mostly for her legal fees. The applicant moves for a sale of a condominium property which the parties hold as tenants in common.

2Each party sought additional relief to that described above: those issues neither occupied much of the time counsel spent in argument nor were determinative of the issues requiring the court’s direction.

Background/Support

3The applicant is a federal government employee earning approximately $102,000 annually. The respondent, who is requesting support, worked until 2013 when she was laid-off, receiving a twenty month severance package. She is not currently employed and the medical evidence before the court indicates severe depression and anxiety and an inability to work due to what is likely early onset Alzheimer’s disease.

4Until shortly after the parties separated the respondent was covered under the applicant’s employment benefits plan. While the parties dispute which of them was responsible, the fact is that the respondent is no longer eligible for this coverage. She has sourced extended health and benefits costing $267 monthly and claims a further $378 monthly for counselling and therapy. There is no evidence in the medical documentation filed by the respondent that counselling was recommended nor is there evidence that the respondent has applied to, for example, Trillium for benefits assistance. She made in early August 2016 an application for Canada Pension Plan Disability Benefits, the prospective date of receipt of which is likely around three to four months in the future.

5The applicant challenges the respondent’s entitlement, although not that vigorously, focusing instead on the respondent’s duty to contribute to her own support. It may well be, at some future point in time, and after questioning, that a determination will need to be made whether the respondent is able to contribute in any meaningful way to her own support but at this time no income will be attributed to her.

6In Knowles v. Lindstrom, 2015 ONSC 1408, Penny J. observed the following, at para. 8,

It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para.24.

7The Spousal Support Advisory Guidelines suggest a range of $1,785 (low) to $2,380 (high). The mid-range amount is $2,082. Without determining responsibility for the respondent’s post-separation ineligibility for health benefits coverage, it is my view that the applicant should be paying to the respondent as and for spousal support the sum of $2,350 monthly effective September 1, 2016. From this amount the respondent will assume full responsibility for payment of the common expenses and insurance relating to the condominium in which she is exclusively residing. These total about $490 monthly.

8The Order is made without prejudice to the respondent’s claim for retroactive support to the date when the parties separated. Anything paid by the applicant to the respondent before September 1st can be taken into account as a credit if and when this Order may be varied or at trial.

9This Order is also subject to the respondent’s receipt of CPP benefits. She shall within seven days of her receipt of confirmation of her eligibility provide that information along with the amount (or amounts) payable to the applicant at which time the issue of her support may be revisited.

Condominium Contents

10In an email from the applicant’s counsel to the respondent’s counsel dated May 5, 2016, the applicant agreed not to remove any chattels from the condominium. This was at a time when the parties were continuing to reside in the property. The respondent left for a brief vacation shortly after counsel’s May 5, 2016 email and, upon her return, discovered that the applicant had not only moved out of the condominium but removed (as the respondent described it) almost all of its contents. The applicant does not dispute her conduct but claims that, after the contents were placed in storage, she now requires them, as they furnish her apartment.

11Following counsels’ argument, the court directed the parties to discuss whether they could agree on which of the contents removed could be retained by the applicant on a without prejudice basis pending further court Order or agreement. The court was subsequently advised that no resolution of that issue was possible.

12The applicant’s conduct was unilateral, covert, and contrary to the unequivocal representation made by her counsel. That kind of self-help is, in the circumstances, inexcusable. The applicant shall return all of the contents she removed from the condominium to the respondent, at the applicant’s sole expense. Each party shall otherwise preserve all assets in their possession or under their control.

Sale of Condominium

13The sale of the condominium is the inevitable outcome of this case. The respondent does not so much oppose the sale, subject to it being properly staged, so long as the net proceeds of sale are held in trust pending further court Order or agreement between the parties. The applicant agrees. Once the values of the parties’ outstanding claims against each other can be better assessed, it may be appropriate for there to be paid to each party a portion of the trust proceeds, the balance being retained to fund whatever final determination is made by the trial judge.

14The condominium shall be sold. The general terms and conditions relating to that sale are set out later in these reasons.

Interim Disbursements

15The respondent claims $35,000 in disbursements but has in excess of $70,000 liquid assets with which to fund this litigation. Conversely, the applicant has considerably less liquid assets. No compelling reason was given why such an Order should be made, whether in terms of levelling the playing field or as representing some kind of advance. The respondent’s request for this relief is dismissed.

Questioning

16Both parties seek to question the other. Given the outstanding issues, questioning is appropriate in the circumstances of this case but only after there has been more robust effort to conclude each party’s financial disclosure obligations and to seek from the other information in advance that will assist the focus of any questioning.

Disposition

17Accordingly, the following Orders shall issue:

1. The applicant shall pay to the respondent the sum of $2,350 effective September 1, 2016, and continuing thereafter on the first day of each and every succeeding month until further Order of this court or written agreement between the parties. The respondent shall pay from the support provided the condominium common expense and insurance costs;
2. Within seven days of confirmation of her eligibility for CPP disability benefits, the respondent shall provide that information to the applicant, together with the amount payable. This information shall include the commencement date for payment and, if applicable, whether there are arrears payable;
3. The applicant shall return to the condominium property owned by the parties all of the contents of that property removed by her, this to be completed on or before September 18, 2016. The applicant shall be responsible for all of the arrangements and the costs for the return of those chattels;
4. Subject to paragraph 3 above each party shall preserve all assets in their possession or under their control until further Order of this court;
5. The condominium will be listed for sale by September 21, 2016 with a realtor selected by the parties. In the event that repairs and/or staging are required (on the realtor’s recommendations) those repairs/staging are to be completed and the condominium listed no later than October 6, 2016, the costs of such repairs/staging to be jointly shared by the parties;
6. Subject to the preceding paragraph, the parties will fully cooperate in the listing and sale of the condominium including but not limited to: (a) signing the listing agreement; (b) facilitating open houses based upon realtor recommendations; (c) keeping the condominium clean, tidy and odor-free for viewing purposes; (d) facilitating all showings; (e) fixing the list price and reducing it if necessary as recommended by the realtor; (f) staging the home if recommended by the realtor and sharing any cost of same equally; (g) any other recommendation for sale by the realtor;
7. In the event that a party does not comply with any of the provisions of paragraphs 5 and 6 above or there are any issues arising from the directions contained in those paragraphs, either party may move by way of 14B motion before me on ten days’ notice to the other side;
8. The sale proceeds from the condominium will remain in the vendor real estate lawyer’s trust account pending further Order of this court or Minutes of Settlement;
9. The respondent’s motion for interim disbursements is dismissed;
10. Each party shall exchange within fifteen days of the date of these reasons a Request for Information (“RFI”) and shall answer the other party’s RFI no later than thirty days afterwards. In the event that a party to whom a request has been made is unable to answer or fully satisfy the request made, then she shall provide satisfactory proof to the other of their efforts in that regard, up to and including the date scheduled for questioning;
11. Questioning of each party may proceed as soon after the expiry of the thirty day period referenced in the preceding paragraph as can be practically arranged.
12. The balance of the relief claimed by each party in their motions is dismissed.

18The applicant requested an Order sealing this file. No notice of that request was made in accordance with Part F of the Consolidated Provincial Practice Direction (effective July 1, 2016) so that request cannot be considered at this time.

19Support Deduction Order to issue.

20Success of the parties’ motions has been divided. If, however, either of both of the parties seek costs and are unable to resolve that issue between them, then each shall no later than September 23, 2016 file with the Continuing Record their costs submissions limited to three double-spaced pages. Offers to Settle (if any), Bills of Costs and Authorities upon which a party may be relying shall be filed separately then but not as part of the Continuing Record.