CITATION: Del Mastro v. Del Mastro, 2016 ONSC 7004

COURT FILE NO.: FS-08-63549-00

DATE: 2016 11 10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID DEL MASTRO

Applicant

• and -

CHEMAYNE MICALLEF DEL MASTRO

Respondent

Catherine Willson, for the Applicant

Jesse Schmidt and Rupa Murthi, for the Respondent

HEARD: November 7, 2016

REASONS FOR RULING AND DECISION

Justice Thomas A. Bielby

1This matter is set for trial and is to be heard during the Brampton, January, 2017, civil blitz. It has been identified as a high conflict family law matter and Seppi J. was appointed the case management judge. In a conference with counsel on October 13, 2016, Seppi J., as part of her endorsement, set a long motion date of November 7, 2016, relating to the issues of disclosure and the sale of the matrimonial home.

2Counsel for the applicant submits that the parties agreed on the following timetable:

1. Respondent to serve her materials by Friday, October 21, 2016;

2. Applicant to serve his materials by Friday, October 28, 2016;

3. Cross-examinations to take place on November 2 and 3, 2016.

3The respondent prepared her motion material and served it, via email, Friday evening, after business hours, October 21, 2016. Counsel for the applicant submits that she did not see the material until the following Monday, October 24, 2016.

4The respondent’s motion sought not only the matrimonial home and disclosure but other claims for relief as well. I advised counsel that if the motion proceeded, I would only deal with the two issues noted in Seppi J.’s endorsement which would include argument in regards to carriage of the sale and exclusive possession, issues that would be closely connected to the sale issue.

5The applicant sought an adjournment of the motion. Her counsel relied, in part, on the fact the respondent’s material was served late. She also submitted that on October 21^st the applicant had to travel to Barbados on business. Further, when the applicant returned to the country on October 27^th, he was arrested at the airport at the request of the Family Responsibility Office (“FRO”), and as a result he spent 24 hours in jail.

6During the week of October 31^st, the applicant had to travel to Cuba on business.

7As a result, counsel for the applicant argued she did not have time to review the material with her client and therefore could not serve and file responding material, including the applicant’s motion for disclosure, in a timely way. Further, it was noted cross-examinations could not be conducted as planned on November 2^nd or 3^rd because the applicant’s material could not be prepared in time.

8On the day of the motion, counsel for the applicant did have some affidavit material and a disclosure motion with her which I have received and reviewed. Counsel argued that she need time to prepare further materials, including a book of authorities and a factum.

9Counsel for the respondent opposed the request for an adjournment. He argues the issues are urgent.

10I advised counsel for the applicant that I would not hear the applicant’s motion for disclosure given its late filing.

11While I heard the adjournment arguments, I also asked both counsel to make submissions of the merits of the motion, to allow me to consider all the issues before me.

12I have decided to deny the request for the adjournment, at least in part. While the respondent’s material was late (by a weekend) it was not so late as to justify an adjournment. Further, while the applicant could not control the timing of his arrest, his decision to travel out of the country likely had a lot to do with counsel’s inability to serve and file responding material. The applicant was aware of the timetable. Additionally, how could cross-examination take place as agreed when the applicant was out of the country? His business trips were described as necessary.

GENERAL OVERVIEW

13On review of the court file and the numerous judicial endorsements, it is clear that the applicant has a history of non-compliance. There are support orders in arrears and there are cost orders outstanding. There is also an outstanding order for the sale of the matrimonial home and an order finding the applicant in contempt for failing to comply with the order to sell.

14The parties were married on August 2, 2000 and separated August 6, 2008. The applicant has two adult children from a previous relationship.

15The parties have one child, Vienna who was born on February 24, 2004. Her primary residence is with the respondent.

16In May, 2012, Tulloch J., as he then was, released his decision in regards to a trial in this matter on the issue of the correct date of separation. It was determined that the correct date of separation is August 6, 2008. Tulloch J. awarded cost against the applicant in excess of $190,000.

17The applicant has been the subject of other costs orders in this proceeding.

SALE OF MATRIMONIAL HOME

18On December 18, 2008, Corbett J. granted the applicant exclusive possession of the matrimonial home, known municipally as 881 Sangster Avenue, Mississauga, where he continues to live with his new spouse, his two adult children and Vienna when she spends time with her father.

19As noted previously, by order dated September 29, 2011, Van Melle J. ordered that the matrimonial home be sold. On February 10, 2012 Van Melle J. found the applicant in contempt for failing to list the matrimonial home pursuant to her earlier order.

20Van Melle J. rejected the applicant’s argument that the home was not in a sale condition because of a number of construction issues and municipal work orders. It was felt that the applicant had more than enough time to rectify those deficiencies. Van Melle J. rejected the applicant’s argument that he was impecunious, and took notice of his ongoing lifestyle and material possessions.

21As a result the applicant listed the house for sale for six months. No offers were received. The house was never re-listed as the applicant chose not to re-list the home.

22The respondent, now, some four years later, asserts the claim that the applicant is in breach of the sale order. She also submits she is in financial need and requires her share of the net proceeds of the sale of their jointly owned home. From the other half of the net proceeds it is submitted, any arrears in support and costs ought to be paid out to the respondent and that any monies left should be held in trust.

23The respondent seeks carriage of the sale and exclusive possession of the matrimonial home until it is sold. She submits that the applicant did not and will not co-operate in any attempt to sell the house and a change in possession is necessary to ensure the sale of the property.

24It is submitted by the respondent that her current financial problems are a material change in circumstances which would allow this court to vary the outstanding exclusive possession order in favour of the applicant.

25Counsel for the applicant submits the exclusive possession order is a final order and cannot be varied. The order, as issued and entered, is marked as final. The handwritten endorsement of Corbett J. did not indicate whether the order was to be interim or final.

26The applicant submits that four adults live in the house as well as Vienna when she visits and a sale and/or a change in exclusive possession at this late stage would be disruptive and not in the best interests of Vienna.

27The applicant submits through counsel that he has put a significant amount of money into the home and it is his intention to live there, until, in his counsel’s words, until he dies. He submits that the respondent will owe him a sizable amount on equalization which may exceed her equity in the home.

28The applicant argues that he complied with the order of Van Melle J., by listing the house for sale for six months as previously noted. He further argues that for four years the issue of the sale of the home was not raised by the respondent. He essentially lays the fault of the non-listing at the feet of the respondent, notwithstanding the court ordered sale and the finding of contempt.

29I reject the argument that the respondent is in any way responsible for the property not being listed and sold. The order was clear. The obligation was without a doubt. If the applicant wanted the order varied he should have sought such relief.

30Clearly, the applicant had no real interest in selling the house.

31I have had regard to the Partition Act and the respondent’s prima facie right as a joint tenant to have the property sold. This right however is tempered by section 9 of the Family Law Act which allows me some discretion in this regard. Further, the outstanding order for exclusive possession has to be considered.

32I have reservations about enforcing the order to sell the home and granting the respondent carriage of the sale so close to trial. In regards to the outstanding order for exclusive possession, I am not prepared to vary it at this point in time.

33The applicant made a proposal in response to the respondent’s motion for the sale of the home. The applicant proposes that he continue to pay his monthly support of $10,000 together with an amount on arrears of $2,350, as agreed to by FRO, for a total of $12,350. Additionally, he will pay a monthly amount of $20,000 to be applied against the outstanding costs. This periodic cost payment will be made until the trial judgment is released or until the costs are paid in full, whichever comes first.

34Further, if the applicant defaults in either payment, the respondent can move for possession, carriage and sale of the house.

35Apart from the issue of compliance with court orders, the respondent seeks the sale because of immediate financial needs. Such an arrangement could, to some degree, satisfy this need.

36The Canada Revenue Agency (“CRA”) has placed a large lien against the property and claims from the applicant a substantial amount of tax arrears. From August, 2015, until February, 2016, the applicant was paying to the respondent by agreement, $15,000 per month against arrears. This arrangement ceased when the CRA started garnishing monies owed for taxes by the applicant.

37It is alleged by the applicant that the CRA has denied his spousal support deduction claims. He submits that for a period of years since separation the respondent has failed to file tax returns and claim as income, spousal support received, which resulted in the CRA denying the deduction.

38This allegation was not specifically denied by the respondent. If the allegation is true then the respondent needs to step-up and do what she is required to do by law, that is, file her tax returns so the debt and value of the lien can be verified.

39If the orders sought by the respondent, in relation to the home, were made today, it is unlikely the property would be sold and funds realized by the date of the trial. The property in 2009, had a value close to $2,000,000, a value that limits the pool of potential purchasers.

40I will not order any change in regards to the matrimonial home, at least at this stage, notwithstanding the outstanding sale order. It seems to me that given the circumstances of this file and the apparent animosity between the parties, if the property was ordered again to be sold, the party who would receive carriage of the sale would have to be in possession and, as I said, I am not prepared to change the exclusive possession order so close to trial. However, given the applicant’s proposal, this opinion would quickly change if there is any default in payment.

41I make the following order:

1. Commencing November 15, 2016, and monthly, until a trial judgment is issued or the outstanding costs are full paid up, whichever occurs first, the applicant shall pay to the respondent, $20,000 per month.

2. The applicant shall continue to pay support and an amount on arrears totalling $12,350 per month as per the outstanding order and agreement with FRO.

3. The motion in regards to the sale of the matrimonial home, carriage of the sale, exclusive possession and disclosure is adjourned without a date, returnable on five days’ notice.

4. If the applicant fails to make any of the payments set out in paragraph 1 and 2 herein, the respondent may move ex-parte, before me, for a variation of exclusive possession, the sale of the matrimonial home and carriage of the sale.

5. If requested and on reasonable notice, the respondent is entitled to attend on the premises of the matrimonial home for a two hour period, with a third party, to assess the condition of the home and determine a fair market value. None of the adult occupants of the home are to be present when this inspection is conducted.

DISCLOSURE

42This issue was largely resolved, on the short term, by counsel, with my assistance. Since the respondent brought her motion, disclosure and been made to her and to her business/income valuator.

43The order continues as follows:

6. The applicant shall comply with the disclosure requests made by Mr. Feldman by letters dated, June 10, 2016, September 29, 2016, including Appendix A, and October 17, 2016, subject to the position of applicant’s counsel set out in her correspondence to respondent’s counsel, dated November 4, 2016 and the clarification sought by Eveline Reid in her letter to Mr. Feldman, dated November 4, 2016.

7. Disclosure from both parties to be completed on or before November 21, 2016.

8. If there are disclosure issues that need to be addressed after November 21, 2016, and before the case management conference, scheduled for December 13, 2016, and if Seppi J. is not sitting, a teleconference can be arranged with me, through my office, for 9:00 am, any morning I am in Brampton.

9. If either party seeks costs as a result of this ruling and the parties cannot agree on costs, written submissions may be made with 14 days, to be no longer than three pages in length double spaced, together will a bill of costs. Either party responding to a cost claim of the other may do so within seven days of receipt of the requests for costs.

Bielby J.