Benkhe v Needham, 2018 ONSC 3309

COURT FILE NO.: 16-331

DATE: May 29, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Benkhe v Needham

BETWEEN: Tracy Benkhe, Applicant and Brian G. Needham, Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: M. Peter Sammon for the Applicant,

Bruce Simpson for the Respondent

HEARD: January 29, 2018

ENDORSEMENT

1The respondent brings this motion for an order for sale of the matrimonial home and for an equal division of the net proceeds together with proposed alternative relief.

2The respondent’s request needs to be placed in context which involves a brief review of the history of this proceeding. The parties were not married but had two children together and were joint owners of the family home.

3After separation, the applicant continued to reside in the home with the parties’ children and two children from a previous relationship.

4The respondent would not comply with his disclosure obligations and eventually his pleadings were struck but without prejudice to custody and access issues that have now been resolved.

5The applicant obtained an order to proceed to an uncontested trial on the issues of imputed income to the respondent and the sale of the jointly-owned home.

6At the uncontested trial, the applicant changed her request from a sale of the jointly- owned home to a request that the interest of the respondent be vested in the applicant. The court directed applicant’s counsel to provide written submissions on the vesting issue. The evidence disclosed that there was little, if any, equity in the home and that there was a real risk it had a negative value when potential disposition costs were taken into account. Post-separation carrying costs of about $22,000 had been paid by the applicant only.

7The applicant’s request was granted subject to allowing the respondent an opportunity to argue that a vesting order was not appropriate.

8There is also an issue regarding an error in paragraph 21 of the Endorsement dated October 19, 2017 that the applicant wishes to address, namely, the so-called “credit of $7,348.38” in favour of the respondent. The source of the error was the court’s failure to recognize the applicant’s share of the equity before post-separation expenses were considered. The equity of $18,387.81 ought to have been divided in two to reflect the ownership of half the equity by the applicant. This fact was not reflected in the previous endorsement with the result that the respondent was shown to have a $7,348.38 credit to apply against his child support arrears and unpaid legal costs.

9After correcting the error, the calculations should be as follows:

1. appraised value of the home $192,000.00
2. balance due on mortgage $173,612.19
3. total equity $ 18,387.81
4. total post separation expenses

for mortgage, insurance and taxes $22,078.87

1. the respondent’s share of the equity $18,387.81÷ 2 = $9,193.91
2. the respondent’s share of post-

separation expenses $22,078.87 ÷2= $11,039.43

1. respondent’s share of

post-separation expenses after

crediting his share of the equity $11,039.43-$9,193.91= -$1,845.53

10Mr. Simpson, for the respondent, did not contest the revised calculations.

11There is a question as to how to deal with the deficit of $1,845.53. It is important to note that since the parties were not married, there is no equalization of family property. Should it be treated as a debt owed to the applicant? It would not be appropriate to add it to the child support arrears because the deficit relates to a property issue. Also, it is worth noting that no occupation rent was paid by the applicant. In the calculation set out above, regardless of the disposition of the deficit, the respondent will have made a sizeable contribution to the post-separation carrying costs of the house.

12Weighing the above factors, it is my view that the most equitable way to treat the deficit would be to excuse the respondent from an obligation to pay it and to treat the financial consequences of the vesting as a wash with nothing being owed by one party to the other.

13Returning to the first issue, the respondent’s entitlement to challenge the vesting after his pleadings were struck out, I was advised by counsel for the applicant that as a preliminary matter there are two outstanding costs orders owed to the applicant by the respondent totaling over $3,000 and he has not made a meaningful effort to pay child support since the parties separated in April, 2016.

14In the circumstances present here, I find that it would be inappropriate to permit the respondent to contest the vesting order at this stage of the proceeding. It would be unfair to require the applicant to incur legal costs to respond to the respondent’s motion when the respondent has consistently ignored court orders, has not paid outstanding costs orders, has not made a serious effort to support his children and has indicated on prior occasions that he is not fundamentally opposed to the applicant acquiring the house.

15There will be no order respecting costs.

James, J.

DATE: May 29, 2018

COURT FILE NO.: 16-331

DATE: May 29, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Benkhe v Needham