Court File and Parties

COURT FILE NO.: CV-18-599171 DATE: 20180928 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brookstreet MIC II Inc., Plaintiff AND: Juleth Dawson and Rod Dawson, Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Sean Butt, for the Plaintiff (Responding Party) Caryma Sa’d, for the Defendants (Moving Party)

HEARD: September 28, 2018

Endorsement

[1] The defendant, Rod Byrnes (incorrectly named in the statement of claim as Rod Dawson), brings this motion to have the action dismissed as against him.

[2] Mr. Byrnes is the spouse of Juleth Dawson, and is a retired lawyer whose practice included family law.

[3] The plaintiff is the mortgagee and Ms. Dawson is the mortgagor of the mortgage entered into dated February 23, 2017 that was registered on title to the property municipally known as 177 Dowling Ave., Toronto, ON M6K 3B1.

[4] The mortgage provided that upon maturity, the full balance would become due and owing. The mortgage matured on March 1, 2018. The mortgage balance was not paid and the plaintiff commenced an action against Ms. Dawson. Upon serving the statement of claim upon Ms. Dawson, an occupancy check was done which revealed that her spouse, Rod Byrnes, resided in the property along with Ms. Dawson and their children.

[5] At the time the mortgage was taken out, Ms. Dawson had signed the statutory declaration indicating that she was the registered owner of the property and that, "Within the meaning of the Family Law Act(Ontario): My spouse has released all rights under the Family Law Act by a separation agreement."

[6] Based on the new information learned from the occupancy check at the time that the statement of claim was served, a new claim was issued and served on June 5, 2018, which added "Rod Dawson" (improperly named) given his potential possessory rights pursuant to the Family Law Act, in the event of repossession of the matrimonial home by the mortgagee.

[7] It is clear from a reading of the statement of claim that there are no allegations or claims against Mr. Byrnes (improperly named "Dawson" in the statement of claim and hereafter referred to as Rod Byrnes). It is the evidence of Tony Nero, the president of the plaintiff, that Mr. Byrnes was added to the statement of claim out of an abundance of caution and for his benefit as required by law, so that he has notice of this proceeding in order for him to assert any rights he may have pursuant to the Family Law Act, including the right to redeem the mortgage and possessory rights.

[8] Counsel for Mr. Byrnes submits that this matter should have been dealt with between the parties by dismissing the action against him. He vigorously opposes being continued in the action and indicates that he had relinquished all rights and entitlements as regards the matrimonial home in an earlier settlement agreement which is still in force. In correspondence that he sent to counsel for the plaintiff on August 26, 2018, he indicates that his matrimonial status has not changed and that his renunciation of all possessory rights pursuant to the Family Law Act is permanent.

[9] The plaintiff submits that, while Mr. Byrnes wished to have the action dismissed against him and when this motion was brought, were the plaintiff simply to have dismissed the action against him, it would, in essence, have predetermined the issue that the court would be called upon to determine at the time of the trial of the action.

[10] Mr. Byrnes has requested the action against him be dismissed. Indeed, he has brought this motion to have the action dismissed. As indicated, the plaintiff had added his name for purposes of preserving Mr. Byrnes potential possessory rights vis-à-vis the matrimonial home. He confirms that he has renounced those rights permanently.

[11] In all of the circumstances, and based on all of the evidence before the Court, this Court orders that the action brought by the plaintiff mortgagee, which had added Mr. Byrnes (incorrectly named as Rod Dawson) out of an abundance of caution given his potential possessory rights under the Family Law Act should, at his insistence, as witnessed by the motion and the documentation in it, be dismissed.

[12] Mr. Byrnes seeks his costs of this motion on the basis that he should not have to pay for costs that should not have been incurred and submits that the plaintiff was negligent or acted in bad faith. He seeks his costs in the amount of $1,885.75 on a partial indemnity basis, or $2563.75 on a substantial indemnity basis.

[13] It is the position of counsel for the plaintiff that it is clear from the evidence that the plaintiff was not acting negligently, in bad faith, nor in a frivolous and vexatious manner. Counsel for the plaintiff submits that Mr. Byrnes name was only added in order to preserve any potential rights or entitlements that he may have to the matrimonial home given the action against Mr. Byrnes spouse regarding the mortgage and the matrimonial home. I do not find that the plaintiff acted negligently, in bad faith or proceeded with an action that was frivolous or vexatious. I am satisfied that they added Mr. Byrnes for the reason they stipulated.

[14] In all of the circumstances, I make no award as to costs. Each party will bear their own costs of this motion.

Carole J. Brown, J.

Date: September 28, 2018