Court File and Parties

COURT FILE NO.: 18-45 (Parry Sound) DATE: 20181001 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, STATUTORY GUARDIAN OF PROPERTY FOR LAURIE ANN VIDAL Applicant

– and –

BRIAN JAMES VIDAL, HARLEY OLIVER MOORE and ARLA SHERRILL MOORE Respondent

Counsel: Mallorie Malone, for the Applicant. Brian James Vidal, self-represented. Harley Oliver Moore and Sherrill Moore not appearing.

HEARD: August 20, 2018, with written submissions by September 14.

R. D. GORDON, R.S.J.

Overview

[1] The Applicant seeks a declaration that certain property is not a matrimonial home so that it can be sold without the consent of the Respondent.

Background Facts

[2] The Office of the Public Guardian and Trustee (the “PGT”) became the statutory guardian of property for Laurie Ann Vidal (“Laurie”) on December 22, 2015 when she was admitted to hospital due to mental health issues. She was discharged from hospital in July of 2017 and has resided in supportive housing since.

[3] The Respondent is married to Laurie. They are not separated and there is no current prospect of their separation.

[4] When Laurie became a client of PGT she had no income. She did, however, have an ownership interest in eight different pieces of real estate.

[5] She has subsequently been awarded a monthly disability payment under the Ontario Disability Support Program (“ODSP”). However, a person in receipt of ODSP is not permitted to own assets valued at more than $40,000 unless the asset is considered to be “exempt”. In terms of real property, only a principal residence is considered exempt.

[6] An ODSP recipient may hold up to $200,000 in a registered disability savings plan (“RDSP”) and up to $100,000 in a segregated fund. The deadline to contribute to an RDSP is December 31 of the year the beneficiary of the fund turns 59. Laurie turned 59 in 2018, so the deadline to contribute to an RDSP on her behalf is December 31 of this year.

[7] The PGT wishes to sell the interests Laurie has in her real properties so that it may pay the proceeds of sale into an RDSP. By doing so, the value of her assets will be preserved while allowing her to continue to receive her disability payment. If the properties cannot be sold, her ODSP payments will be discontinued and the properties will need to be sold to provide for her support.

[8] With the exception of one property, all the others have either been sold or are subject to a court order for their sale. The only issue remaining before the court is with respect to a property that has been referred to as the “Toad Lake Solely Owned Property” (which I will hereinafter refer to as “the property”). Mr. Vidal maintains that the property is a matrimonial home and that his consent is required for its sale. In any event, he has indicated an objection to this motion being heard as urgent.

Urgency of the Motion

[9] The manner in which this application was heard is somewhat unorthodox. The matter was returnable before me on August 20. The Respondent was and remains unrepresented. During the course of submissions he began to refer to facts that did not appear anywhere in the Continuing Record. When he was advised that this was improper a discussion ensued as to what might be done to allow him the opportunity to lead the evidence he wished to refer to. Two options presented: (1) to allow the matter to be adjourned so that he could prepare and file further affidavit documents: or (2) to allow him to call viva voce evidence. Largely because of the delay that would result from the first option, the Applicant was willing to consent to viva voce evidence provided it was given a fair opportunity to file a responding affidavit and submissions. The matter proceeded in that fashion with written submissions required by September 14.

[10] At no time during the initial hearing did the Respondent raise any issue pertaining to the urgency of the application. It is only in a further affidavit filed by the Respondent that he raises the issue and argues that because the Applicant now has sufficient funds (from the sale of other properties) to cover her care for at least five years, there is no urgency for this application to be heard.

[11] I am content that there is urgency that requires this application to be determined at this time. Clearly it is in the best interests of Laurie to maintain a regular stream of income and to preserve her assets, both for her own use and for the benefit of her heirs. Should this application not proceed in a timely fashion it is more likely than not that her ODSP benefits will cease until such time as all of her non-exempt assets are spent providing for her care. This would leave no assets available for her use should it be required. It would also deplete her assets to the detriment of her heirs. There is a finite period of time during which her assets can be converted to exempt status. This application needs to be determined in order to meet that time frame.

Is the Property a Matrimonial Home?

[12] Section 18 of the Family Law Act defines a matrimonial home as every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence.

[13] In this case the spouses have not separated. Accordingly, the issue is whether the property is ordinarily occupied by Mr. and Mrs. Vidal as their family residence. That, in turn can be further distilled into two sub-issues: i) Is the property ordinarily occupied? And ii) If so, is it ordinarily occupied as their family residence?

[14] It is of some assistance to understand the nature of the property. It is made up of over 145 acres with some 4000 feet of shoreline on Toad Lake, which is part of the Pickerel River water system. The cabin is about 200 square feet in size. It has no electrical power of any sort. It has one room with a pullout couch, a chair, a cabinet, a small counter and a wood cook stove. There is no running water. There is no plumbing. It can be accessed in one of two ways: by water or by travelling a laneway that runs off of an unimproved roadway. The laneway has not had much use in recent years.

[15] The property was acquired by Laurie in August of 1992. She and the Respondent were married at the time. I heard evidence from Justine Vidal and Jordan Vidal, the two daughters of the parties. Jordan was born in 1989, and Justine in 1991. They were both entirely forthright and credible in their testimony. It is clear to me that the property featured prominently in their youth and was a place where they regularly gathered as a family. From their evidence, it was established that while they were on summer break from elementary school most days were spent at the property. Overnights were not uncommon but just as regularly they would go home in the evening and spend the night at their main home. As they entered high school and came to have summer jobs, the property became more of a weekend destination. The older they got, the more often they would go just with friends and in the absence of either of their parents. They continue to visit the property in the summers but typically on only a few occasions each year.

[16] It was when they were teenagers that Laurie’s illness progressed to the point where she did not like to leave their home and stopped going to camp regularly. Since that time, which would have been somewhere between 2005 and 2010, Laurie’s time at the property has been comprised of irregular and sporadic day visits.

[17] Mr. Vidal was also reasonably forthright in his evidence. He conceded that he and Laurie had not visited the property together regularly in some years. Prior to this application being brought he was uncertain of when their last attendance was but thought it was within the last two or so years. He indicated that the last time they had spent a night there was in the year before she was admitted to hospital in 2015.

[18] In all, the evidence establishes that Mr. and Mrs. Vidal were not in regular attendance at this property when the application was brought and had not been in regular attendance there since at least 2010. Laurie’s attendance, in particular, can be said to have been sporadic and involved very few overnight stays in the intervening years. Mr. Vidal may have attended the property more often than her, but not frequently and not with any regularity.

[19] On these facts it cannot be said that the property has recently been ordinarily occupied. Even if I am mistaken in this conclusion, it certainly cannot be said to have been occupied as the family residence of Mr. and Mrs. Vidal for many years. Although it may be their principal residence for tax purposes, and although it may have been used by them sporadically for recreational purposes over the last decade, this is not sufficient to make it a matrimonial home as defined by the Family Law Act.

Conclusion

[20] The PGT’s application for a declaration that the property is not a matrimonial home is granted. Mr. Vidal has no interest in the property that allows him to interfere with its sale. It follows that the PGT may arrange for the sale of the property without further input by him.

[21] Notwithstanding my decision, one cannot ignore the sentimental significance of this property to Mr. Vidal and his daughters. That significance is real and should be respected to the extent possible. To that end, if the property can be disposed of in such a way that it remains in the family, the PGT is to be encouraged to work with the Respondent to that end.

R. D. Gordon, R.S.J. Released: October 1, 2018