Court File and Parties
Court File No.: CV-18-135973 Date: 2018-10-02 Ontario Superior Court of Justice
Between: Roman Chernyak, Plaintiff – and – Lilia Chvartsman, Defendant
Counsel: Ira E. Book, for the Plaintiff Alexandra Abramian, for the Defendant
Heard: September 13, 2018
Reasons for Decision Before: Justice C.F. de Sa
Background
[1] Roman Chernyak is an 82 year old retired dental surgeon from Russia. He immigrated to Canada in or about May, 1980 with his late wife Yevgenia.
[2] Roman and Yevgenia were married in Minsk, Russia in June, 1967.
[3] This was the first marriage for Roman and the second marriage for Yevgenia.
[4] The parties had no children of their marriage.
[5] Roman does not have any children but Yevgenia had a daughter of her first marriage: the Respondent, Lilia, born on October 26, 1957.
[6] Yevgenia Chernyak died on June 28, 2014 intestate.
The Property
[7] Roman and Yevgenia purchased the condominium (the Property) pursuant to an Agreement of Purchase and Sale on August 13, 1996. The closing date was scheduled for September 27, 1996 but was extended to October 1, 1996.
[8] The entire purchase price of $208,000 was sourced from Roman.
[9] According to Roman, on the date of closing, Roman and Yevgenia on the advice of their solicitor agreed to add Lilia’s name to the title to the Property for estate planning purposes only should they both predecease her and both die at the same time.
[10] According to Roman, it was never the intention of either Roman or Yevgenia to give Lilia an ownership or beneficial interest in the Property while either of them was still alive. The condominium and the resulting equity in the condominium should it be sold, was to be used by them or the survivor of them for that person’s future needs.
[11] Lilia disputes this fact. She claims that her parents told her that they wanted to include her in the purchase of the condominium and register her on title as a joint owner gifting to her a one-third interest in the condominium.
Lilia’s Motion for Release of Funds
[12] The Property was listed and sold on May 9, 2018 for a sale price of $620,000. It closed on August 15, 2018. One half of the monies were released to Roman to purchase a smaller home. Lilia was demanding the balance of the funds from the sale of the property.
[13] On May 29, 2018, Roman commenced an Application to recover the balance of the money. The application was served on May 31, 2018. Cross-examinations on the application are scheduled for September 25, 2018.
[14] The parties had agreed that the balance would be held by counsel, in trust, pending the outcome of the litigation. The real estate lawyer, Mr. Allan H. Mandel, signed an undertaking to hold the disputed money in trust.
[15] Lilia has now filed a motion seeking the release of the funds. Lilia indicates that she has purchased a new house. Lilia and her husband had submitted an offer to purchase the house on February 19, 2017 which was accepted by the builder on March 1, 2017. She claims to require the money to finalize the purchase of the home.
[16] Having reviewed the positions of the parties, I will not grant the moving party’s request. The funds sought are the very subject of the dispute/litigation. I have no basis to release the money to Lilia when the subject proceeding is directed at determining whether or not Lilia has any claim to the funds. In my view, the determination of entitlement must be made in advance of any release.
[17] I expect the matter can be expedited if the parties make the necessary arrangements. The funds will be held by counsel, in trust, pending the outcome of the litigation.
[18] The motion is dismissed.
Justice C.F. de Sa Released: October 2, 2018