Court File and Parties
COURT FILE NO.: 845/16 DATE: 2018 10 12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shannon Sunega, Applicant AND: Michael Clark, Respondent
BEFORE: Justice G. D. Lemon
COUNSEL: Shannon Sunega, In Person Michael Clark, In Person
HEARD: In Writing
Endorsement
The Issue
[1] Ms. Sunega has brought a motion to confirm what amounts should be paid to each of the parties from the proceeds of sale of the matrimonial home.
[2] The motion was served upon Mr. Clark September 20, 2018. He has not filed a response to the motion. Mr. Clark’s practice has been to respond late or not at all. He has been warned about the result if he continues to do so. I can presume that he does not intend to respond.
Background
[3] In January of this year, I gave judgment dealing with a number of issues between the parties. The relevant portions of the Judgment as issued and entered read as follows:
The home at 220 Rickson Ave., Guelph shall be listed and sold. The sale proceeds shall be paid as follows: a) Outstanding mortgage to be paid in full; b) Commission (if applicable); c) Legal fees for the sale of the home; d) $55,932.36 shall be paid to Mr. Clark; e) Subject to the following, the balance of the proceeds of sale shall be paid to the parties equally; f) Ms. Sunega shall pay to Mr. Clark from her one half share of the proceeds of sale an amount equal to one half of the total mortgage, taxes, and home insurance paid by Mr. Clark from the date of separation to the date of closing. The Honourable Justice Lemon shall remain seized of this issue; any issue with respect to accounting for these matters may be addressed in writing on notice to the other party.
The parties shall agree upon a joint listing within the next 30 days. If there are difficulties with agreeing on the agent or the sale process, the Honourable Justice Lemon shall remain seized of the file. Any requests to facilitate the sale shall be made to Justice Lemon in writing on notice to the other party.
[4] The sale of the home was eventful. I was required to deal with a number of issues between the parties. I was required to order Mr. Clark and his children out of the house and I was required to grant an order allowing Ms. Sunega to have authority over the sale of the house. I also dealt with accounting for various items after separation. Generally, Ms. Sunega was either successful in her requests or Mr. Clark agreed to her requests at court.
[5] In my judgment of January 15, 2018, I said:
Accounting after Separation
Mr. Clark asks that Ms. Sunega reimburse him for expenses relating to the house after separation. Ms. Sunega agrees that she has paid nothing towards the house since separation.
The joint mortgage of 2015 calls for bi-weekly payments of $578.46. It appears that 2015 realty taxes were $4,323.62. I have no evidence of what the taxes for 2016 or 2017 were or whether they were paid. I have no evidence of what the house insurance was for those years. The payments for mortgage, taxes, and home insurance are a joint liability for the joint owners of the property. To the extent that Mr. Clark has paid Ms. Sunega’s share of those expenses to the date of closing, he should have that credit from her share of the net proceeds of sale as set out above.
Without evidence on this point, I could dismiss this claim. That would be manifestly unjust. Alternatively, I could have the parties come back to court to have Mr. Clark provide this narrow accounting. That would be inefficient and costly. My preference is that the parties work this out on their own. The three items are easily documented. Without documentary confirmation, they are easily discounted.
If there are difficulties with that accounting, I shall remain seized of that issue. If it is not agreed upon, either party may make written submissions with respect to the payment of the realty taxes, home insurance and mortgage payments. Those submissions shall be on notice to the opposite party.
The utilities, such as hydro, water, internet and the like were used by Mr. Clark and his children. Ms. Sunega does not have to account for those expenses from the date of separation.
[6] On August 3, 2018, I dealt with a motion to deal with the house expenses. There, I said:
Mortgage, Property Taxes and House Insurance from the time of Separation
As set out in my Judgment, this should have been a rather straightforward matter. Mr. Clark has refused to deal with it. In her materials, Ms. Sunega provided an accounting to Mr. Clark on June 20, 2018. He does not deny that he received it. As of August 3, he simply submits that he has not had an opportunity to deal with it.
Mr. Clark’s credibility has been destroyed in the process of this proceeding. When he wants to be, he is quite prepared and articulate. When he wants to delay things, however, he says that he is either too busy or too confused to deal with the issues. I draw the adverse inference that Mr. Clark agrees with the calculation set out by Ms. Sunega but simply refuses to be cooperative.
Based on her materials, Ms. Sunega suggests that she owes Mr. Clark the sum of $20,642.28 as at June 20, 2018. However, it is to be remembered that this is Mr. Clark’s claim. If he has nothing to support his claim, it will be dismissed.
Accordingly, Mr. Clark shall produce to Ms. Sunega all of his accounting and records with respect to his claim for mortgage, insurance and taxes within 30 days. If he fails to do so, the claim is dismissed. If he does and the parties cannot agree on what is owing, Ms. Sunega may return this issue to court before me.
[7] In her supporting affidavit to this motion, Ms. Sunega says:
Despite your Honour making it clear on August 3rd that evidence from trial would not suffice, on the 30th day (September 19th) at 1 pm Mr. Clark emailed me stating “the documentation for the amounts I paid for the mortgage, property taxes and house insurance its all in my bank statements for trial and thereafter from additional court appearances.” Attached to this email were 30 pdfs of various monthly banking statements. Please see attached Schedule A: Email from Mr. Clark.
Mr. Clark has not done or shown any calculations, nor has he suggested a value that Ms. Sunega would owe for her half of the mortgage, property tax, and home insurance since time of separation. In addition, Mr. Clark has not agreed to the value Ms. Sunega has calculated and submitted.
[8] The Schedule A referred to in Ms. Sunega’s affidavit says:
“…As for the request for the documentation for the amounts I paid for the mortgage, property taxes and house insurance its all in my bank statements from trial and thereafter from additional court appearances. The first statements are 113 pages long from September 2010 up to March 2016. Each mortgage, property taxes and insurance payment is itemized for a record of what I paid for each. In addition there is other bank statements I am not providing to you with the same information.
[9] To complete the history, Ms. Sunega sets out that:
The home, 220 Rickson Ave sold for $480,000 and closed on August 31st/2018. Since this date the funds have been held in trust by Mark Graham Law Office Professional Corporation.
Mr. Mark Graham is not willing to disburse the funds to the parties until he receives confirmation from your Honour that the claim has in fact been dismissed as stated. Mr. Graham is requesting further direction from your Honour that the applicant is no longer responsible to pay to the respondent the fees as noted in point 1.f) of the original court order dated Jan 15th/2018 (half of the mortgage, property taxes and insurance since time of separation).
Mr. Mark Graham is looking for a new or amended court order providing detailed accounting on the disbursement of funds to each party with respect to the above mentioned claim being dismissed.
As advised in the Jan 15th/2018 order, Mr. Mark Graham has disbursed funds to pay the outstanding mortgage, commission, and legal fees. Please see attached Schedule B: Accounting Statement for 220 Rickson Ave.
Since Mr. Clark’s eviction from the home, Ms. Sunega has paid a total of $2747.28 after Mr. Clark defaulted on payments for the mortgage, and home insurance as order by Justice Lemon, Ms. Sunega paid these fees, including penalties in the best interests of both parties and is looking for repayment from Mr. Clark from his portion of the funds from the sale of the home. Please see attached Schedule C: Proof of payment of these funds from Applicant’s CIBC account.
Analysis
[10] Ms. Sunega seeks an order dismissing Mr. Clark’s claim for mortgage, insurance and tax payments that he has made on the joint home. While I completely understand Ms. Sunega’s frustrations with Mr. Clark, he has provided “his accounting and records with respect to his claim” as set out in my endorsement of August 3, 2018. Further, in her earlier affidavit, Ms. Sunega acknowledged that she owed Mr. Clark the sum of $20,642.28 as of June 20, 2018. I cannot simply ignore that clear evidence of Ms. Sunega’s obligation. Accordingly, $20,642.28 shall be paid from Ms. Sunega’s share of the proceeds of sale.
[11] Ms. Sunega has provided documentation confirming that she has paid the sum of $2,747.28 for mortgage and home insurance payments since June 20, 2018. However, of course, half of this is her own obligation. Accordingly, from Mr. Clark’s share of the proceeds of sale, the sum of $1,373.64 shall be paid to Ms. Sunega.
[12] Attached to Ms. Sunega’s materials is the Statement of Account from the sale of the house. That shows that the real estate counsel put $156,174.12 in trust.
[13] Pursuant to paragraph 1(a) of the Judgment, $55,932.36 shall be paid to Mr. Clark from the funds in trust. That leaves $100,241.76 to be divided equally between the parties.
[14] From Ms. Sunega’s share, $20,642.28 shall be paid to Mr. Clark.
[15] From Mr. Clark’s share, $1,373.64 shall be paid to Ms. Sunega. As set out below, from Mr. Clark’s share, costs of $6,500.00 shall be paid to Ms. Sunega.
[16] With those payments, the funds in trust may be paid to the parties accordingly.
[17] For simplicity, any interest outstanding on the funds in trust shall be divided equally between the parties.
Costs
[18] Ms. Sunega seeks $14,074.58 in costs. The submissions were served upon Mr. Clark September 17, 2018, and he has not responded. I have made costs orders for these litigants in the past; they are aware of the principles to be applied.
[19] Ms. Sunega has been successful and is entitled to costs.
[20] There is no doubt that, since the judgment, Mr. Clark’s behaviour has required Ms. Sunega to do a great deal of unnecessary work. Mr. Clark’s conduct has cost both parties significantly with respect to the sale price of the home. His conduct should not be rewarded.
[21] Some items included in the request for costs have already been dealt with. Ms. Sunega seeks the return of her insurance and mortgage payments that have already been dealt with above. She seeks costs for carrying out the sale of the home but without the appropriate evidentiary record.
[22] I am to determine the costs of the proceedings but not the costs of any conduct by Mr. Clark within the proceedings.
[23] Ms. Sunega seeks costs in the amount of $6,500.00 for her:
time, energy and effort to take on this case unrepresented, while she continued to work, in an effort to save both parties additional legal expenses. The applicant has invested upwards of 150 hours researching, completing paperwork and applications, communicating with the other party, communicating and retrieving documents for the realtor, retrieving evidence at the request of the respondent, fees for printing and serving documents and fees for travelling to the Guelph Courthouse to file each document. The applicant has had to drive this case and the respondent to comply with the Judge’s order every step of the way.
[24] I agree with Ms. Sunega’s description of the work that was required of her and her assessment of those costs.
[25] Accordingly, Mr. Clark shall pay $6,500.00 to Ms. Sunega for costs related to all of the motions since my Judgment of January 15, 2018. Those funds shall be paid from Mr. Clark’s share of the proceeds of sale.
Result
Ms. Sunega Mr. Clark
Justice G.D. Lemon Date: October 12, 2018