Court File and Parties
COURT FILE NO.: CV-18-77618 DATE: 2018/10/24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NINA UWITONZE, Applicant AND JEAN PASTEUR MUGABARABONA, Respondent
BEFORE: Justice S. Corthorn
COUNSEL: Francois Kabemba, for the Applicant Jessica R. Montpellier, for the Respondent
HEARD: October 23, 2018 (at Ottawa)
Endorsement
corthorn j.
Introduction
[1] This application is for an order for partition and sale of the parties’ matrimonial home (“the Home”). The applicant also seeks relief with respect to what is to be done with the proceeds from the sale of the Home. That relief includes an order for a portion of the proceeds to be held in trust pending resolution in the parties’ family law litigation of issues including child support, spousal support, and equalization of net family property.
[2] On the return of the matter, I dismissed the application without costs. I provided the parties with a brief hand-written endorsement and advised them that I would provide a typed endorsement. My reasons for dismissing the application without costs follow.
Background
[3] The parties were married in 2003 and separated in 2012. They purchased the Home in February 2010, as joint tenants. According to the applicant, they continued to live separate and apart under the same roof until January 2016 when she left the Home.
[4] The respondent has continued to live in the Home since January 2016. He currently lives in the Home with his new partner and four children. Some of the children appear to be from the respondent’s relationship with his new partner.
[5] The respondent in this application is the applicant in the parties’ family law litigation. That application was commenced in 2013 (Court file no. FC-13-1299). The subject of the Home and the potential for it to be sold, whether by partition and sale or otherwise, has been before the Court on a number of occasions in the context of the family law litigation. The references made, in the family law litigation, to the Home have been both direct and indirect:
- In July 2014, Master Roger (as he then was) made an order at a case conference providing that “A motion may be brought seeking interim child and spousal support and for an order for the sale of the matrimonial home.”
- In October 2018, the parties were before Justice Doyle for a settlement/trial management conference. In her endorsement, Justice Doyle identifies that the issues to be determined include equalization of family property. She also makes reference to Ms. Uwitonze’s stated intention to proceed with a motion for summary judgment.
- In July 2018, the parties were before Justice Laliberté for a case conference. In his endorsement, written in French, he identifies that Ms. Uwitonze intends to bring a motion for partition and sale.
[6] When appearing before me, counsel for Ms. Uwitonze advised that at no time in the context of the family law litigation was a procedural motion brought on behalf of his client for leave to proceed on an urgent basis with a motion for the sale of the Home (by partition and sale or otherwise).
[7] The notice of application was issued in August 2018. The applicant’s supporting affidavit was sworn on August 23, 2018.
[8] The Home was the subject of an action commenced by The Toronto-Dominion Bank (“TD Bank”). The defendants named in the action are the parties to this application (and the parties to the related family law litigation). Included as an exhibit to the applicant’s affidavit is a copy of a judgment dated April 23, 2018. It appears that the bank’s action was undefended. TD Bank obtained a judgment requiring the defendants to deliver possession of the Home to the bank. In addition, the judgment requires the defendants to pay a sum totalling approximately $260,000.
[9] A copy of the application record was provided by counsel for the applicant to TD Bank. I say “provide” because I am not certain that the method of service described in the affidavit of service is effective service within the meaning of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). In any event, counsel for the applicant received a response from TD Bank. That response is included as an exhibit to a second affidavit sworn by the applicant. That affidavit is included in a supplementary application record that was delivered outside the deadline prescribed by the Rules.
[10] Whether filed out of time or not, the relevant exhibit identifies that TD Bank received a copy of the application record. The exhibit is a letter dated October 18, 2018 from in-house counsel with TD Bank Financial Group. The letter is addressed to counsel for the applicant.
[11] In her letter, in-house counsel says, “TD does not propose to take any position on the application but will require a copy of the draft order to ensure that none of its rights are being stayed or compromised”. I was not provided with a copy of any draft order—whether reviewed by counsel for TD Bank or not. It is difficult to understand why an order, if made, would be subject in any way to the approval of TD Bank’s counsel given that TD Bank has chosen not to take a position on the application. In any event, given the dismissal of the application, TD Bank’s position on it is not a factor in my reasons.
Analysis
[12] The parties’ respective rights with respect to the Home may be relevant to the outcome of one or more issues in the family law litigation. The potential therefore exists for an order, if made in this application, to prejudice the rights of one or both of the parties in relation to the Home in the context of the family law action. For that reason alone, the relief sought with respect to the Home must be brought in the context of the family law action (Marvin v. Marvin, [1992] O.J. No. 656, 8 O.R. (3d) 41 (C.A.)).
[13] The applicant relied on the decision of Ferguson J. in Osborne v. Myette in support of her position that she is entitled to proceed with this application regardless of the existence of the family law litigation. That case is distinguishable from the present matter because in Osborne, the parties to the application were common-law spouses. As noted by Ferguson J. at paragraph 3 of the decision, neither of the parties had any rights with respect to a matrimonial home under Part II of the Family Law Act, R.S.O. 1990, c. F.3.
[14] The applicant also relied on the decision of the Ontario Court of Appeal in Davis v. Davis, [1954] O.R. 23 as establishing the test to be applied in determining whether an individual is entitled to relief in the form of an order for partition and sale of property. I agree with the applicant that Davis sets out the general test to be applied. It remains necessary, in any event, to consider the pre-existing family law litigation.
[15] I pause to note that the relief sought on this application indirectly, if not directly, relates to the family law litigation: the applicant requests that a portion of the proceeds from the sale of the Home be held in trust pending a determination of the respondent’s obligations with respect to child support. In the applicant’s materials there is implicit, if not tacit, recognition of the connection between the relief sought on this application and the issues to be determined in the family law litigation.
[16] The applicant submits that the matter is urgent because her credit rating has been negatively affected by the conduct of the respondent. The applicant’s position is that the respondent’s default in payment of the mortgage resulted in TD Bank commencing the action in 2018 and in the default judgment described above. The applicant overlooks the fact that she is a joint tenant of the Home, was named as a defendant in the action commenced by TD Bank, and defaulted in the defence of the action. Her conduct is a contributing factor to the circumstances in which she presently finds herself.
[17] In the event the applicant chooses to pursue, in the context of the family law litigation, relief related to the Home, it would be helpful for the judge or master hearing the matter to have evidence of the position of TD Bank and its intention with respect to the property that is the subject of the default judgment. The letter from in-house counsel for TD Financial Group does not provide that information.
[18] To the extent that the respondent’s conduct with respect to the Home has negatively impacted the applicant and that conduct is relevant to the equalization of net family property, that conduct is to be addressed in the context of the family law litigation.
[19] The applicant submits that when this application was commenced in August 2018, the first return date available was the October date on which this matter came before me. She provided no explanation as to why, in the context of the family law litigation, she did not bring a motion for an order permitting her to bring a motion on an urgent basis. If she had done so and the matter had been deemed urgent, then she would not have lost much, if any, time at all in having the matter heard. She may well have been able to secure a date prior to October 23, 2018 for an urgent motion to be heard in the family law litigation.
[20] The applicant claims that there is urgency to the matter because TD Bank has the default judgment and is in a position to enforce the judgement at any time. She is concerned that TD Bank will take steps to sell the Home. She is also concerned that when the Home is sold (assuming it is sold), she will receive nothing from the proceeds of sale.
[21] It is difficult to comprehend why the matter became urgent as of August 2018 when the default judgment is dated April 2018. It is also difficult to comprehend the urgency of the matter when the potential for the Home to be sold was first raised in 2014 before Master Roger. Why has it taken the applicant more than four years to pursue relief in that regard?
[22] The applicant informed the court that she intends to proceed with a motion for summary judgment in the family law litigation on a date subsequent to the settlement conference scheduled for February 1, 2019. The specific relief to be sought on that motion was not identified. Regardless, with equalization of net family property an issue to be resolved, there is the potential for the parties’ respective rights in the Home to be addressed on that motion.
Disposition
[23] The application is dismissed, without prejudice to the applicant proceeding in the context of the family law action for relief related to the matrimonial home. In the event the applicant brings a motion in the family law action that is directly or indirectly related to the parties’ respective rights in the Home, she shall include in her motion materials a copy of this endorsement and of the handwritten endorsement of October 23, 2018.
[24] The application should not have been pursued in this form. For that reason, the applicant is not entitled to her costs. The dispute between these parties has a long history (over five years since the commencement of the family law litigation). The materials properly before the Court provide evidence of the respondent’s delinquency throughout the course of that litigation. I find that the respondent’s delinquency is a factor in the applicant’s decision to seek relief related to the Home. An award of costs in favour of the respondent would be to reward him for delinquency over time. For those reasons, the respondent is not entitled to his costs of the application.
[25] There shall be no costs of the application.