Court File and Parties

COURT FILE NO.: D-21022-15 DATE: 20181129 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gordon William Ward Drysdale AND: Donna Lee Heggie

BEFORE: The Honourable Mr. Justice M. Varpio

COUNSEL: Jerome C. Gardner, for the Applicant Matti E. Mottonen, for the Respondent

HEARD: November 29, 2018

Endorsement

The Matrimonial Home

[1] Mr. Justice Poupore’s Order dated September 13, 2018 requires the parties to work cooperatively to sell the matrimonial home through real estate agent Terry Ames. Ms. Heggie brings a motion seeking the ability to solely instruct the real estate agent to permit the sale of the matrimonial home. Mr. Drysdale seeks a change permitting the matrimonial home to be sold via co-listing agreement whereby his girlfriend (also a real estate agent) can also be named as agent to protect his interests.

[2] The basis for this change, as per Mr. Drysdale, is that he does not believe that the ask price is sufficiently high. Mr. Drysdale was a real estate agent in the 1980’s and, as such, he maintains that the asking price was too low and failed to take into account a fourth bathroom. As per Mr. Ames’ email, the list price was initially to be “399 as is or 429 with some cleanup and decluttering”. Mr. Drysdale initially wished to list at $525,000 as per as per Mr. Ames’ offices emails, or $495,000 as per Mr. Drysdale’s affidavit. Mr. Drysdale is now content to list at $469,000.

[3] Mr. Drysdale submits that the inability of Mr. Ames to come up with a correct valuation would unfairly prejudice his position. I disagree.

[4] Mr. Drysdale’s position fails to take into account the fact that, in 2016, the matrimonial home was valued between $371,000 and $405,000. While I agree that market conditions may have changed, there is nothing in the material to suggest that the Sudbury housing market has gone up dramatically in two years.

[5] Thus, I have nothing before me to suggest that Mr. Ames’ suggested range is inappropriate beyond Mr. Drysdale’s protestations to the contrary and the co-listing agreement naming Mr. Drysdale’s girlfriend as a co-listing agent.

[6] I also accept that Mr. Drysdale has not been fully cooperative since September 2018. On October 9, 2018, Mr. Ames emailed Ms. Hegge’s counsel to state that “The delay is coming from Mr. Drysdale. He says he is getting the house ready. He has not given me a date that he will be ready. We also have not been able to agree on a list price.” Also, Mr. Drysdale retained Sutton Group (not Mr. Ames’ agency) to act on his behalf despite the September 13, 2018 Order of Poupore J. It appears that Sutton Group employs Mr. Drysdale’s girlfriend.

[7] Mr. Drysdale clearly retained another agent despite the Order of Poupore J. stating that Mr. Ames was to act on the sale. Mr. Drysdale claims that it has taken him a considerable time to get the house ready for sale. I note that 2.5 months have elapsed since the September 13, 2018 Order and that Mr. Drysdale only now appears ready to sell the house.

[8] Accordingly, I find that Mr. Drysdale has not fully cooperated with Mr. Ames and that, pursuant to paragraph 4 of the September 13, 2018 Order – the paragraph granting the ability to provide directions – I hereby Order that:

1. The Respondent, Donna Lee Heggie shall have the sole responsibility and authority to make the arrangements for the immediate listing for sale of the Parties’ matrimonial home municipally located at 61 Ravina Avenue, Garson, Ontario including the ability to: a) solely retain real estate agent, Terry Ames with Re/Max Crown Realty to list the matrimonial home for sale; b) ultimately decide upon the listing price for the sale of the matrimonial home. Ms. Heggie will act upon Mr. Ames’ advice and will act reasonably in the circumstances; c) list the matrimonial home for sale without the Applicant husband, Gordon William Ward Drysdale being required to sign the real estate listing agreement.

The Artwork and the Contents

[9] The November 2nd, 2017 Order of Poupore J. states that Mr. Drysdale “shall be permitted to sell in the normal course of business his artwork [sic] and he shall provide an accounting for such…”

[10] Mr. Drysdale seeks the ability to sell the artwork and contents of the home so as to both generate cash money and to “declutter” the home. He intends to sell the artwork via auction, and the contents via garage sale.

[11] Ms. Heggie states that she is opposed to the Applicant’s request for a yard sale because the parties will not realize the full value of the home contents. She shares said concern with regards to the auction. She indicates that she has an appraisal listing the value of the contents and artwork and that no sale should be actualized as it may prejudice her financial position if insufficient funds are generated. She also claims that I have no authority to Order such a sale under the Family Law Act. She wants the property to be held pending a Final Order.

[12] With respect to my authority to Order a sale, s. 9 of the Family Law Act states:

9 (1) In an application under section 7, the court may order,

(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1) ; 2009, c. 11, s. 25 .

[13] Buttar v. Buttar, 2013 ONCA 517, [2013] O.J. No. 3725 stands for the proposition that S. 9 gives the court the power to transfer [and thus, presumably, sell] properties only if appropriate to satisfy an obligation imposed by the order for the equalization of net family property. Currently, no such order to equalize NFP exists and, as such, I cannot order the sale of the household contents via yard sale. The motion regarding same is therefore dismissed.

[14] As for the art sale, Poupore J.’s previous Order permitted the sale of the art in the “normal course of business”. I have no evidence to suggest that such an auction is, in fact, part of the “normal course of business” as opposed to selling the items piecemeal. Based upon counsel’s submissions, it appears that Mr. Drysdale may no longer be working as an art dealer which would thus defeat the “normal course of business” in any event. As such, I will not make such an Order because I do not have authority to do so under s.9.

[15] I note that Mr. Drysdale wishes to remove the items from the house so as to make its sale more efficient. He indicates that storage would cost $175/month in order to store the items in question. It is clear that Ms. Heggie may well be somewhat unreasonable in so far as she is demanding that the house be clean, but will not pay for storage so as to effectuate the sale or permit the “cluttering” items to be sold. Thus, Mr. Ames ought to try to sell the house for as much money as possible and as per Mr. Ames’ email, a “decluttered” house will likely fetch more money. I also find that several items will need to be removed from the house to “declutter” same. Mr. Drysdale will need to pay for storage since these appear to be his household items.

[16] However, if Ms. Heggie’s valuation of the household contents and artwork is inflated, Ms. Heggie may find herself ultimately responsible for those storage costs because of what appears to be her rather strident position.

Costs

[17] I am guided by Rule 24 as regards costs and I make especial note of Rule 24(4). I find that both parties are behaving unreasonably and, as a result, I find that no costs are payable by either side.

The Honourable Mr. Justice M. Varpio Date: November 29, 2018