Court File and Parties

COURT FILE NO.: FS-17-416539 DATE: 20181221 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher Mario Micallef, Applicant AND: Christina Suzanne Micallef, Respondent

BEFORE: Kiteley J.

COUNSEL: Pierre Sicco, for the Applicant Eric Freedman, for the Respondent

HEARD: December 18, 2018

Endorsement

[1] The final order dated November 9, 2018 provides for the equalization of net family property, support and sale of the jointly owned matrimonial home. On this motion, the issue is whether Mr. Micallef is entitled to a vesting order with respect to title to the matrimonial home pending sale and closing.

[2] In my endorsement dated November 9, 2018 I made an order in paragraph 14 as follows:

The Matrimonial Home shall be listed for sale with Ms. Nina Kako of Re/Max Professionals Inc. within 21 days following the date of this Order, and the parties shall take all steps, including without limitation signing the Listing Agreement attached hereto as Schedule “A”, and all other documents required for the Matrimonial Home to be listed for sale with Ms. Kako.

[3] The Respondent did not sign the listing agreement attached as Schedule A. The Applicant served a notice of contempt motion seeking orders including that she be found in contempt for failing to comply with paragraph 14 of the November 9, 2018 order. The Respondent signed the listing agreement on the morning of December 11, 2018 immediately before the hearing of the motion. The endorsement made by Kristjanson J. indicated that, since the Respondent had signed the listing agreement, the Applicant would not proceed with the contempt motion but he would seek further relief. The motion was adjourned to December 18, 2018 to allow the Applicant to file a reply affidavit.

[4] The Applicant has brought a draft order in which he seeks the following relief:

Title to the Matrimonial Home be vested with immediate effect into the name of Christopher Mario Micallef, strictly for the purpose of ensuring that the Matrimonial Home is listed for sale, that offers and counter-offers are made and/or signed, and that the sale of the Matrimonial Home is completed as provided in the Order of Madam Justice Kiteley, in this matter, dated November 9, 2018 (the “Order”), and without prejudice to the Respondent’s rights with respect to the net proceeds of sale of the Matrimonial Home and her other rights pursuant to the Order.

[5] After hearing submissions, I directed counsel over the recess to research the issue of the requirements the moving party must establish in order that the court might make a vesting order. Following the recess, counsel referred to several decisions. Those to which I refer are Trick v. Trick; Lynch v. Segal; Norris v. Norris, 2016 ONSC 7077.

[6] Pursuant to s. 100 of the Courts of Justice Act, the court has broad general power to grant a vesting order. In the context of family law, it is available on an application for equalization of net family property or support. Vesting orders are discretionary and have their origins in the court’s equitable jurisdiction.

[7] However, s. 100 does not provide stand-alone jurisdiction to grant the relief claimed. Section 100 only provides a mechanism to vest title to a property in respect of which there is a separate, valid claim to ownership.

[8] As indicated in paragraph 10 of Norris, for a vesting order to be granted in the context of family law, the court must be satisfied that:

(a) the previous conduct of the party obligated to pay, and his reasonably anticipated behaviour, are such that the ‘payment order’ will not likely be complied with in the absence of a less intrusive order; (b) there is a reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability; and (c) the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order.

[9] The Applicant is unable to satisfy the court on any of those grounds. As the draft order indicates, the vesting order is sought as an accommodation only, simply to ensure compliance with a procedural order that the matrimonial home will be sold. The Applicant does not assert a separate underlying claim to ownership. There is no “payment order” for which compliance is required. The matrimonial home is jointly owned and will be sold as required by the order. The Respondent did deliberately fail to comply with paragraph 14 of the order. In her affidavit she has provided explanations and excuses but the bottom line is that she did not think that paragraph 14 of the order was fair to her. However non-compliance with a procedural order does not suffice as a separate valid claim. The Respondent’s “previous conduct” causes the Applicant and the Court to be apprehensive about the Respondent’s future compliance. Mr. Freedman argues that based on paragraph 16 of her affidavit sworn December 10, 2018 the Court can be confident that she will prospectively comply with the order. In any event past non-compliance alone does not meet the test for a vesting order.

[10] The Applicant has not satisfied the court that there is a reasonable relationship between the value of 50% of the former matrimonial home and the amount of the “targeted spouse’s” liability because there is no such relationship. There is a mortgage registered against title to the matrimonial home. I have no evidence as to whether the interest of the mortgagee is an impediment to the granting of a vesting order.

[11] The motion for a vesting order fails.

[12] I invited counsel to attempt to arrive at an amount of costs subject to success. They did not arrive at an amount and I received their costs outlines without oral submissions. Counsel confirmed that there were no offers to settle.

[13] Counsel for the Applicant has provided a costs outline in which he claims what appears to be full recovery costs for the period December 3 to and including the hearing on December 18 for a total of 24 hours at $400 per hour. The fees total $9880 and, with HST of $1284, the total is $11,164 together with disbursements in the amount of $502.

[14] Counsel for the Respondent has provided a costs outline in which he claims partial indemnity fees for approximately 12.5 hours at $250 per hour together with the estimated counsel fee of $250 and disbursements in the amount of $50 for a total claim of $3425.

[15] Pursuant to rule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to costs. Success must be assessed in the overall outcome of the motion.

[16] The Respondent capitulated on the morning of the original return date. In that sense the Applicant was successful. Having accomplished that goal, he withdrew the claim for contempt but, understandably he continued to pursue the vesting order in an effort to ensure that the Respondent’s anticipated on-going non-compliance would not put the acceptance of offers at risk, particularly during this time of year when courts are less available. He did not succeed in obtaining the vesting order.

[17] The Respondent’s behaviour in refusing to sign the listing agreement pursuant to paragraph 9 of the order was unreasonable. To the extent that she was successful in defeating his claim for a vesting order she is denied her costs pursuant to rule 24(4). On the other hand, the Applicant was reasonable in launching his motion in the face of the Respondent’s non-compliance and he was partially successful in achieving the most immediate aspect of his motion. He is entitled to some costs.

[18] In her responding material, the Respondent asserted that the Applicant had failed to comply with various aspects of the order dated November 9, 2018. There has been so much conflict in the family, that I see no reason to allow her to bring any motion arising from his alleged non-compliance before closing of the sale.

Order

ORDER TO GO AS FOLLOWS:

[19] The Applicant’s motion for a vesting order is dismissed.

[20] The Respondent shall pay costs of the motion returnable December 11, 2018 and December 18, 2018 in the amount of $2,000 payable out of the Respondent’s share of the proceeds of sale of the matrimonial home.

[21] Prior to closing of the agreement of purchase and sale on the matrimonial home, the Respondent is prohibited from bringing any motion to compel compliance by the Applicant of any term of the order dated November 9, 2018.

Kiteley J. Date: December 21, 2018