Azevedo v. Lograsso, 2019 ONSC 4267

Court File and Parties

COURT FILE NO.: CV-18-137935 DATE: 20190716 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Maria Candida Azevedo and Antonio Julio Azevedo Applicants – and – Mario Lograsso, Joseph Lograsso, Michael Lograsso and Julian Lograsso Respondents

Counsel: Rosa Yi, for the Applicants Mario Lograsso, Joseph Lograsso, Michael Lograsso and Julian Lograsso, All In-Person/Self-Represented

HEARD: June 13, 2019

REASONS FOR DECISION

CHARNEY J.:

1The Applicants, Maria Candida Azevedo and Antonio Julio Azevedo (Maria and Antonio) seek an order to obtain vacant possession of the property known as 33 Solway Avenue, Vaughan, Ontario (the property) from the Respondents.

Facts

2The Applicants are the registered owners of the property.

3The Respondent, Mario Lograsso (Mario), is the separated spouse of the Applicants’ daughter Nancy Azevedo Lograsso (Nancy).

4The Respondents, Joseph, Michael and Julian, are the adult children of Mario and Nancy, and the Applicants’ grandchildren.

5The property was originally purchased by Mario and Nancy in 1998. In 2003 the property was transferred from Mario and Nancy to Nancy’s name only.

6Mario and Nancy were heavily in debt and in default of their mortgage. They were about to lose the property to the bank. On July 13, 2005, Maria purchased the property from Nancy for $450,000. The property was transferred to Maria without conditions.

7Following the sale in 2005, Maria allowed Mario, Nancy and their children (who were minors) to continue to live on the property rent free. No lease or agreement was signed.

8Maria and Antonio have paid the property taxes and all of the home insurance and maintenance on the property since 2005.

9In 2017 Antonio was added as a second registered owner of the property.

10Nancy separated from Mario and vacated the property in March 2018.

11On May 11, 2018, the Applicants gave the Respondents written notice to terminate their occupancy and quit the property by July 15, 2018. The Respondents have refused to vacate the property, taking the position that it is a matrimonial home under the Family Law Act, R.S.O. 1990, c. F.3 (FLA).

12On July 18, 2018, and August 7, 2018, counsel for Mario advised counsel for the Applicants that Mario would be commencing an application under the FLA for exclusive possession of the property as a matrimonial home. No such application was brought at that time.

13The Applicants’ application was originally scheduled for January 17, 2019. The application was adjourned to March 7, 2019, to permit the Respondents to retain counsel.

14On March 7, 2019, the application was adjourned to June 13, 2019, again on consent to permit the Respondents to obtain counsel. The Order of Di Luca J. indicated that no further adjournments could be sought for that purpose.

15Counsel for the Applicants provided me with a copy of a fax that she received on June 12, 2019, the day before this hearing. The letter is from a lawyer, Mercedes Ibghi, advising counsel that she has been retained by Mr. Mario Lograsso with respect to his family law matter, and indicating that Mr. Lograsso has commenced a family court Application against the Applicants and their daughter Nancy. In this letter Ms. Ibghi indicates that Mario “is seeking various relief, including…a declaration that the property in dispute is a matrimonial home, and exclusive possession of the home.” Ms. Ibghi makes no reference to this Application scheduled for June 13, 2019, the day after her letter was sent, nor did she appear on behalf of the Respondents on this Application. Ms. Ibghi asks whether counsel for the Applicants will accept service of the family law application.

16It is unclear whether Ms. Ibghi was aware of this Application when she sent the letter on June 12, 2019. In my view, the commencement of such a family law application against Maria and Antonio on the eve of this Application constitutes an abuse of process. That family law application is not before me, but the Respondents cannot evade this Application by commencing duplicative litigation against the Applicants.

17Mario may, of course, commence a family law application against Nancy.

18The Respondents have not filed any material in reply to this Application. They were not represented by counsel at this hearing.

Analysis

19Mario takes the position that the property is a matrimonial home “regardless of ownership” and that he is entitled to exclusive possession under s. 18 and 24 of the FLA.

20Section 18(1) of the FLA provides:

18 (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

21Section 24(1)(b) of the FLA authorizes the Court to “direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs”.

22Section 18(1) of the FLA deems a property to be a matrimonial home in particular circumstances where one of the spouses has an “interest” in the property. Neither Nancy nor Mario have had any proprietary interest in the property since the sale of the property in 2005. A spouse’s interest in the matrimonial home can only be exercised against the interest of the other spouse: FLA s. 19(2). Since Nancy has no interest in the property, Mario cannot assert an interest under s. 18 of the FLA. Mario cannot assert a FLA claim against Maria and Antonio.

23Nor are the Respondents tenants under the Residential Tenancies Act, 2006, S.O. 2006, c.17 (RTA). When the “tenancy” first took effect, the Respondents shared a bathroom and kitchen facility with the owners’ daughter, thus bringing the tenancy into the exemption contained in s. 5(i) of the RTA:

5. This Act does not apply with respect to, (i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located

See: Quin v McCaughey, 2016 ONSC 7921, at paras. 20 and 21 (Div. Ct.).

24The Respondents have been given more than reasonable notice to vacate. The Respondents have continued to occupy the property without paying rent or maintenance after having received the Applicants’ notice to vacate over one year ago.

Conclusion

25The Application is granted. This Court orders that:

(a) The occupancy rights of the Respondents, Mario Lograsso, Joseph Lograsso, Michael Lograsso, and Julian Lograsso in respect of the property known as 33 Solway Avenue, Vaughan, Ontario, if any, have been validly terminated.

(b) The Applicants, Maria Candida Azevedo and Antonio Julio Azevedo are entitled to vacant possession of the property as of July 31, 2019.

(c) An Order that a Writ of Possession in respect of the property shall issue as of August 1, 2019, to the Sheriff of the Regional Municipality of York.

26The Applicants are entitled to their costs for today’s proceedings and the January 17, 2019 adjournment, which were reserved for the hearing. The costs of the March 7, 2019 adjournment were ordered on that day.

27Costs for the January 17, 2019 adjournment are fixed at $200. Costs of the Application are fixed at $7,500. All costs are payable by the Respondents on a joint and several basis, and payable to the Applicants within 30 days.