Court File and Parties
COURT FILE NO.: 52980/17
DATE: 2019 08 22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Devorra Sabijan, Applicant
AND:
Kreso Sabijan, Respondent
BEFORE: The Honourable Madam Justice D. Piccoli
COUNSEL: Ms. Heather R. Caron, for the Applicant
Ms. Heather Geertsma for the Respondent
HEARD: July 24, 2019
THE HONOURABLE MADAM JUSTICE D. PICCOLI
ENDORSEMENT
Introduction
[1] This endorsement is in addition to my handwritten endorsement of July 24, 2019, which was read into the record and provided to the parties on that date.
[2] The applicant (“mother”) and respondent (“father”) were married June 26, 1993. They separated July 8, 2012. They have four children, namely Alexander (aged 24), Chloe (aged 21), Anthony (aged 18) and Clara (aged 11). The mother has custody of the younger children, namely Chloe, Anthony and Clara.
[3] The mother states that after the parties separated on July 8, 2012, the father moved out of the matrimonial home located at 4 Blair Lane, Cambridge, Ontario N1S 1E4 (“the matrimonial home”) and she continued to reside there with the children.
[4] The father confirms that he has not lived at the matrimonial home for several years. He states the mother does not live there either. The mother’s evidence is that she lived in the matrimonial home until May 2019. The parties’ son, Anthony, continues to reside in the matrimonial home.
[5] The parties both agree that the matrimonial home is their only major asset.
[6] The mother commenced this application November 8, 2017, and the father answered on February 12, 2018. The mother amended her application on June 18, 2019. The father amended his answer on July 30, 2019. This matter has been outstanding for close to two years and consumes four volumes of material.
[7] Neither party has updated their financial statement in some time.
[8] The original motion before the court on July 24, 2019 is found at Vol 3, Tab 6 of the continuing record. The mother amended the motion and it is found at Vol 4, Tab 1 of the continuing record.
[9] As noted in my endorsement made on July 24, 2019, this endorsement is limited to the following issues:
The mother’s request to “list and sell the property at 4 Blair Lane, Cambridge, ON N1S 1E4, and to dispense with the respondent, Kreso Sabijan’s, signature”;
The mother’s request for an order to strike the pleadings of the respondent, Kreso Sabijan, for breach of Court orders; and
Costs.
[10] Despite that the parties both advised me that the matrimonial home (which is encumbered by Legal Aid liens and CRA debt) is essentially their only asset, they continue to be unable to resolve any issue.
The Matrimonial Home (dispensing with the respondent’s signature)
[11] A number of the motions have dealt with the sale of the matrimonial home.
[12] It is clear that the parties have had different approaches and positions regarding the timing of the sale of the home, the list price and whether the home should be sold. What is equally clear is that an order was made by Justice Braid on March 20, 2019, outlining the process for sale including who the agent should be (Karen Monterio), the list price of the home ($399,000), the identity of the real estate lawyer (Richard Cooper) and what was to happen with respect to the proceeds of sale of the home. The order even included a provision for dealing with the presentation of reasonable offers and the process to be employed should a reasonable offer not be accepted. As part of the order, Justice Braid indicated “the parties shall both work with and sign all necessary documentation as provided by their real estate agent or real estate lawyer and cooperate with any reasonable request for marketing and selling the property.” The father was ordered to pay $4,000.00 in costs by March 20, 2019.
[13] The father sought leave to appeal the order of Justice Braid from the Divisional Court, which court dismissed his request and ordered a further $4,000.00 in costs to be paid within 14 days of June 28, 2019.
[14] The mother states the father has frustrated the sale of the matrimonial home. She points to the following:
(a) The father made two formal complaints against the agent that Braid J ordered be in charge of listing the property effecting making it impossible for her to be the agent – there are now two agents involved – Ms. Monterio represents the mother and Mr. Quinton represents the father;
(b) The father signed a Listing Agreement on July 12, 2019 with his agent whereby he sought the home be listed at $675,000.00, which is significantly above the listing price as ordered;
(c) The father signed a Listing Agreement on July 15, 2019 with an asking price of $399,900.00 however he made a stipulation with respect to a lock box and 24 hours’ notice of showings;
(d) The father involved the daughter, Clara, in issues involving the matrimonial home and the repair of same;
(e) The father refused to sign the joint listing agreement; and
(f) The father interfered with the sale by attending the home, throwing out items, strewing items about and sanding certain floors and leaving the remainder undone. It is her assertion that he has caused further damage to the property.
[15] The father responds:
(a) That he has in a timely fashion responded to the applicant’s proposal for a joint listing, which she made on July 5, 2019 by contacting the agent Gary Quinton on July 10, 2019;
(b) That the mother has been unduly harsh in bringing these proceedings and her contact with Gary Quinton by calling him July 5 and 9 2019, asking him to send an email advising that the father has been uncooperative;
(c) The mother immediately moved for a motion to strike pleadings on July 11, 2019, citing his non-cooperation;
(d) He signed the Listing Agreement on July 12, 2019, for an amount more than $399,900.00 i.e. for $675,000. He did this, he states, at the advice of his agent, Mr. Quinton. On July 15, 2019, he signed the new Listing Agreement for $399,900.00; [Note: the text message from his agent at Exhibit B and C of the mother’s July 18, 2019 affidavit indicates that in fact Mr. Quinton “suggested low $400’s” and that he disagreed the house was worth in the “$600’s.”]
(e) The mother did not sign her Listing Agreement until July 15, 2019;
(f) The mother is contacting his agent unnecessarily and interfering with his efforts to sign the Listing Agreement;
(g) By the morning of July 17, 2019, he had modified his request for the lock box;
(h) The mother left the property in a state of disrepair and his efforts in attempting to prepare the property for listing include cleaning, organizing and sanding floors and patching holes in the wall;
(i) The mother has not been co-operating as she is attempting to stop his preparation of the sale of the home; and
(j) The mother has a repeated pattern of escalating matters before he can provide a response.
[16] The operative section of the legislation is section 23(b)(3) of the Family Law Act which states:
- The court may, on the application of a spouse or person having an interest in property, by order,
(a) determine whether or not the property is a matrimonial home and, if so, its extent;
(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent
That paragraph further states that the Court may make conditions that it considers appropriate.
[17] It is quite clear that the father does not like the order made by Justice Braid.
[18] He has taken numerous steps to frustrate the order and his explanations are not plausible. He was not asked by either real estate agent or the mother to take steps to repair or clean the home. He was not asked by anyone to try to make showings easier for the child Anthony nor is there any evidence that Anthony made such requests. What he was to do was what was set out in Justice Braid’s order of March 20, 2019.
[19] Based on all of the evidence before me, it is clear that the father has frustrated the sale of the matrimonial home in the following ways:
(a) He failed to sign the listing agreement within the time allotted by the Court order;
(b) He refused to use the agent the court ordered him to use (Karen Monterio) and in fact reported the agent to her professional body;
(c) He initially refused to list the home for the $399,900 as ordered by Justice Braid and instead insisting that it be listed for $675,000.00 and only cooperating after this motion was brought;
(d) He insisted on being present for showings;
(e) He insisted with respect to the lock box; and
(f) He insisted on being provided 24 hours’ notice of any showings.
[20] In light of the father’s actions, I find that it is appropriate to grant the order sought by the mother. I therefore make an order dispensing with the father’s consent for the sale of the matrimonial home and confirm the order that the mother is granted exclusive possession of the matrimonial home so that it can be sold.
[21] The father is to be kept apprised of any offers made in respect of the home and he can obtain this information directly from his own agent, Mr. Quinton. He is also to be kept advised of any offers the mother accepts. If he takes issue with either the mother’s acceptance of an offer or failure to accept an offer then he can return the matter to court by way of motion but only if he has paid the two outstanding cost orders listed above.
Striking the Pleadings
[22] The mother seeks to strike the father’s pleadings for the following reasons:
(a) The father’s non - compliance with the two costs orders;
(b) The father’s frustration of the sale of the matrimonial home which includes his failure to proceed with the Court ordered real estate agent, Karen Monterio, his attendance at the matrimonial home, his removal of items from the home and his “repairs” to the home; and
(c) The father’s failure to follow orders regarding the CRA debts/lien.
[23] It is clear that the father has not complied with the costs orders. He insists that the costs will be paid from his share of the proceeds of the sale of the matrimonial home. It is unclear what “share” he will have in the proceeds of the sale of the home given the mother’s claim that she be awarded an unequal division of family assets having regard to the CRA debt and her perspective with respect to the Legal Aid issues. The costs orders on the other hand are clear. The father has not complied with those orders.
[24] I have already found that the father frustrated the sale of the matrimonial home.
[25] There is much dispute with regard to the order regarding the CRA debt and lien and whether there has been compliance. The order of Justice Sweeny, made on June 18, 2018, required disclosure and that negotiations with CRA would be completed within 90 days. The material is very unclear in respect to the issue.
[26] In his affidavit of March 5, 2019, the father sets out his attempts to deal with the CRA issue, which included hiring a lawyer on June 25, 2018, who worked in conjunction with an accountant. He submitted a request for taxpayer relief and an addendum to request for taxpayer relief. He also wrote to the Minister of National Revenue on November 2, 2018 and December 31, 2018.
[27] It appears that the father continued to negotiate with CRA more than 90 days following June 18, 2018, but that is not necessarily a negative thing.
[28] There is some disagreement regarding the exact outstanding amount owed, but the parties seem to be in agreement that the amount owed is approximately $200,000.00.
[29] On the evidence before me, I cannot make findings that the father was non -compliant with the order in respect of the CRA debt.
The Law
[30] Rule 1(8) of the Family Law Rules provides:
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order.
[31] There are three Court of Appeal decisions that deal with the issue of striking pleadings namely: Purcaru v. Purcaru, 2010 ONCA 92, Kovachis v. Kovachis, 2013 ONCA 663 and Roberts v. Roberts, 2015 ONCA 450
[32] The power to strike out pleadings is to be used sparingly and only in exceptional cases. (See: Roberts v. Roberts, supra, para 15).
[33] For striking pleadings, consideration ought to be given to the importance or materiality of what has happened.
[34] Rule 1.04(1.1) provides that orders shall be made that are proportionate to the importance and complexity of the issue. (Kovachis, supra, para 34).
[35] The father’s failure to pay costs can be more properly and proportionately dealt with at this time by an order preventing him from bringing any further motions until he has paid his outstanding costs orders.
Orders Made
Given the numerous documents that were handed to the court on the day of this motion and the subsequent motion, the lawyers or their agents shall within 15 days attend the court and put the file in order which shall include updating the table of contents;
The father’s signature to list and sell the matrimonial home is hereby dispensed with.
The father shall not be entitled to bring any further motions in these proceeds until he has paid the $8,000.00 in costs owing to date and any costs that may be found to be owing as a result of this motion;
Each party shall be required to serve and file an updated financial statement at least 7 days in advance of the settlement conference; and
In my view, the mother was more successful on this motion. If the parties are unable to resolve the issues of costs, the mother will make written costs submissions (limited to 4 pages) within 14 days and the father has 7 days thereafter to reply (limited to 4 pages).
D. Piccoli J
Released: August 22, 2019
COURT FILE NO.: 52980/17
DATE: 2019 08 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Devorra Sabijan
Applicant
and –
Kreso Sabijan
Respondent
ENDORSEMENT _________________________________________
D. Piccoli J
Released: August 22, 2019