COURT FILE NO.: FC-17-00000214-0001

DATE: 20190809

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Katherine Ann (Bald) Renard Applicant

– and –

Kevin Boyd Renard Respondent

K. Kieller, for the Applicant

R. Kniznik, for the Respondent

HEARD: May 28, 2019

JAIN J.

Introduction:

1This matter was brought before for me for two long motions, one brought by each party. Both parties’ motions are brought in the context of mutual allegations of lack of compliance with, or breaches of the final consent order of McDermot J. dated February 28, 2017 and the Family Law Rules (the Rules).¹ Although the facts are contested, both motions are dealing with the same underlying factual matrix and subject matter (i.e. the sale of three assets).

2Both parties request relief with respect to the enforcement of the order of McDermot J. dated February 28, 2017 with respect to the following three assets:

(a) 146 Gilwood Park Drive, Penetanguishene, Ontario, L9M 1Z6 (“Gilwood”). Gilwood was owned by both parties as their cottage. After separation, the property was transferred to the applicant. The applicant currently resides there.

(b) Fox Contracting Ltd. (“Fox”) is a company that was started by the respondent shortly after the parties married. The respondent is the sole shareholder of Fox and has worked full-time with Fox since 1999. The parties do not agree on how much the applicant contributed to the company however, they do not dispute that she worked there from 2008 until the separation. Fox is a complex business with over 20 employees. Fox operates a full-service project management, construction management and general contracting business, with a specialization in office, retail, investment, industrial and hospitality interior renovations.

(c) 1704529 Ontario Inc. (“1704529”) is a company that, in part, owns and operates a rental property, namely 35 Coronet Road, Etobicoke, Ontario (“Coronet”). Coronet houses Fox. Coronet is a commercial building. There is also a golf membership at St. George’s associated with 1704529.

Background:

3The parties married on October 16, 1993 and separated on May 13, 2016. On February 28, 2017 the parties attended a case conference and came to an agreement that was incorporated into final minutes of settlement which then became the order of McDermot J., dated February 28, 2017. Generally, the agreement was to sell everything and split the proceeds of the sale. Although some assets were sold, and the proceeds have been divided, the above three assets remain unsold. The parties are highly conflicted on some basic facts of what happened after the agreement and order was made regarding the sale of these three assets. The applicant seeks a Receiver/Manager appointed to sell all three assets. The respondent opposes the applicant’s motion and requests that her motion be dismissed, and that he continue to manage and sell Fox and 1704529, and that Gilwood be immediately listed for sale.

Issues to be Determined

41. Should the court appoint a Receiver/Manager to sell all three assets, specifically:

(a) 146 Gilwood Park Drive, Penetanguishene;

(b) the assets and/or shares in Fox Contracting Ltd.; and,

(c) the assets and/or shares in 1704529 Ontario Ltd. (including the real and personal property owned by this corporation)?

2. If a Receiver/Manager is not appointed, what is the most appropriate alternative relief?

Preliminary Issues

5Three preliminary issues were raised at the beginning of the motion:

6The first issue was that the applicant opposed the respondent’s long motion being heard. She argued that the respondent’s long motion was brought improperly and was not scheduled in accordance with the Rules and the Central East Practice Directions. I allowed the respondent to proceed with part of his motion, regarding the sale of the Gilwood property and the options he was proposing regarding the sale of the business assets. The subject matter for both motions were conferenced with McDermot J. on March 13, 2019, focusing specifically on the inability of the parties to sell assets as agreed to in the 2017 order. Pursuant to Rule 2, I found that hearing both the applicant’s motion and the respondent’s motion (in part) would be the most proportionate and just way to deal with this matter. This approach would save both parties expense and time and facilitate dealing with the case in a way that was fair to both parties. The parties need the court to decide on how to proceed with the sale of three assets, i.e. whether to continue to sell privately, or with a Receiver/Manager, or some other option. I advised the parties that I was not hearing the respondent’s summary judgement motion today, or a motion for any other relief, other than how to proceed with the sale of the three assets. I was going to deal with this matter in a focused manner and attempt to get to the merits of the dispute for all three assets.

7The second issue arose when the respondent pointed out that the applicant had filed an Amended Motion to Change at Tab 21 that requested relief that seemed to contradict the relief sought in the motion before the court. Page 5 and 6 of the applicant’s Amended Motion to Change contains both a request for the appointment of a Receiver/Manager to enforce the order of McDermot J. dated February 28, 2017 and further contains a request (in the alternative) for an order setting aside the Order of McDermot J. dated February 28, 2017. Ms. Kieller pointed out that the Motion to Change was not before me today, only the motion for the appointment of a Receiver/Manager to sell Fox, 1704529 and Gilwood. Again, I decided that today I was going to focus on the issue of the enforcement of the existing order regarding the sale of all three assets, as that is the heart of the dispute. The order of McDermot J. has yet to be set aside, and may never be, depending on what happens with the Motion to Change. The fact that the applicant has brought a Motion to Change does not disentitle either party from continuing to attempt to enforce the terms of the existing order. However, both parties should understand that if there are any changes made to the existing order regarding the three assets in question, whether on consent or by court order, that change may very well have a bearing on my order.

8The third issue arose when the respondent sought to file an affidavit dated May 22, 2019 which contained a letter and quote from Fisher Environmental Ltd. dated May 17, 2019. The applicant opposed this late filing. I allowed it to be filed.

Applicable Law

9The Courts of Justice Act allows a Receiver/Manager to be appointed where it appears to the judge to be just or convenient to do so. Specifically, s. 101 (1) says:

Injunctions and receivers

101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted, or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge to be just or convenient to do so.

R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

10There is further authority for the appointment of a receiver pursuant to the Family Law Rules under Rule 26 (3) (g) and Rule 26 (4) (c):

Rule 26: Enforcement of Orders

26. (3) PAYMENT ORDERS – A Payment order may be enforced by…

(g) the appointment of a receiver under section 101 of the Courts of Justice Act;

26 (4) OTHER ORDERS - An order other than a payment order may be enforced by…

(c)the appointment of a receiver under section 101 of the Courts of Justice Act.

11Receivers may be appointed on a motion pursuant to Rule 41 of the Rules of Civil Procedure, which may be referred to pursuant to Rule 1(7) of the Family Law Rules:

Rule 41 – Rules of Civil Procedure – Appointment of a Receiver

HOW OBTAINED

Rule 41.02 The appointment of a receiver under section 101 of the Courts of Justice Act may be obtained on motion to a judge in a pending or intended proceeding.

FORM OF ORDER

Rule 41.03 An order appointing a receiver shall,

Name the person appointed or refer that issue in accordance with Rule 54;

Specify the amount and terms of the security, if any, to be furnished by the receiver for the proper performance of the receiver’s duties, or refer that issue in accordance with Rule 54;

State whether the receiver is also appointed as manager and, if necessary, define the scope of the receiver’s managerial powers; and

Contain such directions and impose such terms as are just.

REFERENCE OF CONDUCT OF RECEIVERSHIP

Rule 41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54.

DIRECTIONS

Rule 41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a reference of the conduct of the receivership, in which case the motion shall be made to the referee.

DISCHARGE

Rule 41.06 A receiver may be discharged only by the order of a judge.

Rule 1 (7) Family Law Rules

Rule 1 (7) MATTERS NOT COVERED IN RULES – If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

12Pursuant to Rule 1 (8) of the Family Law Rules, the court may deal with the failure to obey an order by making any order that it considers necessary for a just determination of the matter. Lastly, the court must deal with each case justly and promote the primary objective pursuant to Rule 2 (2), (3), (4) and (5).

Rule 1 (8) Failure to Obey Order

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 by 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 step in the case; and

(g) On motion, a contempt order.

Rule 2 (2) PRIMARY OBJECTIVE – The primary objective of these rules is to enable the court to deal with cases justly,

Rule 2 (3) DEALING WITH CASES JUSTLY – Dealing with a case justly includes,

(a) Ensuring that the procedure is fair to all parties;

(b) Saving expense and time;

(c) Dealing with the case in ways that are appropriate to its importance and complexity; and

(d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Rule 2 (4) DUTY TO PROMOTE THE PRIMARY OBJECTIVE - The court is required to apply these rules to promote the primary objective and parties and their lawyers are required to help the court to promote the primary objective.

Rule 2 (5) DUTY TO MANAGE CASES – The court shall promote the primary objective by active management of cases, which includes,

(a) At an early stage, identifying the issues and separating and disposing of those that do not need full investigation and trial;

(b) Encouraging and facilitating use of alternatives to the court process;

(c) Helping the parties to settle all or part of the case;

(d) Setting timetables or otherwise controlling the progress of the case;

(e) Considering whether the likely benefits of taking a step justify the cost;

(f) Dealing with as many aspects of the case a possible on the same occasion; and

(g) If appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

13Generally, having regard for the words of section 101 of the Courts of Justice Act, the court has discretion to appoint a Receiver/Manager if it is just or convenient to make such an order. This remedy will only be granted in cases where special circumstances exist. There are many cases that outline the special circumstances under which a Receiver/Manager will be appointed. An order appointing a Receiver/Manager may be properly made if there are no means of legal execution available to the creditor, or if the creditor demonstrates to the court that it is “practically very difficult, if not impossible, to obtain the fruit of his judgement” through legal execution. See Sengmueller v. Sengmueller, [1996] O.J. No. 1942, (Ont. C.J. Gen. Div.) and Goldschmidt v. Oberrheinishe Metallwerke, [1906] 1 K.B. 373.

Decision:

14For the reasons set out below, both the applicant’s and the respondent’s motions are granted in part. There shall be an order that the applicant immediately list and sell the Gilwood property. There shall also be an order appointing a Receiver/Manager to sell the two other assets: Fox and 1704529. All the parts of both the respondent’s and applicant’s motions that are not granted, are dismissed.

Discussion/Analysis:

Should the court appoint a Receiver/Manager to sell all three assets, specifically 146 Gilwood Park Drive, Penetanguishene; the assets and/or shares in Fox Contracting Ltd.; and the assets and/or shares in 1704529 Ontario Ltd. (including the real and personal property owned by this corporation)?

Re: 146 Gilwood Park Drive, Penetanguishene

15As stated above, on the February 28, 2017 the parties attended a case conference and came to an agreement that was incorporated into final minutes of settlement which then became the order of McDermot J. dated February 28, 2017. Generally, the agreement was to sell everything and split the proceeds of the sale. The three assets that are the subject of this motion were dealt with separately in the order. Additionally, as part of the agreement, the respondent was not required to pay the applicant any spousal support and the applicant executed a spousal support release in February 2017.

16The Gilwood property was a jointly owned cottage property. According to the McDermot J. consent order, the property was supposed to be transferred into the applicant’s name, and she was obligated to designate the property as her principal residence. Paragraph 2 (b) of the order provided that the Gilwood property shall be listed and sold, with the net proceeds of sale to be divided equally. Paragraphs 3-4 of the order addressed listing agents, price etc.

17The Gilwood property was listed for sale on June 9, 2017 and its price of $949,000.00 was subsequently reduced to $924,900.00 on June 27, 2017. The parties received no offers and it was taken off the market by agreement on February 1, 2018. The parties agreed to relist on May 1, 2018 at $899,000.00. The property has since never been re-listed. An appraisal obtained in late 2018 indicates that Gilwood’s value may be closer to $825,000.00.²

18The applicant currently resides at Gilwood and says she cannot afford to purchase other reasonable accommodation with only 50% of the net proceeds of sale from the cottage, no funds from the sale of Fox or 1704529, and no spousal support (despite the vast difference in the parties’ incomes). The applicant submits that her income in 2018 was approximately $10,000.00, while the respondent received over $300,000.00 in salary and benefits from Fox.³

19While it may cause some discomfort and hardship, the duty to perform contracts honestly and in good faith applies to both parties equally. In this case, both parties are seeking orders from the court to enforce the order of February 28, 2017. Despite the applicant’s motion to vary, the February 28, 2017 order of McDermot J. has not been changed. I find that whether or not she can afford to purchase other reasonable accommodation does not allow the applicant to disobey the order. Neither party should be allowed to walk away from the agreement because they no longer like it. See: Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, 2012 CarswellOnt 1184 (C.A.), para. 59.

20In his motion, the respondent requests that rather than appointing a Receiver/Manager, the Gilwood property should be immediately listed for sale. He says this alternative is less cumbersome and costly than the applicant’s proposal and it will assist the parties with moving forward. He points out that the applicant agrees that a real estate agent could sell the Gilwood property rather than a Receiver/Manager.⁴

21I find that appointing a Receiver/Manager to sell this relatively simple asset is intrusive, costly and inefficient. The cost is disproportionate to the benefits. I find there are no special circumstances that exist to justify appointing a Receiver/Manager to sell the Gilwood property. I agree with the respondent that there should not be an order appointing a Receiver/Manager to sell Gilwood. I do not see any reason why there should be any further delay on this issue. There shall be an order that the applicant shall immediately list for the sale the property located at 146 Gilwood Park Drive, Penetanguishene, Ontario, L9M 1Z6 (“Gilwood”).

Re: Fox Contracting Ltd. and 1704529 Ontario Inc.

22As stated above, the respondent is the sole owner and shareholder of Fox and 1704529. 1704529 owns and operates a rental property namely 35 Coronet Road, Etobicoke, Ontario (“Coronet”), which houses Fox. I find that Fox and 1704529 are very different assets from the Gilwood property. As such, these two assets should be treated differently than the Gilwood property. Compared to Gilwood, there is a significant difference in the value, complexity, and control involved. I find there are special circumstances that exist in this case as a result of the options (or lack of options) to manage and dispose of Fox and 1704529.

23At the time of entering into the agreement and order of McDermot J. dated February 27, 2017, Fox was valued by the respondent’s Certified Business Valuator at $1,470,000.00. The respondent continues to work for Fox and is paid a salary. He received approximately $300,000.00 from Fox in 2018 in salary and benefits.⁵ Fox has been successful. The year-end financials for Fox show that sales over 2017 to 2018 increased from $12,737,902 to $16,983,082.00.⁶

24Paragraph 7 of the McDermot J. order provided:

The Respondent, Kevin Renard, shall forthwith list and sell the following assets to bona fide third parties, and divide the net proceeds equally between the Applicant and Respondent (after paying all corporate taxes, and related corporate expenses):

a. Fox Contracting Ltd.

b. 1704529 Ontario Inc.;

In dividing the net proceeds equally, the outstanding balance of the shareholder loan shall also be equally divided…

25It is the words, “forthwith list and sell the following assets” that effect the meaning and intent of this part of the order. The applicant says that the respondent has not complied. The respondent says that he did list these assets for sale “forthwith.” However, he argues that the word “forthwith” attaches to the listing, not to the sale of these assets. He submits that he cannot control the outcome to ensure that they are sold “forthwith.” On the surface, this submission does make some sense. However, in this case, as set out below, offers of purchase have been received for 35 Coronet Road, and none have resulted in a completed sale. The details of the negotiations and reasons for them not proceeding are completely in the control of the respondent. The applicant believes that the respondent has been unreasonable in terms of negotiating the price and any abatement of same to address the environmental issues.

26The Coronet property (which is owned by 1704529) was purchased in 2015 for $1,350,000.00. The Coronet property is 1704529’s primary asset. It is encumbered by a mortgage in the amount of approximately $728,686.41. Coronet has environmental issues which effect its value and saleability. It was initially listed for sale in May 2017 for $3,400,000.00. The property has received offers. The first potential buyer initially offered $3,100,000.00 and then increased their offer to $3,600,000.00 in August 2017. Neither of these offers were finalized due to the environmental issues. The applicant alleges she has been provided no information about the second potential buyer. The third buyer submitted an offer in November 2018 and requested concessions for environmental issues. According to the applicant she has no information about any negotiations on that potential deal.⁷ Despite multiple offers, the property has not been sold and the price has not been reduced.

27The respondent has provided some explanation for the difficulties in finalizing the sale. Generally, it seems that the environmental problems have been the main challenge. The environmental issues may require remediation before a purchaser will receive institutional financing. There has been a lot of uncertainty about the magnitude of the environmental issues and significant dispute about the costs of remediation. I am not satisfied with the respondent’s explanations for the delays and uncertainty with respect to the cost of the remediation of the environmental problems and its effect on the sale of the Coronet property. As recently as the respondent’s affidavit dated May 3, 2019, he indicated that he may increase the Coronet Road property’s listing price, to provide negotiation room regarding abatements for the costs of remediation. The respondent confirms that some work has been performed in May/June 2018 to address the environmental issues at a cost of $164,000.00.

28The applicant believes that the respondent has been listing the property at inflated values and has not reasonably reduced the listing price. During the motion, the respondent provided an affidavit dated May 22, 2019 that contained a quote from Fisher Environmental Ltd. dated May 17, 2019 that estimates the total costs for remediation of the environmental issues at $1,375,550.00. The respondent made submissions in court that now, more than two years after the February 2017 Order, this recent quote leads him to believe that he must sell the property “as is” (without performing any more remediation). There was no reasonable explanation for why it has taken 2 ½ years to obtain this information. I find that the above described conduct of the respondent has added to the length, expense and complexity of the litigation. Whether or not he intended to thwart the applicant’s property claim, the respondent’s actions have effectively allowed him to fail to comply with the Order.

29In addition to the dispute about the remediation issues, the applicant submits she is in the dark about the negotiations regarding the offers and any progress regarding the remediation. She is not a shareholder, officer or director of either company.⁸ She says this leaves the her in a “vacuum of information” that creates suspicion about the respondent’s actions (and inaction) since the February 28, 2017 Order.

30As set out in Sengmueller, the appointment of a Receiver/Manager should only be granted “if special circumstances exist which make it just or convenient to make such an order.”⁹ In this case, it is only upon the sale of the assets that the division of the property contemplated by the order of McDermot J. can be completed. There is no set amount to collect or enforce. The applicant says that other than appointing a Receiver/Manager to sell these assets, she has no other right to force the sale or obtain other oppression remedies. She has no other means of legal execution to force the respondent to sell Fox and 1704529. As stated above she is not a shareholder or owner. She is no longer even an employee of either company. I agree that she has no other means to force the respondent to sell the assets or business. I agree with the applicant that special circumstances exist, as described in Sengmueller, that make it very difficult, if not impossible, for the applicant to collect “any fruits of the judgment.” I find that in this case the court should exercise its discretion in appointing a Receiver/Manager. I further find it is convenient that the Receiver/Manager be appointed because until there is a sale, there is no other way the debt can be collected, or for the applicant to enforce the Order of McDermot J.¹⁰

31The respondent argues that appointing a Receiver/Manager is like using a “sledgehammer” and that the applicant has not met the test required for same. The respondent points to how well the company is doing under his management and there is no urgency/mismanagement putting the value of the company in jeopardy. The respondent submits that instead of appointing a Receiver/Manager, the court should allow him to continue to sell these assets. He submits that only if the court deems it necessary, a Sales Officer should be appointed instead. He argues this is a less intrusive and less costly option which will allow the respondent to continue to manage and operate the business.

32A key difference between a Receiver/Manager and a Sales Officer is that a Receiver/Manager is an officer of the court whereas the Sales Officer is not. The appointment of a Sales Officer would still leave the respondent in complete control and the applicant impotent to enforce the sale of the assets. The Receiver/Manager may well agree to allow the respondent to continue to run the business to some degree. This is because the Receiver/Manager must reasonably ensure that the assets and properties are managed efficiently and sold for the highest price possible. They further must do their best to reduce the transaction delays and allow for the routine details of a sale, marketing and bidding process be handled by the experienced professionals.¹¹ If, after the Receiver/Manager investigates everything, they deem the respondent as good a manager as he describes himself, it may make sense for the respondent to continue to run the business.

33In Sengmueller, a Receiver/Manager was not appointed because it would effectively deprive the husband of his sole means of earning a living and this “would be an undesirable result and contrary to public policy.”¹² However, in this case, the parties already agreed to sell the business and assets, so the above concern does not apply, especially if the respondent genuinely wishes comply with the McDermot J. order to sell the business and property.

34In addition to the above outlined special circumstances, there is another circumstance that adds to the difficulties the applicant faces to enforce the order of McDermot J.. Specifically, the respondent has no incentive to sell these assets. The respondent continues to receive his generous salary and he does not pay the applicant any spousal support. Further, the applicant has not received income from Fox since her salary was terminated in January 2017. Under these circumstances, I find that this lack of incentive is another special circumstance very particular to this case, that makes it difficult if not impossible for the applicant to enforce the order.

35The respondent submits that if a Receiver/Manager is appointed, both parties will be “losers” because of the potential unreasonable costs. However, I find that it is unreasonable that the applicant has not received any funds owing to her regarding these assets for over two years. It is the applicant that seems to be the only one losing over this time. Both parties acknowledge there is a cost associated with appointing a Receiver/Manager. It will definitely effect how much the parties realize upon the sale of the assets. However, this will not make both parties “losers” as submitted by the respondent. I find the cost of appointing a Receiver/Manager is reasonable considering the value of the assets.

36The respondent says that if the court sees fit to appoint a Receiver/Manager, there should be some changes made to the terms set out in paragraphs 6, 6.1-6.28 of the order which set out the Receiver/Manager’s powers. The respondent says these changes would reduce the potential costs and loss of value in the assets for both parties. The respondent requests the following amendments and or limits on the Receiver/Managers powers: Para. 6.2 (c) be deleted – this term enables the Receiver to manage, operate and carry on the business etc.; Para. 6.2 (l) (i) be amended - the respondent requests that the amount of $600,000.00 be amended to $50,000.00 – this term allows the Receiver to sell, convey, transfer lease or assign the property without the approval of the court provided the aggregate consideration for all such transactions does not exceed $600,000.00; and, Para. 6.19 be amended to $500,000.00 or a charge against it – this term allows the Receiver to borrow by way of a line of credit up to $1,500,000.

37Due to the value and complexity of the businesses, the Receiver/Manager should seriously consider the respondent remaining the manager to operate and carry on the business of the property. As such, I am amending paragraph 6.2 (c) slightly, to ensure that the Receiver/Manager considers engaging the respondent as a manager if the Receiver considers it more efficient or desirable. However, at this time, I will not limit the Receiver/Manager’s powers as requested by the respondent.

38I agree with the applicant and find that it is just and convenient that an order should be made appointing a Receiver/Manager to sell Fox and 1704529.

Order

39For the reasons set out above, order to go as follows:

Re: 146 Gilwood Park Drive, Penetanguishene, Ontario

1. The applicant shall immediately list for the sale the property located at 146 Gilwood Park Drive, Penetanguishene, Ontario, L9M 1Z6 (“Gilwood”).

2. The applicant shall:

(i) Select the listing agent;

(ii) Ready Gilwood for sale based on the recommendations of the real estate agent;

(iii) List Gilwood for sale at an amount advised by the listing agent and adjust the listing price in accordance with the recommendations of the agent;

(iv) Instruct the real estate agent to provide the applicant and respondent with all reports regarding the status of the ongoing sales process/progress;

3. In the event of a disagreement, the matter shall, on an expedited basis, be returned to the court for an in-person motion.

4. From the proceeds of sale of Gilwood, prior to any disbursement to the parties, the parties shall direct their real estate lawyer to pay the following:

(i) Real estate commissions;

(ii) Adjustment for taxes;

(iii) Utilities;

(iv) Municipal fees or levies;

(v) Amounts required to discharge registered encumbrances;

(vi) Legal fees and disbursements related to the sale;

(vii) Closing costs;

(viii) All other sale adjustments.

5. The net proceeds of sale of Gilwood shall be equally divided as between the parties.

6. In accordance with paragraph 11 of the Order of McDermot J. dated February 28, 2017, the applicant shall continue to pay all carrying costs for Gilwood, which includes, but is not limited to, the tax bill for the property, until the closing of the sale of the property.

Re: Fox Contracting Ltd. and 1704529 Ontario Inc.:

7. Appointing a Receiver and Manager pursuant to Section 101 of the Courts of Justice Act and Rule 41 of the Rules of Civil Procedure to assume control of, receive relevant, necessary disclosure and information and sell the following assets:

(i) The assets and/or shares in Fox Contracting Ltd.;

(ii) The assets and/or shares in 1704529 Ontario Ltd. (including the real and personal property owned by this corporation).

8. On the sale of the assets in section 7 (i) and (ii) herein, the net proceeds of sale after sale expenses, income and other obligatory tax and Receiver’s fees be equally divided as between the parties.

9. There shall be an order directing John Morgan of Morgan and Partners Inc. as Receiver and Manager on the terms as set out in the applicant’s Notice of Motion dated April 17, 2019 paragraphs 6 and 6.1 through to and including 6.28 with one amendment being that paragraph 6.2 (c) shall now read as follows:

6.2 An Order that the Receiver is empowered and authorized, but not obligated, to act at once in respect of the Property and, without any way limited the generality of the foregoing, the Receiver is expressly empowered and authorized to do any of the following where the Receiver considers it necessary or desirable:

(c) to manage, and/or engage the respondent to manage, operate, and carry on the business of the Property, including the powers to enter into any agreements, incur any obligations in the ordinary course of business, cease to carry on all or part of the business, or cease to perform any contracts of the Property including corporate entities Fox Contracting Ltd. and 1704259 Ontario Inc.;

10. The balance of the claims in the Amended Motion to Change, dated March 21, 2019, shall be case managed by a Judge appointed by the court (Justice McDermot).

40The issue of costs of these motions is hereby reserved. In the event the parties are unable to resolve the issue of costs between them, then written submissions shall be provided on a seven-day turnaround beginning with the applicant filing and serving on or by August 26, 2019 followed by the respondent on or by September 2, 2019 and the applicant’s reply (if any) on or by September 9, 2019. Costs submissions shall be no more than three pages in length exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email to: barriejudsec@ontario.ca.

Footnotes

1. 1Family Law Rules, O. Reg. 114/99.
2. 2Affidavit of Applicant, April 15, 2019, paras 9, 34 and Affidavit of Applicant, May 9, 2019 at para 17.
3. 3Affidavit of Applicant, April 15, 2019, paras 34-36.
4. 4Affidavit of Applicant, April 17, 2019, para. 2.
5. 5Affidavit of Applicant, April 15, 2019, paras 4-7, 18 and 20-22.
6. 6Affidavit of Respondent, May 3, 2019, paras 57-62, 84-90, Exhibit “E”, Financial Statement, CR, Vol. 14, Tab 29 and Affidavit of Respondent April 4, 2018, paras 16-31, 53-61.
7. 7Affidavit of Applicant, May 9, 2019 and Affidavit of Respondent May 3, 3019.
8. 8Affidavit of Applicant, April 15, 2019 paras 24, 30.
9. 9Sengmueller v. Sengmueller, [1996] O.J. No. 1942, 1996 CarswellOnt 2170.
10. 10Martin v. Martin, 1981 CanLII 1701 (ON SC), [1981] O.J. No. 3020, 1981 CarswellOnt 290 at paras 12, 13 (Ontario Supreme Court, High Court of Justice).
11. 11See: Di Felice v. 1095195 Ontario Ltd., 2013 ONSC 4236, 2013 CarswellOnt 8476 at para 17.
12. 12Sengmueller v. Sengmueller, [1996] O.J. No. 1942, 1996 CarswellOnt 2170 at para 54.