Court File and Parties

DATE: 20200406 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Loridana Migliano Nasso, Applicant and Salvatore Nasso, Respondent

BEFORE: The Honourable Justice D.A. Jarvis

COUNSEL: Mark Greenstein, for the Applicant Christine Ashbourne, for the Respondent

HEARD: April 6, 2020 - Electronically

Reasons for Decision

[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].

[2] This matter was referred to me on April 1, 2020 as I was the triage judge.

[3] The applicant (“the mother”) brought a Form 14B urgent motion and a Form 14 motion for the partial release to her of funds held in trust from the sale of the parties’ former matrimonial home that was sold on February 28, 2020. The motions and the mother’s sworn affidavit material were served by email on the father’s lawyer on April 1, 2020, around mid-day. The motion material indicated that opposition was expected. I gave directions for delivery of the father’s responding material and, later, after the father delivered that material, including a Cross-motion for not dissimilar but a lesser release of funds to each party, further directions were given and a motions’ teleconference was scheduled for today. The mother (as was permitted) filed an affidavit in reply. Her affidavit and the father’s were unsworn.

[4] The parties were cautioned in my endorsement made on April 2, 2020 about their litigation responsibilities in light of the COVID pandemic. Those comments merit repeating:

[5] These are exceptional times. The parties should be guided by the observations of Pazartz J. in Ribeiro v. Wright, [1] with which I wholly concur:

23. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. (bolding added)

[6] Although those observations were made in the context of a parenting dispute, they are equally valid with respect to pressing financial issues.

[7] The motions proceeded as scheduled. Before argument both parties were sworn to the truth of the unsworn material filed, the mother to her affidavit dated April 3, 2020 (incorrectly referenced by me as dated April 2, 2020) and the father to his affidavit and financial statement dated April 2, 2020. These shall be filed in the Continuing Record when the Newmarket filing office reopens and circumstances permit. The parties are to ensure that the Index is updated.

[8] The principal issue between the parties is whether there should be released to each of the parties’ funds now held in trust from the recent February 28, 2020 sale of their jointly-owned matrimonial home ($502,540.53): the mother requests that each party receive $150,000 whereas the father’s position is that since the parties’ net family properties have not been calculated and, therefore, no equalization can be determined then only $100,000 should be released to each party.

[9] The following evidence is relevant:

(a) There have been a Case Conference and Settlement Conference held (Bennett, J.). A Trial Scheduling Conference was scheduled at the last event to proceed on June 19, 2020, obviously with a view to getting this matter trial-ready for the November 2020 sittings, circumstances permitting; (b) The parties share parenting of their twin children, 10 years old; (c) The mother is a mid-level seniority flight attendant and works part-time at the children’s school. She is unable to work at either job due to the pandemic. She has applied for, but not yet received, unemployment insurance or any other Government assistance. The father works for a local municipality in a managerial capacity. His financial statement discloses an income of $91,091.04 in 2019; (d) The parties’ major assets are their workplace pensions and the proceeds from the sale of their matrimonial home. Their savings are negligible; (e) The mother has claimed debts slightly in excess of $75,000. These comprise money borrowed from friends, a credit card debt, money owed to her solicitor and money she acknowledges owing to the father from her use of the parties’ line of credit that was registered against title to the matrimonial home and was discharged when it sold. Some on-going payment obligations, like the rented accommodations for the children (when with her) and her cannot be deferred. She asks that she not be required to repay anything to the father at this time because he presumptively owes her an equalization payment; (f) A Net Family Property Statement accompanied the mother’s material: it suggests that the equalization payment is $26,004.06; (g) The father indicated that he is also heavily indebted, owing almost $80,600. He objects to the amount requested by the mother because it is his position that the parties separated in February 2015 and not September 2017 as claimed by the mother, even though the parties continued to reside under the same roof with the children and filed their 2015 and 2016 Income Tax Returns declaring their status as “Married” and not “Separated”. He says that he incurred over $82,000 in family expenses for which the mother should reimburse him and that it is premature to consider who may owe anything to the other as and for an equalization payment. He does not suggest what that amount might be: no draft NFP statement accompanied his material.

[10] In my view, the mother’s position must prevail. There will be in excess of $200,000 left in trust if each party is paid $150,000. The balance left more than covers any post-separation adjustments as claimed by the father. Each party needs to retire their high-ratio debt and avoid having to return to court for any further distribution in the event that any trial in this matter is delayed due to the current COVID pandemic. It makes no sense that the parties be denied access to funds which can benefit them and their children. It also makes no sense that there should remain (if there are) any outstanding value issues at this late stage of the proceedings which (if there were) would give greater credence to the father’s position. The equalization payment is presumptively owed by him based on the evidence before the court anyway.

[11] The issue of the mother’s repayment to the father of the line of credit funds can be deferred until the determination of the equalization payment.

[12] Accordingly, the following is ordered:

(a) Subject to subparagraph (b) below, there shall be forthwith released to each party by their real estate solicitor the sum of $150,000; (b) The father shall pay to the mother her costs of this motion fixed in the amount of $4,000 inclusive of disbursements and HST. This amount shall be paid from the father’s funds and added to the funds payable to the mother such that the mother shall receive $154,000 and the father shall receive $146,000; (c) Notwithstanding the view expressed in paragraph 11 above about avoiding motions, this Order is without prejudice to any future motion that either party may wish to bring with respect to the balance of the funds in trust.

[13] Costs have been awarded to the mother because she made reasonable efforts before the sale of the matrimonial home to negotiate a pre-trial distribution of its net proceeds; the father must have been aware that, unlike him, she was earning little to no income; and, there was no persuasive reason why more than $200,000 of the parties’ assets should be held back given the presumptive amount of the equalization payment.

[14] In light of the parties’ dispute about the valuation date they would be well-advised to consider the comprehensive view of the law in this regard by Chappel J. in Al-Sajee v. Tawfic 2019 ONSC 3857.

[15] In the circumstances of the COVID-19 emergency, these Reasons for Decision are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.

[16] Approval of this and any later Order dealing with the subject matter of these Reasons is dispensed with: the parties may submit formal Orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of their release.

The Honourable Justice D.A. Jarvis Released: April 6, 2020

[1] 2020 ONSC 1829 .