Court File and Parties
Date: 20200421 Superior Court of Justice - Ontario
Re: Megan Louise Penfold (formerly Purdy), Applicant And: Randy Dale Purdy, Respondent
Before: Justice J.R. Sproat
Counsel: Ms. Julia Fischer, for the Applicant Mr. Purdy is self-represented and did not participate in the motion
Heard: By Teleconference on April 16, 2020
Endorsement
[1]
Procedural History
The motion of Ms. Purdy for summary judgment was originally scheduled for March 13, 2020. It was adjourned to April 16, 2020 at the request of Mr. Purdy so that he could get legal advice. This was on the basis that he was required to file his materials by April 3, 2020. The motion was adjourned peremptory to Mr. Purdy and the meaning of this was explained to him.
2Mr. Purdy did not file responding materials. He was served by mail and email with the notice that the motion would proceed by audio conference on April 16, 2020 and provided dial-in information.
3Mr. Purdy did not dial in. Out of an abundance of caution, as some litigants have experienced difficulty with the dial in numbers, I directed court staff to email Mr. Purdy and ask him to advise by April 20, 2020 whether he in fact had tried to dial in. Mr. Purdy did not respond. I am, therefore, satisfied that he had notice of the summary judgment motion. In any event, it is difficult to see what evidence or argument he could have put forward given that the motion is based upon a court order he consented to and Minutes of Settlement he signed.
4This is an appropriate case for summary judgment in that there are no material facts in dispute.
[5]
Background
On the motion for summary judgment the Applicant is essentially seeking to enforce the order of this court made August 9, 2019 and subsequent Minutes of Settlement. That court order provided that Mr. Purdy was required to vacate the matrimonial home, Ms. Purdy was to have exclusive possession and the exclusive responsibility to list the property for sale. The order dispensed with the necessity of Mr. Purdy’s consent to the sale. The Applicant was authorized to sell all livestock. While no specific reference was made to farm equipment and other chattels it only makes sense that the intent was to order their sale as it was a final order on consent directed to resolving all matters between the parties. The net proceeds of sale were to be divided equally after the Applicant was reimbursed for certain expenses she incurred.
6While Mr. Purdy consented to the order on August 9, 2019, he also indicated an intention to present an offer to settle which would allow him to retain ownership of the matrimonial home.
7The parties were able to conclude Minutes of Settlement which were signed by Mr. Purdy on October 25, 2019.
[8] The settlement terms included the following: (a) Mr. Purdy would pay Ms. Purdy $50,000, (b) Mr. Purdy would have Ms. Purdy released from her obligations as a mortgagor of the matrimonial home, (c) Mr. Purdy would retain ownership of all farm equipment and livestock, (d) that there be no claim or entitlement to spousal support now or in the future, (e) Mr. Purdy would have no claim against Ms. Purdy’s pension with the Presbyterian Church of Canada, (f) mutual releases, (g) Ms. Purdy would obtain a divorce on an uncontested basis.
9Ms. Purdy acted more than reasonably in granting a number of extensions of time, however, Mr. Purdy was unable to complete a refinancing. Mr. Purdy did deliver to Ms. Purdy’s solicitors $50,000 which is being held in trust.
10On December 20, 2019 Ms. Purdy went to the Chatsworth O.P.P. detachment and requested that the August 9, 2019 court order be enforced. The O.P.P. declined to enforce the order in light of the fact that there were signed Minutes of Settlement and because Mr. Purdy had paid $50,000 in trust to Ms. Purdy’s lawyer. Ms. Purdy’s understanding is that the O.P.P. did contact Mr. Purdy who indicated that he would not vacate the property voluntarily.
11By the Minutes of Settlement, the parties intended and agreed to a full and final settlement. The only part of the Minutes that could not be completed was the release of Ms. Purdy from her obligations under the mortgage and joint line of credit. The only way that this can be accomplished is by the sale of the property. This will effectively allow Mr. Purdy to meet his obligations under the Minutes.
[12]
Analysis and Decision
I, therefore, grant judgment in terms of the Minutes, save and except that the matrimonial property be sold and that Ms. Purdy have control of the sale and all of the relevant terms of the consent court order of August 9, 2019 shall be incorporated in the summary judgment. Again, this simply enforces what Mr. Purdy agreed to.
13Mr. Purdy has defied the August 9, 2019 court order for months. He shall, therefore, vacate the property immediately. The summary judgment will include a provision for police enforcement. If any livestock, farm and other equipment remains on the property Ms. Purdy can sell the livestock and equipment and, consistent with the Minutes of Settlement Ms. Purdy shall keep track of the time she spends attending to the sale and shall be entitled to compensation for half of that time at the rate of $35 per hour, and account to Mr. Purdy for the net proceeds of such sale.
[14]
Costs
Ms. Purdy is entitled to costs on a substantial indemnity basis. Mr. Purdy has ignored two court orders and failed to implement the settlement he agreed to and failed to allow Ms. Purdy to complete the sale as she was entitled to do pursuant to the August 9, 2019 consent order. This litigation would not have been necessary if Mr. Purdy had done what he agreed to. The time spent and the hourly rated claimed are reasonable and so I award Ms. Purdy costs of $5,794 in accordance with her costs outline.
[15]
Distribution of Funds in Trust
The $50,000 held in trust by Ms. Fischer shall be applied as follows: (a) to reimburse Ms. Purdy for the expenses she has incurred as set out in paragraph 34 of her February 18, 2020 affidavit which total $12,663.56. (b) to pay the costs awarded to Ms. Purdy in the amount of $5,794.
16Ms. Purdy has incurred substantial expense in making payments that Mr. Purdy should have made. I anticipate that there may well be clean up and repair expenses incurred by her to get the property sold. I, therefore, order that $7,500 be held back from the $50,000 in trust to be utilized if required to pay such sale related expenses. Mr. Purdy and Ms. Purdy shall bear any sale related expenses equally and the balance, if any, of the $7,500 shall be paid to Mr. Purdy on completion of the sale. The balance of the $50,000, which I calculate to be $29,836.44, shall be paid out to Mr. Purdy in two instalments. $15,000 within 10 days after he vacates the premises and the balance in 60 days conditional upon Mr. Purdy not having done anything to interfere with the sale of the matrimonial property.
17I remain seized to deal with any incidental matters, and to address any possible arithmetic errors, as may be necessary to implement the summary judgment.
(Signed original in court file)
J.R. SPROAT Date: April 21, 2020