COURT FILE NO.: FS-19-94401-00 DATE: 2020 05 20
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Between Sugandha Grover Applicant And Kunal Batra Respondent
BEFORE: Bloom, J.
COUNSEL: Sasha Faraone, for the Applicant, the Moving Party Ashley Iyathurai, for the Respondent, the Responding Party
HEARD: May 14, 2020
E N D O R S E M E N T
I. INTRODUCTION
[1] The Applicant moves for an order that the Respondent consent with her to an arrangement with the Canadian Imperial Bank of Commerce (“the CIBC”), the mortgagee on the matrimonial home at 875 Vintner Drive in Mississauga, to defer mortgage payments for six months; that that property be listed for sale with real estate agent, Sam McDadi; and that the Respondent’s signature on any sale documents be dispensed with. Alternatively, the Applicant moves for an order that the Respondent jointly consent with the Applicant to the immediate listing for sale of the property with Mr. McDadi.
II. FACTS
[2] The parties were married on February 14, 2010; they separated on September 12, 2018; and they were divorced on April 16, 2020.
[3] Since October 1, 2018 the Applicant has been residing in the matrimonial home and the Respondent has been living elsewhere. The property is owned in joint tenancy by the parties.
[4] The balance on the mortgage held by the CIBC is $560,498.77.
[5] Minutes of settlement dated September 27, 2019 were entered by the parties and amended October 9, 2019.
[6] The parties have been unable pursuant to the minutes or otherwise to arrange for the sale of the matrimonial home. Now the CIBC is threatening power of sale proceedings, unless the mortgage is brought into good standing.
[7] The Respondent owes over $24,000 to the Applicant for his share of arrears on the mortgage payments.
[8] The carrying costs on the home are approximately $4400 per month including the mortgage payments.
[9] Since March 15, 2020 the Applicant has not earned income from employment. Her sole source of income is $2000 per month in government assistance during the Covid-19 pandemic.
[10] The Respondent currently has no income from his restaurant business because of the pandemic. He also receives $2000 monthly in government assistance during the pandemic.
III. GOVERNING LEGAL PRINCIPLES
[11] This court hears during the pandemic as urgent matters “dire issues regarding the parties’ financial circumstances” according to the applicable Notice to the Profession.
[12] While the property in question is probably a “matrimonial home” within s. 4 of the Family Law Act, the parties are not “spouses” within s. 1 of that act, since they are divorced. Accordingly, s. 23(b) relied upon by the Applicant, is inapplicable, since it applies only to dispense with the consent of a spouse.
[13] Nevertheless, the Applicant has also relied upon the Partition Act. Under s. 3 of that act the Applicant, as a “person interested in land”, may bring an application for sale of the property under the directions of the court.
[14] FLR 14(2),(3), and (4) provide authority to this Court to give primacy to justice in dealing with a case, including ensuring fairness and saving time and expense.
IV. ANALYSIS
[15] I am satisfied that the Applicant has demonstrated that her motion is urgent. Her small income and the large mortgage on the matrimonial home justify the bringing of her motion on an urgent basis. She is entitled to seek an end to her dire financial circumstances by moving for an order to end her obligation in relation to the carrying costs of the property and to secure payment for any equity she may have in the property.
[16] Further, the Respondent has demonstrated no basis for denying her the relief she seeks. There is no evidence that she has behaved maliciously, oppressively, or vexatiously in relation to the Respondent; nor has he shown that any realistic alternative exists under present circumstances to the sale of the property. He is unable to pay the carrying costs on the property; he has been unable to complete a contemplated buy-out of the Applicant’s interest; he is unwilling to sell the property expeditiously; and he now proposes a plan lacking detail and the necessary credibility, to take over the property and rent it to cover the carrying costs.
[17] Accordingly, under the Partition Act I order that the property at 875 Vintner Drive in Mississauga be immediately listed for sale with Sam McDadi; that the parties agree with the CIBC to defer the mortgage to allow that sale and for up to 6 months; that the signature of the Respondent on any documents related to the sale be dispensed with; that the proceeds from the sale be held in the trust account of the real estate lawyer who acts on the sale pending the agreement of the parties or order of a judge of this court; that the Respondent be permitted to attend at the property prior to the sale with a third party agreed upon by the parties or a police officer to obtain any personal property belonging to him; and that either party be permitted to move on notice to the other and under the Family Law Rules to a judge of this court for directions on any point where uncertainty arises.
V. COSTS
[18] I shall receive written submissions as to costs of not more than 3 pages, excluding a bill of costs. The Applicant shall serve and file her submissions within 14 days from release of this endorsement. The Respondent shall serve and file his submissions within 14 days of service of the Applicant’s submissions. There shall be no reply.
Justice Ivan Bloom
DATE: May 20, 2020