Court File and Parties

COURT FILE NO.: FS-19-94161 DATE: 2020 05 25 CORRECTED: 2020 08 14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Shahinda Lokhandwala Sarah Boulby and Kenneth Fishman, for the Applicant Applicant

- and -

Imran Khan, Zarinataj Khan, Ishaq Khan and 0932293 B.C. Ltd. James Edny, for the Respondents Imran Khan and 0932293 B.C. Ltd. George Karahotzitis and Melanie Larock for Zarinataj and Ishaq Khan Respondents

HEARD: May 14, 2020 by teleconference

CORRECTED REASONS FOR DECISION

LEMAY J

Correction Notice

August 14, 2020: Paragraph 9 of the original Reasons for Decision has been corrected to read: The children are in a shared parenting arrangement, pursuant to the February 28 th , 2019 Order of Trimble J.

[1] The Applicant and the Respondent Imran Khan were married in September of 2002, and separated in September of 2018. They have been in litigation before the Courts for some period of time. One of the issues before the courts has been the listing and sale of the property municipally known as 42 Giorgia Crescent, Vaughan Ontario (“the property”). Title to this property is in the names of the Respondents Zarinataj Khan and Ishaq Khan who are the parents of the Respondent Imran Khan. However, all parties agree that the property is beneficially owned by the Applicant and the Respondent Imran Khan.

[2] In the balance of these reasons, my references to “the Respondent” will mean Imran Khan. If I am discussing the other Respondents, I will specifically identify them by name, or will refer to the Respondents. Further, when I refer to “the parties” in this case, I mean the Applicant and the Respondent Imran Khan unless I specifically say otherwise.

[3] The parties have not lived in the property since August of 2018. They had moved to Mississauga so the children could attend a school there shortly prior to separation.

[4] The Respondent is responsible in the first instance for paying all of the carrying costs of the property, and has been since the parties moved out of the property. There has been considerable litigation over the sale of the property since the underlying case began, and there is an Order in place requiring the parties to accept the first reasonable offer to sell the property. An offer has now been received to sell the property. The Respondent wishes to accept that offer, and his parents agree that it should be accepted. The Applicant opposes this sale and says that the price of the offer is too low. She argues that the property should not be sold until a better offer is received.

[5] The motion was argued before me by way of a teleconference on May 14 th , 2020. At the end of the teleconference, I advised the parties that the property would be sold on terms, and that my written reasons would follow. These are those reasons.

Facts

a) The Relationship

[6] The parties were married on September 5 th , 2002 when the Applicant was 18 years old and the Respondent was 22 years old.

[7] In the course of their marriage, the Applicant and Respondent lived in a number of places in the United States. They moved to British Columbia (where the Respondent’s parents lived) in 2011 and then moved to Vaughan, Ontario in 2012. They have lived in Vaughan ever since.

[8] The parties have a cell phone business called “Cellicon”, which was established in 2012. Cellicon has a number of retail stores across Canada, which I understand are a mix of franchise and corporately owned stores. The majority of the stores are in Ontario and British Columbia. I reach no conclusions about the ownership of that business, except to note that it appears to be the parties’ primary source of income.

[9] The parties have two children, who are nine and a half and seven years old. The parties moved to Mississauga from the Giorgia Crescent home in August of 2018 so that their children could attend school in Mississauga. The parties separated on September 16 th , 2018 after sixteen years of marriage. The children are in a shared parenting arrangement, pursuant to the February 28 th , 2019 Order of Trimble J.

b) The Property

[10] The property is municipally known as 42 Giorgia Crescent. It was purchased when the parties moved to Vaughan in 2012. Given their personal immigration circumstances, neither the Applicant nor the Respondent could be on title for the property or qualify for a mortgage. As a result, the Applicant’s parents took title to the property.

[11] However, there is no issue that the Applicant and the Respondent are the beneficial owners of the property. Equally, there is no issue that the Respondent’s parents remain legally liable in the first instance for the mortgage and the property taxes until the property is sold, as well as being potentially responsible for other liabilities. Finally, there does not seem to be any dispute that the parties and the Respondent’s parents had an agreement that the Applicant and the Respondent would ultimately be responsible for all of the costs and liabilities associated with the property, including any capital gains taxes upon sale.

[12] The parties moved out of the property in August of 2018, and it has remained vacant since then.

[13] The Respondent is currently paying all of the carrying costs on the property, and has been doing so since the parties moved out of the property. In August of 2019, after support payments started, the Respondent sought to have the Applicant pay her portion of the carrying costs. The Applicant is not, and has not been, paying her portion of the carrying costs.

[14] Based on the evidence I have in the record, the carrying costs for the property, including taxes, utilities and maintenance, amount to somewhere in the range of $10,000.00 per month. It is not necessary to precisely quantify these amounts for the purposes of this motion.

c) The Litigation to This Point

[15] The Application itself was commenced sometime in early 2019. I do not currently have access to the entire Court file. As far as I am aware, the first in-court matter on this case (other than a case conference) was a motion that was brought by the Applicant in June of 2019, seeking interim child and spousal support.

[16] On June 17 th , 2019, Bielby J. ordered the Respondent Imran Khan to pay child support in the sum of $7,177.00 per month and spousal support in the sum of $12,000.00. This order was effective June 1, 2019. The amounts under this order have all been paid from June 1, 2019 to March 31, 2020.

[17] Only incomplete payments have been made for the months of April and May. It is common ground that there are arrears in support for these two months but the Applicant does not agree that the Respondent has paid the amounts he claims to have paid for the month of May. It is possible that the difference between the parties is as a result of the fact that the support orders are enforceable through the Family Responsibility Office and what was paid my not yet have been received. It is not necessary for me to resolve that factual dispute in order to dispose of this motion.

[18] The Respondent has not taken any steps to have the support Order of Bielby J. varied. However, he argues that the pandemic has had a significant adverse impact on the business making it impossible for him to pay the full amounts. The evidence in this regard amounts to the Respondent’s assertions in his Affidavit, without documentary support, and the financial statement that he has filed on this motion. I will return to both of those facts below, as the Applicant argues that the Respondent should not be permitted to proceed with this motion because he is in breach of the Order of Bielby J.

[19] In the meantime, issues relating to the property were litigated. The Respondent sought, and failed to obtain, the Applicant’s agreement to list the property for sale between May and October of 2019. As a result, the Respondent brought a motion returnable in November of 2019 for an order requiring the property to be listed and sold.

[20] Ultimately, the parties agreed to a consent order, issued by Stribopoulos J. That order says, in part:

1 (c) the parties will accept the first reasonable offer to purchase Giorgia. If they cannot agree on the sale price, or any other aspect of the sale, they may return a motion to court on short notice; (d) the parties shall jointly retain Tannis A. Waugh, Barrister and Solicitor, to conduct the closing of the sale of Giorgia

2. The balance of the net proceeds of sale of Giorgia (after Ms. Waugh’s reasonable fees and disbursements) shall be held in trust by Epstein Cole LLP.

[21] Under the terms of the Order, the proceeds are to be held in trust pending further Court order or agreement of the parties. I understand that part of the purposes of holding the proceeds in trust is to ensure that any expenses that Ishaq and Zarinataj have to pay personally can be recouped. There may be other reasons that these funds are being held in trust, but I am not aware of them.

d) The Listing and the Offers to Purchase the Property

[22] The property was originally listed for sale in September of 2018 for $2,888,000.00. It was taken off the market in January of 2019 after the price had been reduced to $2,675,000.00. There were no offers to purchase the property during that time period.

[23] After the order of Stribopoulos J. was made, there were problems in choosing a real estate agent. As a result, under the terms of Stribopoulos J.’s Order, the parties were to arbitrate the question of which real estate agent should list and sell the property if they could not agree on a real estate agent. That arbitration was to proceed before Kelly Jordan.

[24] An Offer to Settle was served by the Applicant on December 11 th , 2019. The offer set out a list of twelve different real estate agents, and the Respondents were to choose one to list the property. The second paragraph of this Offer to Settle reads as follows:

2. The Respondents may select any one of the agents listed above and will advise the Applicant’s lawyer of their selection within 5 days of accepting this Offer to Settle. The parties will meet with the selected agent, and execute a listing agreement, forthwith.

[25] The Respondents all accepted the Applicant’s Offer to Settle on December 11 th 2019 and subsequently chose Ms. Ann McBride as the listing realtor. Ms. McBride originally agreed to take the listing, but subsequently withdrew from the transaction.

[26] The Applicant states that Ms. McBride withdrew from the sale because of “personal issues” on January 17 th , 2020. The Applicant provides text messages between herself and Ms. McBride supporting that fact. Specifically, a text message exchange between the Applicant and Ms. McBride states:

Applicant- Hey I just got an email from my ex’s council saying you do not want to proceed with the sale of my home. What happened.

Ms. McBride- Morning, I’m having some personal problems and will be taking a step back from real estate. Sorry for the inconvenience this may have caused. Wishing you and your family all the best.

[27] The Respondent, however, asserts that Ms. McBride withdrew from the sale of the property because of negative comments made by the Applicant to and about Ms. McBride. In support of his position, the Respondent relies on the Reply Affidavit provided by Irene Settino, who was one of the realtors who actually listed the property. At paragraph 3 of her Affidavit, Ms. Settino states:

In paragraph 21 of her Affidavit the Applicant states: “contrary to paragraphs 44-46 of Imran’s Affidavit, I deny making inappropriate remarks about Imran [Khan] to Ms. Settino.”. I confirm that when I spoke with the Applicant by telephone in January 2020, the Applicant Shahinda Lokhandwala said to me “you know the last agent that Imran chose – Imran made a secret agreement with her that she would pay him a kickback of sale commissions: She was his girlfriend”.

[28] Given the independent evidence from Ms. Settino, I am of the view that the Applicant likely made disparaging comments about Ms. McBride, and the Applicant was part of the reason that Ms. McBride was not prepared to continue with the listing. The Applicant’s conduct in this regard contributed to the delay in listing the property because it was over a month between when Ms. McBride originally agreed to take the listing and the next agent was chosen and contacted.

[29] On January 17 th , 2020, the Respondent Imran Khan, proposed a Mr. Mark Vaher be the listing agent. He was one of the agents listed in the Applicant’s Offer to Settle from December of 2019.

[30] According to the Respondent, the Applicant took no steps to contact Mr. Vaher between January 17 th , 2020 and January 28 th , 2020. I see nothing in the Applicant’s materials that would contradict this assertion other than her bald statement that she was waiting for Mr. Vaher to contact her. As a result, the Respondent’s counsel wrote to the Applicant’s previous counsel and threatened to bring a motion. I accept the Respondent’s position on this issue, as it is supported by the balance of the correspondence that was written during this time period

[31] Ms. Eisen’s response, sent January 28 th , 2020 states that the Applicant has contacted Mr. Vaher’s office and arranged to attend at the home. The Applicant states that she did not want the property listed by Mr. Vaher until she had had the opportunity to meet with him and discuss the listing price. As of January 31 st , 2020, two weeks after the Respondents had chosen Mr. Vaher from the list provided by the Applicant, the Applicant was still not prepared to agree on the details of the listing. The Applicant asserts that the delay was because she had not had a chance to discuss the listing price with Mr. Vaher. Given that Mr. Vaher had been able to discuss the matters in detail with all of the Respondents, I struggle with the Applicant’s assertion that it was a failure on the part of Mr. Vaher to contact her. Instead, I infer that the Applicant was moving in a dilatory way in terms of the listing.

[32] The Respondent and his parents had Mr. Vaher put up a listing for the property on January 28 th , 2020. Former counsel for the Applicant wrote to Mr. Vaher and Ms. Settino on January 31 st , 2020 and told them that the listing needed to be taken down immediately, as the Applicant had not agreed to the listing price.

[33] In early February, the Applicant raised concerns that the property was actually being listed with a Ms. Irene Settino, who the Applicant states was a “different agent who I had not consented to”. An e-mail was sent to that effect by her previous counsel on February 3 rd , 2020. However, it is clear from the documentation that Ms. Settino and Mr. Vaher work together, and that Ms. Settino is actually the lead agent.

[34] An offer was received for the property on February 6 th , 2020 for the sum of $2,000,000.00, which was improved to $2,150,000.00. The Applicant and Respondent agreed on a counter-offer in the sum of $2,378,000.00, and received a counter-counter offer in the sum of $2,155,000.00. This offer was rejected.

[35] No further offers were received on the property between February 9 th , 2020 and March 22 nd , 2020. At that time, Mr. Vaher recommended lowering the listing price to $2,188,000.00. The parties ultimately agreed to reduce the selling price. On March 24 th , 2020, pursuant to Mr. Vaher’s recommendation, the listing price of the property was lowered to $2,188,000.00.

[36] On March 26 th , 2020, after the COVID-19 pandemic had begun in earnest, the same purchasers who had offered $2,155,000.00 returned and offered $1,950,000.00. The Respondents all wanted to counter-offer at $2,000,000.00, but the Applicant refused. The real estate agents had recommended selling the property at this price. The Respondents proceeded with this counter-offer regardless of the Applicant’s position. The counter-offer was made with a condition that required judicial approval of the sale, but the purchasers rejected this condition.

[37] The Applicant’s position, as set out in the e-mail from her former counsel dated March 31 st , 2020, was (as I read it) that the offer could not be accepted even with a condition requiring Court approval unless the Applicant consented to the selling price in advance. Counsel closed her e-mail by saying “please confirm that no further steps will be taken regarding this or any other offer without Ms. Lokhandwala’s consent, unless and until there is a Court order made to the contrary.” The Applicant filed a complaint against Ms. Settino and Mr. Vaher with the Real Estate Commission of Ontario in part because of the provision of the counter-offer. I am not aware of the status of that complaint.

[38] On May 3 rd , 2020, an offer was received for the sum of $1,850,000.00. As part of the materials, Counsel for the Respondent Imran Khan has included a letter from Applicant’s counsel dated May 5 th , 2020 in which Ms. Boulby set out the terms under which the Applicant would accept the May 3 rd , 2020 offer. The admissibility of that letter is in dispute and I will return to that issue below.

[39] Then, late in the day on May 5 th , 2020, an offer of $2,042,000.00 was received for the property. It was not provided to counsel for the Applicant until approximately a minute before it expired. The offer was extended. In response to this offer, the Applicant indicated that she was prepared to accept an offer of $2,100,000.00 as long as she received all of her share of the proceeds from the sale of the property immediately, rather than having them paid into trust as required by the order of Stribopoulous J.

[40] This offer was accepted by all of the Respondents, but was subject to a number of conditions. I understand that, as of the time of the conference call, the only remaining condition was that the sellers had to obtain a satisfactory judicial order relating to the sale of the property within seven (7) business days following acceptance of the agreement. The agreement was accepted on May 7 th , 2020 by Ishaq and Zarinataj, which means that the Court order had to be made by May 19 th , 2020. As a result, I provided a bottom line decision at the conclusion of the conference call allowing the offer to be accepted.

Issues

[41] The following issues flow from the facts set out above:

a) Is this matter urgent within the meaning of the practice direction currently in place? b) Is the letter dated May 5 th , 2020 from Ms. Boulby admissible on this motion? If so, for what purpose? c) Should this matter be heard because of the failure of the Respondent Imran Khan to pay support for April and May of this year? d) If this matter should be heard, should an order issue permitting the sale of the property? Under what terms?

[42] I will deal with each issue in turn.

Issue #1- Is This Matter Urgent?

[43] The Applicant argues that this matter is not urgent, in part on the basis of the test set out by Kurz J. in Thomas v. Wohleber (2020 ONSC 1965). During the course of the conference call, I first heard submissions from Ms. Boulby on this issue, and then determined that it was not necessary to hear submissions from the Respondents, as I was satisfied that this matter was urgent within the meaning of the practice direction. I provided brief oral reasons for my decision. I will now explain the decision in more detail.

[44] The test set out by Kurz J. has been adopted in many of the subsequent cases on this issue. It requires a consideration (at para. 38) of four factors:

a) The concern must be immediate, and not one that can await resolution at a later date; b) The concern must be serious in that it must affect the health and/or economic well-being of the parties or their children; c) The concern must be definite and material rather than speculative; d) The concern must be clearly particularized in evidence, and there must be examples of how it reaches the level of urgency.

[45] It must also be remembered that the list of urgent matters outlined by the Chief Justice in the practice direction is not exhaustive, and that the judge hearing the motion has some discretion as to what constitutes an urgent matter (see Jeyarajah v. Jeyamathan 2020 ONSC 2636 at para. 13 and Kostyrko v. Kostyrko 2020 ONSC 2190 at para. 46).

[46] Ms. Boulby argued that the offer, and the question of whether to sell the property, is entirely a question of money and that its resolution can wait to a later date. I disagree with this submission for two reasons.

[47] First, it is more than a question of money. It is also a question of opportunity. An order has been made that the property must be sold and the parties must accept the first reasonable offer. The parties agree that it must be sold. An opportunity has presented itself for the property to be sold, and by the very nature of the real estate market, that opportunity will not exist for long. If the Court does not consider the reasonableness of this offer now, the offer will disappear.

[48] Second, the property is sitting vacant, and the evidence is clear that there are significant expenses associated with the maintenance and upkeep of the property. Those expenses are a continuing drain on the parties’ financial resources, and the opportunity to eliminate those expenses will also be lost if this offer is not considered by the Court now.

[49] In short, I am of the view that urgency is established in this case because of the lost opportunity that may accrue if the Court does not resolve the issue presented by the Respondents. The concern is also serious because the parties finances are affected in a possibly significant way. Finally, the concern is tangible and clear, and the evidence is sufficiently clearly particularized. In short, the test established by Kurz J. is met in this case.

Issue #2- Is the Letter Admissible Evidence?

[50] I agree with counsel for the Applicant that this letter was a “without prejudice” settlement proposal that, for the most part, is not admissible. It is certainly not admissible for determining whether the proposed selling price is reasonable as it is an effort to compromise.

[51] The more difficult question is whether the letter is admissible for the purposes of determining the question of whether this matter should be heard even though the Respondent is in breach of the Order of Bielby J. This letter arguably demonstrates that the Applicant’s views on how much this property should be sold for are an ever-changing target, as the Applicant appears to have been prepared to accept a substantially lower selling price when the first offer is made than she was prepared to accept when the second, higher, offer was made. It is, therefore, relevant to the question of whether a remedy should be granted to the Respondent under Rule 1(8).

[52] However, even though the document is relevant, it is not admissible for any purpose. I agree with counsel for the Applicant that this letter is protected by settlement privilege. As noted in Sable Offshore Energy Inc. v. Ameron International Corp. (2013 SCC 37, [2013] 2 S.C.R. 623), settlement is a class privilege, making the document presumptively inadmissible (Sable, para. 11). There are exceptions to the privilege, but the person seeking to bring the communication within the exception (in this case, the Respondents) must demonstrate that there is “’a competing public interest that outweighs the public interest in settlement’” (Sable, para 19).

[53] In this case, the communication from Ms. Boulby was clearly designed to offer a compromise to resolve the issues between the parties. It was also clear that litigation over the sale price of the property was likely at this point. As a result, the offer was clearly covered by settlement privilege.

[54] I see no competing public interest that outweighs the public interest in settlement in this case. As a result, the document remains privileged and I will not consider it further in my deliberations.

[55] I will make one final comment on this issue. Although I have found that the letter is inadmissible on the issues I have had to decide so far, it appears to me that it might very well be admissible when it comes time to assess the costs in this case, as it is an offer to settle. However, the parties will need to make submissions on that point.

Issue #2- Should This Matter be Heard Even Though the Respondent is in Breach of the Order of Bielby J?

[56] Yes.

[57] Rule 1(8) of the Family Law Rules governs this issue. It states:

1(8) 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,

(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.

[58] There is a three-stage test that is applied in considering this rule, as follows (see Herman v. Rathbone 2017 ONSC 4585):

a) Is there a triggering event? b) Is it appropriate to exercise discretion in favour of the non-complying party, which discretion should only be exercised in exceptional circumstances? c) If discretion is not exercised in favour of the non-complying party, what is the appropriate remedy?

[59] There is no real dispute that there is a triggering event in this case. As a result, I go on to the second part of the test where I have discretion under the Family Law Rules to determine whether, and on what terms, this matter should be heard. I have determined that it should be heard for the following reasons.

[60] First, there is some explanation for the breach of Bielby J.’s order, and the breach has not been longstanding. I note that the financial information provided by the Respondent about the decline in his income is quite thin. However, I also note that the parties all accept that the Cellicon business is a retail based business. The explanation offered by the Respondent in this case does not rise to the level of the explanation provided to the Court in Oliver v. Oliver (2020 ONSC 2321). However, it is a factor to consider in exercising my discretion.

[61] In addition, counsel’s explanation that a variation of the order was not sought because the Court might not view the matter of support payments as urgent has some merit to it. However, I did point out to the parties the decision of Roberts v. Roberts (2020 ONSC 2935), where Hebner J. found that the circumstances in the case before her were sufficiently urgent to justify a temporary variation in the support amounts payable. There is also the decision of Horkins J. in Lakhtakia v. Mehra (2020 ONSC 2670), which I did not point out to the parties during the conference call. In that case, Horkins J. found that the circumstances before her were not sufficiently urgent to justify a temporary variation in the support amounts payable. I commend the analysis in both cases to counsel and the parties.

[62] Second, the conduct of the Applicant in respect of the sale of the property is of concern to me in the following respects:

a) The incident relating to Ms. McBride, as described at paragraph 27 is troubling. While I do not know the precise details of what happened, it is clear that the Applicant was prepared to make allegations about Ms. McBride which delayed the sale of the property b) The Applicant moved in a dilatory way to deal with Mr. Vaher when he was first retained as the agent in this case, in spite of the fact that Mr. Vaher was on her list of approved real estate agents. There is no real explanation for this dilatory conduct, although I acknowledge that it was a matter of two weeks or less. c) Most importantly, the position taken by the Applicant’s former counsel, as described at paragraph 37 suggests that the Applicant was intending to put barriers up to the sale of the home. The parties are obliged to accept the first reasonable offer. Adopting the position that counter-offers (including counter-offers with provisions that would allow the Court to be the final arbiter of whether the counter-offer was reasonable) could not even be made without the Applicant’s approval has the effect of nullifying the Order of Stribopoulous J. Instead, unless an urgent motion is brought and adjudicated before the tendered offer expires, the Applicant would be able to exercise a veto over any counteroffers if the position outlined by her former counsel was adopted. Given the short time period that tendered offers remain available for acceptance, the Applicant’s position was an attempt to nullify the Order of Stribopoulos J. The Applicant strengthened this attempt to nullify Stribopoulous J.’s order with her complaint to RECO.

[63] Based on all of those comments, I am of the view that the Applicant has been seeking to avoid selling the property, and has been putting barriers up to prevent the sale of the property. This conduct is a factor that favours hearing the motion. If the offer to purchase the property is reasonable, then the Applicant is bound to accept it by the terms of Stribopoulos J.’s order. The Applicant should not be permitted to use the provisions of Rule 1(8) to avoid the application of a Court order which would otherwise bind her.

[64] Third, all of the primary risk and responsibility with this asset rests with the Respondent and his parents. The Applicant seeks to preclude all of the Respondents’ access to the Courts. Even if she is successful in precluding Imran Khan’s access to the Courts to have the property sold, there is no basis to preclude the access of Ishaq and Zarinataj to the Courts. They are not in breach of any Court Orders.

[65] Ishaq and Zarinataj are seeking the same relief from the Courts- to have the property sold. Ms. Boulby argues that they are simply “piggybacking” on the relief sought by Imran Khan, and should not be permitted to seek this relief since they did not ask for it in the first instance themselves. However, the Courts should be focused on ensuring that the merits of a dispute are resolved. I am of the view that Ishaq and Zarinataj could seek the sale of the property even if I precluded Imran from seeking that relief, and they could have sought an urgent motion. Either way, the dispute is going to have to be resolved on its merits.

[66] Fourth, the question of non-payment of support can be dealt with by an order relating to the proceeds from the sale. In other words, I can fashion a remedy that will reduce the prejudice to the Applicant of the Respondent’s non-compliance. Specifically, when the sale of the property closes on September 10 th , 2020, any arrears of spousal and child support owing at that time should be paid for out of the Respondent’s portion of the proceeds. The remainder of the funds should, under the terms of Stribopoulous J’s order, be kept in trust pending further order of the Court or an agreement of the parties.

[67] In the end, I conclude that the motion should proceed, but on terms.

Issue #3- Should the Property be Sold?

[68] Yes.

[69] The Applicant argues that the property should not be sold for the following reasons:

a) It is a very significant asset to the Applicant. b) The property should be sold for a reasonable price, and the parties are required to accept the first reasonable offer. The current offer is not reasonable. c) The Respondent and his parents have been seeking to exclude the Applicant from the sale of the property.

[70] I acknowledge that this is a very significant asset. However, it has also consumed a very significant amount of the parties resources and is a significant source of contention. This fact alone would not justify an order selling the property at this stage, unless it was for a reasonable offer. However, the contentiousness of this issue is a factor that the Court should consider in fashioning a remedy.

[71] Similarly, while this is a very significant asset to the Applicant, it must be remembered that she may be ultimately responsible for the costs associated with the property (such as the mortgage and the property taxes) but she is not responsible for paying those amounts in the first instance. The legal responsibility for making those payments rests with the Respondent’s parents. As a result, they also have a legal (but not equitable) interest that must be considered in fashioning a remedy.

[72] Put another way, it is not enough for the Applicant to say that the Respondent and his parents can eventually recoup the costs of carrying this property from her. If there is a reasonable offer, then the property should be sold forthwith.

[73] This brings me to the second, crucial issue. Is this a reasonable offer? The Applicant says that it is not, and advances e-mails from realtors Ms. Javeria Nagaria and Ms. Monika Younger. Ms. Younger was of the view that the property would sell for between $2.1 and $2.3 million, and that the current pandemic might affect the time the property was on the market. Ms. Nagaria suggested that the property would sell for at least $2.2 million and that the current sale would be a loss of between $200,000.00 and $300,000.00.

[74] Neither of these realtors swore an Affidavit in this case, which in some ways is understandable given the speed at which this matter had to be litigated. I also did not have any details about either realtor other than what was in their e-mails.

[75] The Respondents challenged the bona fides of these realtors. In particular, the Respondents all made an issue out of the fact that Ms. Nagaria had been shown the property by the listing realtors. Ms. Nagaria did not identify herself as representing the Applicant but, instead, advised Ms. Settino and her staff that Ms. Nagaria was interested in buying the property herself.

[76] As I indicated during the course of the conference call, I do not share the Respondent’s concerns respecting Ms. Nagaria’s conduct. The mere fact that Ms. Nagaria did not identify herself as a potential witness for the Applicant is not, in and of itself, sufficient to reject the evidence that she has provided through the Applicant. I do note that the information by e-mail is less reliable than an affidavit but, again, this is a question of weight rather than admissibility.

[77] However, I have concerns with the views of these realtors for the following reasons:

a) The property was on the market for approximately six weeks before the pandemic became a significant issue, and did not attract a single offer anywhere near the amount that these real estate agents claim the property is worth. b) The property has been on the market for two months since the pandemic started and has not attracted an offer near the amount that either real estate agent believes that it should sell for. Indeed, the best offer (which was received pre-pandemic) was for $2,155,000.00. c) While both real estate agents explain the selling price they think that the property should obtain on the open market, they do not explain the basis for their views in reference to specific properties. The closest they come is Ms. Nagaria’s e-mail that says that nothing in this neighbourhood sells for less than $2 million. There are no specifics provided with this e-mail at all.

[78] Next, the Applicant argues that other properties in the neighbourhood have listed and/or sold for higher amounts, and that the property is the lowest priced property in the area. Again, the problem with this argument is the length of time that the property has been on the market. In addition, most of the information I have is for listing prices, rather than sale prices. The listing prices for property are not of great assistance when determining the price that the property will actually sell for.

[79] In a reply Affidavit, Ms. Settino explained why she views the property as being less valuable than others in the neighbourhood. Specifically, she identifies the following issues:

a) The backyard in the property was small and lacked privacy. b) The property had some updating and repairs that were required, as well as an unfinished basement. c) The property had been vacant for nearly two years.

[80] These deficiencies were also identified in e-mails that Mr. Vaher provided the parties when the listing price was reduced in March of this year.

[81] I am of the view that those differences provide a reasonable explanation as to why the price for the property may be lower than the other properties in the neighbourhood. In addition, much of the information provided by the Applicant in her materials sets out listing prices rather than the actual prices the properties sold for and those properties have been for sale for a considerable period of time. There is a difference between the two, and there is no evidence of actual sale prices in the materials before me.

[82] Finally, the Applicant argues that the property should be held until the end of the pandemic, and will fetch a better price if it is kept until that time. There are a number of problems with that argument. First, it is speculative. No one knows what the future holds after the pandemic is over, and no one knows what shape the economy is going to be in.

[83] Second, no one knows how long the pandemic is going to last. While I must be cautious of taking judicial notice of facts around the pandemic (see the discussion in R. v. Baidwan 2020 ONSC 2349 for an explanation of why Courts must be careful with judicial notice during this pandemic), I am comfortable noting that no one knows how long the pandemic is going to last or how long COVID-19 is going to be with us. I am also comfortable noting that no one knows for certain what the financial repercussions of this pandemic will be.

[84] Third, the property was on the market for a considerable period before the pandemic arose. It has been listed for sale since the end of January 2020. Ms. Settino’s affidavit discloses that there were at least 37 showings, and only three parties that submitted offers to purchase the property. It is difficult to see how additional time will assist the parties in selling this property.

[85] The property must be sold. The parties have not lived in it for almost two years, and it has been vacant for almost two years. At this stage, the offer that has been tabled appears to be reasonable.

[86] However, as one of the terms of selling the property, I am not prepared to foreclose litigation over the question of whether the selling price is actually reasonable. One of the conditions of accepting this offer is that the Applicant may, at trial, litigate the question of whether the sale was actually reasonable.

[87] I would only remind the parties that the question of what is a “reasonable” offer is likely different from what is “the best offer we could get”. However, that issue is to be left to the trial judge.

[88] As a final matter, I should briefly address the position taken by all Respondents that the Applicant should have no further role in the sale of the property. While I have concerns about the delays that the Applicant has engaged in in this case, I am not persuaded that excluding the Applicant from the sale of an asset that she owns, and that has such a considerable value, is appropriate. Indeed, in my view part of the contentiousness in this matter flows from the fact that the Respondents have been quick to threaten to exclude the Applicant from the sale of the home. This position has not been conducive to reducing the conflict in this case.

[89] The parties are clearly engaged in very contentious litigation. Rather than excluding the Applicant from the sale of the home, any issues respecting the sale of the home can be managed by having the Court supervise any issues relating to the sale. As a result, I am remaining seized to deal with any issues that may arise as a result of the sale. If there are any issues, the parties are free to contact my judicial assistant in writing, copying their correspondence to all other parties.

Conclusion and Costs

[90] Having reviewed some of the litigation history in this matter, it appears to me that this case is going to be both contentious and complex. The contentiousness is amply outlined in my reasons. The complexity will flow from the fact that the Cellicon business will have to be valued and that there will be arguments about the imputation of income. These arguments will necessitate significant disclosure, and likely significant disclosure motions.

[91] I am of the view that a case management judge may be helpful in this matter for the following reasons:

a) It is clear that the matter is a high conflict case, and all counsel acknowledged that fact during the hearing of this motion. b) The parties have already consumed considerable Court resources in litigating this case. A case management judge will assist in ensuring that the litigation is focused and confined to the issues that are necessary to be litigated. c) The issues in this case, as I have noted in the previous paragraph, are complex. d) There are likely to be significant disclosure requests and obligations in this case, and the disclosure and discovery process would benefit from judicial management. e) The parties are approaching two years since separation, and the litigation has been pending before the Courts for some time with no clear path to resolution.

[92] I have no authority to appoint a case management judge. However, I can (and do) direct that the parties, upon receipt of my written decision, will write to Ricchetti R.S.J. and ask that a case management judge be appointed. If the parties do not wish to have me appointed as the case management judge because I have already made findings in this matter, they should specifically identify that fact to Ricchetti R.S.J. in their letters to him. I retain jurisdiction over the issues relating to the sale of the property regardless of whether a case management judge is appointed, or whether I am the case management judge.

[93] I made the orders that are implicit in my reasons at the time of the conference call. Given that the last condition in the APS was an Order from the Court permitting the sale to proceed, the parties prepared a draft Order. They were able to agree on all of its terms except whether I had intended to include a provision in the Order requiring the parties to write to R.S.J. Ricchetti and ask him for the appointment of a case management judge.

[94] The parties will have seen from the signed Order that I provided them with that I was of the view that this provision had to be included. I will briefly explain my reasons. At the conclusion of the conference call, I had made an order that the parties were to write to R.S.J. Ricchetti and ask for case management once I had released my written reasons. Given the contentious nature of this case, I do not want any avoidable misunderstandings. As a result, I took the view that a provision in the formal Order was necessary and I included it.

[95] This brings me to the subject of costs. The Respondents are to provide their costs submissions within ten (10) days of the release of these reasons. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, case-law and offers to settle. The materials are to be filed electronically with my judicial assistant, with a copy to the trial office and are not to exceed 9 megabytes. Cases are to be filed by hyperlink only.

[96] The Applicant is to provide her costs submissions of no more than five (5) single-spaced pages, exclusive of bills of costs, case law and offers to settle ten (10) days thereafter. This may result in the Applicant being required to submit her submissions on a Sunday. The submissions will be due on the first business day thereafter. I have provided the Applicant with additional pages because she may be responding to two sets of costs submissions. The filing restrictions and requirements set out in the previous paragraph apply here as well.

[97] If I do not receive costs submissions or a request for an extension from the parties within the timelines set out above, then I will presume that the parties have resolved the question of costs and no costs will be payable on this motion.

[98] I also note that the Order of Stribopoulos J. states that the costs of the motion returnable on November 14 th , 2019 are reserved and will be argued at a later date. The parties are to discuss amongst themselves when these costs are to be fixed, and advise me as to their positions if they cannot agree on when those costs would be fixed.

[99] Finally, counsel and parties are reminded of the Practice Direction, which requires them to file all materials in hard copy with the Court when the Court office resumes regular operations. That direction also applies to the costs submissions.

LEMAY J

Released: May 25, 2020 Corrected: August 14, 2020