Court File and Parties

COURT FILE NO.: FS-19-19713 DATE: 20200526 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Christina Nicole Burrell Applicant – and – Darryl Burrell Respondent

COUNSEL: Mary Anne Ducharme, for the Applicant Darryl Burrell, acting in person

HEARD: May 26, 2020

Endorsement

THIS MOTION HAVING BEEN HEARD BY CONFERENCE CALL PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.

BONDY J.

A. Introduction

1) Background

[1] This is a decision and reasons for a motion heard on the basis of urgency pursuant to the COVID-19 protocol in that regard.

[2] The applicant, Christina Nicole Burrell (“Ms. Burrell”), and the respondent, Darryl Burrell (“Mr. Burrell”), have separated and are in the process of obtaining a divorce. They own a home at 1260 Gore Road, Harrow, Ontario. On January 10, 2020, Hebner J. ordered that the property be sold.

[3] An agreement of purchase and sale was signed by both the applicant and respondent on February 10, 2020. They agreed to sell the matrimonial home to Jason Jaleski and Brynn Goegebeur. The transaction was originally scheduled to close April 10, 2020. At the request of the respondent, the closing was extended to May 29, 2020 in accordance with the provision in the agreement allowing him to do so.

[4] According to the lawyer with carriage of the sale transaction, the respondent is now refusing to sign the necessary closing documents.

[5] Also, according to the lawyer with carriage of the sale transaction, the purchasers will have a cause of action against both the applicant and respondent if the transaction fails to close.

[6] As a result, the applicant seeks an order for the sale of the home, an order allowing her to sign any necessary documents on behalf of the respondent, an order for him to vacate the home, and an order allowing the applicant to retrieve her personal possessions from the home prior to closing in accordance with prior court orders.

2) The positions of the parties

a) The position of the applicant

[7] The position of the applicant is simple and straightforward. She maintains that the applicant and respondent voluntarily entered into a binding agreement of purchase and sale to sell the matrimonial home to third parties. She believes the failure to close the transaction in accordance with the terms of that agreement will result in litigation. The applicant believes that unnecessary and expensive litigation will be the result.

b) The position of the respondent

[8] The respondent’s position has three overarching components. The respondent maintains that:

i. The matter is not urgent; ii. The fear of a lawsuit for money should not be more important than human lives. He proposes that the parties “cancel the sale of the property until the pandemic is lifted”; and iii. “The applicant is in no rush to give me a settlement and they refuse to work with me with respect to my rights as a father.”

B. Analysis

1) Urgency

[9] I reiterate the respondent maintains the matter is not urgent. He argues that there is not currently a lawsuit.

[10] I find the matter is urgent.

[11] The parties are under a legal obligation to close the transaction. Until they fail to do so, there is no cause of action. That is why there is not currently a lawsuit. If the parties fail to close the transaction in accordance with its terms, a cause of action will exist and both parties will potentially be exposed to needless and expensive litigation. Importantly, there was no evidence to suggest that the purchasers have waived any of their rights with respect to the closing.

2) The quality of the evidence

a) The applicant’s evidence

[12] I begin with the observation that it is often difficult to assess reliability and credibility of witnesses without the beneficial features of a trial, such as cross-examination.

[13] That said, I found the evidence of the applicant internally consistent and consistent with the preponderance of evidence that I believed. I gave her evidence corresponding weight.

b) The respondent’s evidence

[14] To the contrary, I found the evidence of the respondent from time to time internally inconsistent, and inconsistent with the preponderance of evidence that I believed. Examples of each follow below. I gave the evidence of the respondent weight consistent with his affidavit evidence.

3) The impact of the COVID-19 crisis

[15] The respondent’s materials observe that the World Health Organization declared a global pandemic on March 11, 2020 and then, on March 17, 2020, Doug Ford, the Premier of Ontario, announced a state of emergency in the Province of Ontario. As a result, the respondent elected to extend the closing date to May 29, 2020 in accordance with the terms of the agreement of purchase and sale which gave him that option. I reiterate he now wishes to “cancel the transaction” and remain in the house until the COVID-19 crisis comes to an end.

[16] I begin with the observation that the COVID-19 crisis has been a difficult time for everyone. That said, the respondent seems to either lack meaningful insight into the consequences of decisions which he makes, or, in the alternative, not care about those consequences.

[17] This issue began on March 23, 2020 when the respondent sent a text to the parties’ real estate agent saying that if the pandemic gets worse he will not be selling the property.

[18] I find that unilateral declaration problematic for many reasons.

[19] The first is that there is no suggestion that the respondent did not sign the agreement voluntarily, or that he signed it under any form of duress. In other words, there is no suggestion that he is not legally bound by the decision that he made to sell the house.

[20] The second is related to the first. The agreement of purchase and sale involves four people. Consensus of all four parties is required to amend the terms of that agreement. There is no suggestion that any of the other three persons agreed to terminate the transaction or that the respondent has made any attempt to obtain the consent of the purchasers to do so.

[21] The third is the transaction involves the purchase of a home. The respondent does not seem to have considered that the purchasers are potentially purchasing the home to live in and if the transaction does not close, they will possibly have nowhere to live.

[22] The fourth is that the respondent does not seem to have considered that the applicant potentially requires her share of the proceeds of the sale of the matrimonial home. The children live with the applicant. The respondent has access supervised by his mother. It follows that any financial hardship endured by the applicant will necessarily impact the standard of living of the children.

[23] The fifth is that there is no evidence that the move cannot be carried out in accordance with current government COVID-19 guidelines. I think I can take judicial notice of the fact that delivery companies have never been busier.

[24] The sixth is the respondent’s argument that his primary concern is for the children. I reiterate, the children do not live with the respondent. They do have supervised access in his home. There was no explanation as to why the sale of the matrimonial home would put the children at risk. There was no evidence to suggest that supervised access could not take place in an alternate and equally safe environment.

[25] The seventh is that it appears from Facebook posts made by the respondent that he believes the COVID-19 pandemic is actually a hoax. Importantly, the respondent acknowledged the Facebook postings were his. The respondent argued that what he believes is not important to these proceedings. In other words, he did not deny agreement with those Facebook posts. While I agree that the respondent, like every other Canadian, is entitled to his own personal beliefs about the COVID-19 crisis, it is equally true that he must be truthful as to those beliefs when submitting evidence to the courts. I find that he misrepresented those beliefs. I also find that he did so to achieve goals in this litigation that are unrelated to his health.

[26] That conclusion finds support in other falsehoods contained in the respondent’s relatively brief affidavit. For example, the respondent’s affidavit leaves the impression that he was entirely cooperative with the applicant’s request for return of the property. I find that proposition internally inconsistent with the respondent’s own evidence, and also inconsistent with the preponderance of evidence that I believed regarding the issue. I make the following two observations in that regard.

[27] One observation is that, by the respondent’s own admission, the return of the property did not occur until this motion was brought for the return of the property, and the respondent had also been contacted by the Ontario Provincial Police (“OPP”) on March 25, 2020.

[28] The other observation is that the respondent maintains that the return of the property was, in his words, “not part of a court order”. The record demonstrates otherwise. For example, the order of Hebner J., dated January 10, 2020, specifically states that the applicant may attend at the property on January 18, 2020 to remove any items the respondent does not dispute, and that disputed items will be considered later. The endorsement of Raikes J., dated February 21, 2020, provides that the applicant “shall attend” the matrimonial home on April 4, 2020 to remove certain listed items. Those listed items are the same items that were initially in issue on this motion. The applicant maintains the respondent cancelled that court ordered exchange on the basis of the COVID-19 crisis.

[29] To be blunt, I can think of no danger whatsoever that would have been presented to the respondent following that very clear court order. The respondent could have simply gathered the items, put them outside, and retreated to the safety of his home once the applicant arrived for pickup. There was no danger of the respondent coming into contact with anyone during that exchange. Said another way, the COVID-19 crisis was simply a convenient means for the respondent to frustrate a clear court order.

[30] The eighth is related to the seventh. That is, the respondent’s statement that “[t]he applicant is in no rush to give me a settlement and they refuse to work with me with respect to my rights as a father.” I reiterate that the respondent currently has supervised access to the children and that the respondent is not happy with that situation. Given my findings as to the respondent’s credibility, it is difficult to avoid the conclusion that the respondent is using the refusal to close this transaction as a lever to gain a negotiating advantage with respect to other issues, or to punish the applicant for her past failures to give in to his demands.

[31] The ninth is also related to the seventh. That is, the timing of the respondent’s refusal to close the transaction. The transaction is scheduled to close in days. The respondent has unnecessarily created an artificial emergency.

[32] I reiterate that according to the respondent’s affidavit, on March 23, 2020 he sent a text to the real estate agent stating that he would not be selling the property if the pandemic got worse. That was over two months ago. Presuming the respondent did have concerns about the COVID-19 crisis (which as said above, I do not believe), he could have used that two months to attempt to renegotiate the agreement. If successful, there would be no emergency. If unsuccessful, the respondent would have had two months to arrange for the timely and safe removal of his personal property from the jointly owned home, and to find alternate accommodations. Again, there would be no emergency.

[33] It follows that, in the balancing exercise, I must conclude any inconvenience to the respondent that may result from the granting of the applicant’s motion be given less weight than would otherwise be the situation.

[34] The tenth is that it is simply not practical to suggest that the matrimonial home will not be sold until after the COVID-19 pandemic. As was observed by Pazaratz J., at para. 13 of the decision in Ribeiro v. Wright, 2020 ONSC 1829, “None of us knows how long this crisis is going to last.” It would be unfair to request the applicant to tie up her equity in the matrimonial home indefinitely. As said above, the resulting constraints on the applicant’s finances would potentially be felt directly by the children because they live primarily with their mother.

[35] In summary, the respondent has created an unnecessary emergency. The evidence supports the conclusion that the respondent likely misrepresented his refusal to close the agreement of purchase and sale in accordance with its terms as driven by fear of COVID-19. I say that because he does not believe the pandemic is real. To the contrary, the evidence supports the conclusion that the respondent is driven by a desire to either pressure the applicant into making concessions now, or to punish the applicant for her past failures to give in to his demands.

[36] There was no evidence to suggest that the real estate lawyer’s prediction of litigation if the transaction does not close was incorrect or exaggerated. On the record before me, it appears that the applicant and respondent would have little or no chance of success in that litigation. The resulting costs and damages would no doubt have a significant impact on the applicant’s ability to provide for the children.

[37] While I am aware that an order putting the respondent out of his house on such short notice will no doubt cause him great difficulties, as said above, those difficulties are of his own making. Fairness requires that the respondent bear the consequences of his actions and that those consequences not be visited upon the innocent purchasers, or the applicant, or the children.

4) Vacant possession of the matrimonial home

[38] Paragraph two of the agreement of purchase and sale provides that upon completion of the transaction vacant possession of the property shall be given to the buyer unless otherwise provided for in the agreement.

[39] There are two components to vacant possession. The first is that there be no persons present in the house on closing, and the second that there be no chattels left on the premises other than those agreed-upon.

[40] As to the first, the appropriate remedy is a writ of possession. A writ of possession can be enforced by a peace officer to force the respondent from the premises if he fails to do so on his own.

[41] As to the second, Schedule “A” to the agreement provides that “the buyers agree to assume and disposal at the buyers expense, any remaining chattels on the property on closing.”

[42] It follows that any personal property belonging to the respondent that is not moved by him in a timely fashion will be forfeited on closing. It is therefore incumbent upon the respondent to remove any personal property that he does not want to forfeit before he is required to vacate the premises.

5) The applicant’s personal property

[43] The applicant acknowledges that the respondent has allowed her into the matrimonial home to retrieve some of the articles previously ordered to be returned. She is content to pursue those articles that are still missing at a later date. Accordingly, I did not give this issue further consideration.

C. Order

1) Sale of 1260 Gore Road Harrow Ontario

[44] The sale of 1260 Gore Road, Harrow, Ontario shall be completed in accordance with the terms of the agreement of purchase and sale dated February 10, 2020 on the following basis:

1. The applicant shall have authority to sign all documents on behalf of both vendors, being Christina Nicole Burrell and Darryl Burrell, to allow the sale to close for the property known municipally as 1260 Gore Road, R.R. #5, Harrow, Ontario, Pin # 75192-0095.
2. The signature of the respondent Darryl Burrell shall not be required on any documents.
3. The said Darryl Burrell will be bound by any documents signed on his behalf by Christina Nicole Burrell, and the said Christina Nicole Burrell will not be liable to Darryl Burrell for having signed those documents.
4. Subject to further order of the court, the net proceeds of the sale shall be held in trust by the lawyer who completes the transaction.

2) Respondent to vacate the premises

[45] The respondent shall vacate the premises including removing all of his personal property from the premises on or before 5:00 p.m., Thursday, May 28, 2020. The respondent, Darryl Burnell, shall not reattend 1260 Gore Road, Harrow, Ontario after Thursday, May 28, 2020 at 5:00 p.m. The house shall be left in a reasonably clean condition.

3) Writ of possession

[46] A writ of possession shall issue. It shall be enforceable by any peace officer including the Sheriff of the County of Essex.

4) Exclusive possession

[47] The applicant shall have exclusive possession of 1260 Gore Road, Harrow, Ontario from 5:00 p.m., Thursday, May 28, 2020, until the closing of the transaction scheduled for May 29, 2020.

[48] During that time, the applicant may, but is not obliged to, remove the personal possessions referred to in the endorsement of Raikes J., dated February 1, 2020, and any other personal property left behind by the respondent Darryl Burrell. Any property removed by her which was left behind by the respondent shall be considered abandoned by him and become the property of the applicant, and shall not be considered in any future calculation of equalization.

[49] The applicant shall also ensure that the respondent has left the house reasonably clean. In the event that he has not done so, the applicant shall arrange for the reasonable cleaning of the premises. Any reasonable costs associated with that cleaning are to be deducted from the respondent’s share of the net sale proceeds. In the event of disagreement, the matter may be returned to me for assessment of those costs.

5) Police Enforcement

[50] The applicant shall deliver a copy of this order to the police force having jurisdiction where the property is located and advise the police that the respondent Darryl Burrell has in the past been convicted of assaulting the applicant Christina Nicole Burrell. Accordingly, there is a non-association order in place.

[51] An order is made that the police force having jurisdiction where the property is located take whatever steps they deem appropriate to ensure that Darryl Burrell does not attend at 1260 Gore Road, Harrow, Ontario, after Thursday, May 28, 2020 at 5:00 p.m., and to take steps which the police in their discretion deem reasonable to ensure the safety of the applicant Christina Nicole Burrell at any time when the applicant will be at that address.

6) Costs

[52] In the event that the parties are unable to agree on costs within seven (7) days, then costs submissions shall be in writing on the following basis:

1. The applicant’s counsel shall serve costs submissions upon the respondent within fourteen (14) days. Such written argument shall be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the applicant shall be deemed to have waived her right to do so.
2. The respondent shall have a further ten (10) days to provide a response to counsel for the applicant. Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the respondent shall be deemed to have waived his right to do so.
3. Counsel for the applicant shall have five (5) further days to provide a reply to the respondent. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the applicant shall be deemed to have waived her right to do so.
4. Once all of those steps have been completed, counsel for the applicant shall provide all the submissions to the court through the Trial Co-Ordinator. Trial Co-ordination.
5. The costs submission shall be double-spaced and use a “Times New Roman” font no smaller than 12 pitch. All references to the length of submissions exclude Bills of Costs and Costs Outlines and any Offers to Settle.

“Electronically signed and released by Bondy J. ” Christopher M. Bondy Justice

Released: May 26, 2020