Court File and Parties
Court File No.: FS-18-2429 Date: 2020-06-01 Superior Court of Justice – Ontario
Re: Adam Rothschild, Applicant And: Amanda Rothschild, Respondent
Before: Kiteley J.
Counsel: Richard Niman, counsel for the Applicant Amanda Rothschild, Self-Represented
Heard: In Writing
Endorsement
Background
1In an endorsement dated April 6, 2020, 2020 ONSC 2117 I summarized the circumstances at that time and made the following orders:
- The listing of the sale of 338 Cortleigh Boulevard, Toronto is extended to April 15, 2020 at which time the parties will re-evaluate the COVID-19 restrictions. If not possible to list at that time, the parties shall re-evaluate at two week intervals thereafter until listed.
- Unless the parties agree otherwise, and no later than April 13, 2020 at 5:00 p.m. ET, the parties shall sign a listing agreement with C.K. and her brokerage firm, unless C.K. refuses to participate in the sale of the home. That listing agreement will provide for a listing period of no less than 90 days.
- If C.K. refuses to participate in the sale of the home, either party may contact the Trial Co-ordinator to arrange a telephone conference call with me for the limited purpose of establishing a timetable for the parties to make written submissions as to an alternate listing agent.
- Within five days of RICO [s/b: RECO] and or OREA recommending the resumption of open houses, C.K. will take steps to market the home including arranging open houses.
- With respect to repairs to the home prior to listing: (a) by April 13, 2020, the Respondent shall send to the Applicant and to C.K. an email with a numbered list of all of her proposed repairs along with an image or images of the location of the proposed repair and such measurements as are relevant to whether the repair is reasonable; (b) if by April 20, 2020, the Applicant and Respondent have not agreed as to whether the repair is/are to be undertaken, at what cost and by what contractor, then by April 22, 2020 C.K. shall make recommendations as required by paragraph 33 of the Minutes of Settlement and inform the Applicant and the Respondent by email; (c) within 5 days of RICO [s/b: RECO] and or OREA recommending the resumption of open houses, the Respondent shall give to the contractor whatever access is required to effect the repairs; (d) the parties shall share/pay the cost of the repairs in accordance with paragraph 33 of the Minutes of Settlement.
- Neither party shall pay or receive costs from the other in connection with the telephone conference call on March 20, 2020 and the written submissions required in the endorsement dated March 20, 2020.
- This order takes effect without a formal order being signed and entered.
2In an email dated April 27, 2020, the Respondent asked to arrange a telephone conference call with me to “discuss issues that have arisen regarding the listing of the sale of 338 Cortleigh Blvd and the COVID19 Pandemic.” Her email also indicated that she wanted to discuss “an issue regarding the choice of the listing agent”. She asked for permission to submit a description of the issues for review.
3In a letter dated May 1, 2020, Mr. Niman referred to the Respondent’s April 27 request. He acknowledged the limited scope of my role but then elaborated on what he described as the Respondent’s non-compliance and breaches of the April 6 endorsement. In an email dated May 6, the Respondent set out, in detail, her response to Mr. Niman’s letter and her request, in effect, to vary paragraph 31 of the April 6 order.
4In an endorsement dated May 15, 2020, I directed Mr. Niman to respond in writing by May 20 to the letter sent by the Respondent dated May 6. In that endorsement, I had not included a response by Ms. Rothschild because Mr. Niman was responding to Ms. Rothschild’s letter.
5In his letter dated May 20, 2020, Mr. Niman made three requests: (1) that I vary the April 6, 2020 order to require that the house be listed immediately via virtual showing; (2) that I direct that the videographer be permitted access to the home no later than May 30, 2020; and (3) that I make an order that, by May 25, 2020, Amanda Rothschild comply with the order dated April 6, 2020 (as varied by (1) and (2)), failing which Adam Rothschild shall have “carriage of the sale of the former matrimonial home”.
6In an endorsement dated May 20, 2020, I directed Ms. Rothschild to respond in writing to Mr. Niman’s May 20 letter by May 25. In that endorsement, I listed the three requests Mr. Niman had made and noted that if such an order is made, the Respondent would lose the opportunity to participate in decisions about the sale of the home. I directed the Respondent to respond in writing to Mr. Niman’s May 20 letter by May 25, 2020.
7Ms. Rothschild responded in writing as directed.
Material Filed
8In addition to material provided by Ms. Rothschild and Mr. Niman prior to the April 6, 2020 endorsement, the following have been provided.
9As indicated above, Ms. Rothschild took the initiative in her email dated April 27 that raised subjects: the listing and COVID19, and the listing agent.
[10] In his letter dated May 1, 2020, Mr. Niman raised these issues: (a) Ms. Rothschild had not complied with paragraph 31 of the April 6 order and had not signed the listing agreement; (b) Ms. Rothschild had not complied with paragraph 34(a) with respect to proposed repairs and therefore C.K. could not make recommendations as provided in paragraph 34(b) and no repairs had been undertaken. He noted that Ms. Rothschild did provide the necessary information on April 27 but did not copy C.K. Mr. Rothschild had sent it to C.K. but C.K. had not made recommendations, he presumed because the listing agreement had not been signed.
[11] In her letter dated May 6, 2020, Ms. Rothschild made the following points: (a) she felt she had no recourse but to communicate directly with me in her April 27 email; (b) she has re-evaluated the COVID 19 restrictions on April 15 and April 30 as directed by paragraph 30 of the endorsement and the restrictions on open houses remained in place; (c) Mr. Rothschild is insisting that she permit a videographer and potential buyers into the home. She has two small children (born October 2014 and October 2017) and she considers such demands go against the direction of Public Health and will put the health and safety of her and the children at unnecessary risk; (d) Mr. Rothschild is insisting that she sign an exclusive listing agreement immediately contrary to paragraphs 16 and 33 of the April 6 endorsement; (e) she had forwarded an email dated February 25, 2020 outlining the repairs to which Mr. Rothschild did not respond. On March 9, 2020, her then proposed agent sent an email to Mr. Rothschild about the repairs, to which Mr. Rothschild did not respond. In an email dated April 9, C.K. asked for pictures particularly of the rooms that have changed since purchase and on April 11, 2020, Ms. Rothschild sent C.K. an email with pictures as requested. On April 27, she sent Mr. Rothschild additional pictures of areas of the home that she thought might need repairs or updates to which Mr. Rothschild did not respond; (f) Ms. Rothschild objects to C.K. as agent for reasons indicated in her letter that I need not repeat. In my April 6 endorsement I directed that Ms. Rothschild sign the listing agreement with C.K. by April 13 but Ms. Rothschild said she did not receive it until April 22 and it provided for an immediate listing date. Ms. Rothschild asked C.K. to “comply with the Covid-19 restrictions” to which C.K. did not respond; (g) Ms. Rothschild asks that A.W. be the real estate agent. He was her choice in March but she had not provided accreditations in her March 30 letter and she asked permission to submit them. Alternatively she suggested A.W. and C.K. be appointed as co-agents; (h) While Mr. Rothschild takes the position that “time is of the essence”, the home is her largest asset and her goal is to get as much out of the home as possible so that she can find reasonable accommodations for herself and the children. She does not share his view that there should be a rush to sell.
[12] In his five page letter dated May 20, 2020, Mr. Niman made the following points: (a) as an overview, Ms. Rothschild had been delaying prior to the pandemic declaration and was continuing to do so; (b) at the time of the April 6 endorsement, CK had not been retained and did not provide the option of “virtual” showings which have become “quite common”. In light of fresh information, the court should order virtual listings without the need for an in-person open house; (c) his client is opposed to the court appointing another agent. He reminds the Court that, pursuant to the Minutes of Settlement, the parties were to agree to the agent by February 29; (d) if Ms. Rothschild further breaches the April 6 order, Mr. Rothschild should have carriage of the sale of the home subject to safeguards and directives from C.K.; (e) since the written submissions in March that preceded the April 6 endorsement, the Government of Ontario has identified real estate services as “essential”. According to C.K. an open house is not required and she can list the home pursuant to an exclusive listing agreement internally among other agents in her firm. He wrote that “potential buyers do not need access to the home and instead would enter into an Agreement of Purchase and Sale based on pictures and a virtual tour. A videographer requires access to the home to obtain the necessary footage.” C.K.’s brokerage firm has implemented safeguards to ensure the safety of everyone involved. Mr. Niman provided an email from C.K. confirming the foregoing and including the indemnity forms that any videographer entering the home is required to sign, confirming that they are not sick and have not travelled outside the country. He asserts that C.K.’s suggestions for listing the home comply with the government restrictions and protocols, and specifically the current protocols set out by the OREA and the RECO; (f) the material attached from C.K. consists of an email dated May 19, 2020 to Mr. Rothschild and Ms. Rothschild in which she said that “it is not business as usual, but I personally feel that some of these Covid precautions and changes to the ways we are marketing homes (virtually) may be a big part of the way we do business for a long time”. She provided some recent stats from the Toronto Real Estate Board, forms that all buyers, agents and service providers sign and an example of a virtual tour as well as confirmation that the virtual tour company takes every precaution possible (masks/gloves/etc) to ensure the safety of the home owner. They are usually in and out in a few hours and most home owners leave the house while they are shooting the video. The home owner also leaves all bedroom doors open and all closets open to minimize any touching of surfaces. Her email also indicated that a full cleaning/decontamination service is available as an extra precaution. (g) in paragraph 30 of the April 6 endorsement, I directed the parties to re-evaluate at two week intervals. The next date is May 31, which is two months after the home was to be listed pursuant to the Minutes of Settlement; (h) in her letter dated May 6, Ms. Rothschild implicitly admitted that she did not comply with paragraph 34(a) of the April 6 endorsement with respect to repairs; (i) in the Minutes of Settlement, the parties had agreed to sign a separation agreement incorporating relevant terms. The agreement was sent to Ms. Rothschild’s former counsel on March 12, 2020 and on the following day, her former counsel ceased to act. At the time Ms. Rothschild requested an additional conference, in her April 27 email, she signed the agreement but had not provided the Certificate of Independent Legal Advice; (j) Mr. Niman enclosed a draft order containing the terms indicated in paragraph 5 above.
[13] Ms. Rothschild’s letter dated May 25, 2020 contains the following points: (a) since the onset of the Covid19 Pandemic, she has been extremely diligent in keeping the children safe. She has complied with Government’s strict guidelines including not allowing anyone into the home. Permitting a videographer into the home would put her and the children at unnecessary risk of exposure to the virus. As of May 24, the RECO website prohibited open house events. My endorsement dated April 6 indicated that the commencement of open houses was a “trigger” to begin marketing the home. She offered to provide photographs and videos that she would prepare; (b) Ms. Rothschild is opposed to allowing Mr. Rothschild to have carriage of the sale. She referred to what she described as threats and bullying tactics from Mr. Rothschild and referred to the extent to which she asserted his family had harmed her. I need not repeat her allegations about Mr. Rothschild, his family and his lawyer; (c) she referred to her letter dated May 7 and asked that she and Mr. Rothschild each be represented by an agent of their choosing, acting as co-agents. She apologized for not submitting A.W.’s accreditations in March which she attributed to her learning curve as a self-represented person. She attached A.W.’s 2019 Year Accomplishment and his 2019 Certificate of Achievement; (d) Ms. Rothschild explained that when Mr. Niman sent the draft Separation Agreement pursuant to the Minutes of Settlement, she thought it was inconsistent with the Minutes of Settlement and as a result created additional legal work that cost her thousands of dollars. She was no longer able to afford counsel and has been self-represented. She explained the logistics of having it signed during office closings caused by Covid19 pandemic. She had confirmation that the document had been sent to Mr. Niman on May 14; (e) Ms. Rothschild challenged Mr. Niman’s assertion that she had not complied with paragraph 34(a) of the April 6 endorsement and referred back to her May 6 letter; (f) she committed to selling the home in a timely fashion and at an optimal price. However she will not endanger her children in order to speed up the sale of the house.
Jurisdiction
14In paragraph 3 of the endorsement dated April 6, I quoted the Minutes of Settlement as follows:
- Any issues with respect to the listing (including the appointment of an agent), marketing, or sale of the matrimonial home will be resolved by way of an urgent Case Conference before Justice Kiteley and, if need be, a motion thereafter on short notice to be managed by Justice Kiteley.
15As I have indicated in previous endorsements, the level of conflict demonstrated in the written submissions is sufficiently high that I have no expectation that a remote case conference (by telephone or audio) will lead to resolution of any issues. I will continue to deal with these issues in writing.
16In his letter dated May 20, 2020, Mr. Niman included a draft order consistent with paragraph 5 above. In my endorsement dated May 20, I summarized the orders requested by Mr. Rothschild to ensure that Ms. Rothschild understood the significance of the requests and I gave Ms. Rothschild an opportunity to respond, which she did, particularly on that point.
[17] A case conference is not an option. Paragraph 35 provides for a resolution by motion. I am treating this as a motion by Ms. Rothschild for an order that changes the listing agent to appoint M.W. and C.K. jointly to which Mr. Rothschild objects; and a motion by Mr. Rothschild to which Ms. Rothschild objects for an order as follows: (a) Paragraph 33 of the order dated April 6, 2020 shall be varied such that the property located at 338 Cortleigh Boulevard shall be listed immediately via virtual showings in accordance with the recommendations of the listing agent, C.K. (b) A videographer shall be permitted access to the home no later than May 30, 2020 for the purpose of obtaining footage to facilitate virtual showings. (c) If the Respondent does not comply with the order dated April 6, 2020 varied pursuant to paragraphs (a) and (b) above, by May 25, 2020, the Applicant shall have carriage of the sale of the former matrimonial home. For clarity, the Applicant shall have total control with respect to the listing and sale of the home. (d) Costs of these submissions to be decided by Justice Kiteley.
18Given the record available and the need to maintain the primary objective in rule 2(2) of the Family Law Rules, I consider it within the mandate established by paragraph 35 of the Minutes of Settlement and the Family Law Rules to proceed in this fashion. As indicated above, I have summarized in considerable detail the points that each party makes on the issues before me. There is conflict between the parties but there are no credibility issues that I must resolve on these motions. I am satisfied the procedure I have adopted is fair to both parties and consistent with the primary objective in rule 2(2) of the Family Law Rules.
Analysis
A. Listing Agent
19The Minutes of Settlement were negotiated on January 20 and 21, 2020 and provided in paragraph 32 that they would select a mutually agreeable real estate agent by February 29, 2020 who must be at arm’s length to the parties and their families. The parties did not agree. One of the key issues on which I received written submissions in March was the identity of the real estate agent. I considered the suggestions that each party made and I made an order requiring the parties to sign a listing agreement with C.K. and her brokerage firm.
20Ms. Rothschild has provided an explanation for why she objects to C.K. and why she feels that each party should have her/his agent who would work together. In effect, she disagrees with the order I made. I do not accept that that explanation justifies varying the order dated April 6.
21I dismiss Ms. Rothschild’s request to vary the April 6 order to appoint co-agents.
B. Compliance with April 6 Order
22In the April 6 order, I directed the parties to sign a listing agreement with C.K. and her brokerage firm. I did not have consent by C.K. and accordingly I created an alternative in paragraph 32 if C.K. refused. Since she did provide a listing agreement, I assume that C.K. has consented to act. I assumed that C.K. could provide the listing agreement immediately and that the parties would sign by April 13. The listing agreement was not made available immediately and the deadline of April 13 was not met. Ms. Rothschild cannot be criticized for failing to meet that deadline.
23Paragraph 31 of the April 6 order was clear. It was essential that C.K. have a signed listing agreement so that she could take steps to prepare for the listing. It was also essential that C.K. have a signed listing agreement so that she could deal with the repairs issue as indicated in paragraph 34(a) and (b) of the April 6 endorsement.
24Ms. Rothschild takes the position that that clear order is overwritten by paragraph 16 that “the trigger for proceeding with the sale will be when real estate agents in Toronto resume having open houses.” It is unnecessary to explore the legal relationship between a clear order in paragraph 31 and the earlier explanatory aspects of the endorsement. However, I do not accept Mr. Rothschild’s position that Ms. Rothschild has been deliberately non-compliant.
25I dismiss Mr. Rothschild’s motion for the order in paragraph 17(c) above.
C. Videographer
26In March, the focus of marketing of the home was on the traditional method of open houses. As indicated in paragraphs 16 and 17 of the April 6 endorsement, open houses had been suspended.
27Since then, the landscape has changed materially. As the written submissions indicate, open houses are not now contemplated. Indeed, as a reflection of how industries have adapted to the changes required as a result of COVID19 pandemic, the prevailing marketing strategy is not in person but digitally. In order to market a property, the vendor’s agent hires a videographer to make an extensive video image of the house in such detail as to allow a purchaser to decide whether to make an offer to purchase without visiting or inspecting the house. That is the process advocated by C.K. I note that in the forms attached to her email she has included a form to be signed by buyers. However in her email (quoted above) she refers to “marketing homes virtually” and in his letter, Mr. Niman indicated that “potential buyers do not need access to the home and instead would enter into an Agreement of Purchase and Sale based on pictures and a virtual tour”. Based on the contents of C.K.’s email and of Mr. Niman’s letter, I am satisfied that the marketing in this case will not include entry to the house by the potential purchasers.
28In her material, Ms. Rothschild does not challenge that that is the “new normal”. She remains focused on delaying the sale until “the trigger” of open houses occurs. The reality is that “trigger” referred to in the April 6 endorsement is no longer relevant.
29I understand Ms. Rothschild’s position that to allow anyone in her home will endanger her and the children. However, the parties entered into Minutes of Settlement in January that contemplated selecting a listing agent by February 29, 2020, listing by April 1 with a closing date no earlier than June 30. The first and second steps have not occurred. Based on the position taken by Ms. Rothschild, she has no intention of permitting any marketing of the home before open houses are reinstated.
30As indicated in paragraph 14 of the April 6 endorsement, Ms. Rothschild took the position that she would “fully cooperate with … [the sale]… once the COVID-19 Pandemic has ended”. As indicated in paragraph 15 of that endorsement, I concluded that that was unacceptable.
31Since the April 6 endorsement, the Government of Ontario has listed the real estate industry as an essential service. Essential services are those that can and should be operating with safeguards.
32I am satisfied that the safeguards recommended by C.K. are reasonable. Furthermore, I accept as reasonable C.K.’s suggestion that an exclusive listing agreement will provide access to prospective purchasers.
33Based on the foregoing, I grant Mr. Rothschild’s motion for orders in paragraphs 17(a) and (b) with modifications.
34As indicated above, C.K. makes reference to “a full cleaning/decontamination service that is available as an extra precaution”. That is the only mention of such cleaning. As indicated below, I will leave that to the discretion of Ms. Rothschild. Given that Ms. Rothschild has the disruption of the videographer and potentially the cleaner, the cost should be paid by Mr. Rothschild.
35Ms. Rothschild has explained what has happened. However, it is clear that her position has not changed since this matter came before me in March. She is resistant to listing the house for sale, to the court ordered listing agent and to the videographer. It is premature to consider whether Mr. Rothschild should be permitted to take carriage of the sale. However, if Ms. Rothschild persists in her resistance, I will create the opportunity for Mr. Rothschild to bring the matter before me.
D. Repairs and Staging
36As I said in paragraph 22 of the April 6 endorsement, the issue of repairs was not before me. To the extent that I made any order in paragraphs 34(a) and (b), it was a timetabling framework and was in the context of reinstituting open houses which would have meant contractors could enter the home. It appears that Ms. Rothschild did not specifically comply with paragraph 34(a) but the listing agreement had not been sent by then and hence C.K. did not have authority. Since this was not an issue in the Minutes of Settlement for my attention, I will make no further contribution. If any repairs happen, it will be because the parties figured out how to make that happen. The house will be listed and sold “as is”.
37Having reviewed all of the materials filed, I see no reference to staging. I raise it to avoid it becoming a subject of conflict. Unless Ms. Rothschild consents, there will be no staging, i.e. no recommendations as to how to improve the property to make it more attractive and no request to allow a stager to enter the home.
E. Signing of the Separation Agreement
38This was raised by Mr. Rothschild as an aspect of his allegation that Ms. Rothschild was generally non-compliant. It has nothing to do with the mandate I accepted in paragraph 35 of the Minutes of Settlement and I disregard all comments made by both parties.
F. Presentation and Consideration of Offers to Purchase
39Given the experience to date with paragraph 35 of the Minutes of Settlement, it has become apparent that if I am required to be involved in the acceptance or rejection of offers or counter-offers, there will need to be time for such intervention. For that reason, as set out below, I have imposed time limits for the consideration of offers to purchase.
Costs
40Each party made a key request which I have dismissed. Success was divided although the sale will proceed so Mr. Rothschild achieved more success. However, I do not consider it to be reasonable to punish or reward either party in costs for the submissions listed above in this challenging situation.
Order
41This order supersedes paragraphs 30 to 34(d) of the endorsement dated April 6, 2020.
42The motion by Ms. Rothschild to appoint A.W. as co-agent is dismissed.
43The motion by Mr. Rothschild for an order providing for virtual showing of the home and permitting the videographer access to the home is granted with modifications. The motion by Mr. Rothschild for an order requiring compliance by Ms. Rothschild failing which Mr. Rothschild shall have carriage of the sale is dismissed.
44Within 96 hours of receiving a listing agreement from C.K., signed by Mr. Rothschild, Ms. Rothschild shall sign it and return it to C.K.
[45] The listing agreement shall contain the “usual terms and conditions” and the following: (a) an exclusive listing for no less than 90 days commencing the date signed by the last of C.K. and her brokerage firm, Mr. Rothschild and Ms. Rothschild; (b) other than the videographer referred to below, no person will be allowed access to the home including C.K. and any member of her brokerage, and any potential purchaser; (c) unless Ms. Rothschild and Mr. Rothschild agree otherwise, the property will be sold “as is”; (d) no offers may be presented with a closing date earlier than June 30, 2020; (e) no offer to purchase may be presented on Friday, Saturday or Sunday, or Monday of a statutory holiday weekend. Every offer to purchase must be open for no less than 96 hours and will be considered in accordance with paragraphs 47 and 48 below; (e) there will be no open houses; (f) unless Ms. Rothschild consents, there will be no staging; (g) the list price shall be at the recommendation of C.K. as provided by paragraph 32 of the Minutes of Settlement.
[46] Within 96 hours of signing the listing agreement, Ms. Rothschild shall allow access by the videographer to the home on these conditions: (a) the attendance will be at one of the two times requested by the videographer provided that it is between the hours of 10:00 a.m. and 4:00 p.m.; (b) the attendance will be for no longer than 3 consecutive hours; (c) at all times, the videographer shall wear a non-medical mask and gloves; (d) before entering the home, the videographer shall use hand sanitizer; (e) Ms. Rothschild may be present in the home for the duration of the attendance by the videographer but she will not be in the same room as the videographer at any time other than arrival and departure. No other persons shall be in the home; (f) In advance, Ms. Rothschild shall open all doors and shall open all closets except those with belongings personal to her and to the children; (g) no less than 3 hours before the attendance, C.K. will provide to Ms. Rothschild by email the videographer’s signed Consent, Release and Indemnity attached to her email dated May 19, 2020; (h) at the request of Ms. Rothschild, the cleaning service referred to in C.K.’s email dated May 19, or such alternate service chosen by Ms. Rothschild, shall attend for purposes of cleaning after the attendance of the videographer, provided that Mr. Rothschild is responsible for paying the cost.
47Pursuant to paragraph 32 of the Minutes of Settlement, the parties shall accept all reasonable offers from arm’s length purchasers.
48If after 24 hours the parties have not agreed to accept, reject or modify an offer, the party who is in favour of the offer may send an email to my attention through the Assistant Trial Co-ordinator with (a) a copy of the offer to purchase; (b) a summary of no more than 300 words as to why that person is agreeable to the offer; (c) a summary of no more than 300 words from the other party as to the basis for the opposition; and (d) a summary of no more than 300 words from the real estate agent as to her recommendation.
49If Ms. Rothschild does not comply with paragraphs 44 to 46, then Mr. Rothschild may on no less than 5 business days notice serve by email a notice of motion in writing before me and a sworn affidavit for an order permitting him to have carriage of the sale. Ms. Rothschild shall serve by email a responding sworn affidavit in writing no less than three business days after service of the notice of motion and sworn affidavit. Both shall file the documents by email.
50The issue of repairs to the home is governed by paragraph 33 of the Minutes of Settlement.
51Neither party shall pay or receive costs from the other in connection with the written submissions listed above.
52This order takes effect without a formal order being signed and entered.
Kiteley J.
Date: June 1, 2020