Court File and Parties

COURT FILE NO.: FS-19-10523 DATE: 20200706 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Richard Rees AND: Colleen Shannon

BEFORE: J.T. Akbarali J.

COUNSEL: Daryl Gelgoot and Jen-Yii Liew, for the Applicant Colleen Shannon, in person

HEARD: June 30, 2020

Endorsement

Overview

[1] The applicant brings a motion for summary judgment, seeking to dismiss the respondent’s claims which relate principally to a condominium the parties own in Florida. He argues that this court has no jurisdiction to determine the respondent’s claims, because the condominium is outside Ontario. He relies on a domestic contract, the provisions of which he states make clear that there is no genuine issue for trial with respect to the respondent’s claims. In the alternative, he argues that Florida is the convenient forum for the parties’ litigation. In the further alternative, if his motion is not successful on any of these grounds, he seeks to sever the divorce from the corollary relief.

[2] The respondent resists the applicant’s motion. In addition, she has brought a cross-motion, seeking to strike portions of the applicant’s affidavit and for leave to file an amended answer. At the oral argument of the motion, the respondent stated that, rather than proceed with her motion to strike, she would deal with her concerns about inappropriate material in the applicant’s affidavit in argument [1]. As a result, her cross-motion is limited to her request to file an amended answer.

Background

The Domestic Contract

[3] The parties to this litigation married on August 21, 2013, and separated on November 3, 2017. They entered into a marriage contract on March 7, 2014. By its terms, the marriage contract has become a separation agreement. For ease of reference, I will refer to this domestic contract as the agreement.

[4] The parties were in their 50s when they got engaged. Each had children from prior marriages. Each brought property into the relationship. The respondent states that they wished to preserve their respective assets for their children.

[5] The agreement includes a section on property. The parties agreed that they would be separate as to property, and that all property owned by either of them, whether acquired before or after the date of the agreement, would remain the exclusive property of the owner.

[6] The parties each prepared lists of their pre-marital property which were attached as schedules to the agreement. They agreed that, “except as otherwise provided in this Agreement”, the property listed in their respective schedules, “any property substituted for such property”, income generated by, or an increase in value in, such property, are recognized as belonging to each of them, “alone for all purposes and at all times”.

[7] The parties agreed that, “except as otherwise provided in this Agreement”, the division of property in the event of a breakdown of their relationship will be determined by rights of ownership. It “specifically” provides that “title to any Property in the name of one of the parties will be conclusive proof of the separate and exclusive ownership of the Property by that party…” unless there is an express written acknowledgment to the contrary. The agreement also addressed how ownership would be determined when title could not be established.

[8] The agreement includes a definition section in which “ownership” or “owned” is defined to mean “legal ownership and does not include any rights arising by operation of the principles of trust or equity”. The agreement provides that the following constitutes ownership [2]: “Property held in joint names as tenants in common will be deemed to be owned equally by the parties”, and “…a joint investment of the parties will be deemed to be owned equally by the parties as joint tenants”.

[9] The parties also included a release in their separation agreement. I will return to the scope of the release later, but for now, it suffices to note that “except as otherwise provided” by the agreement, each party “waives all right and entitlement, and releases and discharges the other” from a number of claims, including trust claims.

The Florida Condominium

[10] After entering into the agreement, the parties purchased a condominium in Florida. The respondent’s evidence, which is not contested by the applicant, is that she had been saving up money in a USD bank account to purchase an American property. The parties intended that they would each contribute to the property. The applicant was supposed to contribute an inheritance he was expecting to receive, and the parties intended to finance the property through a mortgage.

[11] However, the respondent deposes that the parties were unable to secure a mortgage to finance the purchase due to cross-border issues. The applicant does not dispute this. Moreover, the applicant’s inheritance was delayed. The applicant contributed about $15,000 to the purchase of the condominium by accessing funds from his line of credit. The respondent deposes that, so as not to lose the deposit or the property itself, the parties agreed that she would temporarily bridge finance the purchase of the condominium from her retirement savings. She states that, as a result, she contributed over $470,000 USD to the purchase of the condominium through her retirement savings and USD account, all of which were assets itemized on Schedule B to the agreement and as such, comprise her protected assets. The respondent also deposes that the parties agreed that the applicant would contribute his inheritance to the condominium when he received it. The applicant disputes this; in any event, when he received his inheritance he did not contribute it to the condominium.

[12] The parties took title to the condominium in a form unknown in Ontario: tenants by the entirety. I shall have more to say about the nature of this form of title later on.

[13] The parties agree that the applicant put sweat equity into the condominium by undertaking a series of renovations, including installing a new bathroom and flooring. The respondent states she also made non-financial contributions to the condominium, along with additional financial contributions by paying special assessments that had been levied.

[14] According to the respondent, and not disputed by the applicant, the parties intended to mortgage the property once they had completed renovations and had some income flow due from renting. However, before a mortgage was arranged, the parties separated.

The Florida and Ontario Proceedings

[15] On February 26, 2019, the applicant filed a Petition for Partition of Real Property and Complaint for Breach of Contract, seeking to partition the Florida property with a view to forcing its sale. The petition was served on the respondent on April 4, 2019. On May 16, 2019, the respondent filed a motion to dismiss the petition for failure to state a cause of action. She argued that the remedy the applicant sought was not available to parties holding property as tenants by the entirety.

[16] Subsequently, on June 12, 2019, the applicant commenced this application for a simple divorce. The respondent’s answer makes claims related to the parties’ agreement and property, and specifically the Florida condominium.

[17] The motion to dismiss the Florida proceeding was scheduled for September 5, 2019. However, on September 4, 2019, the applicant filed an amended petition. This necessitated a delay in the motion. On September 17, 2019, the respondent filed a motion to dismiss the amended complaint.

[18] On January 14, 2020, before the motion to dismiss the Florida proceeding was heard, the applicant’s summary judgment and forum non conveniens motion, together with the respondent’s motion to strike, came before me on the regular list. The applicant’s motion was clearly a long motion, so I adjourned it to be heard on April 23, 2020, and directed the parties to attend a case conference on February 26, 2020. The conference proceeded, but the motion was further adjourned due to the partial shut down of the court’s operations as a result of COVID-19. The motion eventually proceeded before me on June 30, 2020.

[19] By that time, the motion to dismiss the Florida proceeding had been determined. It was heard on February 17, 2020. In the result, the Florida court stayed the Florida proceeding pending a determination by this court of its jurisdiction.

Issues

[20] Because the content of the respondent’s pleading may be relevant to the summary judgment motion and the forum non conveniens motion brought by the applicant, it is appropriate that I determine the respondent’s motion first. Thus, the issues that I must decide on these motions are as follows:

a. Should the respondent be granted leave to amend her answer? b. Is the applicant entitled to summary judgment because this court is without jurisdiction to determine issues involving the title to, or interest in, the Florida condominium? c. If this court has jurisdiction, should it decline to exercise its jurisdiction on the basis that Ontario is not the convenient forum, and Florida is the more appropriate forum? d. In the alternative to b) and c) above, is there is no genuine issue requiring a trial because the terms of the parties’ agreement provide no legal or factual basis to ground the respondent’s claims? e. In the further alternative to b), c) and d) above, is the applicant entitled to an order severing the divorce from the corollary relief, or should the court not exercise its discretion to make such an order because it would cause prejudice to the respondent?

[21] I turn to the analysis of these issues.

Amendment of the Respondent’s Answer

[22] Under r. 11(3) of the Family Law Rules, O. Reg. 114/99, a court shall give permission to a party to amend their pleading unless the amendment would prejudice another party in a way that cannot be compensated for by costs or an adjournment.

[23] The respondent seeks to amend her answer to add claims for an order granting her a return of her entire capital investment in the Florida condominium, for damages for the applicant’s breach of the agreement, for a timetable, and for an order requiring the applicant to sell his interest in the Florida condominium to her.

[24] The applicant argues that the amendments seek relief that is inconsistent with the agreement, and so should not be permitted. He argues that, contrary to the release in the agreement, the respondent seeks trust remedies and damages for breach of contract.

[25] The release provides:

Except as otherwise provided by this Agreement, each party waives all rights and entitlement, and releases and discharges the other, from all claims that each has on the effective date of this Agreement or may subsequently acquire in equity or the common law by way of resulting, constructive, or implied trust, including any claims for monetary or proprietary remedies for unjust enrichment, or by way of any other doctrine in equity, and at law under the Family Law Act or any other applicable law of any jurisdiction, now or in the future, to compensation or to an interest in the property or the value, or increase in the value, of the property owned by the other by reason of:

i. the transfer of property to the other without any payment or any adequate payment or any other consideration; ii. work, money or money’s worth contributed to the acquisition, management, maintenance, operation, or improvement of property; iii. the existence of a joint family venture; or iv. any other fact or circumstances creating a beneficial interest in property.

[26] While the applicant argues that this clause precludes a claim for damages for breach of the agreement, he could not point me to the words where such a release can be found, nor could he explain how a contract can pre-emptively release a claim for damages for the breach of that very same contract.

[27] None of the proposed amendments add a trust claim, so the applicant’s complaint about the respondent’s assertions of a remedy in trust are better addressed in the analysis of the summary judgment motion.

[28] In my view, the claim for a return of her investment in the Florida property is a remedy the respondent seeks arising out of the claim she has already plead, in her unamended pleading, in contract.

[29] I have some concern about the court’s ability to order a sale of the applicant’s interest in the condominium to the respondent. The respondent argues that the court has jurisdiction to make such an order because it can order inter-spousal transfers. Given the low bar to allow amendments, and the fact that this particular claim is a small one within the context of the parties’ dispute and unlikely to have a measurable impact on the disclosure or evidence that will be required in this application, I am prepared to allow this amendment.

[30] In the result, I grant the respondent’s motion for leave to amend her Answer in accordance with the draft filed at Exhibit A to the affidavit of C. Pebesma dated January 7, 2020.

Summary Judgment

The Test for Summary Judgment

[31] The parties agree on the test for summary judgment. Where there is no genuine issue requiring a trial, under r. 16 FLR, the court can make a final order.

[32] There will be no genuine issue requiring a trial if I am able to reach “a fair and just determination on the merits on a motion for summary judgment.” This will be the case where the process allows me to make the necessary findings of fact, allows me to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49.

[33] Hryniak, at para. 66, describes a two-step approach for determining whether there exists a genuine issue requiring a trial. First, the judge should determine if there is a genuine issue requiring a trial based only on the evidence before her without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for trial can be avoided by using the fact-finding powers.

[34] Parties have the obligation to put their best foot forward on a summary judgment motion: Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281, at para. 24.

Does this court have jurisdiction over the dispute?

[35] The applicant argues that this court is being asked to determine title of, or interest in, a foreign immovable. He seeks a summary judgment that this court has no jurisdiction to deal with the respondent’s claims. The respondent argues that this court is being asked to interpret the marriage contract, a matter over which it does have jurisdiction.

[36] The leading case on jurisdiction is Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. There, the Supreme Court of Canada, dealing with a tort case, held that the determination of jurisdiction is a constitutional question: paras. 24 and 27. The Court identified certain presumptive connecting factors that will typically establish a real and substantial connection between the litigation and the Ontario courts, allowing an Ontario court to assume jurisdiction. These presumptive connecting factors include that the party resisting jurisdiction is domiciled or resident in the province, and that a contract connected with the dispute was made in the province. The Court also held that the list of presumptive connecting factors is not closed.

[37] In the jurisdictional analysis, the party asserting jurisdiction must first establish that a presumptive connecting factor exists. It is then open to the party resisting jurisdiction to rebut the presumption.

[38] Van Breda was a tort case. The Court of Appeal for Ontario has held that the list of presumptive connecting factors in family law disputes is necessarily different: Wang v. Lin, 2013 ONCA 33, 33 D.L.R. (4th) 452, at para. 46. However, the Court of Appeal has also held that the real home, or ordinary residence, of the parties at the time of separation is a presumptive connecting factor in family law disputes: Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763, at paras. 27 and 35, leave to appeal denied, 2014 SCC 45834, Wang, at para. 47.

[39] In my view, the fact that the parties concluded a domestic contract in Ontario that is governed by Ontario law is another presumptive connecting factor between the dispute and Ontario.

[40] Although a single presumptive connecting factor is sufficient to establish jurisdiction (Van Breda, at paras. 80-81, Knowles, at para. 24), in this case the respondent has established two presumptive connecting factors: the parties’ ordinary residence at the time of separation was Ontario, and the agreement was made in Ontario and is subject to Ontario law.

[41] The applicant seeks to rebut the presumption of jurisdiction. He relies on Jung v. Jung, 2016 ONSC 3020, 84 R.F.L. (7th) 181, at para. 12, to argue that Ontario courts cannot determine title to, or an interest in, a foreign immovable. I note that Jung is a short decision arising out of an uncontested trial, in which no reference is made to Van Breda.

[42] Jung also notes the 1999 decision of the Court of Appeal for Ontario in Catania v. Giannattasio, (1999), 118 O.A.C. 330 (C.A.). In this decision, the court held that courts have jurisdiction to enforce rights affecting land in foreign countries if these rights are based on contract, trust, or equity, and the defendant resides in Canada. The court can make orders to enforce personal obligations between parties affecting foreign immovables when exercising in personam jurisdiction over the parties. Catania sets out four prerequisites for the exercise of in personam jurisdiction in this manner, at para. 12:

a. The court must have in personam jurisdiction over the defendant; b. There must be some personal obligation running between the parties. c. The jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment. d. The court will not exercise jurisdiction if the order would be of no effect in the situs.

[43] The parties disagree about the import of this decision. While the applicant relies on Catania in his argument to argue that this is not an appropriate case to exercise in personam jurisdiction, the respondent argues that the jurisdictional analysis in Catania has been overtaken by the decision in Van Breda, such that Catania is now only useful to assist in understanding the scope of remedies that the respondent may seek in Ontario proceedings as they relate to foreign immovables.

[44] I agree with the respondent that the jurisdictional analysis that must be applied does not begin and end with Catania. The Van Breda analysis controls. However, does Catania provide a basis on which the applicant can rebut the presumptive connecting factors?

[45] In my view, at least in this case, it does not. The application of the Catania factors in this case lead me to conclude that it is appropriate for the Ontario court to exercise in personam jurisdiction in this litigation in any event.

[46] First, the court clearly has in personam jurisdiction over both parties. They are Ontario residents. The applicant is the one who commenced this application.

[47] Second, the agreement is a personal obligation running between the parties.

[48] Third, I conclude that the court can supervise the execution of its judgment. While practically, the dispute between the parties is, at its core, about the Florida condominium, it is not a dispute about title. The parties agree that they hold title as tenants by the entirety. This court is not being asked to determine ownership interests in the Florida condominium. It is being asked to interpret the agreement between the parties to determine whether the respondent has a contractual right to the assets she protected by including them on schedule B to the agreement – in this case, the condominium is what the respondent states is property substituted for her protected property.

[49] The fact that the assets were replaced by a foreign immovable does not mean that an interest in the foreign immovable is necessarily at issue. The parties each own property in Ontario. If the respondent is correct that under the terms of the agreement, she is entitled to her protected assets, a money judgment could conceivably issue and be enforced in Ontario. This is a remedy she has particularized in the amended answer I have given leave for her to file. An Ontario court can supervise the execution of its own money judgment. If the respondent seeks a remedy that the court cannot supervise, the court can decline to order that remedy at trial.

[50] Finally, if it becomes necessary to enforce this court’s judgment in Florida, the expert evidence before me suggests that the Florida court may enforce it. The fact that the Florida court has stayed the proceeding before it, pending this court’s determination of jurisdiction, suggests that there is at least a reasonable possibility that it would recognize the judgment of the Ontario court. I cannot conclude that this court’s order would have no effect in Florida.

[51] I thus conclude that the Ontario court has jurisdiction over the parties’ dispute. I will next consider whether it ought to exercise its discretion to decline jurisdiction on the basis of forum non conveniens before returning to my analysis of the applicant’s other grounds in support of his motion for summary judgment.

Forum Non Conveniens

[52] In Van Breda, the Supreme Court held that forum non conveniens does not come into play until after jurisdiction is established. A court with jurisdiction may decline to exercise it on the basis of forum non conveniens. The burden to establish that the proposed alternative forum is clearly more appropriate lies on the party asserting it: paras.101-103.

[53] The Supreme Court of Canada set out a non-exhaustive list of factors to consider when determining if another forum is clearly more appropriate: Van Breda, at para. 105, to which other courts have added. In any case, the parties agree on the relevant factors. They disagree on the application of those factors to this litigation. With respect to the relevant factors, I note:

a. The location of the parties and witnesses – the parties are located in Ontario. Their dispute may require an expert in Florida law. The applicant states they may require a valuation of the condominium. The respondent identifies a couple of witnesses in Ontario who may be required to testify at trial. In my view, the parties’ location is what matters most, particularly when it is difficult to travel during the time of COVID-19, and the current changes in the administration of justice that make virtual trials, or trials that are partially virtual, increasingly likely and workable. It will be less expensive and more convenient for the parties’ dispute to be litigated in Ontario. This factor favours Ontario. b. The law to be applied in the proceeding – the parties chose Ontario law to govern their agreement. Ontario law must be applied. To the extent any discrete issues about the Florida property require Florida law, the respondent has already engaged an expert in Florida real estate law, and the applicant can do the same. This factor favours Ontario. c. Multiple legal proceedings and conflicting decisions – If this court declines jurisdiction in favour of Florida, there will be two proceedings – one in Florida to determine the issues around the property, and one in Ontario to deal with the divorce. If Ontario exercises jurisdiction, there may be no need to engage further in Florida proceedings, or they may be limited to enforcement issues only. In my view, the likelihood of conflicting decisions is small, especially in view of the expert’s evidence that this court’s judgment may be enforced in Florida, and the Florida court’s decision in February to stay the proceedings there pending this court’s determination of its jurisdiction. This factor favours Ontario. d. Enforcement of Judgments – as noted above, while not a guarantee, it appears possible that Florida will enforce a decision of this court. If Florida adjudicates the issues around the condominium, there will be no decision of this court to enforce in Florida. This factor favours Florida. e. The fair and efficient working of the justice system as a whole – in my view, it is important that parties who enter into domestic contract in Ontario, choose Ontario law to govern their contract, spend their married lives principally in Ontario, and separate in Ontario should have confidence that the disputes arising out of their marriage breakdown can be adjudicated in Ontario. This factor favours Ontario. f. The strength of the parties’ connection to Ontario and Florida – the parties lived their married lives principally in Ontario. They entered into a domestic contract in Ontario, governed by Ontario law. They separated in Ontario. They own property in Ontario. They continue to reside in Ontario. By contrast, they purchased a property in Florida for vacation and investment purposes, and renovated it. This factor favours Ontario. g. Contractual provisions – the agreement has no forum selection clause, but it has a choice of law clause. The parties chose Ontario law to govern their agreement. This factor favours Ontario. h. Geographical factors – the asset at issue is the Florida condominium, although it is at issue in the context of the parties’ agreement. This factor favours Florida. i. Legitimate juridical advantage – In my view, if the Ontario courts declined jurisdiction, the respondent would be deprived of a legitimate juridical advantage. The expert evidence filed on the motion indicates that a tenancy by the entirety is a tenancy created between spouses where each is seized of the whole of the title (and not an undivided interest) such that the two spouses are treated as one person. Neither spouse can individually convey or encumber the estate. Florida law provides that a tenancy by the entirety is converted to a tenancy in common, with each party holding 50% of the property, on the entry of a divorce judgment, unless the divorce judgment provides otherwise. The parties agree that Florida has no jurisdiction to adjudicate their divorce. Based on the evidence before me, the Florida court is thus without the power to issue a judgment that makes a different determination as to the respective holdings of the parties on the dissolution of the tenancy by the entirety. Although the applicant argues that the respondent can assert her claims in Florida, nothing in the record establishes that to be the case, and the expert evidence in the record suggests it is not the case. Accordingly, if this court declined to exercise jurisdiction, it is unlikely that the respondent will be able to assert her claims. This factor strongly favours Ontario.

[54] Having regard to the factors set out above, I conclude that Ontario is overwhelmingly the convenient forum to determine the parties’ dispute.

Is there no genuine issue requiring a trial because the respondent’s claims are inconsistent with the agreement?

[55] The applicant makes an alternative argument in support of his motion for summary judgment. He argues that the parties’ agreement, which they both assert is valid and enforceable, is inconsistent with the respondent’s claims. He argues that the terms of the contract make clear that legal ownership is determinative, and so the parties equally own the Florida condominium because they hold it as tenants by the entirety. He also argues that the respondent’s trust claims cannot succeed in the face of a waiver as to the trust claims.

[56] The context to this portion of the motion is relevant. When the applicant brought his summary judgment motion originally, he did so relying on jurisdiction only. In early June, he delivered an amended notice of motion that continued to seek summary judgment, but which removed the words referring to jurisdiction as being the basis for the motion. In other words, the amended notice of motion did not particularize the grounds on which he would seek summary judgment.

[57] On June 22, 2020, eight days before the hearing of this motion, the applicant served an amended factum which, in a section dealing with the respondent’s proposed amended answer, raised concerns about the viability of her claims having regard to the provisions of the agreement. However, the specific argument in support of summary judgment was not made by the applicant until the hearing of the motion. Indeed, after the close of the applicant’s submissions, we took a recess. On returning, the applicant, as an after-thought, raised the definition of “ownership” in the agreement as a relevant provision in support of his claim for summary judgment. It is not procedurally appropriate for this kind of argument on contractual interpretation as a basis for summary judgment to be an afterthought.

[58] I have grave concerns about the fairness of such an approach. The respondent was not given proper notice of the basis on which the applicant was going to argue his summary judgment motion, apart from his jurisdictional argument. She did not have the opportunity to seek disclosure she thought may have been relevant, or file evidence that might have been relevant to these grounds.

[59] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47, the Supreme Court of Canada held that when interpreting a contract, a decision-maker must “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.”

[60] Remembering the requirement on a summary judgment motion to put one’s best foot forward, I observe that the applicant’s own evidentiary record is also lacking with respect to the surrounding circumstances known to the parties at the time of formation of the contract. To the extent there is some evidence in the record about the surrounding circumstances, the parties disagree about how the agreement came about.

[61] There is also confusion in the contract itself. Each of the clauses dealing with property, which I describe at paras. 6, 7, and 9, above begin with “except as otherwise provided in this agreement”. How do they interact, and what surrounding circumstances might assist the court in making that determination? By way of example, how does the waiver of trust claims, “except as otherwise provided in this Agreement”, interact with the parties’ agreement “except as otherwise provided in this Agreement” that the protected assets listed in the schedules would be theirs alone “for all purposes and at all times”?

[62] The illustrations of “ownership” raise their own questions. The expert evidence explains that tenancy by the entirety is a form of holding open only to spouses, where each holds 100% of the whole as if they were one person. On what basis can a court conclude that property held by way of tenancy by the entirety is “property held in joint names as tenants in common”, and thus deemed to be owned equally by each? Alternatively, on what basis can a court deem that “a joint investment of the parties” is “owned equally by the parties as tenants in common” as described in the contract, when the parties demonstrably do not own the Florida condominium as tenants in common, but as tenants by the entirety?

[63] The applicant argues that it is common sense that, on severing the tenancy by the entirety, the parties would hold the Florida condominium equally, and as such, pursuant to the terms of the agreement, their interest would flow from their legal interest. Without evidence of the surrounding circumstances, it is difficult to assess what “common sense” dictates. Moreover, to the extent it might be relevant to assessing what is “common sense” in the context of a tenancy by the entirety, neither party has adduced evidence to assist the court in understanding in what circumstances a Florida court, in a divorce judgment, might depart from the presumption under Florida law to dissolve the tenancy by the entirety and conclude the parties hold as tenants in common other than equally.

[64] In my view, this is not an appropriate case in which to exercise my enhanced fact-finding powers to interpret the contract. The record is deficient, and the respondent in any event has not had the opportunity to properly respond. I cannot be confident that the process in this case allows me to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.

[65] The applicant has failed to demonstrate that there is no genuine issue requiring a trial.

Should the divorce be severed from the corollary issues?

[66] Having dismissed the applicant’s motion for summary judgment, and his motion for an order that Ontario is not the appropriate forum, I turn to his request to sever the divorce from the corollary issues.

[67] Under r. 12(6) FLR, the court can split the divorce from the corollary issues under certain conditions, including that neither spouse will be disadvantaged by the order.

[68] In my view, the respondent would be disadvantaged by an order severing the divorce.

[69] As I noted above, the expert evidence before me indicates that, by operation of Florida law, once a judgment has issued dissolving a marriage, the parties who held a property as tenants by the entirety will hold as tenants in common, each with an equal share. The applicant could then seek an order forcing the sale of the Florida condominium. The remedies sought by the respondent in this proceeding could become frustrated. It appears Florida could not adjudicate her claims involving the condominium and the agreement.

[70] Moreover, the respondent identifies other protections that tenancy by the entirety offers her, including protection from the applicant’s creditors, which she would lose while the corollary issues continue to be litigated if the parties continue to own the condominium.

[71] Severing the divorce from the corollary issues would upset the balance between the parties and give the applicant a tactical advantage. I decline to exercise my discretion to do so.

What procedural orders are appropriate?

[72] The respondent seeks a number of procedural orders arising out of the failed summary judgment motion, including an order finding certain facts she states are agreed upon. The applicant made no submissions with respect to the respondent’s procedural requests.

[73] In my view, it is not appropriate, in advance of disclosure, and without submissions from the applicant, to find facts as requested by the respondent, especially in view of the deficiencies in the record as it relates to the circumstances surrounding the contract’s formation. It is more appropriate that the facts the respondent seeks me to find, which are contained in schedules to her supplementary factum, be put to the applicant by way of a request to admit.

[74] It is appropriate to set a timetable for the next steps in this action. I direct as follows:

a. The respondent shall file her amended answer within seven days of the release of these reasons. b. The applicant shall file his reply, if any, within 21 days of the release of these reasons. c. The parties shall exchange requests for information within 21 days of the service of the applicant’s reply. d. The parties shall respond to each other’s request for information within thirty days of receiving it. e. Although the parties made no specific request for questioning, in my view, this is a case where questioning may be appropriate. I thus grant leave to each party to question the other for no more than one half day each. f. The parties shall schedule a settlement conference at an appropriate time after the exchange of disclosure, and questioning, if questioning takes place.

[75] I set out no timetable with respect to requests to admit. The parties can deliver a request to admit at any time they consider it appropriate and any such request shall be responded to in accordance with the FLR.

Costs

[76] I encourage the parties to agree on costs. If they are unable to do so, the respondent may file costs submissions, not to exceed three pages, plus a bill of costs and any offers to settle, within one week of the release of these reasons. The applicant may file responding submissions limited to three pages within one week of receipt of submissions from the respondent. The respondent may file reply submissions, limited to one page, within three business days of receipt of the applicant’s submissions.

Conclusion

[77] In summary, I make the following orders:

a. The respondent shall have leave to file her amended answer, set out at Exhibit A to the affidavit of C. Pebesma, dated January 7, 2020, within seven days of the release of these reasons. b. The applicant shall file his reply, if any, within 21 days of the release of these reasons. c. The parties shall exchange requests for information within 21 days of the service of the applicant’s reply. d. The parties shall respond to each other’s request for information within thirty days of receiving it. e. The parties have leave to question the other for no more than one half day each. f. The parties shall schedule a settlement conference at an appropriate time after the exchange of disclosure. g. The parties may deliver a Request to Admit at any time they consider appropriate. h. The applicant’s motion is dismissed in its entirety. i. This endorsement is an order of the court, enforceable by law from the moment it is released.

J.T. Akbarali J.

Date: July 6, 2020

[1] The parties made argument about whether settlement privilege attaches to certain exhibits the applicant placed into evidence. I need not address it because those exhibits and the evidence about them are not germane to my analysis on this motion.

[2] This is a non-exhaustive list of conditions that comprise ownership under the agreement.