Court File and Parties

Court File No.: FC-13-2819 Date: 2020/07/22 Superior Court of Justice - Ontario

Re: Lisa Shouldice, Applicant And: Robert Roland Shouldice, Respondent

Before: Justice R. Ryan Bell

Counsel: Loreen Irvine, for the Applicant Philip A. Burger, for the Respondent

Heard: July 16, 2020

Endorsement

Introduction

[1] On December 16, 2016, Mackinnon J. made a final order (the “2016 Order”) in Lisa Shouldice’s application. The 2016 Order required that the matrimonial home, located at 6265 McCordick Road, be listed for sale by April 1, 2017, with a closing date not earlier than June 30, 2017. Ms. Shouldice was permitted to remain in exclusive possession of the McCordick Road property until it was sold. The 2016 Order also required that the property located at 6919 Gallagher Road be listed for sale forthwith.

[2] The McCordick Road and Gallagher Road properties have not been sold. In 2019, Ms. Shouldice commenced a motion to change. On December 2, 2019, the parties attended a case conference before Mackinnon J. On consent of the parties, Mackinnon J. made a temporary order addressing the disposition of both properties (the “2019 Order”).

[3] Robert Shouldice now moves for orders that he have sole authority to list and sell both properties, without the need for Ms. Shouldice’s consent. He says that he is seeking to enforce the 2016 Order. Ms. Shouldice has initiated a cross-motion. She asks that Mr. Shouldice’s motion be dismissed and that the Gallagher Road property be transferred to her for $275,000; in the alternative, Ms. Shouldice asks that she have sole authority to list and sell the Gallagher Road property.

Preliminary Issue

[4] Counsel for Mr. Shouldice asked that the following paragraphs be struck from Ms. Shouldice’s affidavit: paragraphs 6-8 on the basis that these paragraphs refer to a “framework for a settlement” between the parties; paragraphs 19-22 on the basis that they contain double hearsay; and paragraphs 32-34 on the basis that they refer to an agreement in principle between the parties concerning the properties.

[5] I decline to strike any of these paragraphs from Ms. Shouldice’s affidavit. Paragraphs 6-8 refer in general terms to draft minutes of settlement prepared prior to the case conference in December 2019. These paragraphs do nothing more than provide some context for the 2019 Order.

[6] In paragraphs 19-22, Ms. Shouldice relates conversations that her counsel had with counsel for Mr. Shouldice. These paragraphs reflect that Mr. Shouldice, through counsel, was kept up to date on the progress of the service of the vesting order application on Mr. Shouldice’s judgment creditors. They respond directly to counsel’s submission that Mr. Shouldice ought to have been provided with “credible evidence” that steps were being taken in regard to the application. These paragraphs also explain Ms. Shouldice’s state of mind – surprise – when Mr. Shouldice sought in February 2020 to schedule a reference before a master to set the terms and conditions for the sale of both properties, after the vesting order application had been commenced and after the application had been served on Mr. Shouldice. An affidavit for use on a motion may contain information that the affiant learned from someone else if the source of the information is identified by name and the affiant states that they believe the information is true (Rule 14(19)(a) of the Family Law Rules). Ms. Shouldice has complied with Rule 14(19)(a).

[7] Mr. Shouldice submits that paragraphs 32-34 of Ms. Shouldice’s affidavit are “highly prejudicial.” I disagree. Mr. Shouldice’s complaint is that Ms. Shouldice has delayed in proceeding with the sale of both properties. I accept that these paragraphs were included to explain some of the delay encountered in moving forward with the vesting order application in light of the COVID-19 pandemic. In any event, Ms. Shouldice does not move to enforce a settlement. She relies on the 2019 Order made on consent of the parties.

Previous Efforts to Sell the Properties and the 2019 Order

[8] In July 2017, with the consent of Mr. Shouldice, Ms. Shouldice listed both properties for sale on Purplebricks and ComFree. The McCordick Road property was listed at $525,000 and the Gallagher Road Property was listed at $325,000.

[9] Ms. Shouldice’s evidence is that there were a number of showings for both properties and that she communicated with Mr. Shouldice through Our Family Wizard about issues concerning the listings. She claims that Mr. Shouldice did not cooperate with her in the process to sell the properties. Mr. Shouldice maintains that Ms. Shouldice failed to respond to any of his inquiries concerning the efforts to sell the properties and that she refused to list the properties with an agent.

[10] After the activity in 2017, the issue of listing and selling the properties then lay dormant until February 2019 when counsel for Mr. Shouldice asked that Ms. Shouldice provide the names of three listing agents for the properties. Shortly thereafter, counsel for Ms. Shouldice advised that her client intended to serve and file a motion to change.

[11] The case conference proceeded on December 2, 2019. Mr. Shouldice describes the case conference as “unsuccessful.” I would disagree with this characterization given that the 2019 Order, made on consent of the parties, provided a path forward for the parties in their dealings with the properties. More troubling, however, is the fact that Mr. Shouldice’s affidavit makes no reference to the 2019 Order. In the context of Mr. Shouldice’s motion – brought, he says, to enforce the 2016 Order – the omission is seriously misleading.

[12] Paragraph 1 of the 2019 Order provides that the Gallagher Road property be listed for sale. Paragraph 3 of the 2019 Order sets out the mechanism by which a listing agent and the list price are to be chosen and specifies that any issues arising are to be referred to a master for determination by motion.

[13] Paragraph 2 of the 2019 Order deals with the McCordick Road property. It states:

Applicant [Ms. Shouldice] will apply to remove NOP [Nelligan O’Brien Payne] Mortgage from title to matrimonial home and for a vesting order of that title in her name in consideration for all outstanding amount[s] Respondent owes to her, to date and in lieu of ongoing child support.

[14] In December 2019, Ms. Shouldice commenced an application for a vesting order in respect of the McCordick Road property. That application has been served on Mr. Shouldice and on his judgment creditors. According to Mr. Shouldice, he owes his judgment creditors approximately $170,000. Ms. Shouldice maintains that the total amount owing by Mr. Shouldice is approximately double this amount.

[15] On February 28, 2020, counsel for Mr. Shouldice wrote to request a motion date before a master to set the terms and conditions for the sale of both the McCordick Road Property and the Gallagher Road Property. On March 4, 2020, counsel for Mr. Shouldice advised counsel for Ms. Shouldice that there was no agreement that the vesting order application proceed and that he had scheduled a motion before the master on May 1, 2020 to obtain directions regarding the sale of both properties. That motion did not proceed.

The McCordick Road Property

[16] The relief sought by Mr. Shouldice in relation to the McCordick Road property is denied. The McCordick Road property is the subject of the vesting order application. The application was ordered as a term of the 2019 Order. The 2019 Order was made on consent. Mr. Shouldice ignored these facts when he wrote to counsel to advise that he had scheduled a motion before the master to deal with both properties. Mr. Shouldice ignored these facts in bringing this motion.

[17] I decline to provide any directions in the application as it is not before me. I am confident that the appropriate steps will be taken to move the application forward in a timely fashion.

The Gallagher Road Property

[18] The relief sought by Mr. Shouldice in relation to the Gallagher Road property is denied. Ms. Shouldice’s motion is granted. The Gallagher Road property shall be transferred to Ms. Shouldice for $275,000 with a closing date of no later than August 2020. I order the transfer to Ms. Shouldice for the following reasons.

[19] Ms. Shouldice has offered to purchase the Gallagher Road property for $275,000 with a closing within 30 days. The property has been appraised at a market value of $275,000, although it should be noted that neither appraisal takes into account the considerable cost of replacing the property’s septic system.

[20] The balance owing on the mortgage is approximately $116,000. The mortgage has been called with the balance to be paid by July 21, 2020.

[21] Mr. Shouldice does not quarrel with the $275,000 purchase price – during submissions, his counsel stated that Ms. Shouldice’s offer was acceptable “on a without costs basis.”

[22] Transferring the property to Ms. Shouldice will maximize the amount available to Mr. Shouldice’s creditors. In the past, the parties have been unable to agree on a listing agent for the property; in the face of Ms. Shouldice’s offer to purchase at a price that is acceptable to Mr. Shouldice, requiring that the property be listed would be a waste of time. Ms. Shouldice’s offer will not attract a commission payment and can close quickly.

Conclusion

[23] Mr. Shouldice’s motion is dismissed.

[24] I order that the Gallagher Road property be transferred to Ms. Shouldice for a purchase price of $275,000, with a scheduled closing date no later than August 14, 2020. Costs of the transfer shall be paid by Ms. Shouldice. Each party is entitled to 50 per cent of the net proceeds of the sale of the property. Mr. Shouldice’s share of the net proceeds shall be paid into court pending distribution or further order of this court.

[25] If the parties are unable to agree on costs of the motion and the cross-motion, they may make written submissions limited to a maximum of three pages. Both parties shall deliver their costs submissions within 10 days. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Justice R. Ryan Bell Date: July 22, 2020