NEWMARKET COURT FILE NO.: FC-17-55137-00
DATE: 20200827
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.B.
Applicant
– and –
W.B.
Respondent
Jeffrey Hartman, Counsel for the Applicant
Jerald MacKenzie, Counsel for the Respondent
Clare Burns, Counsel for the added Party to the Motion, N.B.
HEARD: In Writing
RULING ON MOTIONS
MACPHERSON J.:
Relief Sought
[1] The Applicant, S.B. (the “Applicant”), filed two Notices of Motion, requesting urgent orders, at a time when the courts are suspended as a result of Covid-19.
Motion # 1
[2] The first Notice of Motion, signed May 8, 2020, was not specific in terms of the relief sought. It stated the relief requested as: “An order setting the enclosed Notice of Motion for oral hearing via tele/videoconference on an urgent basis and full indemnity costs of this 14B motion plus HST ($452)”. The body of the Notice of Motion suggested the motion was to enforce a court order.
[3] On May 22, 2020 I released an endorsement wherein I determined the Applicant’s motion, for the sale of the matrimonial home, met the court’s urgency threshold and I permitted the Applicant to file a new Notice of Motion specific as to the enforcement relief requested.
[4] The Applicant filed a new Notice of Motion, signed July 8, 2020, and requests the following relief:
a) A declaration, pursuant to Rule 1(8) of the Family Law Rules, O. Reg. 114/99, as amended, (hereinafter FLR), that the Respondent, W.B. (the “Respondent”), is in breach of paragraph 9 of the Final Order dated January 22, 2020 (the “Final Order”) and a final order compelling performance of paragraph 9 within 72 hours of the date on which this order is made;
b) A final order, pursuant to Rule 1 (8) of the FLR, Rules 60.02 (1) (a), 60.06 (2), and 60.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sections 2 and 3 of the Partition Act, R.S.O. 1990, c P.4, for partition and seizure and sale of the Matrimonial Home by the Applicant to give effect to paragraph 9 of the Final Order in the event the Respondent fails to perform paragraph 9 within 72 hours pursuant to paragraph (a), above, and an order that the Respondent bear all costs associated with the said seizure and sale;
c) A final order, pursuant to Rules (8) (a) and 24, compelling the Respondent to pay to the Applicant the costs of the motion herein on a full indemnity basis no later than seven calendar days to Hartman Law in Trust;
d) A final order, pursuant to Rules 1(8)(a) and 24, compelling the Respondent to pay to the Applicant costs incurred to her lawyers, Jeffrey Hartman (Hartman Law) and Corinne Muccilli (Gobran Law) between January 22, 2020 and April 17, 2020 on a partial indemnity basis no later than seven calendar days to Hartman Law in Trust; and
e) A final order, pursuant to Rule 24(9), compelling Jerald MacKenzie and/or the law firm of MacKenzie & MacKenzie to pay costs incurred by the Applicant between October 4, 2019 and January 22, 2020, to Hartman Law in Trust within 30 days on an indemnity basis to be determined by this court.
[5] On June 9, 2020 I released a subsequent endorsement allowing the Respondent one further opportunity to comply with paragraph 9 of the Final Order. The Applicant was permitted to file an affidavit on the issue of compliance and the Respondent was permitted to file a reply affidavit. The Respondent did not comply with the provisions of the Final Order.
[6] On June 26, 2020 I released a further endorsement requiring service of the motion materials on W.B. Sr. and N.B. as they each had a registered life interest in the property and, of course, would be impacted by the motion.
[7] I am now aware that W.B. Sr. is deceased, and, accordingly, his life interest in the property came to a natural conclusion on April 15, 2019.
[8] On June 26, 2020 I also ordered the Respondent to pay a daily fine to the Applicant in the amount of $1,000 per day for each day of non-compliance commencing Monday, June 29, 2020.
Motion # 2
[9] The Applicant also brings a motion requesting an order pursuant to section 28(1) of the Children’s Law Reform Act, R.S.O. 1990, c C. 12, and section 16 of the Divorce Act, R.S.C. 1985, c 3 (2nd Supp), permitting the Applicant to arrange for and attend reunification therapy with the children, JWB born in 2006 and SFB born in 2008 under a reasonable therapy plan prescribed by the treating therapist, with the cost to be borne by the Respondent.
Background
[10] After three years of litigation this matter concluded on January 22, 2020 when Bennett J. made a final order in this matter, on the consent of the parties (the Final Order).
[11] The Applicant states that the Respondent has not complied with paragraph 9 of the Final Order which required him to transfer $300,000 to the Applicant’s counsel, in trust, no later than 14 business days after January 22, 2020 (by February 12, 2020). He has not done so.
[12] Paragraphs 8 and 10 of the Final Order require the Applicant to transfer $260,835.57 from her Teacher’s Pension and her interest in the matrimonial home to the Respondent. No time line to complete the pension transfer or the transfer of the matrimonial home was provided in the Final Order.
[13] The Applicant states that the forms to facilitate the transfer of the pension were sent to the Respondent and they are ready.
[14] The Applicant states that she hired counsel, Ms. Muccilli, to complete the transfer of her interest in the matrimonial home. On April 17, 2020 Ms. Muccilli sent to the Respondent, through counsel, a copy of the transfer to be executed by the Respondent. There has been no reply.
Motion # 1 - Request For Sale of the Matrimonial Home
[15] The Applicant is requesting an order for the sale of the matrimonial home so that she can obtain payment of the $300,000 set out in the Final Order.
[16] The Respondent states that he has been unable to secure the funds for the payment of $300,000. He does not indicate the steps he has taken to secure the payment that was required over six month ago.
[17] As stated in my previous endorsements of May 22 and June 9, 2020, and it bears repeating, I have determined that the issue is urgent. The Applicant is ‘couch surfing’ without sufficient funds to obtain a residence or a vehicle. Her sole source of income is monthly spousal support of $1,865.
[18] The Applicant’s ability to have access with the children, JWB and SFB, is impacted by her inability to obtain accommodation and her inability to obtain a vehicle to assist in transportation. These are impacted by the Respondent’s non-compliance with the Final Order.
[19] The parcel registrar for the matrimonial home indicates the property, known municipally as 5190 17th Sideroad, Schomberg, Ontario, has four registered interests: it is owned by W.B. and S.B. W.B. Sr. and Ms. N.B. have life interests.
[20] On June 26, 2020 I made a finding that the Respondent was in violation of the Final Order as he did not comply with its paragraph 9. He admits that he has not complied.
[21] By contrast, I was satisfied that the Applicant made best efforts to transfer her portion of the matrimonial home and the agreed upon Teacher’s Pension based on the materials before me.
[22] Justice Quinn in Gordon v. Starr, [2007] W.D.F.L. 4107, [2007] (Ont. S.C.), expressed that: “One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.”
[23] Echoing this sentiment, Justice Corbett in Taylor v. Taylor, 2005 63820 (ON SC), 2005 21 R.F.L. (6th) 449 (On. S.C) stated at para. 3:
When the court issues orders, it is essential that they be obeyed. Court orders are not “suggestions” or “frameworks” or “guidelines”. They are mandatory. They must be obeyed. A resentful spouse is not above the law. Where a party disagrees with an order, he may seek to appeal it. In some circumstances, he may seek to vary it. But it is not an option to simply disregard the Order (emphasis added).
[24] In Levely v. Levely, 2013 ONSC 1026, Chappel J. stated at paras. 12 and 13 that:
Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge's mind in considering remedies for a party's failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice…
[25] The Respondent does not outline his attempts at obtaining the $300,000. The Respondent provides no evidence of applications for mortgages, loans or any attempts made to secure financing. He simply states that he tried to obtain funding, was unsuccessful and the Applicant will have to be patient.
[26] The Respondent’s affidavit was cavalier in presentation. I find it disingenuous for the Respondent to suggest in his factum that “….largely as a result of the COVID pandemic, the Respondent has been unable to access the funds to complete the settlement and to comply with the Court Order….”. Covid-19 was not a significant issue on January 22, 2020 or on February 12, 2020. In Canada, at that time, there were no states of emergency and there were no closures in terms of economic activity.
[27] The parties entered into a final resolution with the assistance of counsel. The court made an order based on that consent. The Applicant is now in the unenviable position of couch surfing with insufficient funds to obtain accommodation or transportation. The Applicant’s contact with the children is impacted.
[28] Sections 2 and 3 of the Partition Act, provides as follows:
Who may be compelled to make partition or sale
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only. R.S.O. 1990, c. P.4, s. 2.
Who may bring action or make application for partition
3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. R.S.O. 1990, c. P.4, s. 3 (1).
When proceedings may be commenced
(2) Where the land is held in joint tenancy or tenancy in common or coparcenary by reason of a devise or an intestacy, no proceeding shall be taken until one year after the decease of the testator or person dying intestate in whom the land was vested. R.S.O. 1990, c. P.4, s. 3 (2).
[29] The parties hold the property as joint tenants. Accordingly, the Applicant has standing to bring a motion for Partition and Sale.
[30] In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, McGee J. provides a summary of the law with respect to a judicial order for the sale of a property prior to trial. She states at para. 17:
A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
[31] It is noteworthy that we are not in the pre-trial stage of the proceedings. We have a Final Order on consent.
[32] The Applicant, as joint owner, has a prima facie right to request a sale of the matrimonial home in order to obtain the $300,000 as set out in the Final Order.
Impact of the Life Interest
[33] As stated, W.B. Sr. is deceased. His life interest terminated on April 15, 2019 when he passed away.
[34] Ms. N.B. has a life interest registered on the property. She has also executed a Power of Attorney for Property naming Mr. Foley as her power of attorney. Mr Foley argues that Ms. N.B. is a party under disability and he requests an order appointing him as Ms. N.B.’s representative pursuant to rule 4(2) of the FLR for the purpose of this motion only. There was no opposition to the request. I am satisfied that he is appropriate for the task and willing to act as representative by virtue of the power of attorney she executed December 29, 2016.
[35] In her evidence, Ms. N.B. argues that the sale should not be ordered because the Respondent has now made arrangements to pay the outstanding debt on August 18, 2020 and, accordingly, the sale is no longer necessary.
[36] It is August 27, 2020 and no party has advised the court that the debt was paid to the Applicant thus rendering the motion moot. As there is no evidence of same, I conclude that the Respondent did not make the payment.
[37] Mr. Foley also argues that Ms. N.B.’s life interest will be defeated by the partition and sale and that is true.
[38] Sections 5(1) and (2) and (3) of the Partition Act reads as follows:
Sales including estates in dower or by the curtesy or for life
5 (1) In a proceeding for partition or administration, or in a proceeding in which a sale of land in lieu of partition is ordered, and in which the estate of a tenant in dower or tenant by the curtesy or for life is established, if the person entitled to the estate is a party, the court shall determine whether the estate ought to be exempted from the sale or whether it should be sold, and in making such determination regard shall be had to the interests of all the parties. R.S.O. 1990, c. P.4, s. 5 (1).
What to pass to purchaser
(2) If a sale is ordered including such estate, all the estate and interest of every such tenant passes thereby, and no conveyance or release to the purchaser shall be required from such tenant, and the purchaser, the purchaser’s heirs and assigns, hold the premises freed and discharged from all claims by virtue of the estate or interest of any such tenant, whether the same be to any undivided share or to the whole or any part of the premises sold. R.S.O. 1990, c. P.4, s. 5 (2).
Compensation to owners of particular estates
(3) The court may direct the payment of such sum in gross out of the purchase money to the person entitled to dower or estate by the curtesy or for life, as is considered, upon the principles applicable to life annuities, a reasonable satisfaction for such estate, or may direct the payment to the person entitled of an annual sum or of the income or interest to be derived from the purchase money or any part thereof, as seems just, and for that purpose may make such order for the investment or other disposition of the purchase money or any part thereof as is necessary. R.S.O. 1990, c. P.4, s. 5 (3).
[39] The court in Morris v. Howe, 1982 3150 (ON SC), 138 DLR (3d) 113, 1982 determined that partition and sale may occur where there is a life tenancy interest that runs concurrently with other interests. The court determined that partition and sale could not occur where a life tenancy interest runs consecutively with other interests.
[40] Ms. N.B.’s life interest runs concurrently leaving it in the discretion of the court to order the sale thus defeating the life interest. I have elected to exercise that discretion after considering the interests of all parties for the reasons set out below.
[41] Ms. N.B. does not live in the matrimonial home where she has the life interest. Rather, the property containing the matrimonial home was severed from a larger property that was owned by W.B. Sr. and N.B. As I understand it, Ms. N.B.’s home is on the larger property, adjacent to the matrimonial home and Ms. N.B.’s property surrounds the matrimonial home on three sides.
[42] There is no evidence that Ms. N.B. uses the matrimonial home in any way and there is no evidence that she collects income or profit. The motivation and the ultimate benefit of the life interest to Ms. N.B. was precluding strangers living next door to her.
[43] When considering the interests of all the parties, I see no reason why the Applicant’s interest in the property should be delayed in favour of Ms. N.B.’s life interest, particularly as the former is couch surfing and the latter has her own accommodation.
[44] As stated, the Applicant’s ability to have access with the children, JWB born in 2006 and SFB born in 2008 is impacted by her inability to obtain accommodation and her inability to obtain a vehicle to assist in transportation as a result of impecuniosity.
[45] The Applicant requires her share pursuant to the terms of the Final Order to obtain accommodation and have a place for the children to visit. The matrimonial home is the Applicant’s only significant asset, apart from her pension. As Ms. N.B. does not reside in the home with which she has a life interest, I am persuaded after considering the interests of the parties, that the property should be sold. Naturally, Ms. N.B. is entitled to compensation for the termination of her life interest. That compensation, when determined, shall come out of the Respondent’s share of the net proceeds of the sale.
[46] I recognize that this will be disruptive to the Respondent and the children. The disruption to the Respondent and the children is as a direct result of the Respondent’s actions or inaction and, accordingly, I have given the disruption to him very little consideration.
Motion # 2 – Reunification Therapy
[47] The Applicant requests an order for reunification therapy.
[48] The evidence before the court supports a finding that the children have, inappropriately, been exposed to this litigation by the Respondent.
[49] The text messages from the eldest child, JWB, to the Applicant on July 7, 2020 commented on the daily fine made in my order dated June 26, 2020 and contained shocking expletives directed at the Applicant, his mother.
[50] Surprisingly, the Respondent files no materials on the Applicant’s motion for reunification. The parties have a joint custody order. As a joint custodial parent one would think that the Respondent would want to express an interest in the issue. All major decisions are to be made together.
[51] Although the children reside primarily with the Respondent, access between the children and the Applicant, pursuant to the Final Order, is to be liberal and generous. This has not been occurring.
[52] It is noteworthy that neither the Applicant nor the Respondent seek a variation of the Final Order in respect of the parenting provisions or any other of the provisions.
Order
Mr. Foley is appointed as Ms. N.B.’s representative pursuant to section 4(2) of the Family Law Rules for the purpose of this motion only.
The property, located in Central Ontario, shall be listed for sale within 20 days. If the parties cannot agree on the parameters as to how the home will be listed for sale I will provide further directions.
All sale proceeds shall be held in trust following the sale. If the Applicant, Respondent and Ms. N.B. cannot agree on the value of Ms. N.B.’s life tenancy, I will provide further directions. If the Applicant and the Respondent cannot agree on the distribution of the sale proceeds, I will provide further directions.
The children JWB born in 2006 and SFB born in 2008 shall attend reunification counselling with the Applicant. The therapist and the therapy plan shall be agreed upon by the parties. If the parties cannot agree on the therapist and the therapy plan, I will provide further directions.
The Respondent shall be responsible for the cost of the reunification counselling.
The Respondent shall not discuss any aspects of the parties’ litigation with the children, JWB born in 2006 and SFB born in 2008.
If either party requires further direction regarding paragraphs 2, 3, and 4 above, either party may request a motion for directions before me through the Trial Coordinator.
If the parties cannot agree on the issue of costs of the herein motions, I shall consider the request for costs. The Applicant requests costs against the Respondent and the Respondent’s counsel personally. The Applicant shall serve on the Respondent and file in the Continuing Record her written submissions, limited to five pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent and Mr. Jerald MacKenzie shall serve on the Applicant and file in the Continuing Record their written submissions, limited to three pages each, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. The Applicant’s Reply, if necessary, shall be within 5 days of the delivery of the Respondents and Mr. MacKenzie’s written submission and limited to one page. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
In the circumstances of the Covid-19 emergency, this endorsement is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval of this Order is dispensed with: either party may submit a formal Order for signing and entry once the court re-opens.
Justice G.A. MacPherson
Released: August 27, 2020