Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-57688-00

DATE: 20200827

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ana Maria Agovino Applicant

– AND –

Richard Gregory Antonucci Respondent

Counsel: Claudia Falquez-Warkentin, Counsel for the Applicant Herschel Fogelman, Counsel for the Respondent

HEARD: In Writing

RULING ON URGENT MOTION

JARVIS J.

[1] The applicant (“the wife”) has brought a motion without notice to the respondent (‘the husband”) for a non-dissipation Order and, should that Order be granted, a motion-return date to deal with specified financial relief. The wife identifies various chattels and a real estate property for which the Order is sought. These are identified in her material. She also says that a freezing of the husband’s bank accounts without notice to him is needed because there would be serious financial consequences to her otherwise. None of the bank accounts for which the non-dissipation Order is requested is specified: rather, the wife generally lists five different banking institutions at which it is alleged the husband and two companies in which he holds interests hold personal and business accounts.

[2] The wife’s affidavit sworn on August 21, 2020 discloses that the parties separated on July 3, 2018 after an eight-year relationship. There are no children of the marriage. In her material the wife alleges a series of financially-prejudicial (to her) actions by the husband that pre-dated and very soon afterwards followed the parties’ separation. With one exception most of the husband’s impugned conduct pre-dates the parties’ separation. There have been two conferences held by Kaufman J.; a case conference on June 6, 2019 and a settlement conference on September 12, 2019. There is no evidence as to why the relief now sought by the wife was not earlier pursued and a non-dissipation Order made at either conference or pursuant to a motion after the case conference.

[3] The referenced “exception” relates to real property owned by the husband and a third-party (“the Bradford property’) that was purchased in 2016 (not 2017 as alleged by the wife) and which the husband owned on the alleged valuation date. Paragraph 3 of the case conference endorsement made by Kaufman J. on June 6, 2019 recorded the husband’s undertaking to provide the wife with thirty days notice of any sale of the property. The wife alleges that the husband and his co-owner mortgaged that property for $170,000 on or about July 31, 2020 without her knowledge. The mortgage appears to be a second encumbrance to a 2016 institutional first mortgage for $383,990. There is no evidence about the fair market value of the property.

[4] It seems that the wife’s discovery of the July mortgage is what has principally led to this motion. In addition, she complains about the husband’s non-compliance with his court-ordered spousal support obligation ($801 monthly ordered by Kaufman J. on September 12, 2019) and that he has been resistant to financial disclosure. Questioning is apparently scheduled to proceed on September 2, 2020. The wife says that she is practically destitute and without funds to pay for her legal expenses. There is $65,082.06 being held in trust from the June 2019 sale of the parties’ matrimonial home from which the wife needs her share paid to her as soon as possible. This, in my view, is another reason for the wife’s motion.

[5] Caution must be exercised when motions are brought without notice during litigation, particularly where the parties are represented by lawyers. The wife’s allegations about the husband’s deceptive financial conduct, if true, are serious but (as already noted) most of her evidence pre-dates the September 2019 settlement conference and there is no reasonable explanation why the Order now sought was not made earlier (i.e. at or shortly after the case conference) or at or after the settlement conference. A mortgaging of the Bradford property is not a “sale” captured by the husband’s undertaking.

[6] The wife’s request for a non-dissipation Order is dismissed but her request to be paid her share (or more) of the funds held in trust should be addressed as expeditiously as possible.

[7] The following is ordered:

(a) The wife’s request for a non-dissipation Order is dismissed without prejudice;

(b) The husband shall deliver an affidavit in response to the wife’s affidavit by September 4, 2020. This shall be accompanied by a current financial statement and draft net family property statement;

(c) The wife shall deliver a response to the husband’s affidavit by September 11, 2020 together with a current financial statement and draft net family property statement;

(d) The wife’s request for release to her of some or all the trust funds shall be determined by me in writing after compliance by the parties with the foregoing directions. That will be the only relief considered;

(e) No other motion shall be brought by either party without leave of the court first being obtained;

(f) The wife shall forthwith provide to the husband’s lawyer copies of the wife’s motion, her August 21, 2020 affidavit and this Ruling; and

(g) Costs are reserved to final disposition of the wife’s motion.

Justice David A. Jarvis

Date: August 27, 2020