Court File and Parties
Quinn v. Eymann, CITATION: 2020 ONSC 5455
COURT FILE NO.: 183/19
DATE: 2020-09-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Thomas Quinn, Applicant
AND: Jerri Eymann, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Sean D. Heeley for Applicant; Respondent in person
HEARD: September 11, 2020
ENDORSEMENT
[1] This is a garnishment hearing under Rule 60.08 of the Rules of Civil Procedure.
[2] The Respondent disputes the notice of garnishment issued at the instance of the Applicant to collect a debt owed by her to the Applicant.
[3] The parties separated after about seven months of living together. They had bought a house jointly. The Applicant put down all but $1,600 of the down payment. In order to get a mortgage, he had to lend the Respondent about $22,000 so that she could pay off her car loan. His Application under the Family Law Act was settled on March 11, 2020 with a final order based on minutes of settlement. The order provided:
I. The Respondent shall transfer her interest in the jointly owned home located at [address omitted] to the Applicant. The Applicant shall provide the Respondent with the transfer for her execution. The Respondent shall cooperate in signing any documentation required to affect the transfer and return it to the Applicant within seven (7) days of receipt of same.
Within sixty (60) days of the transfer, the Applicant shall obtain a release of the Respondent’s liability on the existing mortgage or shall otherwise payout and discharge the mortgage. In the event the Applicant is unable to either obtain a release of the Respondent’s obligations or payout the existing mortgage within sixty (60) days, the home shall be immediately listed for sale. After deduction of all closing costs, legal expenses and any registered encumbrances, the balance of the proceeds of sale shall be paid to the Applicant.
The Respondent shall repay the Applicant the sum of $21,082.00 for funds loaned to her to pay her vehicle loan. This amount represents the $22,682.00 actually loaned to the Respondent, less $1,600.00 the Respondent put towards the jointly owned home identified in paragraph 1. This amount shall be due and owing within (90) days. In the event that the Respondent is refinancing her home in order to fund the payment owing to the Applicant, the Respondent shall execute a direction to the solicitor completing the transaction to make all funds owing payable to [the solicitor for the Applicant] directly.
[4] The Respondent has transferred her interest in the jointly owned home to the Applicant. The Applicant has not had the Respondent released from her responsibility for the mortgage. The Respondent says that she cannot refinance her own home to pay back the $21,082 loan because of her outstanding liability for the mortgage on the Applicant’s home.
[5] Relying on paragraph 3 of the order, the Applicant takes the position that the $21,082 that he wants to collect was due 90 days after the order was made, therefore June 11, 2020.
[6] Looking at the order as a whole, it seems obvious to me that the conditions of the order are not severable. In order for the settlement to work as intended, the Applicant needed to get title to the jointly owned home, the Respondent needed to be relieved of her obligation on the mortgage, and she then had to repay the $21,082. The settlement sets out a logical plan that would enable the Respondent to separate her property from the Applicant’s fairly. The fulfilment of the Applicant’s obligations is essential to the Respondent’s fulfilment of hers. The Applicant has not yet fulfilled his obligations under the order. The amount owing by the Respondent under paragraph 3 is not yet due.
[7] The notices of garnishment are quashed. Money in the possession of the sheriff shall be returned to the Respondent forthwith. No further notices shall issue without leave of the court, which may be obtained on motion with notice and proof that the Applicant has caused the Respondent to be relieved of her obligation on the mortgage.
[8] The Respondent is unrepresented. There will be no order as to costs.
“James Ramsay”
J.A. Ramsay J.
Date: 2020-09-11