COURT FILE NO.: FS-19-14027

DATE: 20200925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vince Flores

Applicant

– and –

Inez Irene Flores

Respondent

Kristy A. Maurina and Meghann Melito, for the Applicant,

No one appearing for the Respondent

HEARD: September 24, 2020

M. Kraft, J.

REASONS FOR ORDER

Nature of Motion

[1] The Applicant husband has brought a motion to strike the Respondent wife’s pleadings as a result of her failure to comply with the Order of Justice Goodman, dated January 24, 2020. He also brings a motion for an order dispensing with the wife’s consent to the sale of the matrimonial home, and an order for temporary exclusive possession so that the home can be sold.

[2] More particularly, the husband seeks the following orders:

a. That he be granted sole carriage of the sale of the jointly-owned matrimonial home, municipally known as 6 Humberview Road, Toronto ON, and that the wife’s consent and signature on any documents, necessary to affect the sale and closing of the matrimonial home sale be dispensed with;

b. That he be granted temporary exclusive possession of the matrimonial home pending the sale and closing of the home;

c. In the alterative to b., that:

i. The husband shall retain Michael Inwood of Sidrova Windwood Realty (Re/Max) as the listing agent, or if Mr. Inwood is no longer willing or available to act, such other listing agent of the husband’s sole choice, and the wife’s consent in this regard is dispensed with;

ii. The husband shall arrange a home inspection and advise the wife of the date. The wife shall cooperate and allow unfettered access to the home for that home inspection. The parties shall share the costs of the home inspection;

iii. The wife shall declutter the home within 14 days to the satisfaction of the listing agent;

iv. The wife shall cooperate and allow unfettered access to the home for the purposes of addressing all issues identified by the listing agent, as needed to ready the home for sale;

d. That if the wife fails to follow any of the provisions set out in (c.) above, that the husband shall have temporary exclusive possession of the matrimonial home on five days’ notice to the wife of her failure to follow any of the provisions referred to in (c.) above.

e. Costs of this motion and the September 8, 2020, case conference, on a full indemnity basis, plus disbursements and HST.

[3] The wife was served with the husband’s motion by email in accordance with the Order of Nakonechny, J. dated September 8, 2020. Despite being served with the husband’s motion, the wife did not respond to the motion or appear on the motion.

[4] In support of the husband’s motion, he relies on the following material:

a. His Notice of Motion, dated September 15, 2020;

b. His affidavit, sworn on September 15, 2020;

c. His Financial Statement, sworn on September 2, 2020; and

d. His Factum dated September 16, 2020.

[5] The wife filed no material responding to the husband’s motion.

Procedural History

[6] On November 25, 2019, the husband issued an Application and filed a Financial Statement and a Form 35.1 Affidavit for Custody and Access. He served these documents and a case conference notice on the wife on December 2, 2019;

[7] On January 15, 2020, the wife filed an Answer.

[8] On January 24, 2020, the parties attended a case conference before Goodman, J.. The husband was represented by his current lawyer. The wife had an agent representing her at the conference. At the case conference, a consent order was entered into, with two parts: one temporary order for financial disclosure and child support, and a final order to address the sale of the matrimonial home. The temporary portion of the January 24th, 2020 Consent Order provides as follows:

a. Within 15 days, the wife shall complete and submit to the husband, all documents required to obtain the Family Law Value of her pension;

b. Within 30 days, the wife shall produce her 2018 T1 income tax returns with all schedules and attachments and 2019 when available. The husband prepared the wife’s 2016- and 2017-income tac returns. When he attends at the matrimonial home, he will access the wife’s returns on the home computer and print them for the wife;

c. The wife shall provide her 2018 Notice of Assessment and 2019 when available;

d. The husband shall pay interim table child support of $1,067.00 per month for the two children of the marriage on a “without prejudice” basis commencing February 1, 2020. The parties shall exchange notices of withdrawal from FRO within 15 days;

e. The wife shall withdraw her spousal support claim on a without prejudice basis, without costs;

f. There shall be no costs of this Case conference; and

g. Absent urgency, the next step shall be a Settlement Conference, to be arranged by the parties.

[9] The final portion of the January 24th, 2020 Consent Order, which deals with the sale of the matrimonial home, provides as follows:

a. The matrimonial home located at 36 Humberview Road, Etobicoke shall be listed for sale no later than April 7, 2020, with a closing date no earlier than July 2, 2020, as follows:

b. Within 10 days the wife shall provide the husband with a copy of the key to the matrimonial home. The husband shall give 24 hours’ written notice of his intention to enter the matrimonial home to ready the property for sale. The parties shall work together to ready the home for sale;

c. Within 10 days, the wife shall propose the names of three local realtors to list the matrimonial home for sale;

d. Within 10 days of the wife providing the proposed realtors’ names, the husband shall respond, selecting one realtor from the wife’s proposed list;

e. The parties shall execute a listing agreement with the selected realtor and any other necessary documents within 5 days of receipt of same;

f. The parties shall cooperate with the realtor to ready the property to be listed on or before April 7, 2020;

g. The parties shall be equally responsible to pay the cost of any renovations recommended by the realtor to maximize the sale price of the matrimonial home;

h. The parties shall accept the first reasonable offer made to purchase the home; and

i. Either party shall be at liberty to bring a motion relating to the sale of the matrimonial home on short notice, if necessary.

[10] On August 28, 2020, Faieta, J., as the triage judge, ordered the parties to participate in an urgent case conference on September 8th, 2020, as per the husband’s request. The Endorsement of Faieta, J. sets out that: “The Applicant has raised sufficient concerns for me to find that the matter should proceed to an urgent case conference. Had he requested, given the circumstances, I would have directed that this matter proceed to an urgent motion based on the materials filed”.

[11] On September 8, 2020, Nakonechny, J. presided over the urgent case conference. The wife did not attend the video-conference case conference. The matter was scheduled to commence at 10:00 a.m., and it was held until 11:15 a.m. Nakonechny, J. made the following order:

a. The husband shall bring his motion to compel the wife to comply with the consent order of Goodman, J., dated January 24, 2020, which requires the wife to cooperate with the listing and sale of the matrimonial home, known municipally as 36 Humberview Road, Toronto. The motion shall be heard on September 24, 2020, at 10:00 before her, if available.

b. The parties shall serve and file their respective materials for the motion in accordance with the Family Law Rules. The wife shall be served by email at nezflores3@gmail.com.

c. The wife shall produce the following disclosure, in accordance with the Goodman order, within ten business days:

i. Her 2018 and 2019 Notices of Assessment, when available; and

ii. The completed documents required to obtain the Family Law Value of her pension.

d. Counsel for the husband shall serve a copy of this Endorsement on the wife by email at the address above.

e. Costs of today’s attendance are reserved to the judge hearing the motion.

[12] I heard the motion on September 24, 2020. Again, although serve with the motion material, pursuant to the Order of Nakonechny, J., dated September 8, 2020, the wife neither served responding material nor attended the hearing on September 24, 2020. These Reasons for Order contain my decision and reasons for the determination of the issues I was asked to decide on the motion.

Facts

[13] The parties were married on August 11, 2001. They separated after 17.5 years of marriage on January 15, 2019.

[14] There are two children of their marriage, namely Vidal Flores, born August 9, 2003, (age 17) and Evelyn Flores, born March 30, 2006, (age 14).

[15] The parties jointly own the matrimonial home, located at 36 Humberview Road, Toronto. It is unencumbered.

[16] In April 2019, the husband voluntarily vacated the matrimonial home. Since the separation, the husband has continued to pay 50% of the capital expenses associated with the matrimonial home, including property taxes and repairs. Since separation, the husband has paid the wife Table child support for the parties’ two children in the sum of $1,067 per month based on his income as per the Child Support Guidelines. He deposes that he has overpaid child support and that in addition to Table child support, he pays for the children’s cellular phones.

[17] According to the husband, he rented an apartment close to the matrimonial home initially upon the separation but, he was unable to continue to afford to do so while still maintaining one-half of the capital expenses associated with the matrimonial home, paying his own housing and living expenses and supporting the children. As a result, the husband moved to Brampton to reside in his brother’s apartment, in which he rents a bedroom.

[18] The husband deposes that since he moved in with his brother, he has been unable to have overnight access to the children as he does not have a suitable residence for them. During his time with the children, the husband does things with them in Toronto. The husband deposes that the children experience two vastly different standards of living when they are with the wife and with him. According to the husband, this disparity was recognized by the wife when the parties consented to the order to list and sell the matrimonial home.

[19] On January 24, 2020, when the parties attended the case conference before Goodman, J., they agreed that the matrimonial home would be listed for sale and sold. The husband requires his fifty percent share of the matrimonial home to enable him to purchase a suitable and long-term home for him and the children.

[20] At the case conference, the husband was represented by his current solicitor of record, Ms. Maurina. The wife did not have a solicitor of record at the January 24, 2020 case conference but counsel did appear as her agent.

[21] According to the husband, following the case conference, the parties retained Mr. Inwood as the listing agent for the matrimonial home. The period of the listing agreement with Mr. Inwood ran from March 20, 2020 to August 20, 2020. That contract is now expired. The matrimonial home was never listed for sale.

[22] Other than retaining Mr. Inwood as the listing agent, the wife has not complied with either the temporary portion of consent order, dated January 24, 2020, requiring her to deliver financial disclosure or, the final portion of consent order, dated January 24, 2020, to take steps to list the matrimonial home for sale.

[23] The husband deposes that when Mr. Inwood attended at the matrimonial home, he advised the parties that the following things needed to occur to ready the home to be listed for sale:

a. The home required significant decluttering. Mr. Inwood provided the wife with boxes to being decluttering the home.

b. Repairs were needed to the home, such as repainting, some electrical work, the replacement of the garage roof, the replacement of the stove and that a disposal bin would need to be rented.

c. A home inspection should be completed before the parties list the home for sale to ensure that everything was in order; and

d. He may have further recommendations that would flow from the home inspection.

[24] The husband also deposes that the glass in the side-door storm door is broken and also needs to be repaired or replaced before the matrimonial home can be listed for sale. Apparently, this broke after Mr. Inwood attended at the matrimonial home.

[25] In answer to my question during oral submissions, the husband confirmed that his last contact with the wife was via text message in April 2020.

The Wife’s Breach of the Consent Order, dated January 24, 2020:

[26] One month after the case conference, on February 26, 2020, counsel for the husband, wrote to the agent who appeared on the wife’s behalf at the case conference, (Ms. Nickle), advising that the wife had breached the temporary portion of the January 24th, 2020, consent order by not a) submitting the documents needed to obtain the Family Law Value of her pension; b) producing her 2018 T1 income tax return, including all schedules and attachments; c) providing a Notice of FRO withdrawal; and d) providing the three names of local realtors to list the matrimonial home for sale (the February 26, 2020, letter is attached as Exhibit “C” to the husband’s September 15, 2020 affidavit).

[27] The parties did meet after the letter was sent and agreed to retain Mr. Inwood as the listing agent and executed a contract with him as described above.

[28] On April 2, 2020, counsel for the husband wrote to the wife directly (since Ms. Nickle had advised that she was no longer retained). This letter confirmed to the wife that, other than reaching an agreement on the listing agent, she remained in breach of the temporary portion of the consent order, dated January 24, 2020, by failing to produce any of the financial disclosure set out in the order. (The April 2, 2020 letter is attached as Exhibit “C” to the husband’s affidavit, sworn on September 15, 2020). Again, the wife did not respond.

[29] On May 21, 2020, counsel for the husband wrote to the wife directly again, asking for a response to her two prior letters. The letter confirmed to the wife that she was in breach of the of the January 24, 2020 consent order in her failure to list the matrimonial home for sale. Despite the parties having met with Mr. Inwood and signed a listing agreement with him, the matrimonial home was not listed for sale. The letter set out that the husband had also tried to contact the wife directly and he had not received any response from her. The wife was asked to confirm that she had decluttered the house as recommended by Mr. Inwood and that the house would be ready to be listed for sale by May 25, 2020. Again, the letter confirmed to the wife that she continued to be in breach of the temporary consent order by her failure to a) produce the documents needed to obtain the Family Law Value of her pension; b) produce her 2018- and 2019-income tax returns and notices of assessment; and c) produce her the Notice of Withdrawal from FRO. (The May 21, 2020 letter is attached as Exhibit “C” to the husband’s affidavit, sworn on September 15, 2020). Again, the wife did not respond.

[30] On July 8, 2020, the husband reached out to the wife by email directly advising that their son had told him that some flooding in the basement had occurred from the driveway due to heavy rainfall. The husband provided the wife with 24 hours’ notice, as required by the consent order, dated January 24, 2020, that he would be attending at the matrimonial home on July 10, 2020, to seal the driveway. He asked the wife to respond to him so that they could move forward with the listing of the matrimonial home for sale. Again, the wife did not respond.

[31] The husband did attend at the matrimonial home on July 10th, 2020 and repaired the driveway. In answer to my question during oral submissions, the husband confirmed that he did not see the wife on the date of this attendance or have any contact with her on July 10, 2020.

[32] Attached to the husband’s affidavit as Exhibit “C” are copies of text messages from the husband to the wife dated July 16, 2020; July 30, 2020, and August 21, 2020, all of which were further attempts by him to reach the wife. In the August 21, 2020, text message the husband proposes that he and the wife meet to discuss next steps to advance the sale of the matrimonial home and, he advises the wife that if he does not hear back from her, he will have no choice but to instruct his lawyer to proceed in court, which he does not wish to do. Again, the wife did not respond to any of the husband’s text messages.

[33] The husband deposes that he was concerned that the wife attempted to block his telephone number from her phone such that she was no longer receiving his text messages. The husband noticed that his August 21, 2020, text was not “delivered” as his prior texts to her indicated. As a result, the husband emailed the wife, at her Gmail address, a copy of the text he had sent to her on August 21, 2020, to be sure that she received it.

[34] The husband deposes that the wife’s plan was to move with the children to her mother’s home, which has many empty rooms. He further deposes that in the summer the children told him they were readying their rooms at their grandmother’s home to move there.

[35] In response to my question, the husband advised during oral submissions that he arranges his parenting time with the children directly, given that they are ages 17 and 14 respectively, and that he and the wife have no contact about parenting.

[36] The wife is also in breach of the final portion of the January 24, 2020 consent order of Goodman, J., to list the matrimonial home for sale as follows:

a. The wife failed to comply with the provision that the home was to be listed for sale no later than April 7, 2020, with a closing date no earlier than July 2, 2020;

b. The wife provided the husband with a key to the home but has refused to work together with the husband as provided for in the order to ready the home for sale;

c. The wife selected the listing agent with the husband and signed the listing agreement, but she has failed to comply with the terms of the listing agreement; and

d. The wife failed to cooperate with the realtor to ready the home, to be listed for sale by April 7, 2020.

The Husband’s Position

[37] The husband seeks a Court order to compel the wife to comply with the January 24, 2020, consent order. He has little faith that she will take the necessary steps to ready and list the matrimonial home for sale. As a result, the husband seeks an order granting him sole carriage of the sale of the matrimonial home and an order dispensing with the need for the wife to consent to and/or sign any sale documentation, to effect both the listing and sale of the matrimonial home.

[38] It is the husband’s position that the wife is obstructing the sale of the matrimonial home by her willful refusal to respond to him and his counsel and that, as a result, she ought to not be involved from this point forward in the listing and/or sale of the matrimonial home.

[39] The husband also seeks a temporary order for exclusive possession of the matrimonial home, so that he can take the necessary steps to ready the matrimonial home for sale, including the decluttering, and arranging of the repairs needed. He has no faith that the wife will take any steps to ready the house for sale, even if this Court orders her to do so. The wife has available accommodation at her mother’s home, which is affordable; there is a court order, to which the wife consented, to sell the home with which the wife refuses to comply and, as a result, the husband’s position is that an order granting him exclusive possession of the matrimonial home is necessary.

[40] Should I not see fit to make the just-mention order, then alternatively, the husband seeks an order that sets out very strict steps for the wife to follow, forcing her to comply with the terms of the January 24, 2020, Order, failing which, the husband would be granted exclusive possession of the matrimonial home on five days’ notice to the wife of her failure to comply with any of these steps. Although his alternative position keeps the parties’ intertwined which the husband does not believe is ideal, he takes this alternative position because he is mindful that the children are residing in the matrimonial home with the wife.

[41] The husband also seeks an order striking the wife’s pleadings due to her blatant disregard for court orders. He believes that the wife is well aware that she is not complying with the orders and the many attempts both he and his counsel have made to try and reach her and obtain some level of compliance from her. The wife’s refusal to comply with the court order and to participate in the court process, in his view, is willful.

Analysis

[42] The wife provided this court with no evidence in regard to the motion. Had the wife had a reasonable explanation for her lack of participation in the case since the spring, she could have provided that information to the husband’s counsel or taken the minimal steps necessary to inform the court of any issue that prevented her from participating. The court can only reasonably infer from the husband’s evidence that the wife willfully breached the court order in several ways. Without question, the wife is aware that she is in breach of the Court order. She participated in the January 24th, 2020 case conference. She had a lawyer present at the case conference acting as her agent. The wife took some steps to comply with the terms of the final consent order, albeit, only to provide the husband with a key to the matrimonial home and to choose a listing agent and sign a listing agreement. I am satisfied that the wife has received the husband’s emails and texts and the correspondence from the husband’s lawyer as well as the motion material. She has chosen not to respond to or attend the last two events in this case – the urgent case conference and this motion. In the absence of any information that would support otherwise, I find that the wife has intentionally failed or refused to comply with the consent order in the respects mentioned above.

[43] There have been numerous attempts made by the husband and his counsel to try and reach the wife to encourage some level of compliance with the January 24, 2020, Order of Goodman, J. She has been given many opportunities to rectify her various breaches of the January 24, 2020 consent order. The wife fails to respond to the attempts to contact her and continues to be in breach of the Order.

[44] Nakonechny, J. authorized the husband to serve the wife by email with her Endorsement, dated September 8, 2020. The husband served the wife by email with the Endorsement of Nakonechny, J., along with his motion materials, returnable on September 24, 2020. The wife did not respond. Further, the wife did not prepare responding materials to the husband’s motion as per the Endorsement of Nakonechny, J. dated September 8th, 2020, nor did she attend the motion on September 24, 2020. The wife provided no explanation for her failure to attend the case conference or motion. At a minimum, the Court would have expected the wife to seek an adjournment of either step in the proceeding if she was unable to attend or if there was a reasonable explanation as to why she was in breach of the order.

[45] There is little hope that the wife will follow the terms of the consent order, dated January 24, 2020 in terms of the sale of the matrimonial home, or in terms of providing the husband with the financial disclosure he requires to complete the case.

[46] This is not a multi-issue, complex family law matter. Other than requiring the documents necessary to obtain the Family Law Value of the wife’s pension, no other asset(s) owned by either party requires a valuation. The husband requires the Family Law Value of the wife’s pension to determine the wife’s net family property for equalization purposes. There is no parenting dispute between the parties. There is no dispute about child support. The wife consented at the January 24, 2020, case conference to withdraw her spousal support claim, on a “without prejudice” basis, without costs.

Striking the Wife’s Pleadings

[47] Pursuant to Rule 1(8) and 2(2)-(5) of the Family Law Rules, O.Reg. 114/99 (“FLRs”), in appropriate cases, the Court can dismiss claims, strike a party’s pleadings or restrict a party’s ability to participate, to promote the primary objective of the FLRs, namely, to enable the Court to deal with cases justly.

[48] While there are cases where a Court has struck pleadings when a party has repeatedly failed to comply with orders of a Court, as was the case in Vacca v. Banks, 2005 CarswellOnt 136 (Div. Ct.) and in Purcaru v. Purcaru, 2010 ONCA 92 (C.A.), I am not satisfied that the wife’s failure to comply with the consent order of Goodman, J., dated January 24th, 2020, constitutes conduct that is “repeated breaches of orders [that] must attract significant sanctions”. The wife has undoubtedly refused to comply with the consent order objectively speaking, her behaviour has been unreasonable.

Terms of Sale and Exclusive Possession

[49] The husband argues that pursuant to s.23(b)(iii) of the Family Law Act, R.S.O. 1990, c.F.3, (“FLA”), where a spouse is unreasonably withholding consent to the disposition of a matrimonial home, the court may authorize the disposition subject to any conditions that it considers appropriate in the circumstances. However, where a property is owned jointly by spouses, as it is in this matter, s.23(b)(iii) has been found to be not broad enough to grant the court the power to dispense with the consent of the respondent spouse (Sullivan v. Sullivan 1986 CanLII 6333 (ON SC), [1986] O.J. No. 1896, 2 R.F.L. (3d) 251 (Ont. Gen. Div.)).

[50] In Sousa v. Sousa, 1998 CarswellOnt 5280 (Ont. Gen. Div.), where the husband had done nothing to further the sale of matrimonial home after the home had previously been ordered sold and, the husband was residing in the home with the children, the Court found that the husband’s behaviour constituted his unreasonably withholding consent and dispensed with his consent. In the case at bar, the wife was authorized to have sole carriage of the sale and reasonable access to the house to affect the sale.

[51] In Kokaliaris v. Palantzas, 2016 ONSC 198, at paragraphs 47-49, Charney, J. held that where a spouse had failed to comply with a court order regarding the sale of a matrimonial home, and refused to cooperate with the listing agent and was unreasonably withholding consent to its sale, the appropriate remedy was that requested by the mother on her motion, that is, an order dispensing with the father’s consent for the sale of the matrimonial home, combined with an order that the mother be given exclusive possession of the matrimonial home so it could be shown, inspected and sold. I agree with Justice Charney’s reasoning and am inclined to make the same order in this matter.

[52] In this case, both parties consented to the sale of the matrimonial home. Goodman, J. ordered the sale of the home. Pursuant to the Partition Act, R.S.O. 1990, c.P.4, s.2, the husband had a prima facie right as a joint owner to the sale of the matrimonial home. To that end, the Court has jurisdiction to make the necessary orders to ensure that the sale of the home proceeds and closes. The wife’s failure to take any steps to follow through with the listing: by her failure to address the items needed to ready the home for sale and/or respond to the husband and his counsel about advancing the sale; and failure to cooperate with the listing agent and husband to ready the house for sale require the court to intervene.

[53] Pursuant to the Family Law Act, R.S.O. 1990, c.F.3, s.24(1), the court may make a temporary order for exclusive possession of the matrimonial home. Subsection 24(3) sets out the criteria that must be considered in determining whether an order for temporary exclusive possession should be made, such orders are not made lightly.

[54] In Kokaliaris v. Palantzas, the evidence indicated that the father had been planning to or was staying with his parents. In this case, the husband needs full access to the home to ready it for sale and to sell it. The wife can stay with her mother and, in fact, had been planning to be able to move with the children to her mother’s home.

[55] I have no faith at all that if the wife is provided with the opportunity to take the steps, she is required to take under the sale terms of the order of Goodman, J., that she will do so. Thus, I am making an order that will permit the husband to move the sale forward to a conclusion with virtually no involvement of the wife. I will, however, delay the order for exclusive possession for twenty days to afford the wife an opportunity to transition herself to her mother’s residence in a reasonable manner.

Costs

[56] The Endorsement of Nakonechny, J., dated September 8th, 2020, reserved the costs of the case conference to the judge hearing today’s motion.

[57] The husband asserts that full recovery costs for the case conference would be $2,904; recovery on a “substantial indemnity” basis would be $2,330; and recovery on a “partial indemnity” basis would be $1,755. His claim for costs does not include fees Ms. Maurina’s attendance at the case conference.

[58] The husband asserts that full recovery costs for the motion would be $4,958; recovery on a “substantial indemnity” basis would be $3,970; and recovery on a “partial indemnity” basis would be $2,983. The husband’s claim for costs of the motion does not include Ms. Maurina’s time preparing for or her attendance at the motion. The husband is seeking costs of the motion in the amount of $4,000, inclusive.

[59] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[60] Pursuant to r. 24(10)(a) of the FLRs, the court is directed to decide the costs of a step in the case promptly after dealing with the step, in a summary manner.

[61] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants: and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, 299 A.C.W.S. (3d) 770, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 17 R.F.L. (8th) 147, at para. 12.

[62] The factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of the factors enumerated in the sub rules as they relate to the importance and complexity of the issues. These factors include each party’s behaviour; the time spent by each party; any written offers to settle, including those that do not meet the requirements of r. 18; any legal fees; any other expenses; and any other relevant matter.

[63] In Sims-Howarth v Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the FLRs. He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the FLRs was approved of by the Ontario Court of Appeal in C.A.M. v D.M., 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.), at para. 42.

[64] The FLRs do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. The husband is effectively seeking costs approaching full recovery. In a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis, see Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287. The Court has a range of costs awards open to it, from nominal to just short of full recovery.

[65] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

[66] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he/she may face, if he/she is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.

[67] The husband’s position is that the wife’s blatant failure to comply with the January 24th, 2020 consent order amounts to unreasonable behaviour that ought to result in a higher award of costs.

[68] The husband was successful in obtaining an urgent case conference date, incurred costs that were unnecessary, given that the wife did not appear at the case conference, and was permitted to proceed with this motion. He was successful to the limited extent that he could be in proceeding the way he did. He is presumptively entitled to the costs of the conference. Pursuant to Rule 17(18) of the FLRs, costs shall not be awarded at a case conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24(10), order the party to pay the costs of the conference immediately; decide the amount of the costs; and give any directions that are needed. On September 8, 2020, Nakonechny, J. gave directions that the costs of the case conference be determined by the judge hearing the husband’s motion. In refusing to participate in the September 8th, 2020 case conference, the wife did not follow the FLRs, did not serve the required documents and contributed to the conference being unproductive.

[69] I have considered the factors set out in Rule 24 (12) of the FLRs, which reads as follows:

24(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour;

(ii) the time spent by each party;

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18;

(iv) any legal fees, including the number of lawyers and their rates;

(v) any expert witness fees, including the number of experts and their rates;

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter. O. Reg. 298/18, s.14.

[70] The sale-related issue and temporary exclusive possession issue are clearly of significant importance to both parties. In this case, the husband requires his equity from the sale of the matrimonial home in order to secure appropriate and alternative accommodation for himself and the children. The wife consented to the sale of the matrimonial home eight months ago. Yet, she has failed to take any steps toward readying the house for sale and refuses to respond to the husband or her counsel. The husband has a right to move his claims forward.

[71] The husband prepared and filed a case conference brief for the urgent September 8th, 2020, case conference. His counsel attended at the case conference and the wife did not appear at the case conference or prepare a responding case conference brief. The husband was thus put to the additional expense of preparing motion material, including the preparation of a notice of motion; affidavit; and a Factum for today’s motion. Again, the husband and his counsel attended the motion. These steps would not have been necessary, had the wife complied with the January 24, 2020 Order.

[72] Rule 24(4) of the FLRs explicitly authorizes the use of costs orders to express the court’s disapproval of a litigant’s unreasonable conduct. It provides as follows:

24(4) Despite sub-rule (1) [which provides that a successful party is presumed to be entitled to the costs of a motion], a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

[73] Further, r.24(5) provides criteria for determining the reasonableness of a party's behaviour. It provides as follows:

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[74] Further, r.24(12)(a)(i) requires the court to consider each party’s behaviour in setting the amount of costs.

[75] The husband seeks costs on a “substantial indemnity” basis on the grounds that the wife acted in bad faith in her failure to comply with the January 24th Court order and in failing to respond to his, and his counsel’s attempts, to resolve the issues relating to the sale of the matrimonial home and the delivery of the wife’s financial disclosure, which has now been outstanding for eight months. Further, the husband maintains that the wife’s blatant disregard for the court order frustrates the justice system’s goals of efficiency, affordability, proportionality and fairness.

[76] The Court can order costs on a higher scale to express disapproval of unreasonable conduct: Mullin v. Sherlock 2018 ONSC 6933. Applying the principle to a costs order under the FLRs, the amount of costs ordered may be higher than it otherwise would have been where a party has had to incur unnecessary added expense due to the other party’s unreasonable conduct.

[77] The wife’s failure to comply with the January 24th, 2020 Court order has frustrated the husband’s attempts to sell the matrimonial home for sale. Further, her non-compliance with the consent order in terms of financial disclosure impacts the husband’s ability to conclude this matter.

[78] The Court has no information as to why the wife has chosen not to participate in this proceeding. The minimum that a Court would expect if a party has a reasonable explanation for his/her failure to participate in a step of a case is that the party seek adjournments of events, if for some defensible reason the party is not able to prepare for and/or attend court for the event. The wife has failed to provide the Court or the husband’s counsel with any explanation whatsoever for her failure to participate or made requests for adjournments. I am persuaded that the manner in which she dealt both with the case conference and the motion is unreasonable. She clearly would have been aware of her ability to have an agent attend court on her behalf, if she could not attend. She had an agent assist her at the first case conference in the case.

[79] The wife’s non-participation at the case conference did not turn out to be a one-time occurrence. The husband ought not to have to incur costs that are wasted or bring motions because of the abject non-compliance of the wife with terms of a court order. He has a right to move this case forward, particularly in the absence of any justification by the wife for the delay.

[80] The amount of costs claimed by the husband on the case conference and motion are reasonable and proportional in the circumstances of this case.

Conclusion

[81] This Court Orders as follows:

i. The Applicant’s motion to strike the Respondent’s Answer and for an order that the Respondent not be entitled to any further order from the court unless the court orders otherwise is dismissed, “without prejudice” to the Applicant’s right to seek such orders in the future, if the Respondent fails to comply with any of her outstanding obligations under the order of Goodman, J., dated January 24, 2020; the order of Nakonechny, J., dated September 8, 2020, or this Order.;

ii. Starting immediately, the Applicant shall have sole carriage of the sale of the matrimonial home, municipally known as 36 Humberview Road, Toronto, ON.

iii. As a result of the order made in paragraph ii, the Applicant may take all steps he deems advisable to sell the home on both his and the Respondent’s behalf and he may sign any documents required in order to list the house for sale; renew the listing agreement or change the listing terms and/or agent, if he deems it advisable to do so; accept an offer made to purchase the home; make a counter-offer; and to finalize a sale by alone signing the documents on his and the Respondent’s behalf. For clarity, to effect and close a sale, it shall not be necessary for the Respondent to sign any documents that she otherwise would have been required to sign, but for this Order.

iv. Starting on October 15, 2020, at 10:00 a.m., the Applicant shall have temporary exclusive possession of the matrimonial home, municipally known as 36 Humberview Road, Toronto, ON, pending the closing of a sale of the home.

v. At any time prior to October 15, 2020, at 9:00 a.m., the Respondent may remove her personal belongings and the children may remove their personal belongings from the home. The Respondent may also remove any other items she wishes to retain in her possession pending further written agreement or court order, EXCEPT that she shall not remove any furniture (including table and floor lamps), major appliances (including any fridges, stoves, built-in microwaves, ovens, washers, dryers; air conditioners and freezers); fixtures (including ceiling lights and ceiling fans); or remove any art currently hanging on the walls of the home. The children may remove any items currently hanging on the walls of their respective bedrooms. If the Respondent removes or causes items to be removed in addition to her own personal belongings, then before doing so, she shall provide an itemized list to the Applicant of the items she will be removing. To the extent that the Applicant does not require items that are in the matrimonial home on October 15, 2020, at 10:00 a.m., for purposes of staging the home for sale purposes, and except for the appliances and fixtures referred to above (which shall be sold with the house, absent written agreement between the parties), then he may retain the items in his possession pending further written agreement or court order. The Applicant shall de-clutter the home immediately after October 15th, 2020, by causing the items that the Respondent did not remove, are not required to stage the home or to sell with the home, or he does not retain in his own possession under the terms of this paragraph, by causing the items to be packed in boxes or properly wrapped and placed in a storage locker at a reputable storage company. He shall ensure that the contents of the boxes are identified on the boxes by reference to the room out of which they were taken and the general nature of the contents in the box. Immediately on the placing of the items in the storage facility, the Applicant shall provide to the Applicant a list of the boxes and any other items that he places in storage; together with the receipt he obtains from the storage facility. Neither party shall remove any of the contents nor dispose of any of the items he or she retains in his or her possession under the terms of this paragraph pending written agreement between the parties or court order. Prior to the closing of the sale of the home, the Applicant shall cause any contents left in the home for staging purposes to be placed in storage unless he wishes to retain items in his possession pending written agreement between the parties and court order. He shall provide a written list to the Respondent of the items he places in storage and those that he keeps within 7 days after the home sale has closed.

vi. Subject to (viii) below, if the Applicant effects any repairs. minor renovations and/or minor improvements to the matrimonial home that are recommended by the listing agent to maximize the sale price of the matrimonial home, the cost of such repairs, renovations and/or improvements shall be shared equally by the parties, as per the terms of the Order of Goodman, J., dated January 24, 2020.

vii. If, for any reason, the parties must incur the costs of a home inspection, the parties shall share the costs of the home inspection equally, subject to (viii) below, the Applicant shall be repaid the Respondent’s 50% share of the costs of the home inspection from the Respondent’s share of the proceeds of sale of the matrimonial home on closing.

viii. The Applicant shall pay the storage costs, home inspection cost, and repairs/renovations/improvements costs in full at the time that they are incurred or owed to third parties in relation to (v), (vi) and (vii) above, but upon producing invoices to the real estate lawyer acting on the sale of the home, in advance of the closing of the sale, that demonstrate that he paid such amounts, he shall be repaid one-half the total amount he paid out of the Respondent’s share of the sale proceeds on the closing.

ix. Between the date of this Order and October 15, 2020, the Respondent shall cooperate and allow unfettered access to the home for the purposes of the Applicant addressing all issues identified by the listing agent in writing as needing to be dealt with in order to list the matrimonial home for sale;

x. On or before October 22, 2020, the Respondent shall provide to the husband copies of all of the forms that she has filled out and signed and are required to be provided to her pension administrator; copies of any documents that she must submit to her pension administrator; and any forms that the husband must fill in and sign, in order for the wife to obtain the Family Law Value of her pension from her pension administrator, which she was required to obtain as per the terms of the Order of Goodman, J., dated January 24, 2020, and the terms of the Order of Nakonechny, J., dated September 8, 2020. Upon receipt of the documents, the Applicant shall fill in and sign the FSCO Family Law Value pension forms that he is required to sign, and he shall return all of the forms to the Respondent within 72 hours of receiving them from her. Within 5 days of receipt of the documents from the Applicant, the Respondent shall ensure that she has submitted the documents to her pension administrator. Within 72 hours of doing so, the Respondent shall provide documentary proof to the Applicant that she has done so (as, for example, proof from Canada Post or a courier that the documents were mailed or delivered to the pension administrator).

xi. On or before October 22, 2020, the Respondent shall produce her complete 2018 and 2019 T1 income tax returns, including all schedules and attachments and Notices of Assessment for both 2018 and 2019, as per the terms of the of the Order of Goodman, J., dated January 24, 2020, and the Order of Nakonechny, J., dated September 8, 2020.

xii. On or before October 22, 2020, in accordance with her prior agreement to do so, the Respondent shall serve and file a Notice of Withdrawal of her spousal support claim on a “without prejudice” basis. As per the terms of the Order of Goodman, J., dated January 24, 2020 and the Order of Nakonechny, J. dated September 8, 2020, no costs shall be payable by the Respondent to the Applicant on account of any costs he may have incurred in relation to the spousal support claim up to and including the date of this Order.

xiii. The Respondent shall pay to the Applicant costs of the case conference that took place on September 8, 2020, in the sum of $2,000, inclusive of fees, disbursements and HST, plus costs of this motion in the sum of $3,500, inclusive of fees, disbursements and HST, for a total payment of $5,500.00. This amount shall be paid to the Applicant within 90 days.

xiv. In addition to the Court Staff releasing this Endorsement to both parties by email, counsel for the Applicant shall serve a copy of these Reasons for Order on the Respondent by email at nezflores3@gmail.com and also immediately arrange to have a courier deliver a copy to the Respondent at the matrimonial home. The courier shall be directed that, if the Respondent is not available or will not accept delivery of the envelope, the envelope containing this Endorsement shall be left at the front door step.

xv. The terms of this Order constitute an order of this Court that is binding and effective from the time that the Court staff releases it to the parties by email and it is enforceable at that time, even though the order may not be placed in a Form 25 order and entered until a later time due to the impact of the ongoing Covid-19 health crisis on the Court’s usual operations.

M. Kraft, J.

Released: September 25, 2020

COURT FILE NO.: FS-19-14027

DATE: 20200925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vince Flores

Applicant

– and –

Inez Irene Flores

Respondent

REASONS FOR ORDER

M. Kraft, J.

Released: September 25, 2020