Gangodawila v. Fernando, 2020 ONSC 6219

COURT FILE NO.: FS-18-116

DATE: 2020 10 14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ruchira Nayanakanth Gangodawila Applicant

Hewana Hennedige Anne Mangalee Fernando Respondent

BEFORE: Bloom, J.

COUNSEL: Robert Fernandes, for the Applicant

Dilani Gunarajah, for the Respondent

HEARD: October 13, 2020

E N D O R S E M E N T

I. INTRODUCTION

1The Applicant moves for a substantial advance on funds held in trust from the sale of the matrimonial home, for leave to amend the Application, and for disclosure by the Respondent of the deed and survey of land for land owned by her in Sri Lanka. The Respondent also moves for an advance from the funds held in trust. Those are the positions of the parties put forward in oral argument.

II. PROCEDURAL BACKGROUND AND FACTS

2The parties were married on January 28, 1993 and separated on August 12, 2018. They have three adult children.

3The parties sold the matrimonial home located at 995450 Mono-Adjala Townline in Mono Ontario on March 23, 2020. The proceeds of $487,619.69 are held in trust by the real estate lawyers who acted on the sale under the agreement of the parties that the funds be disbursed only pursuant to the agreement of the parties or a court order.

4The parties have yet to do the questioning ordered by Justice Chozik of this court on November 29, 2019. They have various claims for economic relief against each other, including equalization claims, the Applicant’s equalization claim for approximately $24,000.00 and the Respondent’s for approximately $154,000.00. The Applicant’s motion for leave to amend his Application, in fact, relates in part to economic claims by him.

5Justice Chozik’s order also provided that the Respondent was to permit the Applicant’s real estate appraiser to attend at her property in Sri Lanka for the purpose of appraising it.

III. ANALYSIS

A. THE CLAIMS FOR AN ADVANCE OF FUNDS HELD IN TRUST

6In Laamanen v. Laamanen, 2005 50808 (ON SC), [2005] O.J. 5823 (Ont. S.C.J.) at paras. 12 to 15 Justice Karakatsanis, as she then was, discussed the principles which should govern an advance of funds based on an equalization claim:

12 Although the husband characterized the request for a partial advance on an equalization payment as a motion for partial summary judgment, I prefer not to consider the request on that basis. The construct of a Rule 20 motion does not fit this context. The motion would raise issues of res judicata and would not resolve any issues or shorten the time at trial. The Ontario Court of Appeal in Ford Motor Company of Canada Limited v. Ontario Municipal Employees Retirement Board et al (1997), 1997 1302 (ON CA), 36 O.R. (3d) 384 held that parties cannot move for partial judgment as soon as they can prove a minimum recovery, especially where it does not resolve an issue, or shorten trial time. Rule 20 does not involve any consideration of need for the funds or an ability to pay.

13 I prefer the approach of Lane J. in Zadanski v. Zadanski (2001), 2001 27981 (ON SC), 19 R.F.L. (5th) 458. Lane J. referred to the difficulties in proceeding under Rule 20 for partial summary judgment and canvassed the cases where the Court had ordered partial advances on equalization. He found that the Court had jurisdiction in a proper case to make an interim order for the payment of an advance on the equalization payment. Although leave to appeal to Divisional Court was granted, [2002] O.J. No. 3415, the appeal was not pursued. By granting leave to appeal, one Superior Court Judge had some reservations about the correctness of that decision; however, numerous other judges of this Court have ordered advances, either as an advance on equalization payment, or for interim disbursements, or to be characterized by the trial judge. Where a minimum equalization payment is conceded, an advance can avoid an interim judicial determination on issues best dealt with at trial, thus avoiding the need for interim support determinations and interim disbursements.

14 In Haroun v Haroun, 2001 28128 (ON SC), [2001] O.J. No. 2575 (S.C.J.), the motions judge refused to grant an advance on equalization because she was unable to determine a minimum equalization payment. In Armstrong v. Miller (11 January 2001, 5 April 2001) Toronto 00-GL-907 Toronto (S.C.J.) at paras 26 and 19 to 20 respectively, the motions judge refused to grant summary judgment where there was a great deal of confusion about fiscal issues; he was not prepared to accept an answer on cross-examination regarding a minimum payment as anything more than an estimate pending determination by fiscal and accounting experts. In this case, the minimum equalization payment was conceded by counsel.

15 The cases show that the Court may use its discretion to order an advance on equalization where 1) there is a reasonable requirement for the funds; 2) there is little doubt that the person will receive an equalization payment of at least that amount; and 3) it is just to do so in the circumstances, including the payor's ability to pay.

7I apply those principles by analogy to the case at bar where the economic claims of the parties are more than equalization claims. I cannot on the evidence before me determine what sum the Applicant or the Respondent would ultimately be awarded at a minimum. Given the conflicting claims, and possible set-offs, such an undertaking is not possible on the record before me.

8I, therefore, decline to make any order in favour of either party for disbursement of the monies held in trust. I make that determination despite alternative positions taken by the Respondent, including requests for advance from the funds to her, and despite some concessions by the Applicant. Further, I make that determination without prejudice to either party renewing a motion for advance of monies held in trust based on better evidence.

B. THE MOTION FOR LEAVE TO AMEND

9The Applicant seeks leave to amend his Application to concede the date of separation as August 12, 2018, to remove his claim for unequal division of the net family property, and to include claims for spousal support and occupation rent retroactive to the date of separation.

10I am cognizant of the Respondent’s argument that leave should be denied, based on delay by the Applicant, his lack of disclosure, his bad faith, and procedural fairness.

11However, in my view, the amendment sought should be permitted under FLR 11(3) conditioned on the Applicant’s paying appropriate costs to the Respondent, and I so order. I shall address costs submissions below.

C. DISCLOSURE BY THE RESPONDENT OF THE DEED AND SURVEY

12In my view the deed and survey, if in the Respondent’s control or available to her on request, are necessary to give effect to Justice Chozik’s order to permit the survey of the Respondent’s land in Sri Lanka and ought to be produced by the Respondent. In that regard I am guided by FLR 19 and FLR 1(7). Accordingly, the Respondent is to produce notarial copies of those document to the Applicant within 30 days of the release of this endorsement, provided that they are in her control or available to her on request. If she is unable to produce those documents, because they are not in her control or available to her on request , she is to provide to the Applicant within the 30 days an affidavit explaining that inability.

IV. COSTS

13The parties are to serve and file written submissions as to costs of no more than 3 pages, excluding a bill of costs. Those submissions are to address, inter alia, costs payable to the Respondent consequent upon the amendment to the Application permitted by this order.

14Both sets of costs submissions are to be served and filed by one e-mail to the other party and to my assistant, Sara Stafford, at Sara.Stafford@ontario.ca. Both sets of submissions are to be so served and filed within 14 days from release of this endorsement.

Bloom, J.