COURT FILE NO.: FC-20-316

DATE: 20201026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICE SYLLA

Applicant

– and –

YAMILEY BEAUBOEUF

Respondent

James D. S. Whyte, for the Applicant

Stéphane A. Monpremier, for the Respondent

HEARD: October 20, 2020

REASONS FOR decision

audet j.

[1] This is a motion brought by the respondent husband (“the husband”) for an order that he be permitted to complete the purchase of the parties’ matrimonial home in accordance with his Offer to Purchase dated September 27, 2020. The applicant wife (“the wife”) disputes the motion and seeks to enforce the consent order made by Master Kaufman on September 17, 2020, requiring that the matrimonial home be listed for sale and sold to the best offering.

Background

[2] The parties married (they did not specify the date in their motion material) and separated in June 2015 or July 2016 (while the date of separation is disputed, nothing turns on this for the purpose of this motion). They have two children from their marriage, Gabriel (17) and Mathis (13). After they separated, the parties continued to reside together in the matrimonial home, municipally known as 915 Gosnel Terrace, in Orleans (“the matrimonial home”). The evidence before me makes it clear that the parties’ continued cohabitation was fraught with conflict, which required the frequent intervention of both the police services and the Children’s Aid Society.

[3] It is the wife’s contention that the husband has a gambling addiction which required the matrimonial home to be re-financed on a number of occasions during the marriage, and once thereafter, to re-pay his gambling debts. She states that in June 2018, the husband’s debts had increased to $119,000 and he once again sought the wife’s consent to re-finance the matrimonial home to repay his debts. While she agreed to do this one more time, the wife states that she imposed conditions requiring the husband to reimburse on his own the increased portion of the parties’ new mortgage at an accelerated rate and requiring him to transfer the title to the matrimonial home to her within five years. A copy of the written agreement signed by the parties to that effect and dated June 9, 2018 was adduced into evidence for the purpose of this motion. The validity and enforceability of that agreement is contested by the husband in the context of the application, and he is trying to have it set aside.

[4] The wife alleges that, since the date the parties separated, they have been unable to agree on who would be keeping the matrimonial home, as they both wanted to retain its possession and ownership. I accept the wife’s evidence in that regard. The very existence of this motion before me entirely supports her assertion to that effect. The wife alleges that, in order to avoid the litigation required to enforce the June 9, 2018 agreement which would have forced the husband to transfer the matrimonial home to her, instead the parties consented to an order for the sale of the matrimonial home. This Order, made on consent by Master Kaufman in the context of a Case Conference which took place on September 17, 2020, provides that the matrimonial home will be placed on the market for sale with a licensed realtor within 15 days, and that the parties are to fully cooperate to list the property on the market for sale and to facilitate the real estate closing. It also provides that the parties will jointly select a real estate solicitor to represent them in the sale of the property and sets out how the net proceeds from the sale of the home will be distributed after sale (“the September 17 Order”).

[5] In accordance with the September 17 Order, on September 22 the matrimonial home was listed for sale on the market with the real estate agent agreed to by the parties, Mr. Richard Renaud, at a listing price of $618,900. It is the husband’s contention that when the parties met with Mr. Renaud to sign the listing agreement on September 22, it was agreed that the home would be listed on the MLS System and that offers would be received until Sunday, September 27, at 4:00 p.m., at which time all offers would be considered. The wife disputes this.

[6] Unbeknownst to the wife, on September 27, the husband made an offer to purchase the home for $625,000, with a closing date of November 5, 2020, conditional upon financing and his obtaining legal advice as to the Agreement of Purchase and Sale (hereinafter “the husbands offer”). This is the only offer that was received by the parties since the home had been listed for sale five days prior. The wife states that, immediately after making his offer, the husband cancelled all scheduled viewings and attempted to cancel the listing agreement with the realtor. To avoid fines and penalties resulting from the husband’s refusal to allow further viewings, the realtor ultimately suspended the listing.

[7] Thus, this motion is brought by the husband seeking an order compelling the wife to accept his offer, and the wife’s counters by seeking an order that Master Kaufman’s Order forcing the sale of the home be enforced by this court.

Analysis

[8] I do not accept the husband’s allegation to the effect that there was an agreement between the parties and their realtor that no offers would be received or considered after September 27, 2020. This is in no way supported by the listing agreement itself, which confirms that Mr. Renaud had the exclusive and irrevocable right to sell the property for three months, from September 22, 2020 until January 22, 2021. I fail to see how the parties would have signed a three-month listing agreement if everyone agreed that no offers would be accepted after September 27, five days after the property was listed for sale.

[9] Further, the husband’s evidence is clearly contradicted by the emails sent by Mr. Renaud to the parties and the wife’s counsel after he became aware that the husband had cancelled scheduled showings, and in which he expressed both surprise and frustration. Clearly, Mr. Renaud was not aware of any “agreement” whereby no offers would be accepted past September 27, and the fact that a number of showings had been scheduled after September 27 is a testament to that. Due to the husband’s conduct, Mr. Renaud was forced to suspend the listing to avoid being fined for refusing to show the home to potential purchasers. Clearly, he was not privy to any alleged agreement between the parties.

[10] The evidence before me makes it clear that the husband’s consent to list the matrimonial home for sale was not given in good faith. It was simply an attempt by him to “get through the back door what he had failed to obtain through the front door”, in other words, force the wife to accept his offer to purchase the matrimonial home. It is not disputed that the husband had made multiple requests to buy the wife out, or to preserve a right of first refusal, something that the wife had categorically refused to consent to given that from her perspective, the husband was contractually bound to transfer title to her as per the June 2018 agreement.

[11] I see absolutely no reason why the husband should be allowed to purchase the wife’s interest in the matrimonial home in those circumstances. The evidence clearly supports the wife’s position that the parties’ agreement to list the home for sale was a compromise achieved to settle the impasse created by both parties wanting to retain title to the matrimonial home. The evidence demonstrates that the husband unilaterally refused to allow any viewings of the home after September 27, which caused the listing to be suspended. I find that there was no agreement, as alleged by the husband, that offers would be accepted only until September 27, at which time “the best offer” would be accepted. The husband’s consent to an order listing the home for sale was clearly disingenuous. But this does not invalidate the order made on consent by Master Kaufman, which regrettably for the husband, must still be followed.

Conclusion

[12] Based on the above, the husband’s motion is dismissed, and the parties are ordered to fully comply with the terms of Master Kaufman’s Order, requiring that the property be listed for sale immediately, with both parties’ full cooperation.

[13] I remain seized of any motion pertaining to the disposition of the parties’ matrimonial home. If disagreements arise in relation to the enforcement of Master Kaufman’s Order, or in the orderly sale of the matrimonial home, motions can be brought to my attention on 48 hours’ notice to the other party.

Costs

[14] Unless Offers to Settle were made that would materially affect my conclusion in that regard, I find that the wife is entitled to her costs for this motion on a full recovery basis. If the parties are unable to agree on the quantum, or if Offers to Settle were made which would impact on the wife’s entitlement, I will accept brief written submissions on costs limited to two pages (not including Offers to Settle and Bills of Costs), in accordance with the following timelines;

• The wife shall provide her submissions by November 6, 2020;

• The husband shall provide his submissions by November 20, 2020;

• Any reply may be provided by November 27, 2020.

Madam Justice Julie Audet

Released: October 26, 2020

COURT FILE NO.: FC-20-316

DATE: 20201026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICE SYLLA

Applicant

– and –

YAMILEY BEAUBOEUF

Respondent

REASONS FOR decision

Audet J.

Released: October 26, 2020