COURT FILE NO.: D312/19
DATE: 2020/11/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Melissa Marie Alberga
Patricia Lucas, for the Applicant
Applicant
- and -
Joshua Alberga
Marlene J. VanderSpek, for the Respondent
Respondent
HEARD at Welland, Ontario: November 10, 2020
The Honourable Justice T. Maddalena
ENDORSEMENT
Introduction
[1] This hearing consisted of three motions and five sworn affidavits as follows:
Motion of the Respondent dated August 4, 2020
Motion of the Applicant dated August 20, 2020
Motion of the Respondent dated October 24, 2020
[2] The five affidavits submitted in support of the three motions are as follows:
Affidavit of the Respondent sworn July 29, 2020 (with Exhibits A – J)
Affidavit of the Respondent sworn August 28, 2020 (with Exhibits A – E)
The Affidavit of the Respondent sworn October 21, 2020 (with Exhibits A – F)
The Affidavit of the Applicant sworn August 20, 2020 (with Exhibits A & B)
Affidavit of the Applicant sworn September 4, 2020 (with Exhibits A – D)
[3] These motions dealt largely with disputes over disclosure and/or issues which I identified at the outset as property issues that are triable issues relating to the equalization of net family property, and not appropriately dealt with on an interim motion.
[4] Nonetheless, oceans of ink have been spilled (and I suspect piles of money) dealing with these issues that could have been easily resolved and are easily resolvable but for the most unfortunate extreme acrimony between these parties.
[5] I will deal with each motion as follows: (Paragraphs below deal with the same numbered paragraphs in the respective motions.)
I. Motion of the Respondent dated August 4, 2020
The applicant has now provided an Equifax report, however, counsel Ms. VanderSpek states that this was done only after she was forced to bring a motion on behalf of the respondent.
Ms. Lucas states that a revisions summary cannot be produced. Ms. Lucas states that she has provided an explanation as to why it is not available, but this has not been accepted by the respondent. I order the applicant to provide evidence in writing to the respondent that a revisions summary cannot be produced within 60 days.
The loan detail form has now been provided.
I order the applicant to provide to the respondent the disclosure requested in paragraph 4 within 60 days, if this has not already been complied with.
The parties acknowledge this has now been produced.
I order the applicant to provide to the respondent her 2014 Notice of Assessment as soon as she receives same from CRA.
This deals with valuations on the date of marriage and date of separation of some general household items and vehicles including artwork, mirrors, engagement and wedding rings. These parties were reminded of their respective obligations to provide valuations and of the inferences to be drawn by the court in the event that proper valuations are not provided. These are all triable issues. Accordingly, this request is dismissed.
This involves the issue of the second set of keys for the 2013 Acura RDX. Ms. Lucas states that the applicant does not have the respondent’s second set of keys for the 2013 Acura RDX. Under these circumstances, the only order the court can make is to order that the applicant produce the second set of keys to the respondent if she has them in her possession and, if she does not, then to notify the respondent of same within 30 days in writing.
Regarding the outstanding 407 ETR charges ($81.20), much ink has been spilled over this issue also. The applicant admitted in her affidavit that these charges were incurred by her after separation. She states, however, that invoices were not forwarded to her by the respondent in a timely fashion. Ms. Lucas states that the 407 ETR has now been paid in full by her client. I order the applicant to provide proof of the paid 407 ETR charges to the respondent within 60 days.
Both parties shall serve updated financial statements within 60 days. These financial statements should reflect the most recent disclosure made by the parties.
The applicant has already provided a recent WSIB pay slip.
II. Motion of the Applicant dated August 20, 2020
The parties acknowledged at the hearing that the respondent has returned to the applicant her license plates for the 2010 Acura MDX vehicle.
The applicant asks the respondent to lift the lien he filed on the jointly-owned 2010 Acura MDX. This is an issue for trial, as much has been said about this vehicle. Accordingly, this request is dismissed.
The applicant requests that the respondent pay her one-half of the value of the 2010 Acura MDX. I find this is a triable issue and, accordingly, this request is dismissed.
The applicant asks that the respondent provide evidence that he has insured the 2013 Acura RDX. The respondent is ordered to provide this evidence to the applicant within 30 days.
The applicant requests that the respondent deliver her hope chest and all documents in his possession to her. The applicant submits that the hope chest, which has great sentimental value to her, is either with the respondent or at the respondent’s girlfriend’s residence. The respondent deposes he does not have the hope chest and has no idea where it is. He further deposes the hope chest is not with his girlfriend as alleged by the applicant. The respondent further states that on many occasions when he was not at the matrimonial home, the applicant would come to the matrimonial home without his knowledge or consent and remove items. He states that the hope chest and her documents were likely removed by her on one of those visits. From the court’s perspective it is impossible to know who is correct. I order the respondent to provide to the applicant her hope chest if he has it in his possession. He is to provide his formal response to the applicant in writing within 30 days.
III. Motion of the Respondent dated October 24, 2020
The respondent requests that the applicant pay one-half of the insurance funds that she received for damages to the 2010 Acura vehicle. Again, parties are back to the 2010 Acura vehicle. The issue of insurance proceeds paid as a result of damages to the 2010 Acura is a triable issue. Accordingly, this request is dismissed.
- and 4. These deal with the request for the sale of the 2010 Acura MDX, a jointly-owned motor vehicle. Ms. VanderSpek submitted that the parties have agreed that the 2010 Acura vehicle should be sold. Ms. Lucas submitted that there is no agreement on the terms of the sale. Ms. Lucas submits the vehicle requires repairs before it can be sold and there is no agreement on how to effect any of these repairs or who is to pay for the repairs. Much has been said by these parties about this vehicle. However, the issue with the vehicle, including its sale, its value, repairs after the vehicle was stolen, insurance proceeds, etc. are all triable issues. Accordingly, the requests in paragraphs 2, 3 and 4 of the motion are dismissed. (Note: This does not preclude the parties coming to a complete agreement on all terms of sale and therefore selling the vehicle with the proceeds to be held in trust pending the finalization of the equalization of net family property.)
This is a request that the applicant reimburse the respondent for tires, brakes and rotors for the 2010 Acura MDX. I find this is a triable issue. Accordingly, the request is dismissed.
COSTS
[6] Given the mixed success of the parties on these three motions, there shall be no order as to costs.
Maddalena J.
Released: November 13, 2020
COURT FILE NO.: D312/19
DATE: 2020/11/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Melissa Marie Alberga
Applicant
- and –
Joshua Alberga
Respondent
ENDORSEMENT
Maddalena J.
Released: November 13, 2020