Court File and Parties
NEWMARKET COURT FILE NO.: FC-20-654-00 DATE: 20210224 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
David Cranfield Schieder Applicant – AND – Diane Mary Gajewczyk Respondent
Counsel: Adela Crossley, Counsel for the Applicant Diana Isaac, Counsel for the Respondent
HEARD in writing: February 24, 2021
Ruling on Motion
JARVIS J.
[1] On February 17, 2021 this court made an Order requiring the respondent to pay support to the applicant. [1] That proceeding was the bifurcated first part of two motions which Himel J. ordered to proceed separately on January 26, 2021; the second part, the motion now before the court, was to deal with the respondent’s request that the applicant share with her the payment of what she alleges are the parties’ joint debts and that the applicant vacate the parties’ jointly-owned cottage property where he currently resides. She lives in the parties’ jointly owned residence in Aurora. [2]
[2] The following evidence has been filed:
(a) Affidavits from the respondent sworn on February 16 and 22, 2021 with exhibits;
(b) An affidavit from the applicant sworn February 19, 2021 with exhibits.
[3] The Notice to the Profession and Family Law Litigants (“the Practice Direction”) dated December 18, 2020, effective January 4, 2021, provides that all motions are to be presumptively heard in writing unless the court determines otherwise. There is no need to hear submissions based on the evidence that the parties have filed for this motion: they have filed with the court all the evidence they think relevant to the determination of the relief claimed.
[4] The factual and procedural background relating to the parties, their 16 or 23 year relationship (the separation date is disputed), their four properties (one vacant land but all owned jointly) and their significantly disparate financial circumstances are set out in the February 17th support Ruling and will not be repeated here except as may be contextually necessary. The parties never married. There are no children of the relationship.
Cottage property
[5] The respondent claims that the applicant holds his interest in all four of the parties’ properties in trust for her. He is living at their cottage property which she says (and he disputes) cannot be occupied during the winter season or insured. His financial situation is fragile. In the support Ruling, I found that the respondent earned $278,833.08 in 2020 and could be expected to earn $175,605 in 2021 whereas the applicant earned $26,417.82 in 2020 and could only be expected to earn $7,637 in 2021 from CPP and OAS. Based on the evidence, the respondent was ordered to pay $5,260 for spousal support from which the applicant would be obliged to contribute $500 towards the line of credit/mortgage costs as well as the cottage expenses relating to his occupancy. The amount of support was considerably less than what the SSAG suggested but, in my view, was warranted by absence of lifestyle evidence and by the evidence that the respondent was funding, and had for a considerable period of time been funding, realty expenses for the parties’ two investment properties (one of which was the cottage until the applicant began to live there) and the parties’ other two properties.
[6] The respondent wants the applicant out of the property because she speculates that his being there risks her equity and that “it is far more reasonable for him to secure alternate accommodations, rather than run the risk of this asset being jeopardized”. [3] She does not provide any evidence as to where the applicant should live, the nature of those accommodations or their cost: she just wants him gone. She also alleges that the property cannot be insured but the applicant states that, despite his efforts, and those of the insurance broker, to obtain the respondent’s consent for the insurance coverage, she has refused to cooperate. The circumstances surrounding the insurance coverage are vigorously disputed by the parties.
[7] In the support Ruling I observed that there was no motion before the court for occupancy of the cottage property and that Part II of the Family Law Act (“the Act”) did not apply to the parties because they were unmarried. I also observed that the parties should respect the other’s continued occupancy of the residence in which they were living. The respondent clearly disagrees with that approach. She seeks to oust the applicant from a property of which he is a registered owner or to grant her injunctive relief in that regard because she has a claim, unproven at this juncture, that she is the real legal and beneficial owner of the property, also vigorously disputed by the applicant.
[8] Pursuant to s. 34(1)(d) of the Act, the power of the court includes the making of an interim Order “respecting any matter authorized under clause 24(1)(a),(b),(c),(d) or (e) of the Act”. The powers of the court apply to unmarried dependants such as the applicant. In my view, and in light of the fact that the respondent has raised the occupancy issue, it is appropriate that the applicant have vacant possession of the cottage. Paragraph 21(g) of the support Ruling requiring the applicant to assume full responsibility for the costs associated with his occupancy of the cottage shall continue in full force and effect. Even if the Act does not apply, the respondent should be enjoined from disturbing the applicant’s enjoyment of the property. Her unannounced attendance at the property in late January 2021 was, in my view, intentionally provocative and unnecessary.
Contribution to joint debts
[9] The respondent wants the applicant to contribute $745 monthly from his resources to pay for his share of the parties’ joint debts. These debts include credit cards, minimum line of credit payments and bank charges. These are expenses which the respondent claims that she has paid since the parties separated in December 2019, the applicant’s date of separation. She claims, for example, that the applicant should contribute at least $600 towards these debts (in addition to the $500 ordered in the support Ruling) but misconceives the point. The court was attempting to arrive at an amount for the applicant’s reasonable lifestyle needs based on admittedly imperfect evidence. The applicant clearly does not have the present ability to contribute to past debts and, in any event, the respondent’s evidence is not only silent as to who was paying these debts before the parties separated and but also the allocation of responsibility between the parties for incurring the charges or debts initially. While the respondent claimed that documents substantiating the debts could be produced but for the Practice Direction restrictions on page limitations, the court will not, and should not be expected to, engage at this juncture into a line analysis of allocated responsibilities. The respondent has the means to pay these debts: an accounting can be made at trial.
[10] The respondent also adds that she cannot afford to pay the parties’ debts and their realty expenses. Then sell the Toronto and Wasaga Beach properties. This suggestion was also made by Himel J.
Disposition
[11] The following is Ordered:
(a) The applicant shall have sole vacant possession of the cottage property and shall assume responsibility for its ongoing costs during the period of his occupancy;
(b) The applicant may change the access code to the cottage and locks at his expense. If necessary, the respondent shall cooperate forthwith;
(c) The applicant shall proceed to arrange insurance coverage for the cottage property comparable to the expired coverage at his expense. Full particulars of that coverage shall be provided to the respondent;
(d) The respondent’s consent to the policy of insurance coverage is dispensed with. The applicant is authorized to sign on the respondent’s behalf any documentation reasonably required by the insurer;
(e) In all other respects, the respondent’s motion is dismissed.
[12] In the support Ruling, the determination of the issue of costs was reserved to the determination of the respondent’s present motion. In my view, the parties’ success was divided on the earlier motion. The parties disregarded the Practice Direction thereby resulting in an unnecessary wasting of the court’s time. Himel J. trenchantly noted her disapproval of the conduct of the parties and their counsel. The parties should look to their counsel for the costs thrown away with respect to the support Ruling motion, but I am not prepared to make an Order pursuant to Family Law Rule 24(9)(a).
[13] As for the respondent’s motion before the court, the parties should attempt to resolve costs between themselves but if they cannot the following directions shall apply:
(a) The applicant shall deliver his submissions by March 8, 2021;
(b) The respondent shall deliver her submissions by March 16, 2021;
(c) Reply (if any) by the applicant by March 22, 2021;
(d) All submissions shall be single page, double-spaced. In the case of (a), (b) and (c) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record;
(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record;
(f) Counsel are to advise the judicial assistant when they have filed their material.
Justice David A. Jarvis Date: February 24, 2021