Court File and Parties

COURT FILE NO.: FS-18-0142 DATE: 20210308

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Binal Niravkumar Patel, Applicant AND: Niravkumar Govindbhai Patel, Respondent

BEFORE: The Honourable Justice Tzimas

COUNSEL: Lalit Kalra, for the Applicant No one appearing on behalf of the Respondent

HEARD: February 26, 2021 (Via Zoom)

ENDORSEMENT

INTRODUCTION

[1] The Applicant, Binal Patel, brought an urgent motion for a vesting order to transfer the matrimonial home to her name and to permit her to list and sell it. She seeks this relief because she says that it is the only way for her to secure payment of Mr. Patel’s child support and s.7 expenses court ordered obligations and $16,500 in outstanding cost awards. Ms. Patel also sought leave to amend her application to include the request for a vesting order.

[2] Though duly served and on notice of the motion, the Respondent, Mr. Niravkumar Patel did not serve and file proper responding materials or submissions. Instead, a gentleman purporting to be Mr. Patel’s father appeared on the virtual hearing to protest that the motion being brought was unjust, to advise that his son was sick and ostensibly unable to attend, and to ask that the motion be dismissed. In the alternative, the gentleman seemed to suggest that the court ought to adjourn the motion but there were no specific terms to such a request.

[3] For the reasons that follow, I conclude that it is appropriate that a vesting order transferring title of the matrimonial home from Mr. Patel to Ms. Patel and that the property be listed for sale within 30 days from the date of this order, as more particularly outlined in the draft order filed by Ms. Patel’s counsel, which I have reviewed and approved below.

BACKGROUND FACTS

[4] The parties were married in India on May 18, 2013. They have one child who was born on July 30, 2017 and is therefore three and half years old. They separated on October 1, 2017. Ms. Patel has had de facto custody of the child. From the date of separation Mr. Patel saw the child on only 13 occasions.

[5] At the time of the separation the parties lived in Windsor, at the home that is the subject of this motion. Following the separation, Ms. Patel moved to the Region of Peel and Mr. Patel remained in Windsor.

[6] Ms. Patel has not had any contact with Mr. Patel since January 2020. She understands that Mr. Patel abandoned the property in Windsor and returned to India and has no intention of returning to Canada.

[7] Ms. Patel commenced her Application in early 2018. Although Mr. Patel responded with his Answer, he then ignored a total of six court orders requiring him to satisfy his disclosure obligations, to provide an accounting of what appeared to be a depletion of funds and the transfer of assets to third parties, and ultimately, though perhaps most importantly, his child support and s.7 obligations. At the present time, the monies owed by Mr. Patel to Ms. Patel are broken down as follows:

• $9000 in child support
• $5882 in s.7 expenses
• $16,500 in outstanding costs awards

[8] On July 29, 2020 the court struck Mr. Patel’s Answer, save and except for his claims for child custody and access. Although the court gave Mr. Patel 60 days to comply with the outstanding orders and reinstate his pleadings, he did not take up that opportunity.

[9] The property that is the subject of this motion was the matrimonial home of the parties. It is solely owned by Mr. Patel and now appears to be the only remaining substantial asset, with equity, estimated to be limited to approximately $70,000. To Ms. Patel’s knowledge, after their separation, Mr. Patel continued to live in the matrimonial home together with his parents. She also understood that he was paying all the carrying costs for the home.

[10] Very recently, Ms. Patel learned that the mortgage for the said property was arrears since December 2019 and that the Royal Bank of Canada, (RBC), as mortgagee of the property, commenced power of sale proceedings on February 21, 2021. She also learned that RBC was prepared to hold off on its own proceeding to allow Ms. Patel to obtain the requested court order and then proceed to list and sell the property within 30 to 45 days from the date of the court order.

[11] Against these circumstances, Ms. Patel’s counsel submitted that a vesting order followed by the sale of the property would be the only way for Ms. Patel to secure payment of Mr. Patel’s obligations to his child and to her rights. Although the net sale proceeds are not likely to exceed $70,000, counsel added that Ms. Patel would be able to enforce the outstanding court ordered payments and pay the balance into court, to be reconciled against any possible future judgment. He also noted that having regard for the child’s young age, a future judgment could likely entitle Ms. Patel to the balance of the funds, though in the absence of such a final judgment, payment into court would be acceptable.

[12] Counsel supported his submissions with reference to s.100 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as am., sections 2 and 3(1) of the Partition Act, R.S.O. 1990, c. P.4, sections 9(1) (d), 10 , 23 , 24(1) (a) and (f), and 34(1) (c) of the Family Law Act, R.S.O. 1990 c. F3, section 15.1(4) of the Divorce Act , R.S.C. 1985, c.3 and section 12 of the Ontario and Federal Child Support Guidelines, SOR/97-175 as am. He also referred the court to the following cases that have addressed the issuing of a vesting order in the context of family law disputes: Lynch v. Segal, 2006 ONCA 7929, Verch v. Verch, 2012 ONSC 2621, Jamieson v. Jamieson, 2020 ONSC 6935, Trick v. Trick, 2006 ONCJ 200, Trinidad v. Trinidad, 2007 ONCJ 560, and Enns v. Hawkins, 2008 ONCJ 260.

ANALYSIS

a. Procedural Issue: Mr. Patel’s Non-attendance

[13] Before I turn to the substantive issue, I would like to address the manner that Mr. Patel responded to participated in this motion. As noted above, Mr. Patel did not serve and file and responding materials even though he was duly served in accordance with the court order of February 24, 2021. However, given the appearance of the gentleman who purported to be Mr. Patel’s father, but who did not provide his name, and other individual or individuals who were following the motion but defied my request that they appear on camera to identify themselves, I have no concerns about Mr. Patel not knowing about the virtual motion or not being able to respond. As I will proceed to explain, his response was a sham, but it was nonetheless a response.

[14] Also, before I highlight the specific concerns with Mr. Patel’s conduct, in these early days of virtual hearings, necessitated by the emergency measures that are ongoing in response to the health risks posed by the COVID19 virus, it bears reminding everyone that virtual hearings are no less formal than in person hearings in court. They are the same thing and require the same decorum and respect for the administration of justice. Whether the matter is civil, family or criminal, anyone appearing and participating at a virtual hearing must follow all the rules relating to the Court’s procedural requirements, be they, The Rules of Civil Procedure, the Family Law Rules, or the Criminal Proceedings Rules for the Superior Court of Justice. They must also be familiar with and respect the requirements outlined in the applicable Practice Directions and communications from the Chief’s office that have concerned specific adjustments and requirements in response to COVID19 and which can be found at: www.ontariocourts.ca. In short there can be no excuse or tolerance for conduct designed to disrupt and undermine the proceeding underway. Nobody can be permitted to undermine the integrity of the administration of justice.

[15] Turning to what occurred in this case, the manner that Mr. Patel chose to participate was unfortunate, inappropriate, and disrespectful to the court, to the opposing side, and to the administration of justice. To begin with, when this case was called, an older gentleman stepped into the camera but did not provide his name. In broken English he said that he did not speak English, he said something about an interpreter, and he held up with both hands a paper with text on it. Curiously, notwithstanding his indication that he did not understand any English, he knew when to speak and when to stop and he responded to what I was saying, by either yelling back at the screen, or by then having somebody type messages on the ZOOM chat. Regarding the paper that was held up, I could see that the text was in English but I could not read all of it.

[16] When I expressed serious concerns that this form of communication was inappropriate and asked that the gentleman at the very least, identify himself, somebody responded by typing into the ZOOM chat to explain that the gentleman who appeared on the screen was Mr. Patel’s father, that he did not speak English, that the motion was unjust and ought to be dismissed, and that Mr. Patel was ill and could not participate. The gentleman purporting to be Mr. Patel’s father remained on the screen and continued to hold up the paper while the messages were being submitted into the chat. When I repeated my objection to this form of communication and asked whoever was typing off-screen to appear on camera and to identify him or herself, the elderly gentleman moved away from the screen, but nobody appeared in his place. When I repeated my request that the typist identify him or herself, I was met with silence and a blank screen. I repeated my objection to such disrespectful conduct and invited Ms. Patel’s counsel to make his submissions.

[17] As counsel began to speak, the individual who remained off-screen, but who evidently understood English and was able to follow what was being said, resumed the typing into the chat function with contemporaneous responses to the submissions he was hearing. I found that such conduct was the equivalent of somebody interrupting and yelling in a court room. In defiance of my immediate and repeated direction that the chat submissions stop immediately, the person typing persisted.

[18] In response to an additional attempt to have the typist identify him or herself, the typist typed into the chat that his name was VIJAY and that he could not come onto the screen because he feared that Mr. Patel’s father would harm him. I expressed my continued displeasure over what was unfolding and asked that the typing stop immediately. I also asked the Registrar to disengage the chat function. These directions put an end to any further chat.

[19] Before I go further, I note that the essence of the comments that were submitted through the chat function centered on the complaint that the motion was unjust, that the relief being sought was unfair, the insistence that Mr. Patel had a “critical medical condition” that prevented his participation, and that Ms. Patel had no right to go after Mr. Patel’s property.

[20] At the conclusion of the motion, I reserved my decision. After court was adjourned for the day, the Court Registrar brought to my attention two communications, one containing the text that appeared on the piece of paper held up to the screen and the other, a letter addressed to me. The documents were unsigned but essentially repeated Mr. Patel’s objections to the motion and the relief being sought.

[21] The above-noted experience raised several disturbing and unsettling concerns that I find necessary to address. First, the manner of participation by the individuals who purported to represent Mr. Patel was inappropriate and disingenuous. Even with their unorthodox approach, in recognition of the novelty of virtual hearings and the possibility that they were not familiar with court procedure, I was initially willing to hear from them and gave them the opportunity to do so when I asked them to identify themselves and to speak on camera. However, their express defiance and persistent use of the chat function, even after I asked them to stop that mode of communication, left with me with no option but to ask them to stop completely. I hasten to add that in spite of the suggestion that at least one of the individuals did not speak English, their reactions and responses to what I was saying left me with no concerns about their ability to understand the exchange.

[22] Second, the letter directed to me and to the court immediately following the proceeding was also entirely inappropriate. Direct communications to a judge are not permitted. That prohibition is expressly designed to protect the integrity of the administration of justice. The only way to make submissions to the court is to file the applicable record and supporting sworn evidence, in accordance with the applicable rules, in this case the Family Law Rules. Of course, the other way would have been to speak up on the screen when I made my inquiries.

[23] Third, separate and apart from the disrespectful manner of communication, the submissions, such as they were advanced, were limited to unsubstantiated and bald assertions of unfairness. No admissible evidence was put before the court to be able to evaluate the basis for the pronounced protests. For example, there was no attempt by Mr. Patel to address his failure to meet his court-ordered obligations to pay child support or to produce his disclosure. Nor was there any attempt to address the jeopardy he faced in relation to RBC’s imminent foreclosure proceedings.

[24] There was also no evidence to support the contention that Mr. Patel was critically ill. If anything, the realization that there was one or more individuals attending the proceeding off-screen, caused me to wonder if Mr. Patel was actually present in the room and whether he was the one who was responding on the chat as counsel for Ms. Patel was making his submissions. More to the point, if Mr. Patel were as critically ill as the individuals who participated on the motion suggested, I doubt that he would have had the capacity to receive the email alerting him to the motion and serving him with the motion record. Nor would he have been in a position to instruct his representatives on the submissions that they ought to make.

[25] Insofar as the written materials that were sent following the hearing of the motion and some of the chat submissions made references to Mr. Patel being on ODSP or receiving monies from Ontario Works, apart from the incoherence of those references, given Mr. Patel’s refusal to meet his disclosure obligations, it was rather rich for him to resort to such indicators to support the contention that he was ill and that he was facing financial difficulties. I note further, that in my review of the disclosure orders, there had never been any reference to either ODSP or an OW file. Rather, some of the disclosure requests were directed to the dissipation of assets and their movement into the hands of third parties.

[26] Finally, having regard for Mr. Patel’s consistent and persistent disregard of the court process, the court’s pronounced criticism of Mr. Patel’s disingenuous behaviour in the endorsement of September 9, 2019, and most significantly, Mr. Patel’s complete disregard of no less than six court orders that imposed specific obligations on him, I find that his behaviour on this motion through his alleged representatives, was nothing more than an attempt to undermine the integrity of the administration of justice. Mr. Patel could have addressed the motion on its merits by speaking to how he intended to mitigate his financial jeopardy with RBC and by paying his outstanding court ordered obligations, but consistent with a pattern of disrespect and disregard for the court, he chose not to make any substantive submissions. What occurred was a sham.

b. Substantive Issue: Can the Court issue a vesting order and require the sale of the matrimonial home?

[27] Substantively, there is only one issue that I have to decide: Under what circumstances can the court issue a vesting order that transfers title from one spouse to another and require that the spouse who obtains title list and sell the property?

[28] Section 100 of the Courts of Justice Act, grants the court a broad general power to grant a vesting order. In the family law context, sections 9(1) (d)(i) and 34 (1) (c) of the Family Law Act confer on the court an equally broad power to grant a vesting order on an application for the equalization of the net family property or support. Vesting orders are discretionary and have their origins in the court’s equitable jurisdiction, see Lynch v. Segal, 2006 ONCA 7929 at paras. 27 and 28, Chippewas of Sarnia Band v. Canada (Attorney General), 195 D.LR. (4th) 135 at para. 227, and Jamieson v. Jamieson, 2020 ONSC 6935 at paras. 13 – 20. Section 12 of the Federal Child Support Guidelines also provides additional authority for the court to secure child support obligations.

[29] In Lynch, at paras. 31 and 32 the Ontario Court of Appeal explained that the rationale for the vesting power of the court is to enable it to direct the parties to deal with property in accordance with the judgment of the court and described its jurisdiction as “elastic”. It went on to explain that given the court’s broad discretion, the court has to consider the granting of a vesting order against the circumstances of a particular case. Without seeking to categorize the types of circumstances in which a vesting order could issue, in the family context, the Court outlined for the following pre-requisites:

1. The vesting order is in the nature of an enforcement order;
2. The party seeking the order has the onus of establishing the existence of a payment liability by the spouse who will be the subject of the vesting order;
3. The vesting order must be necessary to ensure compliance by the spouse who owes the debt;
4. There must be some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability; and
5. The interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question must not be an impediment to the granting of a vesting order.

[30] In this case, Ms. Patel’s claim for a vesting order for the purposes of listing and selling the property to secure enforcement of the court orders in her favour meets the required conditions.

[31] First, there is no dispute that Mr. Patel has failed to comply with any of the court orders related to his obligation to pay child support and s.7 expenses, and he has accumulated costs orders against him that total $16,500. All told, the monies he owes to Ms. Patel to date add up to approximately $31,467. Having regard for the fact that the child is only three and a half years old, Ms. Patel can expect a substantial augmentation of this debt and a substantial judgment if she were to proceed with an uncontested trial, as anticipated by the court order of July 29, 2020. When these figures are considered against the estimated equity of $70,000 I find that there is a reasonable relationship between the value of the matrimonial home and Mr. Patel’s debt to Ms. Patel.

[32] Second, I also find that absent a vesting order, there is no reasonable prospect that Ms. Patel will be able to enforce the current outstanding court orders or any future judgment against Mr. Patel. On Mr. Patel’s own representations to the court, his alleged financial difficulties underscore the risk to Ms. Patel’s future ability to enforce the court orders to date and any other judgment against Mr. Patel. His disappearance to India, without noticed and for an extended period of time only exacerbates the risk to Ms. Patel’s rights. Rather remarkably, nobody suggested anything about any plans to return to Canada. That means that apart from being able to realize against the matrimonial home, if Mr. Patel does not return to Canada, the prospects of the Family Responsibility Office being in a position to go after Mr. Patel’s wages, or any other financial sources to collect support and section 7 obligations are slim to nil.

[33] Third, insofar as Mr. Patel’s default on his debts to RBC and RBC’s imminent power of sell proceedings are concerned, there was no evidence before the court to suggest that Mr. Patel would seek to reinstate his mortgage payments or do anything to avert the sale of the matrimonial home. The indication by RBC that if Ms. Patel acted swiftly to obtain a vesting order and then to immediately list and sell the matrimonial home actually represents a very time-limited opportunity for Ms. Patel to mitigate Mr. Patel’s expected loss and effectively do what she could to maximize the net equity. In this regard, if Mr. Patel were to stop and think about it for a moment, he ought to realize that as between RBC selling the property under power of sale and Ms. Patel assuming the immediate sale, the better option would be the latter. To abandon the matrimonial home to the hands of RBC would result in very substantial costs being incurred by RBC such that even the estimated $70,000 in anticipated net proceeds would be diminished very substantially.

[34] On the strength of the foregoing this analysis, I conclude that issuing a vesting order in favour of Ms. Patel and requiring her to list and sell the property immediately is the only order that makes sense. Granting her exclusive possession for the purposes of getting the sale underway is also appropriate.

[35] Ms. Patel’s request to amend her Application to seek a vesting order is also granted, although strictly speaking, and on the strength of Lynch, this is the sort of situation where the amendment would not have been necessary.

[36] The only two outstanding issues for consideration concern the handling of the anticipated net proceeds from the sale of the matrimonial home and costs of this motion. Both of these subjects are addressed in Ms. Patel’s proposed draft order, which I find reasonable and I approve. For greater clarity, I am reproducing the terms of the order that I am prepared to make as follows:

THIS COURT ORDERS THAT:

1. Leave is granted for Ms. Binal Patel to bring this urgent motion.

Exclusive Possession of the Matrimonial Home

2. Ms. Binal Patel shall have exclusive possession of the matrimonial home, municipally known as 2634 Vine Court, Windsor, ON N8T 2X3, Property Identification Number 01753-0122 (LT), legal description as UNIT 122, LEVEL 1, ESSEX CONDOMINIUM PLAN NO. 3; PT BLKS A, B & KEW DR PL 1644, PTS 6, 8, 9, 10, 11, 13, 14 & 15 12R337, MORE FULLY DESCRIBED IN SCHEDULE “A” OF DECLARATION LT6150; WINDSOR (hereinafter known as “the Property”).

Vesting Order/Transfer of Property

3. Title to the Property shall be transferred to Ms. Binal Patel, immediately and without the consent of Mr. Niravkumar Patel. Further, Mr. Niravkumar Patel’s consent and/or requirement of signature is dispensed with on any and all documents necessary to transfer the title.

Sale of Matrimonial Home and Proceeds of Sale

4. Ms. Binal Patel shall list the Property for sale on MLS within 30 days of this Order.

5. Ms. Binal Patel is permitted to solely make all decisions regarding the listing and sale of the Property, without the consent of Mr. Niravkumar Patel.

6. Mr. Niravkumar Patel’s consent and/or signature on any and all documents necessary to list and sell the Property is dispensed with. Such documentation to include but not be limited to any listing agreements, agreements of purchase and sale, transfer, undertakings, directions, statutory declarations or any other documents as may be required to list and sell the Property.

7. RBC is authorized to provide information and documentation to Ms. Binal Patel and/or her counsel, as requested by them, regarding any current accounts held by Mr. Niravkumar Patel with RBC, including but not limited to information and documentation related to the mortgage held by RBC over the Property.

8. The proceeds of the sale of the Property, after realtor fees of 5% of the sale price + HST have been paid, shall be disbursed in the following order: a. The RBC mortgage shall be paid in full. b. The remaining funds shall be released to Mr. Lalit Kalra, counsel for Ms. Binal Patel, who shall disburse the remaining funds as follows: i. The real estate lawyer handling the transfer and/or sale of the property shall be paid an amount not to exceed $3,000 for legal fees and disbursements. ii. Ms. Binal Patel shall be paid $14,967.29 ($9,083.13 representing the child support arrears for the period May 2019 – February 2021, $3,996.16 representing the daycare expense arrears owing for the period May 2019 – February 2021, and $1,888 representing the arrears owing for the permanent residence application in accordance with the Order of Justice Harris dated Sept. 19, 2019). iii. Mr. Lalit Kalra, counsel for Ms. Binal Patel, shall be paid $16,500 representing the costs owing for the motions heard on Oct. 16, 2019, Jan. 10, 2020 and July 29, 2020. iv. The remaining amount shall be deposited into court until a further court order is made.

Other

9. Ms. Binal Patel is permitted to amend her pleadings to include a claim for a vesting order.

10. Service of the amended claim is dispensed with.

11. Mr. Niravkumar Patel’s approval as to form and content to have this order issued and entered is dispensed with.

12. Mr. Niravkumar Patel shall pay costs for this motion to Ms. Binal Patel in an amount fixed at $3,500.

CONCLUSION

[37] In light of the above findings, an order is to issue in accordance with the terms as outlined in the preceding paragraphs. This endorsement, together with the corresponding signed and issued order shall be sent to Mr. Patel for his information.

Tzimas J. DATE: March 8, 2021