De Faria v. Nedeltcheva, 2021 ONSC 181

COURT FILE NO.: FS-19-94732-00

DATE: 2021 01 08

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jeff De Faria Applicant

v.

Anna Nedeltcheva Respondent

BEFORE: Bloom, J.

COUNSEL: Steven Benmor, for the Applicant

John Bruggeman, for the Respondent

HEARD: January 7, 2021

E N D O R S E M E N T

I. INTRODUCTION

1The Applicant moves for an order pursuant to the order of Justice Baltman dated October 18, 2019 determining the sum that the Applicant is to pay the Respondent for the purchase by him of their jointly owned matrimonial home at 4482 Kingston Court in Mississauga.

2The Respondent seeks a dismissal of the motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

3The parties were married on August 20, 2011, and separated on October 1, 2018.

4On October 18, 2019 Justice Baltman ordered that the matrimonial home at 4482 Kingston Court in Mississauga was to be listed for sale forthwith. Justice Baltman set out terms for the sale, including “from the proceeds of sale…outstanding property taxes…utilities, real estate commissions, legal fees and disbursements and HST…shall be paid and the balance shall be held in trust pending written agreement from the parties for a partial release of monies, further order, or as directed by the court hearing this motion.”

5A purchase and sale agreement dated August 4, 2020 was entered into whereby the parties were to sell to the Applicant. The completion was scheduled for November 1, 2020. The agreement provide for a purchase price of $1,200,000 and a deposit of $110,000.

6The transaction was never completed. Both parties agree that it cannot be completed in its existing form.

7Additionally, there has been litigation in this matter since Justice Baltman’s order, but that order remains in effect.

III. ANALYSIS

8The Applicant argues that I have jurisdiction under and outside Justice Baltman’s order to order the Respondent to accept terms for sale of the matrimonial home to him, and that I should make an order for that sale. One set of possible terms he proposes that I order is that within 30 days the parties will transfer to the Applicant the matrimonial home; and the Applicant will at his expense register a charge in favour of the Respondent for $431,645.00 without prejudice to the claims of the parties to equalization, post-separation adjustments, and other claims.

9The Respondent denies my jurisdiction to order a transfer of property to the Applicant. She argues that I should dismiss the motion and allow Justice Baltman’s order to apply.

10The Applicant relies upon the decision of Justice Gilmore in Levine v. Levine, 2018 ONSC 4620 where Justice Gilmore dealt with a motion for an advance on equalization where the parties agreed on some terms of an order, and the Court fashioned the remainder. The Applicant also relies upon FLR 2 to give me jurisdiction.

11In my view, in the absence of agreement of the parties to vary the order or a motion to vary it, I am jurisdictionally bound to apply the portion of the order of Justice Baltman regarding the disposition of funds quoted above. With respect to the portions of her order regarding sale of the matrimonial home which temporally cannot now be implemented because of the passage of time, under FLR 1 (7.2) and (8) I will make orders specifying reasonable terms for compliance by the parties.

12I will not address any remedies of the parties regarding the purchase and sale agreement, such as in relation to the disposition of deposit monies, since that matter was not before me.

13Accordingly, I order that paragraph 2 of the order of Justice Baltman of October 18, 2019 is to be implemented with the following changes: in subparagraph (1) March 10, 2021 is to replace January 10, 2020; in subparagraph (2) March 24, 2021 is to replace January 24, 2020; in subparagraph (3) April 15, 2021 is to replace April 1, 2020; and at the commencement of subparagraph (7) “the parties” is to replace “the Respondent.”

IV. COSTS

14I will receive written costs submissions of no more than 3 pages, excluding a bill of costs. The Respondent shall serve and file her submissions within 14 days from release of this endorsement. The Applicant shall serve and file his submissions within 14 days from service of the Respondent’s submissions. There shall be no reply.

Bloom, J.