Overview

[1] The Applicant mother, Ferris Bledin (“Ferris”), brings a motion to stay a civil action or consolidate such action with this family Application.

[2] Ferris and the Respondent father, Adam Bledin (“Adam”), began living together on June 1, 2016 and were married on December 11, 2016. They separated on June 1, 2020. They have one child who is three years old.

[3] The parties jointly own the matrimonial home located in Toronto, Ontario (the “matrimonial home”).

[4] There is no dispute that Adam’s father, Geoffrey Bledin (“Geoffrey”), advanced the parties $1 million toward the purchase of the matrimonial home. Ferris says that the money was a gift and Geoffrey says it was a loan.

[5] Adam and Ferris signed a Promissory Note in Geoffrey’s favour, dated August 5, 2016 for the $1 million advance towards their purchase of the matrimonial home.

[6] Under the Promissory Note, Ferris and Adam agreed to sign and deliver an acknowledgment of their indebtedness to Geoffrey upon request. Further, they agreed that if they failed to do so within five days of his request, they would be in default.

[7] The Promissory Note states that Geoffrey’s only recourse to recover his loan is against the matrimonial home. Adam and Ferris are not personally liable for the debt owing to him.

[8] On August 5, 2016, a $1 million charge in favour of Geoffrey was registered on title to the matrimonial home.

[9] On September 11, 2020, Geoffrey’s real estate lawyer wrote to Ferris and formally requested that she sign and return an Acknowledgment with respect to the debt owing to Geoffrey. Ferris did not sign the Acknowledgement.

[10] Ferris commenced this Application on October 1, 2020. Included in the relief she seeks is a claim for exclusive possession of the matrimonial home and its contents and equalization. In para. 22 of her Application, she seeks an order that the $1 million charge on the matrimonial home be set aside.

[11] In her Application and in the affidavit filed for her motion, Ferris disputes that the $1 million was a loan from Geoffrey. It is her position that the money was a gift.

[12] In his Answer, Adam seeks relief including equalization, exclusive possession and an order for immediate sale of the matrimonial home. He asks that para. 22 of the Application be struck. He acknowledges the debt owed to Geoffrey.

[13] Geoffrey elected to enforce the Mortgage. On October 9, 2020, he issued a Notice of Sale Under Mortgage and a Notice of Intention to Enforce Security in accordance with the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3.

[14] On November 16, 2020, Geoffrey started a civil action in the Superior Court of Justice in Toronto, seeking possession of the matrimonial home from Adam and Ferris. He intends to bring a motion for summary judgment in that proceeding.

[15] Ferris and Adam continue to live together in the matrimonial home because they are unable to agree on the terms for an interim parenting schedule. They recently completed a Section 30 Assessment with Howard Hurwitz. They have a long motion scheduled for May 13, 2021 in which a decision will be made about both parties’ claims for exclusive possession, the interim parenting schedule, and interim child and spousal support.

[16] On this motion, Ferris seeks an Order that Geoffrey’s civil proceeding be stayed until the hearing of this family law matter, or in the alternative, that the cases be consolidated and heard together in this court (by a judge on the Family Team). Both proceedings have been issued in the Superior Court of Justice in Toronto. Geoffrey’s proceeding is on the Civil Team and the mother’s Application is on the Family Team.

Legal framework

[17] Rule 12(5) of the Family Law Rules, O. Reg. 114/99 allows for “cases, claims or issues” to be heard together when it would be “more convenient”.

[18] A “case” as defined in r. 2(1) of the Family Law Rules “means an application or any other method allowed in law for bringing a matter to court for a final order or provisional order, and includes all motions, enforcements and appeals” (emphasis added). Rule 2(1) of the Family Law Rules states that “court” means “the court in which a case is being heard.”

[19] The wording of this rule and the definitions are broad enough to encompass Geoffrey’s civil “matter” that is before the court. As a result, this rule can be used to order that the civil action and this family application be “heard together”, if it would be “more convenient.”

[20] There is no specific guidance in the Family Law Rules that deals with r. 12(5) and its application. Where the Family Law Rules do not cover a matter adequately, r. 1(7) states that the court may decide a case with reference to the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Malkov v. Stovichek-Malkov, 2015 ONSC 4836 at paras. 12-14. I adopt this approach on this motion.

[21] Rule 6.01(1) of the Rules of Civil Procedure is relevant. This rule sets out the criteria to be met when a party is seeking relief to manage two proceedings. The rule states:

(1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

[22] Section 106 of the CJA also provides that a court, on a motion by any person, may stay any proceeding in the court on such terms as are considered just. The test as set out in r. 6.01(1) of the Rules of Civil Procedure is also set out in s. 107(1) of the CJA.

Analysis

[23] As stated in Malkov at para. 14, the following factors are relevant when considering a request to consolidate under r. 6.01(1):

a. The extent to which the issues in each action are interwoven;

b. Whether there is a risk of inconsistent findings or judgments if the actions are not joined;

c. Whether the issues in one action are relatively straightforward compared to the complexity of the other action;

d. Whether a decision in one action, if kept separate and tried first, would likely put an end to the other actions or significantly narrow the issues for the actions or significantly increase the likelihood of settlement;

e. The litigation status of each action;

f. Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.

[24] The facts in Malkov are very similar to this case. The matrimonial home was registered in the name of the husband and wife. The husband’s father alleged that he provided all the money to purchase the matrimonial home and paid for the upkeep. In the family proceeding, the mother claimed her half interest in the matrimonial home and asked that she receive a lump sum for spousal support to be paid from the husband’s half interest in the home. The Court allowed the mother’s motion to combine the two cases because it was in the interest of justice to do so and the balance of convenience favoured such an order. The reasoning of the court in Malkov supports the same conclusion on this motion.

[25] In assessing whether there is a question of fact or law in common to both proceedings, the focus is on whether the proposed common issue has sufficient importance in relation to the other facts or issues that it would be desirable that the matters be consolidated, heard at the same time, or after each other: Klassen v. Klassen, 2020 ONSC 4835 at para. 40; see also Malkov at paras. 14-15.

[26] While claims of support and parenting are not overlapping, the gift versus loan is a central issue in both proceedings. In both proceedings, the dispute arises from the same transaction (the purchase of the matrimonial home). The facts and central legal issue are the same in both proceedings: was the $1 million a gift or loan. A finding of fact that the money was a gift will negatively impact Geoffrey’s claim and positively assist Ferris with equalization and her claim for possession of the matrimonial home.

[27] The evidence that Ferris relies upon will be the same in each proceeding. She states that she did not receive independent legal advice when she signed the documents. She admits that she met a lawyer but explains that this was for the purpose of selling her condominium and arranging for a first mortgage on the matrimonial home with Augusta Fruit Limited. The net proceeds from the sale of her condominium were used to pay the Land Transfer tax on the matrimonial home. Of course, Geoffrey will argue that Ferris knew it was a loan and that she did have independent legal advice.

[28] Ferris says she understood that the documents she signed were a “formality,” that Geoffrey had given each of his children money to help buy their first home and that it would all be sorted out in the grandfather’s estate planning. She believed that the $1 million was a gift and that the documents were for the purpose of internal family estate planning.

[29] The outcome of this issue impacts the equalization of the net family property. It also impacts who has a right of possession to the matrimonial home.

[30] Geoffrey would typically be called as a witness in the family proceeding even if he had not issued his own claim.

[31] The family Application has more issues and on this basis is more complex. However, the proceedings share the isolated issue of whether the $1 million is a gift or loan.

[32] The risk of inconsistent findings of fact is clear and obvious if each matter proceeds separately.

[33] Neither proceeding is further ahead of the other. While Geoffrey argues that his civil claim can be decided quickly on a summary judgment, the Family Law Rules also allow summary judgment motions.

[34] More importantly, the Family Law Rules provide the court with numerous tools to effectively manage proceedings to ensure that cases are dealt with justly. Rule 2(2) and (3) provides the following direction:

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[35] To promote the primary objective in r. 2(2), r. 1(7.2) of the Family Law Rules gives the court the power to make numerous procedural orders, including those listed at (a) through (q). Orders can be made to ensure that Geoffrey’s participation is fairly dealt with and that the case is managed to save time and expense for all involved.

[36] A decision in the civil action may assist in ending or significantly narrowing the property issues in the family law action. However, a date for the summary judgment motion in the civil court has not been scheduled and there is no evidence about when that motion could be heard. Allowing the civil action to proceed while holding the “gift/loan issue” in the family Application in abeyance is not practical. I adopt the Court’s consideration of this point in Malkov at para. 15d, which is equally applicable in this case:

… However, for one proceeding to be held in abeyance while the other one reaches trial is impractical, and in this case, may frustrate the goal of having the family law dispute resolve in a timely manner. This is an extremely important factor given that custody, access and support are involved.

[37] The next step in the family Application is a long motion scheduled for May 13, 2021 in which a decision will be made about both parties’ claims for exclusive possession, the interim parenting schedule, and interim child and spousal support. A schedule has been set for exchange of affidavits. Geoffrey has an interest in this motion because he seeks possession of the matrimonial home.

[38] Based on the above analysis, I find it is in the interest of justice to combine the two cases and therefore order under r. 12(5) of the Family Law Rules that they be heard together. This option is convenient and the balance of convenience favours such an order.

[39] To simply stay the civil action is not fair to Geoffrey. He would be restricted to his role as a witness. His claim should be heard together with the family Application before a judge on the Family Team in Toronto. If he wants to participate in the May 13, 2021 motion, he should be entitled to do so and to file an affidavit. The parties should be able to agree on the mechanics of this participation. If not, an urgent case conference should be booked, and that judge can make the necessary orders. If Faieta J. is available, it should be scheduled before him as he is familiar with the Application.

[40] In summary, I make the following orders:

Geoffrey Bledin’s Claim in File No. CV-20-651362 shall be heard together with this Application before a judge on the Family Team in the Superior Court of Justice in Toronto.
If required, the parties shall schedule an urgent case conference before Faieta J. (and if he is not available before another judge on the Family team), to decide Geoffrey Bledin’s participation in the May 13, 2021 motion and going forward.
If the parties cannot agree on the costs of this motion, they shall exchange brief costs submissions and file them with the court by April 30, 2021.

C. Horkins J.

Date: April 9, 2021

Bledin v. Bledin, 2021 ONSC 2674

Case Summary

Overview

Legal framework

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 4