Court File and Parties
Court File No. FC-16-50311-00
Superior Court of Justice
ENDORSEMENT
Applicant(s): Owen Cornelius Mullings Counsel: Self-represented
Respondent(s): Jacqueline Alice Diana Robertson Counsel: L. Daitchman
Date: May 3, 2021
Endorsement
[1] By Order granted pursuant to a 14B motion on October 29, 2020, I determined that I would conference the outstanding issues arising from my Final Order dated February 28, 2019, rendered after a seven day trial.
[2] Pursuant to that Order, the former matrimonial home was to be sold. The parties have been unable to agree upon how to list the home for sale and how to divide the proceeds of sale.
[3] The Order allowed the parties to meet with me regarding any problems in implementing the Order.
[4] In ordering the conference, I requested that the parties provide me with a synopsis setting out areas of dispute and their respective positions.
[5] I have received a document entitled Final Order Implementation Conference Brief from the Applicant and a document entitled Synopsis of Issues from the Respondent.
[6] The Applicant’s Brief recited numerous disputes that he has maintained with respect to my fact-finding at trial. The Applicant has unsuccessfully appealed my Final Order to the Ontario Court of Appeal on two occasions. He was denied leave to appeal to the Supreme Court of Canada. Although he articulated his arguments well, I was required to remind him on numerous occasions that I was unable to go behind my Final Order.
[7] Ultimately I was able to determine that the crux of the Applicant’s arguments was that the Respondent was in breach of the Final Order by refusing to list the property for sale in accordance with the Final Order that required the property to be listed for sale within 45 days from the release of my Ruling on Costs. That Ruling was released on October 31, 2019 and accordingly the home was to be listed for sale by December 15, 2019.
[8] Based on the delay in listing the home for sale, the Applicant objects to sharing in the carrying costs of the home from the date of the Final Order until the home is sold as required by the Final Order. Evidence suggests that the Applicant commenced requesting a sale of the property in March 2020. Although not before me, it appears that the Applicant has prepared a contempt motion with a supporting affidavit in excess of 100 pages.
[9] The Respondent maintains that she did not list the property pursuant to the Final Order because, initially, she wished to ascertain the precise amounts owed by the Applicant to her to enable her to determine the quantum of funds available to her to arrange to purchase a new residence for herself and daughter or to determine if she could afford to purchase the Applicant’s interest in the home. Soon thereafter the pandemic arrived which deterred listing the property for sale. The parties were also not in agreement with what was entailed in the Final Order that entrusted the Respondent with carriage of the sale. In addition, the Applicant had pending appeals before the higher courts although, as the Applicant submits, he was not appealing that part of the Final Order that required the property to be sold.
[10] The pandemic also delayed the Respondent’s ability to involve this court in resolving any disagreements regarding the listing for sale of the home as the court’s protocol restricted access to the courts for urgent matters.
[11] Based on the Respondent’s explanations, I have indicated to the Applicant that I was of the belief that a contempt motion would be unsuccessful and cause further delay in achieving closure of the outstanding issues. I did agree with the Applicant, however, that the Respondent was in breach of the Final Order although I found no evidence, whatsoever, of the alleged fraudulent motivation.
[12] After extensive discussions it was determined that from the date of the Final Order until July 2021, the expected date for the sale of the home to be completed, the added carrying charges to the Applicant for Mortgage, Realty taxes and home insurance totals $20,383.49. Hypothetically, it was agreed upon that had the property been sold earlier (such as March 2020), the Applicant’s added carrying costs would have been approximately $8,404.05, resulting in added expenses to the Applicant in the sum of $11,979.44 due to the delay in the sale of the property. I proposed to the parties that the sum of $11,979.44 would be held back from the Respondent’s share of the expected proceeds of sale to enable the property to be sold and the bulk of the sale proceeds disbursed to them and then the Applicant could pursue his motion regarding the extent of his added liability for carrying costs, if any. To the credit of the parties, they have agreed that the Applicant will be responsible for $6,000 and the Respondent the balance of carrying costs.
[13] I wish to emphasize that I ensured that this was the Applicant’s choice and that, as a self-represented litigant, he did not feel pressured into resolving this issue and I was assured by the Applicant that he wished the matter to conclude now rather than later.
[14] On the basis of the above, the following Order will assist the parties in effecting a sale of the former matrimonial home and disburse the proceeds of sale in full and final satisfaction of the Final Order.
OTG:
The property municipally known as 97 Shirrick Drive, Richmond Hill, Ontario shall be listed for sale on MLS by May 15, 2021 at a list price recommended by the chosen real estate agent.
The Respondent shall determine the choice of listing agent and notify the Applicant as to the identity of the agent.
The Applicant shall sign the listing agreement within 48 hours of it being presented to him.
If the listing agreement is not signed within 48 hours, the matter shall be referred to me by contacting my Judicial Assistant: nurit.suzana@ontario.ca to arrange an Urgent Conference. Each party may file a three page Brief. The onus shall be on the Applicant to satisfy me that the suggested listing agreement is deficient. If it is allegedly deficient in the list price, the Applicant shall provide two independent opinions of value from accredited real estate agents and the Respondent shall provide me with the opinion of her chosen real estate agent regarding the list price. I shall determine the issue and award costs if deemed appropriate.
The Respondent shall choose the solicitor to handle the completion of the sale process and to respond to any inquiries from the purchaser’s solicitor. The legal fees and disbursements of the Respondent’s chosen solicitor shall be the equal responsibility of the parties with the legal account paid from the proceeds of sale.
The Applicant is at liberty to have his own real estate solicitor represent him on the sale process and to review the closing documents and attend upon the Applicant to have such documents executed by the Applicant. The Applicant shall be solely responsible for his own legal fees in this regard.
Upon the completion of the sale of the property, the proceeds of sale shall be disbursed as follows:
(a) to discharge any encumbrances against the property, being the mortgage on title and any realty taxes owing (the realty taxes at the expense of the Respondent);
(b) to discharge any final utility accounts and retain necessary holdback of funds to give effect to this clause ( all at the expense of the Respondent);
(c) to pay the balance of real estate commission owing;
(d) to pay the legal account and disbursements associated with the solicitor’s representation of the parties;
(e) to divide the net proceeds of sale by paying to the Applicant 50% of the net proceeds less the sum of $210,673.90 (per Final Order as revised on consent including carrying costs, support arrears and costs) less the sum of $1,644.15 representing a holdback regarding the outstanding costs potentially owing from the Supreme Court of Canada;
(f) to divide the net proceeds of sale by paying to the Respondent 50% of the net proceeds plus the sum of $210,673.90 (per Final Order as revised on consent including carrying costs, support arrears and costs) less the payment and/or holdback for payment of any outstanding utility accounts;
(g) upon the Supreme Court of Canada determining the costs (if any) owing by the Applicant, the real estate solicitor shall pay such costs to the Respondent from the holdback funds ($1,644.15) and pay the balance of such holdback funds (if any) to the Applicant. If the costs are determined prior to the completion of sale, particulars shall immediately be provided to the real estate solicitor;
(h) if there are any disagreements with respect to paragraph 7 herein, the parties shall attempt to resolve such disagreement between themselves. If resolved, any required amendments to paragraph 7 shall be communicated to me at the address above and I shall release an amended Order. If any such disagreements are unresolved, the parties are to request an Urgent Conference (as above) and provide me, beforehand, with a two page synopsis of the disagreement; and
(i) following the completion of the sale, if there remains any matters in dispute covered by this Order, I will accept a 14B (as above) which will be supported by an affidavit of four pages maximum length indicating the items in dispute and the proposed remedy. If I am unable to resolve the disputes in writing, I will arrange for the parties to appear before me by virtual means. After hearing the matter (in writing or by Zoom), I shall determine the issue and award costs if deemed appropriate.
- To assist the real estate solicitor in disbursing the proceeds of sale, this Order shall be prepared, issued and entered immediately. Any disagreements regarding the Order shall be directed to my attention at the address set out above.
Justice R. Kaufman