Court File and Parties

COURT FILE NO.: FS-19-42419 DATE: 20210622 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: T.O., Applicant AND: D.O., Respondent

BEFORE: Conlan J.

COUNSEL: Ms. Ursula Cebulak, Counsel for the Applicant Mr. Robert Kostyniuk, Q.C., Counsel for the Respondent

HEARD: June 21, 2021

ENDORSEMENT

I. Introduction

The Parties

[1] The Applicant husband, T.O., is in his early sixties, and the Respondent wife, D.O., is in her early fifties. They met in 2001. T.O. had three children from a prior relationship, and D.O. had one child from a prior relationship. In 2005, the parties had a son together. The couple married in 2007 and separated in 2018.

The Litigation

[2] In July 2019, T.O. had his Application issued. He sought a variety of relief regarding the child born in 2005 and with regard to property and financial matters, and he sought a declaration that the marriage contract (“Contract”) signed by the parties in December 2009 is valid.

[3] This Court ruled previously that the Contract is indeed valid.

[4] D.O. has also made several claims including but not limited to child support. The pleadings were ultimately amended by each side.

[5] The litigation has been fast and furious. Since September 2020, there has been an Endorsement released on almost a monthly basis. It would appear that the case is headed for a very lengthy and most expensive trial, and the parties unfortunately will receive no priority on trial dates given that there are no issues about decision-making responsibility concerning the child.

The Motions

[6] On June 21, 2021, two more Motions were argued, briefly, before this Court. One brought by each side. The decision must be given without delay because this Court is not sitting for some time after this week, and the closing of the sale of the matrimonial home is scheduled for July 8, 2021.

II. Analysis

A. D.O.’s Motion dated June 11, 2021

[7] The following subheadings mirror the relief sought at page 2 of D.O.’s Notice of Motion dated June 11, 2021, excluding the matter of costs.

An Order to Change the Temporary Order of January 14, 2021 to Permit the Release of the Net Proceeds of Sale of the Matrimonial Home

[8] This relief is granted, and T.O. should have simply consented to it.

[9] As a joint owner of the matrimonial home, D.O. is presumed to be entitled to half of the net sale proceeds. It is undisputed that she and the child are the ones who have to move, as T.O. has a residence in the Collingwood area. I accept D.O.’s evidence that she has made an offer to purchase a new home on the same day as the closing of the transaction regarding the matrimonial home, and it should be obvious to everyone that she cannot afford to buy that new home without her share of the net sale proceeds.

[10] T.O.’s argument that $400,000.00 should be held back from D.O.’s share of the net sale proceeds on account of loans allegedly extended by T.O. to her and her business in 2012 and 2013 does not find favour with this Court. That alleged indebtedness is an issue for trial. There are defences raised on behalf of D.O., including that the funds advanced were gifts and not loans, and a limitation period argument, and an argument about who owes the money, D.O. personally or her company.

[11] The bottom line is that these parties have chosen to litigate “all-in”. So be it; they are entitled to do that. The consequence, however, is that they cannot expect to have issues for trial adjudicated upon on the instalment plan, every month or so, on motion. Except for issues that can readily and safely be decided on affidavit evidence, this Court will be sending the matter along to trial.

An Order Assessing Liability for T.O.’s TD Line of Credit, for Payment out of T.O.’s Share of the Net Sale Proceeds

[12] This relief is denied, for the reasons stated immediately above. The allegations made at paragraph 7 of D.O.’s Affidavit sworn on June 11, 2021 require a trial for their resolution.

[13] There shall be no reduction from D.O.’s share of the net proceeds of sale of the matrimonial home to account for her alleged liability concerning the said TD line of credit. What T.O. chooses to do about paying off all or some or none of that line of credit from his share of the net sale proceeds is up to him.

An Order Assessing Interim Child Support in the Sum of $910.00 per Month Commencing June 1, 2018

[14] This relief is denied. If D.O. wants to vary my January 14, 2021 Temporary Order, in terms of the start date of T.O.’s child support obligation, then she can take that up at trial.

An Order Paying into Court the Sum of $200,000.00 for Future Child Support and Section 7 Expenses

[15] This relief is denied. I am not satisfied, on balance, that there is no likelihood that T.O. will pay child support and his appropriate share of section 7 expenses in the future, such that this type of security is strictly required, as was the case in Fogel v. Chiriatti, 2017 ONCA 1000 (see, in particular, paragraph 13 therein).

[16] I am disappointed, however, to learn that T.O. is in arrears of child support. There is no excuse for that. Those arrears, five months at $910.00 per month, shall be paid to D.O. out of T.O.’s share of the net proceeds of sale of the matrimonial home. So ordered.

An Order for the Appointment of a Referee to Determine the Allocation of Chattels

[17] This relief was not opposed by Ms. Cebulak in oral submissions delivered on June 21, 2021. It was indicated that “perhaps” a Referee is a good idea, given that these parties cannot seem to agree on anything. As such, the relief requested is granted.

An Order to Fix July 1, 2021 as the Date for T.O. to Remove all Chattels Not in Dispute, with Disputed Chattels to be Placed in Storage

[18] This relief is granted. T.O. states that the earliest that he can accomplish this is on July 7th. That is not acceptable. Can you imagine these parties giving themselves just 24 hours to iron-out any remaining wrinkles, and we know that those will exist, ahead of the closing date of July 8th? Disaster will surely ensue, placing the closing in serious jeopardy.

[19] The July 1st date is necessary. T.O. will have to make other arrangements.

B. T.O.’s Motion dated June 14, 2021

[20] The following subheadings mirror the relief sought at page 2 of T.O.’s Notice of Motion dated June 14, 2021, excluding the matter of costs.

An Order that D.O. Shall be Solely Liable to Pay from her Share of the Net Sale Proceeds the Balance Outstanding on the TD Second Mortgage

[21] At paragraph 23 of D.O.’s second Affidavit, sworn on June 18, 2021, she states that “[t]he mortgage will be discharged upon closing, and any balance on the Line of Credit will be transferred to new security”.

[22] This should satisfy T.O. Thus, this Court orders that D.O. shall keep her word and do what she agreed to do in her said Affidavit. Counsel can agree on the wording for insertion into the Order.

An Order that the Sum of $400,000.00 be Held Back from D.O.’s Share of the Net Sale Proceeds on Account of Loans Advanced by T.O.

[23] This relief is denied, for the reasons stated earlier in this Endorsement. A trial is required with regard to the alleged loans.

An Order that D.O. Shall Pay Costs to T.O. in the Amount of $19,697.13

[24] On a full recovery basis, T.O. claims costs of $5,819.60 for an earlier Motion to force the sale of the matrimonial home, which request this Court granted, and $13,877.53 for the trial of an issue, that is the validity of the Contract.

[25] On both matters, T.O. was successful and is presumed to be entitled to some costs. D.O. does not suggest otherwise, but she does recommend that a more appropriate quantum of costs in favour of T.O. would be $6500.00, total.

[26] With regard to the earlier Motion to force the sale of the matrimonial home, I find that $2500.00 in costs is plenty. Ultimately, albeit very late, the relief was granted on consent.

[27] Regarding the trial of an issue, that is the validity of the Contract, I elect to award to T.O. seventy-five per cent (75%) of his costs, $10,408.15. Something higher than the usual partial indemnity scale is justified because of the way in which the trial unfolded, which comments will not be repeated here. Reference should be had to the decision reported at T.O. v. D.O., 2021 ONSC 3949.

[28] The total costs award, therefore, is $12,908.15. D.O. shall pay that sum to T.O. out of her share of the net proceeds of sale of the matrimonial home. So ordered.

C. Costs of the Two Motions Argued at Court on June 21, 2021

[29] There will be no costs ordered in favour of either party with respect to the two Motions disposed of herein. The Motions were argued very briefly and on materials that were not extensive. There was divided success overall. And, frankly, a no costs order might act as a disincentive to bring further motions in this case.

(“Original signed by”)

Conlan J.

Date: June 22, 2021