Court File and Parties

COURT FILE NO.: FS-20-18231 DATE: 20210901

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sylvain Bergeron, Applicant AND: Megan Brianne Priaulx, Respondent

BEFORE: Pinto J.

COUNSEL: Mandeep Brar, Agent for the Applicant Matthew Giesinger, for the Respondent

HEARD: September 1, 2021

ENDORSEMENT

Overview

[1] On August 31, 2021, I heard the applicant’s motion via Zoom for summary judgment seeking dismissal of the respondent’s claims for equalization and spousal support, in order that his application for simple divorce can proceed.

[2] On the day of hearing, I dismissed the applicant’s motion for summary judgment and awarded costs to the respondent, with written reasons to follow. These are those reasons.

Discussion

[3] This was a very short marriage of 18 days. The applicant states that the parties were married on October 18, 2018; the respondent states they were married on October 19, 2018. In any event, it appears the parties separated on or around November 5, 2018.

[4] There are no children of the marriage.

[5] The applicant states that the parties dated since July 2018. The respondent states that they dated since April of 2018.

[6] Shortly before their marriage, the parties made a decision to purchase a home together in the Scarborough area of Toronto. They jointly made an offer on a residential property on October 16, 2018. I note that this is two or three days before their marriage.

[7] The respondent claims that on the strength of her credit, the applicant succeeded in obtaining financing for the property.

[8] The applicant states that, on November 5, 2018, the respondent overheard a call that he had with his banker where the banker referred to the applicant’s previous relationship with a former partner as his “wife”. Apparently, the respondent believed from overhearing this conversation that the applicant had been or was still married to this partner. This apparently led to the breakdown of the parties’ marriage.

[9] The respondent’s evidence does not speak to what happened on November 5. However, the respondent states that on October 22, 2018, the couple were on their honeymoon in Arizona when she read a text message on the applicant’s phone from the applicant’s banker that stated, “Hi Sylvain, its Saied the bank broker I require a Copy of your Court documents because your tax papers state you’re separated.”

[10] The respondent’s motion material details her subsequent efforts to verify the applicant’s true former marital status. The respondent claims that the fact that the applicant was previously married was confirmed to her in two phone calls and via ServiceOntario.

[11] On November 6, 2018, the Agreement of Purchase and Sale (APS) on the Scarborough property was amended to remove the respondent’s name from the APS. The respondent does not make reference to this document in her motion material. The purchase was completed on November 29, 2018.

[12] The application for simple divorce was commenced on August 24, 2020. The respondent’s answer brought forth claims for equalization and spousal support.

[13] The applicant’s claims that summary judgment dismissing the respondent’s claims should issue. Reading the applicant’s affidavit and factum, I am left to surmise that summary judgment should issue because: (a) this was a marriage of extremely short duration; (b) the parties did not reside together before or after the marriage; (c) the respondent was self-sufficient being gainfully employed by the City of Toronto; and (d) with respect to the equalization claim, the respondent provided no funds for the purchase of the Scarborough property.

[14] However, the problem with the applicant’s motion is that the applicant has failed to properly address the two main aspects of the respondent’s claim, namely that he used her credit to purchase the Scarborough property; and that he lied about his true marital status.

[15] I understand the respondent’s claim to be that, despite the very short duration of the marriage, she has an arguable claim to equalization and spousal support: Booth v. Vilek, 2021 ONCA 128 (C.A.); and Hindocha v. Patel, 2009 CanLII 23871 (ON SCDC). The respondent claims, on the strength of her credit, the husband purchased the property in Scarborough. She also claims that that she has suffered significant health problems and psychological issues related to the breakdown of the relationship after the applicant lied about being previously married.

[16] The husband’s motion materials do not provide a clear picture of whether and to what extent he used the respondent’s credit to purchase the Scarborough property. The applicant’s financial statement makes no reference to the Scarborough property. Is this because he disposed of it already? The court does not know because the applicant’s affidavit is silent on this point. The applicant’s financial statement contains his Notices of Assessment (NOAs) but not his tax returns which may have indicated his true marital status.

[17] Moreover, the husband’s affidavit does not clearly state that he was not married previously. He states, “The Respondent believed, from overhearing this conversation, that I had been or was still married to my ex-girlfriend. There was no reasoning with the Respondent in my repeated attempts to convince her that my ex-girlfriend and I had never been married.” This is not tantamount to a clear refutation of the respondent’s allegation that he was married previously, or is still married.

[18] Accordingly, on the material before me, it is not clear to me that the question of property equalization and spousal support are not genuine issues requiring a trial. The applicant’s motion for summary judgment is dismissed.

Costs

[19] The respondent has been successful on the motion and requests $6,500 in costs which are 66% of the respondent’s full indemnity costs. The applicant claims such costs are excessive and suggests that costs in the amount of $3,250 would be appropriate. I was critical of both counsel who attended the motion without providing documentation of their position on costs which is required by Rule 24(12.1) of the Family Law Rules.

[20] I find that the applicant’s motion for summary judgment was brought without any justifiable basis. Basic financial disclosure was not provided, and the applicant’s affidavit was bereft of information that was key to the dispute.

[21] I find an award of $5,000 to be an appropriate amount balancing the factors referenced in paragraph 24(12) of the Family Law Rules. The applicant shall pay costs fixed in the amount of $5,000 to the respondent within 30 days of the release of this endorsement.

Pinto J.

Date: September 1, 2021