Court File and Parties

COURT FILE NO.: FS-20-16819 DATE: 20220119 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robina Shiwmangal, Applicant AND: Deosarran Shivpaul, Kevin Shivpaul and Dindiyal Dindiyal, Respondents

BEFORE: Pinto J.

COUNSEL: Nafisa Nazarali, for the Applicant Kevin Shivpaul, self-represented

HEARD: January 13, 2022

Endorsement

[1] I heard a motion on January 13, 2022, brought by the applicant wife for an order that the respondent husband, Deosarran Shivpaul arrange to retrieve certain items from the garage of the former matrimonial home where the applicant and the parties' two children reside. I granted the applicant's motion at the conclusion of the motion with written reasons to follow. These are my reasons.

[2] The second respondent, Kevin Shivpaul, is the son of the applicant and respondent Deorsarran Shivpaul.

[3] The third respondent Dindiyal Dindiyal did not participate in the motion.

[4] The wife has an order per Faieta J. dated June 23, 2000 for interim exclusive possession of the matrimonial home and a restraining order such that the respondents Mr. Shivpaul and Mr. Dindiyal shall not attend within 100 metres of the matrimonial home.

[5] As well, there is a Consent which has been submitted as part of a 14B motion which states:

The Respondent, Deosarran Shivpaul shall circle the items he wishes to obtain from the garage from the pictures provided to him and advise of the furniture he wishes to obtain. The Respondent, Kevin Shivpaul shall make arrangements to place these items in the driveway on an agreed upon date for the Respondent's appointed third party to pick up. If these items are not picked up on the agreed upon date, the Respondent, Kevin Shivpaul shall be free to dispose of the items.

[6] Despite the foregoing, the respondent opposes the motion because he is concerned that, if he consented to the applicant's motion, certain personal items in the home that he had not identified (via circling the photos of items in the garage) would be discarded or destroyed by the applicant.

[7] I note the following: (a) The applicant stated in her affidavit, "I have placed all of Mr. Shivpaul's personal belongings in the garage for pick up and nothing else remains in the home that belongs to him." (b) The respondent believes that he has "items of value in nooks and crannies of the home" that he wishes to have and keep. However, in his affidavit, he could not name any particular item. (c) The respondent's concern stems from what happened with a briefcase of his, left in the matrimonial home, which allegedly contained the respondent's personal items, that was never found. (d) The parties separated on January 30, 2015 and the respondent left the home on March 20, 2015. It has been over 6 years since the date of separation.

[8] At the hearing of the motion, I permitted Kevin Shivpaul ("Kevin") to provide viva voce evidence after being solemnly affirmed. Kevin, 33, who has resided in the home with his mother and sister for the past 10 years stated that, to the best of his knowledge, none of his father's items are still in the house. Kevin moved his father's personal belongings to the garage and placed them in boxes.

[9] Based on the foregoing, I am satisfied that all of the father's remaining personal belongings have been moved to the garage. The applicant's proposal whereby photographs of items in the garage are to be sent to the respondent who will identify them (by circling items on the photographs) is a reasonable one that is consistent with the existing Final Consent order (which already outlined a process of retrieval for the respondent's belongings), the interim exclusive possession order, and the restraining order.

[10] I do not find that there is any valid reason why the respondent needs to attend at the former matrimonial home. By signing the Final Consent (which has been submitted as an Order under 14B) the parties sought finality. The relief being sought by the applicant, as reflected in her amended draft order, is consistent with previous orders and that finality. The applicant's motion should be granted.

[11] The applicant sought $3,500 in costs on a full-indemnity basis, or $2,000 on a partial indemnity basis (roughly 60% of full-indemnity). The respondent argued that no costs should be ordered as judicial involvement was necessary to address the respondent's legitimate concerns that his personal items would be discarded without a proper process. In the alternative, the respondent argued that he should only have to pay $1,000 in costs out of the eventual proceeds of sale of the former matrimonial home.

[12] Based on the factors identified in Rule 24(12) of the Family Law Rules, I find that the applicant has been successful on this motion and costs should be fixed in the amount of $2,000 payable within 30 days of the release of my Reasons. The applicant should not have to wait until the sale of the matrimonial home to receive costs.

[13] An Order shall go in the form provided to me by the applicant.

Pinto J. Date: January 19, 2022