Sanvictores v. Sanvictores, 2023 ONSC 2473

Court File and Parties

COURT FILE NOS.: FS-20-20794-000 DATE: 20230424 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KYLE SANVICTORES, Applicant AND: NANCY SANVICTORES, Respondent

BEFORE: M. D. Faieta J.

COUNSEL: Nadia Warsi, for the Applicant No one appearing for the Respondent

HEARD: March 23, 2023

Endorsement

faieta J.

[1] The Applicant brings this motion for an order, amongst other things, removing a charge on title to a property granted to the Respondent’s mother and for an order terminating the payment of child support to the Respondent given that their two children have resided with the Applicant since September 2022.

[2] The Respondent was served with the motion materials on March 1, 2023 but did not respond.

Background

[3] The parties separated on May 2, 2020 after almost eight years of marriage.

[4] The parties own a condominium (33-780 Sheppard Avenue East, North York, Ontario) which is leased to a third party (“the Rental Property”). The Applicant sought to have the rental property listed for sale however the Respondent objected and wanted her mother, Sarah Elyas, a real estate, to purchase it. Ms. Elyas did specify the price that she was willing to pay for the purchase of the rental property and the Applicant brought a motion to have the rental property listed for sale.

[5] On May 3, 2022, I granted the Applicant Father’s motion for the sale of the condominium and related matters. The orders granted include the following:

1. On or before May 10, 2022, the parties shall sign all documents necessary to list their rental property, namely the property municipally known as 33-780 Sheppard Avenue in North York, Ontario (“the Rental Property”), for sale.
2. The parties shall cooperate with the Realtor(s) on the sale of the Rental Property.
3. If the parties cannot agree upon a Realtor to list the Rental Property for sale on or before May 6, 2022, the parties shall each choose their own arm’s-length Realtor who will co-list the Rental Property for sale.
4. The Realtor(s) shall communicate directly with the tenants of the Rental Property for the purposes of selling the Rental Property (e.g. to schedule showings and home inspections).
5. If the parties cannot agree upon any details regarding the sale of the Rental Property (e.g. the Listing Price or whether to accept an offer to purchase the Rental Property), the parties shall follow the Realtor(s)’ advice on any such issues.
6. If the parties cannot agree upon a Real Estate lawyer for the sale of the Rental Property within one (1) week of the acceptance of an offer to purchase the Rental Property, the parties shall each retain their own Real Estate lawyer for this purpose. Each party shall pay his/her own Real Estate lawyer’s fees.
7. On or before May 5, 2022, the Respondent Mother shall provide the Applicant Father with the name and contact information of the tenants of the Rental Property.

See Sanvictores v. Sanvictores, 2022 ONSC 2673.

[6] The Respondent failed to provide the Applicant with the name and contact information of the tenants of the rental property and failed to provide the Applicant with the name of an arms-length realtor who would co-list the property. As a result, the Applicant brought a further motion for additional terms related to the sale of the rental property.

[7] For reasons dated May 27, 2022, Horkins J. ordered the appointment of Lina Gueorguieva as the sole listing agent, that dispensed with the Respondent’s consent and signature for the sale of the rental property, that the Respondent not interfere with its sale and that the net proceeds of sale would be held in trust pending further order of this court. The Order states:

1. The consent and signature of the Respondent, Nancy Sanvictores (“the Respondent”) on all documents necessary to list for sale and sell the rental property, namely the property municipally known as 33-780 Sheppard Avenue in North York, Ontario (“the Rental Property”) is not required.
2. The Applicant, Kyle Sanvictores (“the Applicant”) shall retain Lina Gueorguieva (“the Realtor”) as the sole listing Realtor for the sale of the Rental Property.
3. The Rental Property shall be listed for sale at a price recommended by the Realtor.
4. The Realtor shall communicate directly with the tenants of the Rental Property for the purpose of selling this property (i.e. to schedule showings and home inspections).
5. If the Realtor and/or the Applicant require any information from the Respondent, to identify and contact the tenants, the Respondent shall immediately provide such information in writing to the Realtor and the Applicant.
6. The Applicant shall retain a Real Estate lawyer and provide this information to the Realtor.
7. The Applicant shall seek and follow the direction and advice of the Realtor on any issues regarding the sale of the Rental Property.
8. The Respondent shall not interfere, in any way, with the sale of the Rental Property.
9. Justice M. Faieta shall be the decision making judge for all motions pending trial. This includes any motion seeking leave to bring a motion.
10. If any issues arise in the listing and sale of the Rental Property, the Applicant may schedule a motion before Justice Faieta.
11. The net sale proceeds of the Rental Property shall be held in trust by the Real Estate lawyer pending further order of Justice Faieta.
12. The Applicant shall keep the Respondent informed about the listing and sale of the Rental Property.
13. If the parties cannot agree on the costs of these motions, they shall exchange costs submissions limited to 8 pages plus Bills of Costs and file them with the court by June 20, 2022.
14. Approval of the draft order by the Respondent is waived. The order shall be sent directly to Justice Horkins attention for approval and signing.

[8] In making this Order, Horkins J. found:

[2] In summary, Justice Faieta issued orders for the sale of the rental property on the terms proposed by the Applicant. The Respondent mother, Nancy Sanvictores, has failed to comply. As a result, the various deadlines set out by Justice Faieta have expired. In particular, the parties were ordered to each choose an “arm’s length realtor”.

[3] The Respondent refused to comply. She insisted that her mother act as the realtor. Justice Faieta addressed the problem with involving the Respondent’s mother and this is why he ordered an arm’s length Realtor.

[4] On May 5, 2022, the Applicant identified his arm’s length realtor, Lina Gueorguieva and gave the Respondent the contact information for this realtor. As well he asked for the Respondent’s choice of realtor. The Applicant’s counsel followed up with another email on May 6, 2022. In this email counsel told the Respondent that an arm’s length realtor “means that your realtor cannot be your mother, or any other family member or friend of yours”. The Respondent was reminded that she had not complied with para. 7 of Justice Faieta’s order “to provide the name and contact information of the tenants by May 5 2022”. …

[18] The Respondent says that the Applicant is now trying to exclude her from the sale of the rental property. She says that she is now agreeable to “co-list” the rental property “as per Justice Faieta’s” order. She has not provided the name of an arm’s length realtor nor a credible explanation for why she refused to comply with Justice Faieta’s order.

[19] During argument the Respondent stated that she did not understand the term “arm’s length” until she attended before the case management judge late yesterday. The Respondent apparently requested an emergency case conference hearing because of the Applicant’s motion that is before this court. According to the case management endorsement dated May 25, 2022, the Respondent is now prepared to select an arm’s length realtor.

[20] I do not accept the Respondent’s submission that she did not understand the meaning of arm’s length. Even if she did not understand the term, the meaning was made clear to her in the May 6 email from the Applicant’s counsel. And yet the Respondent continued to insist in her affidavit dated May 20, 2022, that she is entitled to choose her mother as her realtor.

[21] The Applicant’s motion was necessary solely because of the Respondent’s complete failure to follow Justice Faieta’s order. The Respondent acted unreasonably. She now wants the court to believe that she will cooperate and follow this order.

[22] The Respondent has a history of non-compliance with many court orders in this application. This is clear from Justice Faieta’s decision set out above. By way of further example, the parties agreed to involve the Office of the Children’s Lawyer and Justice Kraft issued an order. The mother then withdrew her consent and participation. The OCL closed its file. She later changed her mind and decided to cooperate, but the OCL declined further involvement. The Respondent must understand that court orders are not suggestions. When she does not comply, there are consequences, such as the requirement to obtain leave to bring a motion.

[23] Justice Faieta’s May 3 2022 decision is clear. The Respondent chose to ignore it. She now asks for another opportunity to comply. Based on the evidence, I have no reason to conclude that the Respondent would cooperate and follow an order if I allowed her to participate in the sale of the rental property. The Applicant is entitled to have this property sold without delay. This can only be achieved if the Applicant’s motion is granted. The orders I have made now govern the sale of the rental property.

See Sanvictores v Sanvictores, Unreported, May 27, 2022.

[9] On August 17, 2022, in seeking an extension of time for leave to appeal the Order of Horkins J., the Respondent “candidly added that she was not cooperating with the order for sale of the Rental Property: Sanvictores v. Sanvictores, 2022 ONSC 4844, para. 22. (Divisional Court).

[10] Despite the above orders, the Respondent’s affidavit, sworn August 8, 2022, states that the Applicant should not be permitted to sell the rental property without “financial disclosure and interim spousal support being sorted out”. The Respondent, at paragraph 84, also states:

None of these proceeds for the rental belong to Kyle. His portion is around $100,000 but it is owed to me for retroactive support, to my mother or for my portion of AKA Creative Inc.

[11] The evidence of the Respondent’s non-cooperation with the sale of the rental property are outlined in the Applicant’s affidavit sworn December 2, 2022, and including the following matters:

(a) The Respondent did not provide contact information for the tenant until she provided those details in her affidavit sworn September 15, 2022. (b) The Respondent would contact the Applicant and threatened to call the police alleging that the Applicant was harassing the tenant whenever the Applicant contacted the tenant regarding seeing the property, getting access to it, getting it ready for sale. (c) An email dated September 22, 2022 from the Respondent to the Applicant’s counsel. She stated “I spoke to the Tenant late last night with regards to the rental property. He is out of town until October 18, 2022. It is not within anyone’s rights to enter his home without him present. He does not permit this until he returns. The realtor can go ahead and still list the property for sale if she wishes, or she can wait until closer to October 18, 2022 upon the tenant’s return. …” (d) The Respondent and/or her mother, Sarah Elyas, have filed a complaint against the listing agent, Ms. Gueorguieva, with the Real Estate Council of Ontario.

The Respondent’s Proposal

[12] On November 7, 2022, the Respondent offered to purchase the Rental Property for $750,000. Her message to the Applicant states:

… You remove property. (I don’t trust that you’ll sell it at a decent price) OR I buy you out for $750,000 (deduct 5%) that works out to $708ish or so (Approx.)

[13] The Applicant responded a few minutes later:

… Regarding any buy out offer, I will not entertain it. I have already tried dealing with you and your mother for the sale of the pre construction. Emma wants nothing to do with you nor your mom. What makes you think that I would entertain that headache all over again?

We have it in writing that you are actively advising Nima (the tenant) not to cooperate and not to speak with Lina. You aren’t involved in the decision on the sale of the property. You have delayed and thwarted the sale for months to the point where the value is dropped by hundreds of thousands of dollars. I’ll sell at my discretion on price and timing. You have derailed this process long enough.

The Lease

[14] On November 9, 2022, the Respondent advised the Applicant that she had signed a two-year lease with the tenant on April 1, 2022 (“the Lease”). In her message the Respondent states: “The lease is legally binding and no one can do anything about it”.

[15] Despite repeated requests, the Respondent refused to provide a copy of the Lease to the Applicant other than its first page. Counsel for the Applicant eventually obtained a copy of the Lease from the tenant.

[16] The rent of $2,500 per month almost completely covers the expenses associated with the Rental Property. In a message dated April 8, 2022, the Respondent states:

I want to clarify where $2500 rent for Bessarion goes:

$1425 mortgage (roughly) $499 Maintenance (was $516) $565 property tax/month $60 (under $60ish for ins)

[17] In a message dated November 7, 2022, the Applicant told the Respondent that the rent of $2,500 per month was below fair market value and that the rent should have been $3,400 per month based on comparable properties in the area. In her response, the Respondent did not dispute this assertion.

The First Sale

[18] The Rental Property was sold in November 2022 with a closing date of February 16, 2023. The Respondent told the Applicant that the rental property had been sold below market value and threatened to sue the Applicant.

[19] The Respondent’s mother, Ms. Elyas, advised the buyer’s realtor that the property was subject to a lease and a lien of $1 million. Her message, sent November 21, 2022, states:

I am Sarah Elyas, Mother of the owner at 33-780 Sheppard Avenue East. This unit has recently been Sold with a closing on February 16, 2023.

It is my understanding that the Buyers were planning on living at the Property.

There is an active lease expiring on April 1, 2024. Lina, the agent acting on behalf of the Sellers failed to disclose this information to the Buyers. RECO has been notified regarding this. Lina has also been harassing the current Tenants by bullying them and threatening eviction. She had no Right to do this.

I would like to inform the Buyers of this crucial information ASAP. This is not right.

This Property also has a lien on it, placed by “me”. The debt on this Property is over $1,000,000 total.

I am Disclosing all of this in advance as a courtesy to all parties involved.

Please don’t hesitate to contact me for more information need be.

[20] After receiving this message, the purchasers withdrew from the purchase agreement.

[21] On November 24, 2022, the Respondent responded to the Applicant’s request for a full copy of the Lease, as follows:

… You have walked away from all carrying costs and expenses since Separation and Sarah Elyas has been paying for Everything. Ignoring this, not informing me that the Property is “listed for sale”, not informing the Buyers that the Property is “tenanted” is problematic. “Closing” is not possible at a “low sale price”. It is possible at the Price of $1M listed in your affidavit but not $768.000. The debt is higher on the Property. Trying to “scam” new Buyer, harass the Tenant and “deplete my assets” is problematic. Gaining “litigation advantage” based on these lies will be brought before the court.

Severance and “Lien”/Charge

[22] The Applicant repeatedly demanded that the Respondent provide him with a copy of the lien however she failed to do so.

[23] The Applicant’s real estate solicitor undertook a title search and found that, on November 22, 2022, the Respondent:

• Severed the joint tenancy in the Rental Property by registering a Transfer (Instrument #AT6227625) which states “I am a spouse and I am transferring to myself to sever joint tenancy”.
• Registered a Charge in favour of her mother, against her one-half interest in the Rental Property, in the amount of $650,000.00. (Instrument #AT6227626)

[24] These instruments were registered on the Respondent’s behalf by Jerome M. Goldshlager. In an email dated February 16, 2023, Mr. Goldshlager explained to the Applicant’s counsel that he was unaware of the Order of Horkins J. that required the sale of the Rental Property and ordered that the Respondent not interfere with the sale of the Property. Mr. Goldshlager’s message also states:

Further, my instructions were to sever the Joint Tenancy and to place such mortgage (not a lien) on title against Ms. Sanvictores’ portion of title to the property. To that end, please see attached severance Transfer as well as the Mortgage which states (in the Additional Provisions) that “The parties herein confirm that Nancy Sanvictores is a 50% owner on title to the subject property and the within Charge is being registered against the interest in the property of Nancy Sanvictores, being 50% owner of the subject property, and further is subject to any future agreement of the other owner of the subject property, being Kyle Mark Sanvictores”. Accordingly, it is our position that my client could register a mortgage against her share of the subject property. All other matters can be directed towards my client’s family lawyer. Within the greatest of respect, I will not respond further or take any further action unless directed by my client or my client’s family lawyer to do so.

[25] In response to Mr. Goldshlager’s message, the Respondent sent a message on February 16, 2023 which states:

This very subject of 33-780 Sheppard Avenue is currently before the Superior Court of Justice for “fraud”. … If Ms. Warsi and her client wish to bring an Emergency Motion regarding this matter I strongly encourage her to do so. [Underlining in the original]

[26] The Applicant notes that in her Financial Statement sworn January 25, 2021 the Respondent does not indicate that she owes her mother any money. In an affidavit sworn July 15, 2021, the Respondent states that she had not entered any agreements with her mother from 2020 to that date. A few months later, the Respondent states in her Financial Statement sworn September 8, 2021 that she owes $235,000 to her mother. With the registration of the Charge, the Respondent asserts that her indebtedness to her mother has increased by an additional $415,000 in little more than one year.

[27] The Applicant notes that the parties own two properties: the Rental Property and the matrimonial home. He states that there is equity of about $405,000 in the Rental Property based on the sale price of $753,000 and equity of about $762,000 in the matrimonial home assuming a market value of $1,866,000.00 as suggested in the Respondent’s financial statements. The Applicant fairly notes that had the purpose of the Charge been to protect the alleged loan owed to the Respondent’s mother, then the Charge would have been registered against the matrimonial home rather than the Rental Property given that the equity in the Rental Property does not cover the alleged loan.

[28] The Applicant submits that the Charge has been registered on title to defeat the sale of the Rental Property and hinder any prospective buyers. In this regard, the Applicant relies on the various messages sent by the Respondent on December 1, 2022 to the Applicant (“There is a large Lien on the property. That has already ruined the Sale”; “Ideally you should check Sarah Elyas’ email. Debt is high on property. Realtors won’t get paid etc it won’t close etc”).

[29] The Respondent’s message to the Applicant, on November 30, 2022, states:

In my June 23, 2022 motion, I explained why I was refusing to follow the Real Estate Order and offered many negotiations at the time. I tried to negotiate with you. You refused. I was clear about Sarah Elyas placing a lien since it’s her funds for all joint costs regarding Properties.

She placed a lien to protect “her” finances. Sarah Elyas has been paying the bills since Separation. Your Notice of Motion for June 23, 2022 was requesting an Order for the proceeds of Bessarion to be “released”. You left her no choice but to protect “her” funds. …

The buyer wanted to “move in”. Lina your realtor failed to disclose that there is a lease. That is your mistake.

The lien will also not allow the property to close.

I warned you many times. You chose not to listen. Reread the April and June affidavits.

[30] The Applicant requested particulars of the $650,000 provided by the Ms. Elyas to the Respondent however no such particulars have been provided other than a bare assertion that Ms. Elyas has covered all expenses since the date of separation.

[31] The Respondent’s message sent December 19, 2022 is telling:

I spoke to Sarah Elyas and the lien that she has is more powerful than a CPL (certificate of pending litigation) or just as powerful. (I’m not in real estate so I don’t know). All I know is: The Property will not be able to Close. You’ll disappoint another Buyer *(Don’t say I didn’t warn you)

Options:

Option 1.

You can let me “buy you out” at $768 minus fees which is around $724. I would still need to convince Sarah Elyas and have her “undo” her conditions etc The sale would be in 60-90 days and the funds would remain in Trust or released upon Mutual Consent. You can pay your realtor Lina what you want at your expense. You family lawyer and real estate lawyer can draft these offers. I would have my real estate lawyer represent me for the “buyout”.

Option 2. You remove it from the market for now on Mutual Consent.

That’s the best I can do and it’s reasonable.

[32] The Applicant further states that the Charge will prevent any proceeds of sale to be held in trust even though there is a court order in place that requires such proceeds to be held in trust. As a result, the Applicant submits that the Charge results in the Respondent’s mother encroaching on his share of the equity in the Rental Property without his consent.

The Second Sale

[33] On December 19, 2022, the Applicant entered into an Agreement of Purchase and Sale for the Rental Property at a price of $753,000.00 with a closing date of April 25, 2023.

[34] On December 20, 2022, the Respondent sent a message to the Applicant stating “It will not close. Check the title on Property”.

Analysis

[35] The Applicant brings this motion for the following orders:

1. An Order for a declaration that the Charge registered on November 22, 2022, as AT6227626 (“the Charge”), on the parties’ rental property, municipally known as 33-780 Sheppard Avenue East, North York, Ontario (“the Rental Property”), be declared a fraudulent conveyance in accordance with paragraph 24 of the Order of Justice Horkins dated May 27, 2022, restricting the Respondent Mother, Nancy Sanvictores (“Respondent Mother”), from interfering, in any way, with the sale of the rental property, and be declared null and void.
2. An Order that the Charge shall be removed off title of the Rental Property by a real estate lawyer retained by the Applicant Father, Kyle Sanvictores (“Applicant Father”), or by other real estate lawyer the Court Orders, who shall be permitted to act upon this Order, upon being retained by the Applicant Father, to facilitate the discharge, the cost of which will be the responsibility of the Respondent Mother, Nancy Sanvictores (“Respondent Mother”), whether to pay to the Real Estate Lawyer or to reimburse the Applicant Father.
3. In the alternative, an Order that no proceeds of sale from the Rental Property as it relates to the Charge, be released, until further Order of this Court.
4. An Order restraining the Respondent Mother from encumbering any other assets, held by her solely or jointly with any other persons, including but not limited to the Matrimonial Home (“the Matrimonial Home”), municipally known as 3022A Bayview Avenue, North York, Ontario, M2N 5L1 (also known as a No Dealings Order).
5. An Order instructing the Land Registry Office not to permit the registration of any instruments, including, but not limited to, any transfer, charge or encumbrance or notice of any other interest being conveyed or granted to any third party of any kind whatsoever in respect of the Rental Property and the Matrimonial Home, on the instructions of the Respondent Mother, or any agent or person on behalf of the Respondent Mother.
6. With respect to paragraph 5 above regarding the Rental Property, the No Dealings restriction being effective until April 25, 2023, at which time the Land Registry Office shall be permitted to change title of the Rental Property in accordance with the Agreement of Purchase and Sale dated December 20, 2022.
7. An Order that the Respondent Mother cooperate with all aspects of the sale and closing of the Rental Property if her participation is required by the Applicant Father’s Real Estate Lawyer or by the Buyers’ Real Estate Lawyer, including but not limited to signing any document(s) that may be required for closing to occur, as well as obtaining legal representation from an independent real estate lawyer should same be required in order to facilitate completion of the sale of the Rental Property in the ordinary course.
8. In the event that the Respondent Mother breaches paragraph 7 above, then an Order that the Applicant Father can sign on the Respondent Mother’s behalf
9. An Order that the Respondent Mother forthwith produce evidence to the Applicant Father that the rental income received for the Rental Property has been used to pay expenses of the Rental Property.
10. In the event that the Respondent Mother breaches paragraph 9 above, then an Order that she pay the Applicant Father the full rental income received for the Rental Property from April 1, 2022, until its sale, currently in the sum of $30,000.00.
11. An Order that paragraph 7(a) of the Order of Justice Pinto dated September 9, 2021, which ordered the Applicant Father to pay Child Support to the Respondent Mother, be terminated, retroactive to September 13, 2022.
12. An Order that the Respondent Mother forthwith repay the Applicant Father the child support payments from September 2022 until present, currently in the sum of $5,285.00.
13. An Order that the Respondent Mother pay costs to the Applicant Father on a full recovery basis, plus all applicable taxes.

Issue #1: Is the Charge a “fraudulent conveyance?”

[36] Section 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 (“FCA”), states:

Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

[37] Under s. 1 of the FCA, a “conveyance” includes a gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise.

[38] The Applicant is a “creditor” within the meaning of the FCA given that a person that has commenced an application under the Divorce Act for corollary relief becomes a contingent creditor of the respondent: Purcaru v. Seliverstova, 2016 ONCA 610, para. 11, affirming 2015 ONSC 6679 (Myers J.).

[39] In Purcaru, Myers J. stated:

11 It is very difficult for an applicant to prove a person's hidden intention to defraud creditors. Therefore, the law provides that the court can infer the existence of a transferor's fraudulent intention to defeat or delay creditors where there are recognized "badges of fraud" associated with a transaction. The badges of fraud are facts or fact patterns that courts have held to be indicative of fraudulent transactions. Facts such as: secrecy, transfer of property when an action or execution is pending, transfer of property to non-arm's-length parties, transfers made with undue haste, and transfers for a conspicuously insufficient price, are all recognized examples of badges of fraud. There are others such as the breach of family law orders requiring a party to preserve his or her assets pending a trial. If the court draws the inference of fraudulent intent due to the existence of badges of fraud, then an evidentiary burden will fall to the respondents to explain their conduct to try to rebut the inference of fraudulent intent. Of course the ultimate persuasive burden remains on the applicant throughout.

[40] Applying the above test, I find that the Charge is “fraudulent” as it was granted with the intent to defeat, hinder, delay or defraud the Applicant’s claim for corollary relief in the family law proceeding as:

(1) The Respondent granted the Charge to her mother, a non-arms length party. (2) The Charge was granted in secrecy as the Respondent failed to notify the Applicant in advance of the Charge. (3) There is no evidence that the Respondent’s mother lent $650,000 or any money whatsoever to the Respondent since the date of separation. The Respondent has failed to provide the particulars of any alleged loans. (4) This Charge was granted during a pending family law proceeding between the parties and will have the effect of reducing the parties’ equity in the Rental Property. (5) The Charge is contrary to, and undermines, the Order of Horkins J. made many months earlier which requires that the net proceeds of sale be held in trust pending further court order. (6) the Respondent’s numerous statements, as referenced at paragraphs 28, 29 and 31, above, show that the Respondent has clearly attempted to manipulate the sale of the Rental Property (in terms of who the Rental Property would be sold to, the price at which it would be sold, and when it would be sold) as a result of the registration of the Charge notwithstanding the Order of Horkins J. that granted control over the sale of the Rental Property to the Applicant.

Issue #2: Should a “no dealings/restrictions order” be granted?

[41] Under s. 12 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), where a party claims an equalization payment, the court may, if it considers it necessary for the protection of the other spouse's interests under the FLA, make an order,

(a) restraining the depletion of a spouse's property; and (b) for the possession, delivering up, safekeeping and preservation of the property.

[42] The purpose of an interim preservation order under the FLA is “ . . . to ensure that there are sufficient assets available to satisfy any subsequent order for equalization of the net family property and to prevent one party from dealing with property in any manner that would frustrate the rights of the other spouse”: Gale v. Gale, 2008 MBCA 134, para. 23; Bronfman v. Bronfman (2000), 51 O.R. (3d) 336 (Ont. S.C.J.) at para. 19.

[43] The general principles applicable on a motion for an interlocutory injunction also apply to a motion under s. 12 of the FLA. Accordingly, a preservation order will be granted when:

(1) there is a "serious question to be tried", in the sense that the motion is neither frivolous nor vexatious. (2) the moving party will suffer irreparable harm if an injunction is refused. "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, para. 64. (3) the moving party would suffer greater harm from the refusal of the interlocutory injunction pending a decision on the merits than the responding party would from the issuance of an interlocutory injunction and thus the balance of convenience favours the issuance of the preservation order: R. v. Canadian Broadcasting Corp, 2018 SCC 5, para. 13; Chi v. Wang, 2010 ONSC 1366, para. 11.

[44] This motion is neither frivolous or vexation. While it is unclear which party will owe the other an equalization payment, by registering the Charge, the Respondent has shown that she is prepared to significantly deplete whatever assets she may have available in order to keep them away from the Applicant.

[45] The Applicant has established that he would suffer irreparable harm if the preservation order is not granted if the Respondent continues to transfer or encumber her assets in order to defeat the Applicant’s claims.

[46] Finally, given the circumstances described above that led up to the Charge, and the Respondent’s history of violating court orders in this proceeding, I find that the Applicant would suffer the greater harm if this order was not granted.

Issue #3: Should the Order for the payment of temporary child support to the Respondent be terminated?

[47] On September 24, 2021, Pinto J. ordered that the Applicant pay child support to the Respondent.

[48] By Order dated September 13, 2022, the children were ordered to reside with the Applicant except that the children would have parenting time every other weekend with the Respondent. A further temporary Order, dated October 12, 2022, further restricts the Respondent’s parenting time and requires that it be supervised at an access centre.

[49] A temporary child support order should not be varied unless there has been a “substantial change in circumstances”. M.M.D. v. J.A.H., 2019 ONSC 2208, para. 69.

[50] In Nour v. Youssef, 2021 ONSC 2717, at paras. 31-34, Kurz J. stated:

31 … the Divorce Act does not specifically set out the jurisdiction of the court to make an interim variation of either a temporary or final order. The Divorce Act's provisions for a final variation of a final order under s. 17 do not apply to interim variations: Brooks v. Brooks, [1998] O.J. No. 3186.

32 Ontario courts have traditionally discouraged the variation of interim orders unless the circumstances were urgent: …

33 In Berta v. Berta, 2019 ONSC 505, I reviewed a number of authorities with regard to the test for an interim variation of a final support order. I found that the test has four components, requiring the moving party to prove:

1. A strong prima facie case [that there has been a material change in circumstances since the time of the order in question];
2. A clear case of hardship;
3. Urgency; and
4. That the moving party has come to court with “clean hands”.

[51] The fact that the children have primarily resided with the Applicant since September 13, 2022 is a substantial change in circumstances which would have resulted in a different child support order at the time of the Order of Pinto J. in September 2021.

[52] Given that child support is a right of the child, the Respondent’s refusal to consent to an order that would end the payment of child support to her has resulted in a hardship and urgent circumstances for the Applicant and the children. Further, there is no evidence that the Applicant has failed to make this request with “clean hands”.

[53] Accordingly, the Order for Pinto J. shall be varied effective October 1, 2022 rather than from September 13, 2022 as requested.

[54] With respect to the Applicant’s claim that there shall be a temporary order requiring the Respondent to retroactive reimbursement him for child support from September 13, 2022, I am unclear as to whether the effective notice of the Applicant’s request for a decrease in child support was communicated to the Respondent prior to the delivery of the motion materials on March 1, 2023. As a result, I am not prepared on this motion to decrease child support retroactively to September 13, 2022: See Colucci v. Colucci, 2021 SCC 24, at para. 80.

Conclusions

[55] Order to go as follows:

(a) The Charge registered on November 22, 2022, as AT6227626 (“the Charge”), on the parties’ rental property, municipally known as 33-780 Sheppard Avenue East, North York, Ontario (“the Rental Property”), be declared a fraudulent conveyance and be declared null and void. (b) The Charge shall be removed from title of the Rental Property by a real estate lawyer retained by the Applicant, Kyle Sanvictores (“Applicant Father”) and the expense of such legal services to cause the removal of the Charge from title shall be paid from the Respondent, Nancy Sanvictores (“Respondent Mother”)’s share of the net proceeds of sale of the Rental Property by the real estate solicitor holding such funds in trust. (c) The Respondent Mother is prohibited from encumbering any other assets, held by her solely or jointly with any other persons, including but not limited to the Matrimonial Home (“the Matrimonial Home”), municipally known as 3022A Bayview Avenue, North York, Ontario, M2N 5L1 (also known as a No Dealings Order). (d) The Land Registry Office shall not to permit the registration of any instruments, including, but not limited to, any transfer, charge or encumbrance or notice of any other interest being conveyed or granted to any third party of any kind whatsoever in respect of the Rental Property and the Matrimonial Home, on the instructions of the Respondent Mother, or any agent or person on behalf of the Respondent Mother, unless the Applicant has provided written consent. (e) With respect to subparagraph (c) above regarding the Rental Property, the No Dealings restriction being effective until April 25, 2023, at which time the Land Registry Office shall be permitted to change title of the Rental Property in accordance with the Agreement of Purchase and Sale dated December 20, 2022. (f) The Respondent Mother shall cooperate with all aspects of the sale and closing of the Rental Property if her participation is required by the Applicant Father, the Applicant Father’s Real Estate Lawyer or by the Buyers’ Real Estate Lawyer, including but not limited to signing any document(s) that may be required for closing to occur, as well as obtaining legal representation from an independent real estate lawyer should same be required in order to facilitate completion of the sale of the Rental Property in the ordinary course. (g) In the event that the Respondent Mother fails to comply with paragraph (f) above then, then the Applicant Father may sign on the Respondent Mother’s behalf. (h) Paragraph 7(a) of the Order of Justice Pinto dated September 9, 2021, which ordered the Applicant Father to pay Child Support to the Respondent Mother, shall be varied such that child support is terminated as of March 1, 2022. (i) Costs submissions from the Applicant shall be made within 7 days. The Respondent may make responding costs submissions within 14 days. The Applicant may make reply costs submissions within 21 days. All such submissions shall be no more than three pages exclusive of a bill of costs and offer to settle.

Mr. Justice M. D. Faieta Released: April 24, 2023