COURT FILE NO.: FS-17-0044-00 DATE: 2023-01-12

Superior Court of Justice – Ontario

Re: Claudette Crnkovich, Applicant And: Ivan Crnkovich, Respondent

Before: Madam Justice H.M. Pierce

Counsel: Ms. C. Crnkovich, not appearing Mr. E. Van Voort, for the respondent, Ivan Crnkovich

Heard: January 5, 2023. Uncontested hearing heard via Zoom.

Reasons on Uncontested Hearing

Introduction

[1] The respondent, Ivan Crnkovich, is 75 years old. He is no longer able to work as a trucker for health reasons. The applicant, Claudette Crnkovich, is 59 years old.

[2] Mr. Crnkovich seeks an order for distribution of the proceeds of sale of the parties’ matrimonial home, crediting him with the costs he paid toward the home since it was ordered sold, on the grounds that the applicant obstructed the sale.

[3] On December 1, 2017, Mr. Justice B. Fitzpatrick granted an order that the parties’ home be listed for sale by February 1, 2018. The order provided that the sale proceeds be split equally upon sale after payment of all outstanding debts for the house. Mr. Crnkovich was required, by the terms of the order, to pay all the expenses for the home pending sale.

[4] In addition, the order provided that Mr. Crnkovich pay Ms. Crnkovich an equalization payment of $12,000, which could be payable in installments of $1,000 per month; however, claims for retroactive or ongoing spousal support were dismissed.

[5] Despite the order for sale, the property was not sold. On February 26, 2021, I made an order declaring that Ms. Crnkovich had intentionally obstructed the sale of the property and required her to vacate within 60 days of the order. Carriage of the sale was given to a lawyer designated by Mr. Crnkovich, Mr. McDonald.

[6] Ultimately, the property was sold on November 17, 2021.

[7] In the meantime, Mr. Crnkovich was saddled with paying house expenses. He did not have the funds to complete his payments of the equalization owed to Ms. Crnkovich; however, he paid $7,010.00 of the $12,000. due to her, leaving $4,990.00 owing.

Discussion

[8] Exhibit “N” of Mr. Crnkovich’s affidavit contains a detailed summary of deductions for expenses he paid for the home, costs of sale, and liens and charges attributable to the sale, all of which are supported by documentary evidence in the affidavit. I accept these credits and deductions.

[9] The net proceeds of sale after realtor’s commission, taxes and legal fees, are $154,791.22, leaving each party with a notional half-share of $77,395.61. From Ms. Crnkovich’s share is deducted the final utility bills incurred while she was in residence, totalling $1,593.89, her Legal Aid lien of $3,508.11, her Canadian Tire execution of $8,887.11, her RBC Visa account of $18,211.66, the costs of a writ of execution of $21.36 and her Affinity Global credit account of $23,370.01. These deductions total $53,998.25, leaving Ms. Crnkovich with a sub-totalled share of $21,803.47.

[10] Mr. Crnkovich also made payments towards the costs of his wife’s occupation of the home, including property taxes, mortgage interest, utilities and insurance. Since he benefitted in paying down the mortgage by increasing the equity available to share on sale, he claimed ½ of the value of the mortgage payments he made on his wife’s behalf pending sale. The total of these costs was $35,963.74.

[11] Once deducted from Ms. Crnkovich’s entitlement to sale proceeds, the applicant was entitled to $-14,160.27. When credited with the equalization payment she is still owed in the amount of $4,990.00 Ms. Crnkovich is entitled to $-9,170.27 from her share of the sale proceeds.

[12] The respondent then analyzed his entitlement to his share of the sale proceeds which I accept.

[13] Starting with his share of the net proceeds of sale after real estate commission legal fees and taxes, like Ms. Crnkovich, he was entitled to a notional $77,395.61. He, too, was responsible for liens. He owed WSIB $3,671.93, leaving him with a subtotal of $73,723.68.

[14] He documented credits toward expenses paid on behalf of the wife, pending sale of the home which she obstructed, and which equated with de facto spousal support to which she was not entitled. If Mr. Crnkovich is not credited with these payments, Ms. Crnkovich would benefit from her recalcitrance.

[15] These credits include 1/2 of the mortgage payments, mortgage interest (which would not have been incurred had there been a timely sale), property taxes, utilities, and insurance, totalling $35,963.74. Crediting Mr. Crnkovich with these payments, he is entitled to a share of $109,687.42 from the sale proceeds.

[16] From this amount, he deducted the balance of the equalization payment owed to the applicant, $4,990.00, leaving him with a new balance of $104,697.42.

[17] Summarizing, Ms. Crnkovich is entitled to a negative amount of $-9,170.27 from her share of the sale proceeds, while Mr. Crnkovich is entitled to $104,697.42. The actual balance held in trust by Mr. McDonald is $95,527.31 based on the undated trust balance filed.

[18] Two expenses are not accounted for. On February 6, 2021, I found that Ms. Crnkovich had willfully obstructed the sale of the home, Mr. Crnkovich was awarded costs payable by the applicant of $1,500.00. These costs have not been paid.

[19] Secondly, although as the successful party in this uncontested hearing, Mr. Crnkovich would presumptively be entitled to claim costs of the application before me. He has, however, waived his claim for costs, in order to bring the litigation to an end.

Conclusion

[20] An order shall issue, with the consent of Mr. Crnkovich, that the proceeds of sale from the parties’ matrimonial home at 69 N. Rockwood Avenue, Thunder Bay, held in the trust account of Solicitor John McDonald, in the amount of $95,527.31, together with any accrued interest, be payable to Edward Van Voort in trust for his benefit.

[21] This order does not absolve the applicant from paying the costs order of $1,500.00 made on February 6, 2021. At the request of the respondent, no costs are ordered for this hearing.

“original signed by” The Hon. Madam Justice H.M. Pierce Released: January 12, 2023