Court File and Parties
COURT FILE NO.: FC1424/18 DATE: July 11, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Dale Michael Irwin, applicant AND: Brenda Lee Irwin, respondent
BEFORE: KORPAN J.
COUNSEL: Selin Hankali, for the applicant Brenda Lee Irwin, in person
HEARD: June 20, 2023
Endorsement
[1] This is the applicant father's motion for control of the sale of the matrimonial home, which sale was ordered on April 19, 2023 following a trial before me.
[2] The parties agreed on a listing agent and the home was listed for sale by MLS listing on May 31, 2023 for $989,900.
[3] On June 5, 2023, the parties were presented with an offer for $950,000. On June 7, 2023, the same prospective purchasers presented an offer for $960,000. The parties’ listing agent recommended that the parties sign a counter-offer for $980,000. The father agreed. The respondent mother disagreed.
[4] I conclude from the evidence filed on the motion that the mother remains determined to acquire the home for herself and, in her ongoing efforts to do so, seeks to delay or prevent its sale to a third party.
[5] In the circumstances, the father should have control of the sale pursuant to s. 23(b) of the Family Law Act, R.S.O. 1990, c. F.3, on the terms set out below.
[6] The father’s notice of motion also seeks an order that the mother shall remove the one-star rating that she has posted about father’s counsel on Google and shall refrain from posting about these proceedings or his counsel on any online medium including, but not limited to, internet websites, forums, search engines and social media.
[7] The above request relates to an issue between the father’s counsel and the mother and is beyond the parameters of this case. This request will be dismissed.
Order
[8] The following order shall issue:
The applicant, Dale Michael Irwin, shall be permitted to act solely with respect to the listing agreement the applicant and the respondent, Brenda Lee Irwin, have entered into with London Living Real Estate Ltd. Brokerage and shall be permitted to continue working with the existing listing of the matrimonial home, municipally known as 171 Ridout Street, London, Ontario, for sale on the open market.
The respondent shall not be permitted to provide any further instructions to London Living Real Estate Ltd. Brokerage, nor shall the respondent be permitted to interfere with the applicant's engagement of services through London Living Real Estate Ltd. Brokerage.
All appliances and any chattels attached to the building and situated in the matrimonial home may be sold with it.
The applicant shall have the sole authority for the sale of the matrimonial home, including the sole authority to negotiate, accept or counter-offer any offer to purchase the matrimonial home, with or without the consent of the respondent, pursuant to s. 23 of the Family Law Act.
The applicant shall have the sole authority to close the sale of the matrimonial home, including signing all documentation, without consultation and with, or without, the consent of the respondent.
The respondent’s consent or authority to list and complete the closing of the sale of the matrimonial home is dispensed with, with the exception that: a) The applicant shall, in a timely manner, keep the respondent apprised of all offers, negotiations, and counter-offers between the applicant and a prospective purchaser by email; b) The respondent may provide her views regarding the terms of the marketing and sale of the matrimonial home to the listing agent.
The respondent shall comply with all reasonable requests made by the applicant and/or the listing agent for the marketing and presentation of the matrimonial home.
The net proceeds of sale shall be held in trust by the real estate solicitor representing the parties on the sale of the matrimonial home pending court order or written agreement of the parties.
Should any further dispute arise related to the sale of the matrimonial home, the parties may return to have that matter adjudicated by me in a summary manner.
Paragraph 10 of the applicant’s notice of motion dated June 8, 2023 is dismissed.
Costs
[9] The father seeks costs of $5,000 plus HST.
[10] Although I dismissed the request at paragraph 10 of the father’s notice of motion, success on this motion was not equally divided. Submissions were devoted almost exclusively to the issue of control of the sale of the matrimonial home. The father was the more successful party on this motion and my initial view is that he should have his costs in the amount of $2,500 inclusive of disbursements and HST.
[11] If a party disagrees, the parties may provide written submissions through my judicial assistant of up to two pages, plus a bill of costs and any offers to settle, from the party or parties claiming costs by July 25, 2023 and from the other party by August 4, 2023. Additionally, both parties shall advise what they believe the other party should receive by way of costs if the other party is found to be entitled to costs. If no submissions are received by July 25, 2023, costs shall be considered settled.
“Justice D. M. Korpan” Justice D. M. Korpan Date: July 11, 2023