Court File and Parties

COURT FILE NO.: FS-22-00030154-0000 DATE: 20230915 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SARA BETH WERB Applicant – and – JACOBO I. MOSHINSKY Respondent

Counsel: Lisa Katz, for the Applicant Self-represented Respondent

HEARD IN WRITING: September 13, 2023

VELLA J.

Reasons for Uncontested Trial

[1] The Applicant seeks an order for the following:

(a) A divorce;

(b) Payment of $14,368.94 for her contributions to the mortgage for the property located at 212 Cocksfield Avenue, Toronto (the “Property”) pursuant to the terms of the Domestic Agreement dated May 28, 2019 (the “Domestic Agreement”);

(c) Payment of $1,500.00 on account of personal items and belongings that were left at the Property and not returned to the Applicant; and

(d) Costs payable on a full recovery basis in the sum of $3,000 inclusive of HST and disbursements.

[2] The parties began living together in December 2018. They were married in Toronto, Ontario on May 31, 2019 and separated on December 28, 2019.

[3] The parties entered into a Domestic Agreement dated May 28, 2019 and acknowledge that this is a domestic contract under s. 52 of the Family Law Act. Certificates of Independent Legal Advice are attached certifying that each party obtained their own independent legal advice before entering into this contract.

[4] The parties had no children together. However, the Respondent has children from a prior marriage.

[5] Based on the evidence, I am satisfied that the Applicant never stood in loco parentis with the children, and the Domestic Contract contains a release with respect to child support. I am also satisfied that the Respondent shares parenting of his children with his former spouse.

[6] I am also satisfied that the Respondent is the sole owner of the Property, and that he resided there with the Applicant throughout their relationship. The Respondent owned the Property prior to the date of his relationship with and marriage to the Applicant. The Applicant left the house, and her personal belongings behind.

[7] Paragraph 7.9 of the Domestic Contract provides that the Respondent will reimburse the Applicant for her contributions to the mortgage, and provides an adjustment and credit to each party for their respective contributions to the Property from May 31, 2019 onwards. Such contributions include utility bills, routine repairs and carrying costs.

[8] Paragraph 7.9(a) further provides that the reimbursement of the contributions were to be made within 18 months from the date of the breakdown of their relationship. Under the Domestic Contract the Applicant had to provide a detailed accounting of the payments she made towards the mortgage.

[9] I am satisfied on the uncontested evidence that the Applicant made mortgage payments towards the Property in the total amount of $14,368.94, she provided a detailed accounting to the Respondent, and the Respondent has not paid anything to reimburse her.

[10] Section 8.1 of the Domestic Contract provides that upon breakdown of their relationship for any reason other than death, the household contents and personal effects at the Property will be distributed between the Applicant and Respondent according to ownership.

[11] I am also satisfied that the Applicant made an effort to retrieve her personal belongings from the Property, as permitted by the Domestic Contract, in January 2021, but that the Respondent was not cooperative. I am satisfied that the items in question are worth approximately $1,500.00. and that the Applicant is entitled to have damages assessed in the amount of $1,500.00 in lieu of the items being returned or arrangements being made to allow her to retrieve them.

[12] The Applicant’s counsel made attempts to resolve this matter with the Respondent by way of a separation agreement on March 3, 2022 to no avail. The Respondent did not respond.

[13] The Applicant’s counsel then advised the Respondent by email dated April 8, 2022, that she would be proceeding with this application and seeking costs on a full recovery basis, if there was no resolution. Again, there was no response.

[14] This Application was commenced and the Respondent was personally served on June 23, 2022. There has been no Answer served to date.

[15] The Applicant’s counsel wrote to the Respondent on August 15, 2022 to advise that the applicant would proceed with an uncontested trial, and again no response was received.

[16] I am satisfied that the parties were married in Ontario, as evidenced by the certificate of marriage file. An Affidavit for Divorce has also been filed. All the requirements of the Divorce Act have been met.

[17] In the circumstances, full recovery is warranted. The Applicant was forced to start this application and proceed to an uncontested trial due to the Respondent‘s refusal to engage. This is a straightforward matter and if the Respondent had any concerns, he should have contacted the Applicant’s counsel.

Order

[18] The following orders are made:

(a) Damages in the sum of $14,368.94 for the Applicant’s contributions to the mortgage for the property located at 212 Cocksfield Avenue, Toronto;

(b) Damages in the sum of $1,500.00 on account of personal items and belongings that were left at the Property and not returned to the Applicant;

(c) Costs of a full recovery basis in the sum of $3,000 payable to the Applicant by the Respondent within 30 days from the date of this endorsement; and

(d) A divorce order is granted.

[19] A copy of this Endorsement and the signed Orders shall be served on the Respondent by regular mail to 212 Cocksfield Avenue, Toronto, Ontario M3H 3T7.

Justice S. Vella

Released: September 15, 2023