Court File and Parties

Newmarket Court File No.: FC-22-1344-00 Date: 20231101 Superior Court of Justice – Ontario – Family Court

Re: Alexandre Denissov, Applicant And: Valeriya Trubyuk, Respondent

Before: The Honourable Mr. Justice R. Kaufman

Counsel: P. Mahdi, Counsel for the Applicant C. Adams, Counsel for the Respondent

Heard: June 28, 2023

Ruling on Motion

[1] My Ruling dated October 30, 2023 was released on that day. My costs Ruling emanating from that Ruling will be released together with this Ruling on the requests of the parties for a disbursement of the net proceeds of sale from the former family residence.

[2] The parties were not married. They jointly own the former family residence.

[3] The Applicant’s motion before the court on June 28, 2023 requested several Orders regarding the proceeds of sale. He requested that the real estate lawyer be directed to pay:

(a) the real estate commission;

(b) adjustments for taxes, utilities, municipal fees or levies;

(c) amounts required to discharge registered encumbrances;

(d) legal fees and disbursements relating to the sale; and

(e) all other sale adjustments.

[4] The Applicant also requested an Order for the Respondent to be responsible for any mortgage penalty.

[5] The Applicant also requested an Order that, after paying these amounts, the remaining proceeds will be divided equally between the parties, subject to the costs of this motion to be paid from the share of the Respondent.

[6] The costs of the motion have been determined in my accompanying Ruling on costs.

[7] The Respondent has proposed that each party receive an interim disbursement of funds from the net sale proceeds in the amount of $150,000 with the remainder of the net sale proceeds remaining in trust pending further agreement of the parties or court Order.

[8] Within the litigation there remains unresolved issues of child support, spousal support, the adjustment of expenses for the family residence including an accounting of income received from the rental of part of the home as an Airbnb and occupation rent.

[9] The trial of the remaining issues is scheduled for May, 2024.

[10] The former matrimonial home has been sold with the closing to be on December 20, 2023. The net proceeds of sale will approximate $500,000.

[11] The Applicant states that he requires his full share of the net proceeds to be able to purchase another residence as he is residing in a basement apartment and unable to have his adult daughter spend time with him. He maintains that he is gainfully employed, a T-4 employee and that he has a support obligation arising from his prior divorce.

[12] From the materials filed on the motion, I understand relevant facts (in dispute) are as follows:

(a) the parties cohabited for either 4.7 years (Applicant’s position) or 7 years (Respondent’s position);

(b) the Respondent’s adult daughter is in year 3 of what is presumed to be a 4 year program at York University;

(c) the Applicant denies the Respondent’s daughter’s entitlement to support and intends to make the daughter’s biological father a party to the case and to also seek information from the Respondent’s current partner (she denies the extent of that relationship would oblige this individual to have a support obligation);

(d) the Applicant claims occupation rent in an unspecified amount. He also seeks an adjustment of the carrying costs including an accounting of income derived from the former family residence being used as an Airbnb;

(e) the Applicant seeks to have the Respondent be responsible for the mortgage penalty on the sale of the family residence. At issue is the term of the prior renewal of the mortgage, negotiated after separation and the signatory of the mortgage renewal (the Applicant denies that is was him); and

(f) the Respondent questions the Applicant’s ties to this jurisdiction and that he has been working out of the country. He disputes this, submitting that he is a gainfully employed T-4 employee and that he has spousal support obligations arising from his marriage that are being honoured.

[13] There are strengths and weaknesses in each of the parties outstanding claims. I have no doubt that their lawyers know this and I suspect that the litigants have been informed of this. Whereas I could opine on my view of those strengths and weaknesses, that is not before me and I strongly suspect that the case management Judge has already done that at the recently completed Settlement Conference.

[14] All I have are competing, untested affidavits. Absent some sort of compromise, the ultimate distribution of the net proceeds of sale will have to await a trial where credibility issues can be resolved. [^1]

[15] It is tempting to me to holdback the entirety of the net proceeds to perhaps encourage the parties to consider alternatives to a trial. They have not provided me with a quantification of the Airbnb income in dispute. They have not provided me with an accounting of the mortgage penalty apart from the determination if the Applicant never agreed to the mortgage renewal, as he alleges. They have not provided me with the particulars in support of the Respondent’s entitlement to receive spousal support or the likely duration of her entitlement, if any.

[16] I appreciate that the parties could benefit from an interim distribution, if for no other reason to assist them with their legal expenses of pursuing a trial apart from their own living expenses and the supposed need to secure alternative accommodation.

[17] I am ordering the sum of $100,000 to be held back from the net proceeds of sale and that the balance be divided equally apart from the awarded costs of the motion being paid from the Respondent’s share. Absent a proper foundation for this Ruling being provided to me, there will be no added award of costs.

The Honourable Justice R. Kaufman Date: November 1, 2023

[^1]: Ierullo v. Ierullo, 2006 ONCA 704, [2006] O.J. No. 3912 (ONCA).