COURT FILE NO.: FS-19-00096622-00 DATE: 2023 11 20

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: BOUTIN, Micheline, Applicant AND: BOUTIN, Victor, Respondent

BEFORE: Regional Superior Justice L. Ricchetti

COUNSEL: CARR, ALEXANDRA and MORGAN, Timothy, for the Applicant (BOUTIN, Micheline) SWAN, Richard, for the Respondent (BOUTIN, Victor) [Civil Counsel] JOSEPH, Gary and MACEACHERN, Aria, for the Respondent (BOUTIN, Victor) [Family Counsel]

HEARD: November 10, 2023; Virtually.

ENDORSEMENT

THE ISSUES

[1] There were four matters dealt with at this hearing.

[2] The first was a motion by the Receiver. Order to go in the form signed by me.

[3] The second was a motion to amend Ms. Boutin’s pleading. Order to go in the form signed by me.

[4] The third was to order for the payment of outstanding cost orders to Ms. Boutin from the funds held by the Receiver. A consent order was to be sent to me for review and signing.

[5] The last matter was contested: the Transfer and Consolidation of Toronto Court File No. CV-23-00705224 with this family proceeding (Toronto Proceeding).

BACKGROUND TO THE BRAMPTON PROCEEDING

[6] This Brampton proceeding (Brampton Proceeding) is a protracted, highly contentious family law proceeding. There have been well in excess of 30 or more motions in this proceeding. The judicial resources utilized by the Brampton Proceeding has been enormous.

[7] The parties are in their 70s and a lengthy protracted litigation is also not in their best interests.

[8] An early resolution, or judicial determination, if necessary, is needed.

[9] The issues between the parties are entirely financial, essentially, equalization and spousal support.

[10] At the center of the financial issues is the real estate investment and development business of Mr. Boutin, amassed during the marriage. Some of Mr. Boutin’s real estate business, and other assets, are (or were) in Mr. Boutin’s name and, some, through variety of corporations controlled wholly by him (the Boutin Companies) and, some, partially owned by him. There are also a number of properties jointly owned with third parties. There are numerous non-arm’s length transactions involving Mr. Boutin /Boutin Companies that are at issue as well.

[11] Mr. Boutin has, throughout the Brampton Proceeding, refused to provide complete and accurate financial disclosure. This alone has taken a number of years and is still ongoing. Despite the fact this proceeding was commenced in 2019, complete and accurate financial disclosure has never been made by Mr. Boutin.

[12] Resolution nor setting this proceeding for trial has been thwarted and remains an elusive goal.

[13] Early in the proceeding, a number of orders were made that Mr. Boutin pay interim monies to Ms. Boutin and pay expenses relating to certain properties. Compliance with these court orders were met with allegations of impecuniosity by Mr. Boutin. An allegation that has since been proven to be inaccurate.

[14] Eventually, Ms. Boutin brought a contempt motion. The liability hearing on the contempt motion was heard in May 2022.

[15] Mr. Boutin was found in contempt of various court orders relating to disclosure and preservation of family property. See Boutin v. Boutin 2022 ONSC 3229.

[16] On August 5, 2022, the matter proceeded to a contempt sentencing hearing. Mr. Boutin had not purged his contempt. See Boutin v. Boutin 2022 ONSC 4776 (Contempt Sentencing Hearing Reasons).

[17] As a result, an Investigative Receiver was appointed to obtain financial disclosure from Mr. Boutin and the Boutin Companies.

[18] At the Contempt Sentencing Hearing, there were also competing motions by Mr. Boutin and Ms. Boutin to sell some of the Boutin properties (both personal and corporate) See para. 97 and following.

[19] At para. 115 and following of the Contempt Sentencing Hearing Reasons, this court stated:

[115] Mr. Boutin’s Proposed Sale Properties and Mrs. Boutin’s Proposed Sale Properties must be sold immediately. The proceeds will be used to pay the Investigative Receiver and to satisfy Mr. Boutin’s outstanding orders for payment to Mrs. Boutin. To the extent there are any further monies, the balance of the monies will be held in court until further order of the court.

[116] At this point, I am not prepared to give complete control of the sale process to Mrs. Boutin. Should it become necessary, this can be sought on an urgent motion on notice before me, with evidence demonstrating why such an order is necessary.

[117] The terms applicable for sale of these properties include:

a) Mr. Boutin or his counsel shall have ten (10) days from the release of this decision to provide Mrs. Boutin’s counsel three names of real estate agents for each of the Mr. Boutin’s Proposed Sale Properties and Mrs. Boutin’s Proposed Sale Properties. Each of the real estate agents must not have had any prior involvement in any of these properties (or any other Boutin properties) or with Mr. Boutin or with the Boutin Companies, JSVB, Jimmy Boutin, Jimmy Boutin’s wife (Audrey), or Eric Boutin. Mr. Boutin must confirm in writing this “independence” accompanying the list of proposed real estate agents.

b) Mrs. Boutin shall select one of the three real estate agents for each property within ten (10) days of receipt of the proposed real estate agents. If Mr. Boutin does not provide a list of proposed real estate agents as directed (for any or all properties to be sold), Mrs. Boutin can unilaterally choose a real estate agent for each property to be sold.

c) If there is a dispute regarding the selection of a real estate agent for any of these properties, I will determine the selection of the real estate agent(s) for the sale of a property(s) on an urgent motion.

d) The listing will be a Multiple Listing Service listing.

e) If Mr. Boutin and Mrs. Boutin cannot agree on a listing price for each property, I will determine the listing price on an urgent motion.

f) Both parties shall cooperate in the viewing and sale of the properties.

g) Any offer received is to be submitted to both Mr. Boutin and Mrs. Boutin. If an offer submitted is agreeable to both Mrs. Boutin and Mr. Boutin, Mr. Boutin shall accept the offer personally or on behalf of the registered corporate owner. There will be no subsequent amendments to the accepted offer without the written approval of both parties or this court.

h) If there is a dispute or delay regarding whether a particular offer should be accepted, either party can bring the matter before me for a judicial determination on an urgent basis.

i) When a property is sold, all reasonable real estate sale expenses and usual adjustments are to be paid. Any third party, arm’s length encumbrances, shall also be paid only if agreed upon by the parties. If there is a dispute regarding the validity or other issue of any encumbrance or any disbursement/expense to be paid, either party can bring the matter back before me, on notice to the encumbrancer or third party, for a judicial determination on an urgent basis. Thereafter, any remaining surplus shall be paid to the Receiver ($100,000 if not previously paid), then to Mrs. Boutin up to the amounts outstanding under existing court orders, then to Mrs. Boutin for any cost order made herein and, finally, any balance shall then be paid into court until further order of this court.

j) If necessary, either party can move to complete a sale by way of a court vesting order or for further directions should it becomes necessary. This relief can be sought before me on an urgent basis.

[20] Mr. Boutin was to be equally involved, along with Ms. Boutin, in selling the properties the court ordered sold (“To Be Sold Properties”). Any dispute regarding the sale of the To Be Sold Properties, would be decided by this court on an urgent motion.

[21] Mr. Boutin ignored the court’s Order and attempted to sell the To Be Sold Properties himself. The matter returned to this court on September 27, 2022. In the court’s written reasons dated September 27, 2022, the court stated:

16. The Order was not followed by Mr. Boutin. In particular:

1. Mr. Boutin did not provide the names of real estate agents he proposed for each property. Prodding by Mrs. Boutin’s counsel to produce such names did not help;

2. Mr. Boutin unilaterally, with agents of his choice (who had prior dealings with Mr. Boutin), listed the properties ordered to be sold.

3. Mr. Boutin also listed the matrimonial home (Brampton) and the Garafraxa property with the same agents (which were not one of the properties ordered to be sold), despite the fact Mrs. Boutin is a joint owner, without her knowledge or approval and for which Mrs. Boutin has an order for exclusive possession of the matrimonial home.

4. Subsequent to Mrs. Boutin’s first affidavit, Mr. Boutin listed another jointly owned property (Caledon) without Mrs. Boutin’s knowledge or approval.

5. There is a dispute whether the listing prices are or were reasonable listing prices.

6. Despite being asked by Mrs. Boutin’s counsel to “delist” the properties listed by Mr. Boutin contrary to the terms of the August 22, 2022 order, Mr. Boutin has not done so.

7. Despite Mr. Boutin listing the properties for over $45 million dollars, he continues to claim he doesn’t have the $100,000 to fund the Receiver as he was to do under the August 22, 2022 order.

17. Mr. Boutin’s position is that it was either a misunderstanding or that he wanted to be “proactive”. I reject any misunderstanding as my Reasons/Order could not have been clearer with respect to the sale of the properties. As for being proactive – this is nothing more than Mr. Boutin’s continued deliberate and flagrant disregard for court orders.

18. Mr. Boutin tries to justify his actions by setting out what he considers to be reasonable listing prices and what he is doing with the properties. However, none of that explains the flagrant disregard for my Order to follow the listing and sale procedures carefully set out.

19. One of the most egregious and non-sensical responses by Mr. Boutin is that the non-dissipation order of J. Van Melle, did not prevent him “from listing properties”. If Mr. Boutin is subject to a court order from selling properties, why list them? And, why list them in complete disregard of my court order?

20. This court orders that Mr. Boutin immediately terminate the listings for the matrimonial home (Brampton), the Garafraxa property and the Caledon property. Proof of termination of the listing agreements for these properties must be delivered to Mrs. Boutin’s counsel forthwith.

21. As for the 8 properties to be sold, Mr. Boutin shall immediately terminate those listings which Mrs. Boutin (or her counsel) request are terminated. Mrs. Boutin shall have each of these properties vested in her name solely for the purpose of listing and selling each of these properties. Any and all further dealings with the said 8 properties can only be carried by Mrs. Boutin, subject to further court order. To be clear, Mrs. Boutin shall have full and complete discretion with regard to all matters relating to the sale of these properties save and except that the net proceeds (after third party encumbrances, legal, commissions and usual adjustments) are paid into court. Neither Mr. Boutin nor Mr. Boutin’s companies’ approval, signature or authorization are necessary for listing, showing, or selling these properties. Mr. Boutin and the Boutin companies are to not have any further dealings whatsoever with these properties. If necessary, this court can and will issue vesting orders for the sale of these properties. Mrs. Boutin shall keep Mr. Boutin generally advised of the listing, offers and sale of these properties.

22. Approval of this order by Mr. Boutin and JSVB is hereby dispensed with. Mrs. Boutin’s counsel can forward a copy of the proposed draft order to my attention. Mrs. Boutin may register the issued order on title to any of the said properties.

[22] The court determined that Mr. Boutin’s actions disentitled him to participate in the sale of the To Be Sold Properties. Ms. Boutin was given authority to proceed to sell the To Be Sold Properties without Mr. Boutin’s consent or signature. However, the court ordered that Mr. Boutin be given all information regarding the sale of these properties such as offers, agreements etc.

[23] Ms. Boutin proceeded to attempt to sell some of the To Be Sold Properties.

[24] Early in the process, Ms. Boutin did NOT keep Mr. Boutin apprised of the sale of the properties to be sold. As a result, on December 5, 2022, this matter came back before this court. Upon being advised that Ms. Boutin had not provided timely information to Mr. Boutin regarding the sale of the properties, this court ordered the immediate disclosure to Mr. Boutin of all the information regarding the proposed sale of the To Be Sold Properties.

[25] No further complaint or issue was raised by Mr. Boutin regarding not being provided with this sale information.

[26] Mr. Boutin was given an opportunity to return to court if Mrs. Boutin’s actions in the sale of the To Be Sold Properties were not reasonable nor fair:

15. Mr. Boutin is entitled to ensure that the sale by Mrs. Boutin is reasonable and fair, failing which Mr. Boutin can come back to court for further directions if there are clear failings in this regard.

[27] Mr. Boutin was unhappy with the sale of the To Be Sold Properties and with the sale price of those properties.

[28] On December 29, 2022, the matter again returned to this court. Mr. Boutin sought to delay the sale of on the properties by requesting the court to direct an independent appraisal of that property. The court stated:

Mr. Boutin seeks an order to obtain an independent appraisal of Lot 26 Heritage Road, Caledon, Ontario. He is free to do so. However, this court made it clear to his counsel that this will NOT hold up the sale of this property.

The independent appraisal can be used by Mr. Boutin at trial with respect to financial equalization if he can establish that it was an improvident sale as is suggested in the materials.

(Emphasis added).

[29] The issue of improvident sale by Ms. Boutin was explicitly raised by Mr. Boutin and was expressly dealt with by the Court. Mr. Boutin retained the right AT TRIAL to raise the fact that Ms. Boutin has sold the property for below market value when dealing with the equalization of family property. Clearly, that was referring to the Brampton Proceeding where both parties have made it clear that equalization is an issue for trial and where the values of the To Be Sold Properties and other properties owned by the parties, Mr. Boutin or the Boutin Companies will be before the court in determining equalization and post equalization adjustments.

[30] On January 24, 2023, the matter returned once again to this court. Mr. Boutin continued with his efforts to prevent the sale of the To Be Sold Properties at least those properties which had not already been sold. See Boutin v. Boutin 2023 ONSC 759. This court stated:

[50] There is no basis in law or equity for this court to vary its order regarding the sale of the properties ordered in Boutin v. Boutin, 2022 ONSC 4776.

[51] Mr. Boutin suggests that the properties are being sold by Mrs. Boutin at “fire sale” prices. Yet, there is no convincing evidence of this. Mr. Boutin stating there is another property close which Mr. Boutin says was sold for more money is not convincing evidence.

[52] And, as I stated before, Mr. Boutin is free to obtain appraisals and make a claim against Mrs. Boutin for improvident sale(s) which claim, if successful, can be considering in determining the equalization payment at the trial.

[31] Like the previous attendance, Mr. Boutin alleged that Ms. Boutin was selling the To Be Sold Properties below market value. However, there was no evidence to support this except Mr. Boutin’s allegation.

[32] Four properties of the To Be Sold Properties were sold. The net proceeds, less amounts authorized to be paid out, remain with the Receiver in trust.

[33] On August 9, 2023, Mr. Boutin brought a motion whereby he sought to be permitted to raise financing “by way of mortgage financing”. That motion was eventually denied for written reasons released.

BACKGROUND TO THE TORONTO PROCEEDING

[34] On August 29, 2023, Mr. Boutin, and the Boutin Companies (Boutin Holdings Limited, 879662 Ontario Inc, and 2136615 Ontario Limited), commenced the Toronto Proceeding against Ms. Boutin.

[35] The claim in the Toronto Proceeding is that Ms. Boutin sold the four properties of the To Be Sold Properties, for under market value. Mr. Boutin and the Boutin Companies claim $22,000,000 in damages.

THE TRANSFER AND CONSOLIDATION MOTION

[36] As a result of the commencement of the Toronto Proceeding, this Transfer and Consolidation motion was brought by Ms. Boutin.

Ms. Boutin’s Position

[37] Ms. Boutin alleges that this court has already determined that any such claim for improvident sale be brought by Mr. Boutin at trial when dealing with the issue of equalization. Further, the Toronto Proceeding is duplicitous, unnecessary, could likely lead to inconsistent findings and will necessarily delay this proceeding. In addition, Ms. Boutin alleges there is no rational connection of the claim advanced in the Toronto Proceeding with Toronto and there is a substantial connection with Peel (Brampton).

Mr. Boutin’s Position

[38] The primary position of Mr. Boutin and the Boutin Companies is that this court authorized a distinct proceeding to deal with Mr. Boutin’s claim that Ms. Boutin has sold the 4 properties at “fire sale prices” and Mr. Boutin and the Boutin Companies were entitled to and chose to bring that proceeding in Toronto.

[39] I highlight the word “distinct”.

ANALYSIS

[40] I consider the submission that this court authorized a distinct (or separate) proceeding, whether or not in a separate jurisdiction, over an issue already in the Brampton Proceeding to be entirely without merit.

[41] The sale of the To Be Sold Properties has been under the direction and supervision of this court. Some of those properties remain unsold. This court has ordered vesting orders where necessary to affect those sales.

[42] On August 22, 2022, Mr. Boutin was given an opportunity to directly participate in the sale of the To Be Sold Properties. He disqualified himself by his own conduct.

[43] On December 5, 2022, Ms. Boutin was ordered to provide Mr. Boutin with listings, offers, and other sale related documents and that if the sale by Ms. Boutin was not reasonable and fair, Mr. Boutin could come back for further directions. Mr. Boutin had an opportunity to come before this court should Ms. Boutin not proceed fairly and reasonably in the sale of the To Be Sold Properties. He did not do so.

[44] Mr. Boutin has made allegations of selling the properties (which were publicly listed for sale through listing agents) without any substantive or even credible proof that Ms. Boutin was engaged in selling the properties at “fire sale” prices. When Mr. Boutin raised the issue of “fire sale” of these properties he did not place before the court any appraisals or other credible evidence of their value to stop the sale. The court have stopped the sale by refusing to grant vesting orders or not waiving the need for Mr. Boutin’s signature on the closings.

[45] In addition, when raised on December 29, 2022, Mr. Boutin’s claim that Ms. Boutin was selling the properties below value was preserved to be used “at trial” (if proven) with on the issue of equalization. That order was not appealed by Mr. Boutin or the Boutin Companies.

[46] In those circumstances, the court’s authorization that Ms. Boutin continue with the sale of the To Be Sold Properties remained.

[47] On January 24, 2023, at a further hearing, Mr. Boutin raised the “improvident sale” issue again in January 2023 as a ground to stop Ms. Boutin from selling the remaining unsold properties (see para. 51 of Boutin v. Boutin 2023 ONSC 759).

[48] Again the court directed that Mr. Boutin “make a claim against Ms. Boutin for improvident sale(s)..”. This paragraph does not say and was not intended to say that the claim could be brought in a distinct or separate proceeding nor does it direct that this proceeding can be brought in another jurisdiction.

[49] Permitting a distinct or separate proceeding and/or to do so in another jurisdiction would have been to disregard the direction in s.138 of the Courts of Justice Act to avoid multiplicity of proceedings where possible. There was no intention to do so and I did not do so state as is now being alleged by Mr. Boutin and the Boutin Companies.

[50] As stated earlier on December 29, 2022, if Mr. Boutin could establish at trial IN THIS PROCEEDING, that Ms. Boutin had sold the properties below market value, then this could be dealt with as an adjustment of the equalization of family assets at trial in this proceeding.

[51] Despite Mr. Boutin undertaking to cooperate in the sale of the properties (see January 24, 2023 Endorsement para. 7), Mr. Boutin did not cooperate with the sale of some of the properties. See February 27, 2023 Endorsement. Further attendances were required to affect the sales.

[52] I entirely reject the submission that this court authorized a separate (or “distinct” claim being the wording used by Mr. Boutin’s counsel) proceeding to deal with the alleged improvident sale of the To Be Sold Properties - whether in another jurisdiction or within this jurisdiction.

TRANSFER OF THE TORONTO PROCEEDING

[53] I accept that a plaintiff has a prima facie right to commence an action in any jurisdiction they wish (unless precluded by legislation) provided that it is a reasonable choice. If so, then the onus shifts to the defendant to establish why the proposed venue is substantially better. See Siemens Canada Ltd. v. Ottawa, [2008] O.J. No. 3740 at paras. 25 and 27.

[54] For the following reasons, in this case, I am satisfied that the selection of Toronto as the venue for the Toronto Proceeding was not a reasonable choice, and in any event, Ms. Boutin has discharged her onus to establish that Brampton is the much better venue and that it is desirable that the Toronto Proceeding be transferred to Brampton.

[55] Rule 13.1.02 permits the court to transfer of a proceeding to another jurisdiction where it is “desirable to do so in the interests of justice”.

[56] The most significant factor in concluding that Toronto was not a reasonable choice of venue is that the alleged improvident issue, relating to the alleged “fire sale” of the properties, was already before this court in the Brampton Proceeding and had been directed by this court to be dealt with in the Brampton Proceeding.

[57] Even if I had not concluded that the Toronto venue was not a reasonable choice, it is desirable in the interests of justice that the Toronto Proceeding be moved to Brampton. Why?

[58] A reading of the Statement of Claim in the Toronto Proceeding demonstrates exactly how factually tied the Toronto Proceeding is to the Brampton Proceeding.

[59] The legal issues to be decided in the Toronto Proceeding are entirely related to the Brampton Proceedings to date. For example, the reasons for the sale of the To Be Sold Properties, the manner the court ordered the sale of the To Be Sold Properties, the reasons why Mr. Boutin lost his right to participate in the sale, the court’s dealings with the properties are central to the issues to be dealt with and impact the decisions in the Toronto Proceeding.

[60] The properties which were sold were all outside of Toronto. NONE of the properties sold were in Toronto. The most valuable property sold was in Peel (Brampton). Hence, the events and the subject matter have no connection with Toronto and a much greater connection with Peel.

[61] All affidavits of Mr. and Ms. Boutin state that they live in Brampton, Ontario. NOT Toronto.

[62] The suggestion that Mr. Boutin’s counsel in the Toronto Proceeding practices in Toronto, is not a relevant consideration.

[63] All of the factors favour a transfer to Peel.

[64] As a result, if necessary, I would have been satisfied that Ms. Boutin met the onus to establish that it is interests of justice to transfer the Toronto Proceeding to Brampton.

[65] In the exercise of my discretion, the Toronto Proceeding is transferred to Brampton.

CONSOLIDATION

[66] Section 138 of the Courts of Justice Act provides:

As far as possible, multiplicity of legal proceedings shall be avoided.

[67] Rule 6.01 grants the court the authority to consolidate two or more proceedings:

(1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule,

the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them.

(See also R. 12 of the Family Law Rules)

[57] In Coulls v. Pinto, 48 C.P.C. (6th) 183 (Ont. S.C.), at para. 18, the court held that the underlying policy of Rule 6.01 is to “avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes, and to avoid inconsistent judicial findings”.

[58] There are a number of factors that the court has considered in deciding whether to try two actions together. See 1014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306, at para. 18:

a . the extent to which the issues in each action are interwoven;

b. the extent to which the damages (or relief) sought is the same;

c. the extent of expected overlap in witnesses;

d. whether the parties are the same;

e. whether the lawyers are the same;

f. whether there is a risk of inconsistent findings or judgment if the actions are not joined;

g. whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

h. the litigation status of each action;

i. the timing of the motion and the possibility of delay;

j. whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

k. any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together; and

l. whether the motion is brought on consent or over the objection of one or more parties.

[59] I am not persuaded that it is necessary for the moving party to establish prejudice or that separate proceedings would amount to an abuse. The onus on Ms. Boutin is to establish that a consolidation will:

a) avoid a multiplicity of proceedings,

b) promote expeditious and inexpensive determination of disputes, and

c) avoid inconsistent judicial findings.

[60] The proper approach to a consolidation motion was set out in Windrift Adventures Inc. v. Ontario (Animal Case Review Board), 2023 ONCA 690 where the court stated the following:

[10] The consolidation rule strives to avoid a multiplicity of proceedings; promote timely and inexpensive determination of disputes; and avoid inconsistent judicial findings: Li v. Bank of Nova Scotia, 2023 ONSC 4235, at para. 62. The test for consolidation is twofold: first, the court must determine whether the moving party has established that any of the criteria under r. 6.01(1) are met; and second, if any criteria have been met, the court must consider whether the balance of convenience favours a consolidation order: Li, at para. 62.

Has Ms. Boutin established any of the criteria in R. 6.01(1)?

[61] There is no doubt that the two proceeding are interrelated and have substantial elements that overlap. The issues are interwoven, as are the damages.

[62] The value of the properties and the sale price will need to be determined in the Brampton Proceeding for the purpose of post separation equalization adjustment. These very same issues will have to be determined in the Toronto Proceeding to establish damages.

[63] The same can be said for liability. The entire background set out above will have to be considered in the determination whether Mr. Boutin and the Boutin Companies can advance a claim for improvident sale for the purpose of post separation adjustments in the Brampton Proceeding and/or liability in the Toronto Proceeding.

[64] The parties are the same.

[65] Clearly, Ms. Boutin has satisfied all of the criterial in R. 6.01. I am so satisfied.

Does the balance of convenience favour a Consolidation Order?

[66] In Windrift supra, the court went on the describe how the court’s discretion should be exercised:

[12] I turn now to the balance of convenience.

[13] In CN v. Holmes, 2011 ONSC 4837, at para. 43, Brown J. (as he then was), reviewed the principles underlying consolidation and stated: “In exercising its discretion whether to order the consolidation of proceedings or that they be heard simultaneously or consecutively, the court will consider the general rule, mandated by the Courts of Justice Act, that, as far as possible, multiplicity of proceedings shall be avoided, and a variety of factors including: (1) the extent of the difference of commonality of the factual or issues in the proceedings; (2) the status of the progress of the several proceedings; and (3) the convenience or inconvenience, in terms of time, money, due process and administration, of bringing the proceedings together.”

[67] As described above, there is a virtual overlap of the factual and legal issues regarding the sale of the properties in both proceedings while the Toronto Proceedings is focused solely on one aspect of what is at issue in the Brampton Proceeding. There is an overlap.

[68] The Toronto Proceeding has not progressed very far. The Brampton Proceeding still has not gotten to the point of complete and accurate disclosure. This is still early in both proceedings – as much as that pains me to say that about a more than 4-year-old family proceeding.

[69] If both proceedings were allowed to proceed, the Brampton Proceeding will not be able to be fully decided until the Toronto Proceeding was decided.

[70] Further, if both proceedings were permitted to continue, there would be a duplication of appraisals, expert evidence and findings with respect to the sales, likely to result in conflicting valuations and decisions.

[71] The issue of delaying one or the other proceeding is very significant.

[72] The issue of inconsistent findings is very significant.

[73] There would be a duplication of many witnesses, including the parties.

[74] There would be two trials rather than one.

[75] Substantial legal costs would be saved by having one action.

[76] I reject the submission that the allegation of improvident sale is a question that is commercial in nature, making it inappropriate (or more suitable) as a separate proceeding from a family law proceeding. Such issues are routinely at issue and decided in family law proceedings.

[77] I find that neither party would be prejudiced if the Consolidation Order is made.

[78] The efficiency of the administration of justice is enhanced with one proceeding dealing with these related claims.

[79] If necessary, I find that Ms. Boutin met her onus.

[80] I am satisfied that a Consolidation Order consolidating both the Toronto Proceeding and the Brampton Proceeding should be made. So ordered.

CONCLUSION

[81] Ms. Boutin’s motion to transfer and consolidate the Toronto Proceeding with the Brampton Proceeding is granted.

[82] To the extent that Mr. Boutin seeks to claim additional damages, in addition to a reduction in any equalization payment he will have to pay to Ms. Boutin, Mr. Boutin shall have 30 days to amend his pleadings in the Brampton Proceeding.

[83] Ms. Boutin shall have 30 days thereafter to amend her reply, if so advised.

[84] If further directions are sought or required, I may be spoken to.

COSTS

[85] Any party seeking costs shall serve and file written submissions on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to three pages, with attached Costs Outline and any authorities.

[86] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to three pages with any authorities relied on attached.

[87] There shall be no reply submissions without leave.

RSJ L. Ricchetti Released: November 20, 2023

COURT FILE NO.: FS-19-00096622-00 DATE: 2023 11 20 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Micheline Boutin -and- Victor Boutin COUNSEL: A.Carr and T. Morgan, for the Applicant R. Swan, for the Respondent [Civil Counsel] G. Joseph and A. Maceachern, for the Respondent [Family Counsel] ENDORSEMENT RSJ L. RICCHETTI Released: November 20, 2023