DATE: 2023 11 23

Superior Court of Justice - Ontario

Re: Zaheer Ud Din Babar, Plaintiff And: Muhammad Jawaid, Defendant

Before: Coats J.

Counsel: Hossain Sajid, for the Plaintiff Cadogan Granville, for the Defendant and non-party Shazia Jawaid

Heard: August 30, 2023, and November 2, 2023

Endorsement

Motions before the court:

[1] The Defendant, Muhammad Jawaid, and the Non-Party, Shazia Jawaid, Muhammed Jawaid’s spouse, served a Notice of Motion dated November 28, 2022, seeking the following relief:

1. An order granting Shazia Jawaid exclusive possession of the property located at 15 Agincourt Circle, Brampton, Ontario, (the “Property”);
2. An order staying the Notice to Vacate the Property, dated November 7, 2022;
3. An order setting aside the Writ of Possession, leave for which was granted by order on September 21, 2022 for the Plaintiff to so issue;
4. An order that the Plaintiff produce an accounting of all monies received from the property located at 1221 Pinegrove Road, Oakville, Ontario, in which property Shazia Jawaid has an interest;
5. An order for the safekeeping and preservation of the Property and its contents until this matter is determined; and
6. An order staying any further action by the Plaintiff until this matter is heard and determined.

[2] The Defendant and Shazia Jawaid filed an Amended Notice of Motion dated May 25, 2023, wherein they added a claim for an order setting aside the Summary Judgment granted January 13, 2022.

[3] By the time their Factum was filed, the Defendant and his spouse were seeking to set aside the Writ of Possession and a stay of the Notice to Vacate served by the Sheriff which required the Defendant and his spouse to vacate the property by December 7, 2022.

[4] The Plaintiff served a Notice of Cross-Motion dated December 16, 2022, seeking various relief as follows:

1. An order for leave to add Mrs. Shazia Jawaid, Mr. Muhammad Ehsham Khan and Mr. Muhammad Hashir Khan and any other individuals who may be residing at the subject Property, as parties to the within proceeding;
2. An order compelling the Defendant to provide the names, addresses and contact information for all individuals residing at the subject Property;
3. An order validating, abridging, or extending any time requirements for the service upon Mrs. Shazia Jawaid, Mr. Muhammad Ehsham Khan and Mr. Muhammad Hashir Khan and any other individuals as may be residing at the subject Property; and
4. An order granting the Plaintiff leave to re-issue a Writ of Possession directed to the Sheriff of the City of Brampton for the Property.

[5] When the motion was argued the Plaintiff sought the following relief:

1. An order validating services upon Shazia Jawaid; and
2. An order granting the Plaintiff leave to re-issue a writ of possession for the Property.

Background

[6] Most of the background is not in dispute. Shazia Jawaid is the spouse of the Defendant. The parties married on September 20, 2000.

[7] The Plaintiff and Defendant agreed to a mortgage commitment dated May 30, 2019, wherein the Defendant borrowed $125,000 for a three-month term. As security, a charge/mortgage was registered on title to the Property, which is owned by the Defendant, on May 31, 2019 in favour of the Plaintiff. Shazia Jawaid consented to the mortgage as a spouse.

[8] The mortgage matured on August 30, 2019. The Plaintiff issued a demand. The debt was not repaid and it has not been repaid since.

[9] The Plaintiff issued a Notice of Sale under the Mortgage dated on September 14, 2020. The Notice was served on the Defendant. The Plaintiff took no step to advance the Notice of Sale. The Plaintiff did not take possession of the property.

[10] On March 9, 2021, the Defendant’s spouse registered a matrimonial home designation of the Property.

[11] On March 19, 2021 the Plaintiff commenced this action for mortgage enforcement by way of a Statement of Claim. The Defendant’s spouse was not a party and she was not served.

[12] On January 13, 2022, Mills J., granted the Plaintiff summary judgment against the Defendant, in the amount of $141,178.08, plus legal fees of $7,500. The Plaintiff was also granted judgment for possessions. Leave to issue a writ of possession was not granted and the Plaintiff was directed to put the Defendant and any occupants of the property on notice of the Plaintiff’s intention to enforcement the judgment. Shazia Jawaid was not served the motion wherein the Plaintiff sought summary judgment.

[13] The Defendant appealed the decision granting the Plaintiff summary judgment. The appeal did not proceed.

[14] The Plaintiff then commenced a motion for leave to issue a writ of possession. This motion was granted by Chang J. on September 21, 2022. This motion was not served on Shazia Jawaid and she did not receive notice. A writ of possession was issued and delivered to the Sherriff. A Notice to Vacate dated November 7, 2022 was then prepared and served on the Defendant.

[15] The Defendant states that he received the Notice to Vacate on November 23, 2022, and advised his spouse about the Notice. Shazia Jawaid states that she discovered these proceedings on November 23, 2022, when the Defendant, her husband, notified her of the Notice from the Sherriff.

[16] On November 29, 2022, the Defendant and his spouse commenced this motion.

[17] An Endorsement of Chang J. dated November 30, 2022 provided that the Plaintiff is enjoined from taking any further steps to enforce his judgment, including by way of an order for possession or the writ of possession, until further order of the court. In a further endorsement by Chang J. dated February 2, 2023, paragraph 4 provides as follows:

4. In addition, despite my November 30, 2022, the plaintiff has taken further steps to enforce the default judgment herein. The plaintiff is hereby ordered to forthwith remove the subject property from MLS and any other similar service and to forthwith terminate any and all listing agreements and similar agreements respecting the subject property.

[18] The motions then came before me on August 30 and November 2, 2023. I reserved my decision on the issues raised and this endorsement is my decision.

Issues:

[19] As set out above, the Defendant and his spouse seek a stay of enforcement of the Notice to Vacate and an order to set aside the Writ of Possession. The Plaintiff seeks leave to re-issue a writ of possession.

[20] I will also deal with five additional issues:

1. The Defendant and Shazia Jawid’s claim to set aside the judgment of January 13, 2022;
2. The Defendant and Shazia Jawaid’s claim for an accounting for the proceeds of sale of 1221 Pinegrove Road, Oakville Ontario;
3. The Defendant and Shazia Jawaid’s claim that enforcement should be stayed because of the Plaintiff’s failure to provide a mortgage discharge statement;
4. The Defendant and Shazia Jawaid’s claim regarding the lack of service of the Notice of Sale; and
5. The Defendant’s claim in his Affidavit of November 28, 2022 (not in the Notice of Motion), that he and the Plaintiff resolved the matter.

Analysis:

a) The Defendant and Shazia Jawaid’s claim to a stay of the Notice to Vacate and to set aside the Writ of Possession.

[21] In my view this issue is now moot. Rule 60.10(3) of the Rules of Civil Procedure provides that “[a] writ of possession remains in force for one year from the date of the order authorizing its issue, and may, before its expiry, be renewed by order for a period of one year from each renewal.” The Writ of Possession has now expired. It is now more than a year from the date of the order authorizing its issue. The Notice to Vacate issued based on the Writ of Possession has also, by implication, expired.

b) Should a new writ of possession be granted to the Plaintiff?

[22] Section 18(1) of the Family Law Act defines a matrimonial home:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[23] Section 19(1) of the Family Law Act provides that both spouses have an equal right to possession of a matrimonial home.

[24] Section 22 of the Family Law Act provides as follows:

Right of redemption and to notice

22 (1) When a person proceeds to realize upon a lien, encumbrance or execution or exercises a forfeiture against property that is a matrimonial home, the spouse who has a right of possession under section 19 has the same right of redemption or relief against forfeiture as the other spouse and is entitled to the same notice respecting the claim and its enforcement or realization.

Service of notice

(2) A notice to which a spouse is entitled under subsection (1) shall be deemed to be sufficiently given if served or given personally or by registered mail addressed to the spouse at his or her usual or last known address or, if none, the address of the matrimonial home, and, if notice is served or given by mail, the service shall be deemed to have been made on the fifth day after the day of mailing.

Idem: power of sale

(3) When a person exercises a power of sale against property that is a matrimonial home, sections 33 and 34 of the Mortgages Act apply and subsection (2) does not apply.

Payments by spouse

(4) If a spouse makes a payment in exercise of the right conferred by subsection (1), the payment shall be applied in satisfaction of the claim giving rise to the lien, encumbrance, execution or forfeiture.

Realization may continue in spouse’s absence

(5) Despite any other Act, when a person who proceeds to realize upon a lien, encumbrance or execution or exercises a forfeiture does not have sufficient particulars of a spouse for the purpose and there is no response to a notice given under subsection (2) or under section 33 of the Mortgages Act, the realization or exercise of forfeiture may continue in the absence and without regard to the interest of the spouse and the spouse’s rights under this section end on the completion of the realization or forfeiture.

[25] It is clear that the Property is a matrimonial home. The Plaintiff knew or ought to have known this, as Shazia Jawaid consented to the mortgage as a spouse and, by the time the Statement of Claim was issued, Shazia Jawaid had registered on title a designation of the Property as a matrimonial home. She had an equal right of possession under Section 19(1).

[26] I find that in accordance with Section 22 of the Family Law Act, Shazia Jawaid was entitled to notice when the Plaintiff applied for leave to issue a writ of possession.

[27] This is consistent with the decision in Counsel Trust Company v. Witkinderen Investments Inc et. al. (1985), 49 R.F.L. (2d) 357 (Ont. S.C.). Master Donkin was considering sections 40 and 43(1) of the Family Law Reform Act which are virtually identical to sections 19 and 22 of the Family Law Act. Paragraphs 2-9 of the decision provides as follows:

The plaintiff is the assignee of a mortgagee. The defendant Witkinderen Investments is mortgagor. The defendants Deborah Lucas, Jack T. Witte and John Witte are guarantors. Mark Witte is joined as a defendant as being one of the persons along with the other personal defendants who is in possession of the premises.

Default judgment was signed against all defendants for possession.

The question that arises is whether the spouses of the personal defendants should have notice before a writ of possession is issued and, if so, the type of notice which they should have.

By virtue of s. 43(1) of the Family Law Reform Act spouses are entitled to notice "where a person is proceeding to realize upon a lien, encumbrance or execution... against property that is a matrimonial home", if "the spouse ... has a right of possession by virtue of section 40." Section 40 provides that a spouse is equally entitled to any right of possession of the other spouse in a matrimonial home.

There is no evidence in this matter that the premises are not a matrimonial home.

It is trite to say that a matrimonial home can be registered in the name of someone other than either of the spouses. The matrimonial home can be rented or it could consist in property in which one spouse has a licence or other type of permission to occupy. It is also clear that the fact that the spouse may not be in the matrimonial home at the time action is taken does not deprive the spouse of the right to notice because s. 39 defines a matrimonial home as property in which a person "has an interest and that is or has been occupied by the person and his or her spouse as their family residence." Section 40(1) states that a spouse is equally entitled to any right of possession of the other spouse in a matrimonial home. It therefore appears that, if the property was occupied by spouses as tenants or some other fashion which gave either of them any right of the property at any time during the marriage, then the property is and remains a matrimonial home. It is therefore my view that unless the plaintiff can give some evidence to the effect that this property never was a matrimonial home then it is incumbent upon that plaintiff to give notice not only to those who have the registered interest in the property and their spouses, but also those who have actual possession and their spouses.

In this case it seems to me that the plaintiff, whose claim is only for possession, had an option when it commenced the action. It could have sued only the mortgagor and then given notice after judgment to those in possession. It could have proceeded as it did by joining those who were known to be in possession as defendants. Those in possession are entitled to either be joined as defendants or to receive notice before the writ of possession is issued. Since those in possession are not entitled to be joined as defendants, but are entitled to be either joined as defendants or given notice of the judgment, then it seems to me that the requirements of s. 43 of the Family Law Reform Act would be satisfied if reasonable notice to give up possession was given to the spouses of those known to be in possession. Such notice could be given as provided in the Act and as explained and set out in Maritime Life Assur. Co. v. Karapatakis (1979), 24 O.R.(2d) 311, 9 R.F.L. (2d) 265, 7 R.P.R. 229 (Master).

I therefore hold that leave to issue a writ of possession should not be issued at this time until notice has been given to the spouses known to be in possession or until some other satisfactory evidence is filed that they either have no spouses or that the premises were never a matrimonial home.

[28] In accordance with this decision, Shazia Jawaid is not simply entitled to be joined as a defendant. She is entitled to be joined as a defendant or given notice of the judgment. She was not named as a defendant, so she is entitled to notice of the motion for leave to issue a writ of possession.

[29] This is also consistent with Community Trust Company Ltd. v. Pollock (1982), 36 C.P.C. 277 (Ont. S.C.). This case was also under the Family Law Reform Act. A judgment for possession was signed against Mr. Pollock. His spouse was not named as a party to the judgment. An ex parte order was made granting leave to issue a writ of possession against Mr. Pollock. This order was set aside on the application of Mr. Pollock’s spouse, who did not have notice of the motion.

[30] In my view, this is also consistent with Mei Ki Ching v. Carleton Condominium Corporation No. 203, 2019 ONSC 4338, which considered the applicable sections of the Family Law Act and found that, when a condominium corporation takes a step that may affect the possessory rights of an untitled spouse in a matrimonial home, it is required under the Family Law Act to give notice to the spouse. This requirement was triggered when the corporation gave notice that it intended to register a certificate of lien against the unit. Paragraph 35 of Mei provides as follows:

CCC 203 was proceeding to realize upon its unregistered lien when it gave the ten (10) day notice to pay the arrears or else it would register a certificate of lien against the unit. This interpretation of Section 22 (1) of the FLA would allow the non-titled spouse to redeem and protect their possessory interest in the matrimonial home and would be consistent with the scheme, object and intention of the legislature when enacting of s. 22 (1) of the FLA. The object and intention of the legislation in enacting s. 22 (1) of the FLA was to provide the untitled spouse of a matrimonial home with the same notice as their spouse, of any claim or proceeding that would affect their possessory interest and to provide them with the opportunity to redeem.

[31] In my view, this is consistent with requiring notice of the intention to seek a Writ of Possession. This would provide notice when the proceeding would affect Shazia Jawaid’s possessory interest and provide her with the opportunity to redeem,

[32] Requiring notice to be given to Shazia Jawaid of the motion for leave to issue a Writ of Possession was also required by Mills J’s Endorsement of January 13, 2022, which at paragraph 13 provides that, “[t]he plaintiff must take the appropriate steps to put the defendant and any occupants of the Property on notice of his intention to enforce the judgment.”

[33] Shazia Jawaid was not served with or otherwise notified of the motion by the Plaintiff seeking leave to issue a Writ of Possession. Therefore, if that Writ had not expired, I would have set it aside.

[34] Rule 60.10 (1) of the Rules of Civil Procedure provides for a motion without notice as an acceptable process for leave to obtain a Writ of Possession. In my view, the Family Law Act requires that the spouse be given notice if the property is a matrimonial home and the spouse was not joined as a defendant.

[35] Now, however, Shazia Jawaid clearly has notice. She has had notice at least since the cross-motion was served in January of 2023, of the Plaintiff’s claim to re-issue a writ of possession. The lack of notice has been remedied. I therefore grant the Plaintiff leave to issue a fresh writ of possession, subject to the terms set out below.

c) Should the Judgment granted January 13, 2022 be set aside?

[36] The summary judgment should not be set aide. The underlying judgment was not set aside in either Counsel Trust or Community Trust. The Plaintiff in this case could have named Shazia Jawaid as a defendant in the Statement of Claim. The Plaintiff did not. As set out in Counsel Trust, the spouse has no right specifically to be named as a defendant. If not so named, the spouse has a right to notice of the motion seeking a writ of possession. The remedy is for an order for the writ to be set aside. The Plaintiff was entitled to the judgment against the Defendant as he was the sole mortgagor.

d) Defendant and Shazia Jawaid’s claim for accounting of the proceeds of 1221 Pinegrove Road.

[37] Neither the Defendant’s nor Shazia Jawaid’s Affidavits filed in support of their motion address this issue. There is no evidentiary basis to consider this claim.

e) Defendant and Shazia Jawaid’s claim for stay based on failure of the Plaintiff to provide a discharge.

[38] It is clear that on March 11, 2022 the Defendant and Shazia Jawaid requested a discharge statement. It was requested a second time on March 28, 2022, a third time on April 1, 2023, and a fourth time on April 5, 2022. There is no indication that one was ever provided.

[39] Section 22 of the Mortgages Act, R.S.O. 1990. c. M 40 states:

Relief before action

22 (1) Despite any agreement to the contrary, where default has occurred in making any payment of principal or interest due under a mortgage or in the observance of any covenant in a mortgage and under the terms of the mortgage, by reason of such default, the whole principal and interest secured thereby has become due and payable,

(a) at any time before sale under the mortgage; or

(b) before the commencement of an action for the enforcement of the rights of the mortgagee or of any person claiming through or under the mortgagee,

the mortgagor may perform such covenant or pay the amount due under the mortgage, exclusive of the money not payable by reason merely of lapse of time, and pay any expenses necessarily incurred by the mortgagee, and thereupon the mortgagor is relieved from the consequences of such default.

Statement of arrears, expenses, etc.

(2) The mortgagor may, by a notice in writing, require the mortgagee to furnish the mortgagor with a statement in writing,

(a) of the amount of the principal or interest with respect to which the mortgagor is in default; or

(b) of the nature of the default or the non-observance of the covenant,

and of the amount of any expenses necessarily incurred by the mortgagee.

Idem

(3) The mortgagee shall answer a notice given under subsection (2) within fifteen days after receiving it, and, if without reasonable excuse the mortgagee fails so to do or if the answer is incomplete or incorrect, any rights that the mortgagee may have to enforce the mortgage shall be suspended until the mortgagee has complied with subsection (2).

[40] The Plaintiff shall within 15 days of today provide the Defendant and Shazia Jawaid a statement as required by section 22.

f) The Notice of Sale

[41] The issue of whether Shazia Jawaid was entitled to notice of the Notice of Sale, or did receive notice, is moot. The Plaintiff did not act on that Notice. The Plaintiff commenced this proceeding.

g) The Defendant’s Position that the Parties Resolved the Debt

[42] In his Affidavit of November 28, 2022, the Defendant claims that he met with the Plaintiff on March 9, 2022 and reached an agreement on the repayment of the debt. He did not seek an order enforcing a settlement in the Notice of Motion. Further, the Defendant did not make the payments due in accordance with the alleged settlement. Within days of the meeting, the Defendant requested a discharge statement. This is inconsistent with there having been a settlement based on two payments, in specific amounts, as the Defendant alleges. Therefore, I do not accept the parties resolved the debt.

Conclusion

[43] Within 15 days of today, the Plaintiff shall provide to the Defendant and Shazia Jawaid a discharge statement as required under section 22 of the Mortgage Act.

[44] The Plaintiff shall be at liberty to issue a fresh writ of possession. It may not be issued until 75 days from today. This is to ensure that the Defendant and Shazia Jawaid receive the statement, and to address that Shazia Jawaid was not given notice of the original motion for leave to issue a writ of possession. I am mindful that Shazia Jawaid has known about the Plaintiff’s request for a new writ since January 2023 and that she has continued to live at the Property, with no payments being made to the Plaintiff, since August of 2019. She has had considerable time to redeem the Property and therefore she is granted just the 75 days.

Costs:

[45] I encourage the parties to resolve the issue of costs. If they are unable to do so, each party claiming costs shall serve and file brief written submissions as to costs, limited to two pages (double spaced with regular font and margins), with a bill of costs attached, to be served and filed within 30 days of today.

[46] The responding party shall serve and file brief written responding submissions as to costs, limited to two pages (double spaced with regular font and margins), to be served and filed within 60 days of today.

[47] If both parties claim costs, each party shall be entitled to two pages of submissions, as just set out in paragraph 45 of their claim and two pages set out in paragraph 46 to respond to the other party’s claim, within the same timelines above. There shall be no right of reply.

Coats J. Date: November 23, 2023