Court File and Parties

COURT FILE NO.: FC1209/20 DATE: January 31, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Gregory Michael Braun, Applicant AND: Amanda Christina Braun, Respondent

BEFORE: MITROW J.

COUNSEL: Mark A. Simpson for the Applicant Dayna McNair for the Respondent

HEARD: November 29, 2023

Endorsement

INTRODUCTION

[1] Each party brings a motion. The dispute involves the parties’ settlement agreement, which was in the form of final minutes of settlement that were incorporated into an order of the court. At issue in the motions is the entitlement of the respondent to receive the sum of $190,000 from the sale proceeds of the matrimonial home, owned solely by the applicant. This sum represented the agreed upon amount due to the respondent for spousal support and equalization payment. The respondent brings a motion for an order requiring this sum to be paid to her.

[2] The applicant’s position is that the respondent has caused damage to the matrimonial home, and in his motion, the applicant seeks various relief including an order that an amount, in excess $56,000 representing the alleged damage, be deducted from the sum of $190,000 due to the respondent.

[3] The respondent disputes that she has caused any damage to the matrimonial home; she asserts that the minutes of settlement and final order provide a specific procedure to deal with any issues of alleged damage; and that the applicant has failed to follow the procedure that he had agreed to in the minutes of settlement.

[4] Both motions were returnable initially on November 22, 2023, but could not be heard that day. The closing date for the sale of the matrimonial home was scheduled for November 27, 2023. Consequently, the parties agreed to an order adjourning both motions to November 29, 2023, and to an order that included terms that the respondent’s lawyer was to retain in trust from the sum of $190,000, the amount of $55,000 representing the alleged damage claim, and a further sum of $12,000 for potential costs. The order also included a term that the applicant’s counsel was to retain from the balance of the sale proceeds due to the applicant, the sum of $12,000 for potential costs.

[5] For reasons that follow, the respondent’s motion for payment to her of $190,000 is allowed subject to conditions specified in the order below, the applicant’s motion is dismissed, and the order below provides for written costs submissions.

THE FINAL MINUTES OF SETTLEMENT AND FINAL ORDER

[6] The evidence indicates that this is a high-conflict case. The parties were married in 2006. They separated in the latter part of 2020. The parties have one child born in 2010.

[7] The applicant was charged with assaulting the respondent in November 2020. The applicant refers to being bound by a subsequent peace bond.

[8] Despite the conflict between the parties, they are commended for being able to enter into comprehensive final minutes of settlement in March 2023 through mediation, resolving all issues on a final basis. This matter had been on the April 2023 trial list.

[9] The minutes of settlement were deemed to constitute a separation agreement pursuant to s. 54 of the Family Law Act, R.S.O. 1990, c. F.3. In relation to parenting issues, the minutes of settlement also were signed by counsel for the Office of the Children’s Lawyer (“OCL”) and included provisions that the child’s primary residence was with the respondent, with a regular schedule of parenting time for the applicant to include alternate weekends.

[10] The minutes of settlement were incorporated into a divorce order dated September 28, 2023 made by Broad J. However, even though the parties had submitted to the court in July 2023 all necessary material for a final order, including minutes of settlement and a draft approved divorce order, the parties were unaware when serving and filing their motion material that Broad J. had signed an endorsement on September 28, 2023 for a divorce order to issue in accordance with the draft order filed. Further, the divorce order had not been signed and issued. Consequently, on the court’s direction, the divorce order was signed and issued on November 22, 2023, and provided to the parties that day, which was the initial return date of both motions.

[11] I mention the foregoing because on a technical basis, the parties had commenced their motions within the existing application [1] after a final order had been made dealing with all the issues in the application on a final basis. In the circumstances, however, considering that the parties were unaware of Broad J.’s final order, and considering also that the divorce order was signed and issued after the motions were brought, I find that r. 1(7.2) of the Family Law Rules, O. Reg. 114/99 applies, that this is a procedural matter and that it is consistent with the primary objective of the rules to deal with both motions on the basis that they have been heard and brought within the existing application.

[12] In these reasons, in dealing with the relevant settlement provisions, I will refer to the divorce order (sometimes referred to as “the order”), and unless otherwise indicated, the provision being referred to and contained in the order is also contained in the minutes of settlement.

[13] The relevant provisions of the order, for the purpose of dealing with the motions can be summarized as follows:

a. The applicant was given an opportunity to arrange financing, within 30 days following the execution of the minutes of settlement, to enable the applicant to pay the respondent $190,000, consisting of $145,337 for equalization payment and $44,663 for lump sum spousal support (para. 54);

b. If the applicant is unable to arrange financing, then the applicant is required to advise the respondent when the matrimonial home was listed for sale, and the applicant was to keep the respondent informed as to the sale process and the respondent was required to provide a written spousal consent in the sale documents (para. 55);

c. If the applicant has not qualified for financing, then concurrently with the closing of the matrimonial home sale, the applicant irrevocably directed his real estate lawyer to pay to the respondent’s lawyer in trust for the respondent the sum of $190,000 (para. 56); and

d. “If the appraiser or realtor estimates in writing that there has been deliberate damage, not normal wear and tear, to the home since separation with repair costs estimated more than $5,000”, then the parties were required to return to mediation with the same mediator they had previously used, in order to “finalize the implementation and payment of the equalization payment and lump sum spousal support amounts” (para. 63).

[14] The evidence on the motions suggests that the purpose of para. 63 of the order was to avoid further arguments, or litigation, regarding the state of the matrimonial home, and to provide a clear and defined process of alternative dispute resolution where normal wear and tear was excluded and where any damages had to be deliberate according to a written estimate, and also in excess of $5,000.

PRELIMINARY ISSUE – THE APPLICANT’S MATERIAL

[15] In his motion, the applicant requests permission to exceed the page limits for motion material contained in the province-wide direction. [2]

[16] The applicant’s request relates to his affidavit sworn November 17, 2023. This document was 188 pages in length, mostly consisting of exhibits. Also, embedded in that affidavit at para. 22, was a link to over 300 photos and videos pertaining to the matrimonial home.

[17] The applicant submitted that this material was necessary and relevant to understand his position on the issues. The respondent disagreed. At the hearing of the motions, following submissions on whether permission should be granted to the applicant to exceed the page limit, I reserved on the issue as to whether any portions of the affidavit should be struck, and I permitted counsel during argument to refer to all material filed by the applicant.

[18] In the circumstances, while I am not prepared to strike any of the applicant’s material, I do so with the proviso that the parties are at liberty to address in their costs submissions whether the volume of material served and filed by the applicant should be considered as a factor in determining costs.

IS THE APPLICANT’S CLAIM FOR DAMAGES PROPERLY BEFORE THE COURT

[19] The issues discussed below were raised by the court during the hearing of the motions.

[20] The substantive relief sought by the applicant in his motion amounted to claims for damages against the respondent as follows:

a. The applicant seeks $56,243.23 for damages caused to the matrimonial home; and

b. The applicant seeks punitive damages in the amount of $20,000 for the respondent’s failure to return the applicant’s personal belongings.

[21] The jurisdiction of the Family Court to hear proceedings is set out in s. 21.8 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Specifically, s. 21.8(1) provides as follows:

Proceedings in Family Court

21.8 (1) In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be commenced, heard and determined in the Family Court.

[22] The schedule contained in s. 21.8 lists the statutory and other proceedings that may be brought in the Family Court. Claims for damages, including punitive damages, are not listed in the Schedule.

[23] However, where a proceeding referred to in the Schedule is commenced in Family Court (as in this case), then that proceeding may be combined with a related matter that is in the judge’s jurisdiction and the court may grant leave to hear and determine the combined matters. This provision is contained in s.21.9 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

Other jurisdiction

21.9 Where a proceeding referred to in the Schedule to section 21.8 is commenced in the Family Court and is combined with a related matter that is in the judge’s jurisdiction but is not referred to in the Schedule, the court may, with leave of the judge, hear and determine the combined matters.

[24] In the present case, the applicant agrees that his pleadings do not contain any claims for damages. No motion has been brought to further amend the amended application to include claims for damages and no motion has been brought to seek leave of the court to determine the damage claims as a combined matter with the other claims that are included in the Schedule. I find in the circumstances that the applicant’s claims for damages are not properly before the Family Court.

[25] Aside from the foregoing, the damage claims asserted by the applicant are disputed and would normally require a trial. While in some cases, a trial may be avoided by way of a motion for summary judgment pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, the applicant’s motion and supporting material make no reference to r. 16 or whether there is a genuine issue for trial.

[26] Although the applicant’s motion claimed punitive damages, the applicant’s material and submissions at the hearing of the motions focused almost exclusively on the claim for damages relating to the matrimonial home.

[27] While the above discussion regarding procedural issues is sufficient to dispose of the applicant’s motion, I will address the issue raised by the respondent as to whether the applicant is prevented from bringing his motion because of noncompliance with the divorce order.

IS THE APPLICANT PREVENTED FROM BRINGING HIS MOTION DUE TO NONCOMPLIANCE WITH THE DIVORCE ORDER DATED SEPTEMBER 28, 2023

a. Relevant Background

[28] Following the execution of the minutes of settlement on March 22, 2023, the applicant attended at the matrimonial home at the end of March 2023 with an appraiser and prospective purchaser. [3] The applicant does not specifically dispute this evidence.

[29] The applicant agrees that he also attended at the matrimonial home on April 7, 2023. Arrangements had been made between counsel for the applicant to do so.

[30] There is no dispute that a listing agreement for the matrimonial home was signed on April 23, 2023.

[31] The respondent deposes that an offer was received on June 1, 2023 for the full asking price of $725,000. The applicant does not dispute that the offer was for the full asking price and that it was received on June 1, 2023.

[32] There is no dispute that this offer was subject to the purchaser’s sale of the purchaser’s own property. The respondent deposes that the applicant signed back a counteroffer which would allow the applicant to accept other offers on the property. The respondent deposes that although she was not consulted about the counteroffer and did not agree with it, that nevertheless, she signed the counteroffer as she did not want to be “blamed for preventing the sale.”

[33] The applicant corroborates that this provision was contained in the counteroffer. Both parties agree that the prospective purchaser did not accept the counteroffer and that the deal fell through.

[34] The applicant’s realtor, Ms. Amy Choi, had forwarded an email dated June 22, 2023 to the applicant’s counsel setting out a small list of matters that she recommended should be addressed regarding the matrimonial home. The respondent deposes that the list deals with matters that relate to reasonable wear and tear of the property. There is no suggestion in the email that any of the items listed constituted deliberate damage. The respondent had corroborated with Ms. Choi, in a text exchange, that Ms. Choi had “no idea if anything is intentionally done.”

[35] There is no dispute between the parties that the applicant later attended at the matrimonial home with the realtor, Ms. Choi, on July 23, 2023. A new list was created listing items “that require addressing as part of an appropriate listing process. [4] ” This new list is longer than the rather short list in Ms. Choi’s email referred to earlier. It was ascertained by the respondent, in communication with Ms. Choi, that Ms. Choi did not create this new list. The respondent deposes that the applicant created this list and there is no dispute from the applicant to that evidence.

[36] The applicant fails to explain why it was necessary to attend to this new list of items prior to relisting the matrimonial home, given that the matrimonial home had been listed previously without addressing any of those items. Further, an offer for full asking price had been received on the earlier listing.

[37] The respondent deposes that the matrimonial home had been off the market effective June 13, 2023. Consequently, the respondent brought a motion, and on September 6, 2023, an order was made by Henderson J. that included the following:

a. The applicant shall have immediate access to the matrimonial home to determine the work that needs to be completed;

b. The applicant has 30 days from the date of the order to effect necessary repairs, and if the repairs are not completed within that time, that the matrimonial home shall be listed as is, unless agreed otherwise;

c. Upon completion of the repairs, the parties shall jointly retain an agent to list and sell the matrimonial home; and

d. Paragraph 7 of the order contains the following:

“The above terms regarding repairs is without prejudice to the responding party on the motion, Gregory Michael Braun’s, position that any damage repaired was intentional as contemplated by the Final Minutes of Settlement.”

[38] The parties agreed to a brief extension to comply with the timelines in Henderson J.’s order, and by October 18, 2023 the matrimonial home was again listed for sale. An offer was accepted in late October 2023 for a sale price of $730,000, with a closing date, as previously mentioned, of November 27, 2023.

[39] The respondent’s knowledge as to the applicant’s improvements after the order of Henderson J. until the matrimonial home was listed included repainting the interior, grading, adding gravel to the driveway, mulching the flowerbeds, steam cleaning the grout, replacing the hot water heater, fixing the heater in the shop, upgrading window treatments and the respondent acknowledges that the basement had a flood in January 2023 that the respondent deposes she fixed. [5]

[40] For his part, the applicant described that the “extensive repairs” included pressure washing the interior of the home, deep clean of the interior of the home and shop, repair doors, wash walls, drywall repair in walls and ceiling, extensive painting, replace damaged handles, fix plumbing issues, replace baseboard trim, replace damaged hot water stack and duct work cleaning. [6]

[41] The applicant attached a spreadsheet [7] to his affidavit listing all the “repairs” totalling $56,242.23 being the amount sought by the applicant as mentioned earlier.

[42] The applicant is an electrician by trade. As pointed out by the respondent, after close scrutiny of the spreadsheet, it reveals the following:

a. The applicant has claimed labour for himself and acquaintances at $65/hr for 425 hours totaling $27,625. Most of the hours claimed are for the applicant;

b. Given the distance that the applicant lived from the matrimonial home, the applicant included a travel charge of $0.60/km. Each travel charge was $314. The total of the travel charges is $4,835;

c. The balance of the applicant’s claims is for various out-of-pocket invoices totalling $23,782.63; a perusal of various invoices includes numerous items from a local hardware store, paint and paper, door hardware, blinds, landscaping and nursery invoice ($3,683.80), yard clean-up, lawn maintenance, and garbage removal.

[43] As the respondent points out, despite the applicant’s position that his lengthy list of repairs was “necessary” to sell the matrimonial home, the stark reality is that the applicant wants the respondent to pay him $56,243.23 for alleged “necessary” repairs which resulted only in a $5,000 increase in the sale price compared to the earlier offer in June 2023 as mentioned earlier.

[44] Further, the respondent deposes, without contradiction from the applicant, that while she had retained possession of the matrimonial home since separation, that she moved out of the matrimonial home on June 17, 2023. The respondent adds that she relinquished possession on October 1, 2023; however, the applicant suggests that he had access to the matrimonial home commencing during September 2023. Nothing turns on this discrepancy.

b. Discussion

[45] The effect of the minutes of settlement, as incorporated into the divorce order, is that the parties contracted, as they were at liberty to do, to a process to resolve issues relating to the condition of the matrimonial home. The parties contracted to restrict damages to claims involving deliberate damages exceeding $5,000, with a condition precedent that the applicant was required first to obtain an estimate in writing stating that the damages were deliberate, not normal wear and tear, and repairs were estimated to exceed $5,000.

[46] As discussed earlier, the divorce order and the minutes of settlement required an appraiser or realtor to estimate in writing that there has been “deliberate damage, not normal wear and tear, since separation with repair costs estimated at more than $5,000.” In his material, the applicant made bald assertions that the respondent was liable for, or caused, deliberate damage to the property [8]. It is noted that the order of Henderson J. dated September 6, 2023, did not impose any obligations on the respondent to pay for any of the work being done on the matrimonial home; rather the order simply preserved the applicant’s right to claim that the repairs related to deliberate damages as contemplated by the minutes of settlement.

[47] Despite access to the matrimonial home, as discussed earlier, by the applicant, his realtor or his appraiser, on multiple occasions since the execution of the final minutes of settlement, the applicant failed to produce a written estimate from a realtor or appraiser that there has been deliberate damage exceeding $5,000. The effect of the applicant’s position asserted in his motion is to pretend that this provision does not exist. Furthermore, even if the applicant had complied with this provision, then he was obligated to deal with the issues via mediation.

[48] The respondent submits that the applicant’s failure to follow the procedures set out in the divorce order amounts to noncompliance with the order, and triggers the application of r. 1(8) of the Family Law Rules, O. Reg. 114/99:

Failure to obey order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.

[49] The respondent submits where there has been a failure to obey a court order, that the court may make any order that the court considers necessary for a just determination of the matter, including dismissing a claim: Herman v. Rathbone, 2017 ONSC 4585 (Ont. S.C.J.), at para. 23.

[50] The respondent relies on the discussion in Bullock v. Bullock, 2017 ONSC 1719 (Ont. S.C.J.), at para. 39 where the court stated as follows regarding the relevant principles to be considered in the context of r. 1(8) when deciding whether to dismiss a motion or application for noncompliance with a court order:

(a) The court must ask where [sic] there is a triggering event, such as non-compliance with a court order in the case or a related case.

(b) If the triggering event has occurred, the court should ask whether it is appropriate to exercise its discretion in favour of the non-complying litigant by ordering by not sanctioning the litigant. The court’s decision as to whether or not to exercise its discretion in favour of the non-complying party ought to take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party.

(c) If the court determines that it will not exercise its discretion in favour of the non-complying party, it will then exercise its broad discretion as to the appropriate remedy under subrule 1(8).

[51] Finally, the respondent submits that where a party has breached an earlier order, then the onus is on that party to show why the court should exercise its discretion to find that r. 1(8) does not apply: Bullock v. Bullock, supra, at para. 42.

[52] The respondent submits that the applicant has failed to comply with the divorce order; that r. 1(8) is triggered; that there is no justification for the applicant’s noncompliance; and specifically that the applicant has failed to produce an estimate in writing from an appraiser or realtor that there has been deliberate damage to the matrimonial home, not wear and tear, since separation with repair costs estimated at more than $5,000. On that basis, the respondent submits that the applicant’s motion should be dismissed.

[53] The applicant focused his submissions, including the cases referred to in his book of authorities, on the common-law duties of all parties to act in good faith and honestly in the performance of contractual obligations; see for example, Bhasin v. Hrynew, 2014 SCC 71, paras. 33, 63; and Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, at para. 4.

[54] The applicant submits that the respondent has not behaved honestly, or in good faith; and that the respondent has caused damage to the matrimonial home that the applicant was not aware of until he regained possession of the matrimonial home.

[55] I concur with the respondent’s submissions. I find that the applicant failed to comply with the procedure as set out in the divorce order in relation to damages. Further, the applicant failed to explain his noncompliance. The appropriate remedy is to dismiss the applicant’s motion pursuant to r. 1(8). The applicant has failed to adduce any credible evidence as to why the court should not apply r. 1(8).

[56] While the applicant focused on the contractual principles of acting honestly and in good faith, I find that this analysis is not engaged on the facts that are not in dispute.

[57] In addition, and aside from r. 1(8), much of the alleged damage claim amounts to a project where the applicant embarked on an undertaking to conduct a number of improvements on his property, including paying himself many thousands of dollars for labour and travel, all at the respondent’s expense without her agreement, and with a very minimal increase in the eventual sale price. Also as discussed earlier, a disputed damage claim is not the proper subject of a motion.

ORDER

[58] I make the following order:

1. The applicant’s motion is dismissed;

2. Subject to paragraph 3, all of the respondent’s funds remaining in trust shall be released immediately to the respondent;

3. The sum of $12,000 held in trust for each party to meet a potential costs order shall remain in trust pending the determination of costs by the court, or alternatively, the funds may be released as agreed in writing by the parties if they are able to resolve the issue of costs;

4. Each party may make written costs submissions limited to three typed pages (two pages for reply), minimum font 12 and double-spaced, plus copies of any offers, bills of costs or time dockets. All authorities shall be hyperlinked in the written costs submissions. The respondent’s costs submissions shall be served and filed within 14 days, the applicant’s responding costs submissions shall be served and filed within 14 days thereafter, and the respondent’s reply, if any, shall be served and filed within 7 days thereafter. If the parties are able to settle the issue of costs, then they shall forthwith advise the trial coordinator.

“Justice Victor Mitrow” Justice Victor Mitrow Date: January 31, 2024

Footnotes

[1] Application commenced by the applicant was issued December 24, 2020, and was amended on February 11, 2021.

[2] Consolidated provincial practice direction for family proceedings at the Superior Court of Justice, effective June 15, 2023.

[3] Respondent’s affidavit sworn November 14, 2023, para. 10.

[4] This “new list” is appended as Exhibit A to the applicant’s affidavit sworn on August 31, 2023.

[5] Affidavit of respondent sworn November 14, 2023, para. 27.

[6] Affidavit of applicant sworn November 17, 2023, para. 24.

[7] Exhibit B to the applicant’s affidavit sworn November 17, 2023.

[8] See for example affidavit of the applicant sworn November 17, 2023, paras. 30 and 32.