Court File and Parties
COURT FILE NO.: FC1207/23 DATE: March 25, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Rawan Alkahlout, Applicant AND: Mustafa Abbood, Respondent
BEFORE: MITROW J.
COUNSEL: Abhimanyu Rathod for the Applicant Self-represented for the Respondent
HEARD: March 20, 2024
Endorsement
Introduction
[1] This is the applicant’s urgent motion prior to a case conference for various interim relief. The orders sought by the applicant include exclusive possession of the matrimonial home, an order vesting title of the matrimonial home in the name of the applicant, an order that the applicant can sell the matrimonial home without the need to involve the respondent and an order that the applicant “shall be at liberty to pay for the mortgage” to the bank directly.
[2] Although not specifically mentioned in the motion, the applicant in her oral submissions requested an order requiring the respondent to pay all amounts necessary to place the mortgage in good standing.
[3] For reasons that follow, some of the relief sought by the applicant is granted as set out in the order below.
Brief Background
[4] The parties were married in 2019. They have one child born in 2021 who will soon be age three.
[5] The parties separated in July 2023 following an incident which resulted in the respondent being charged with an assault against the applicant. The respondent’s release conditions include non-association or communication with the applicant and a requirement to remain within a certain distance of the applicant. As a consequence the applicant and the child have remained in the matrimonial home since the date of separation, while the respondent resides elsewhere. The criminal charge against the respondent remains before the court. There is no dispute between the parties that following the separation that the respondent ceased making the mortgage payments on the matrimonial home.
[6] The matrimonial home is registered in the name of the respondent. It was purchased in June 2021. The purchase price was $625,000 as shown in the parcel register. The trust ledger appended to the applicant’s affidavit indicates that a down payment of a little over $124,000 was received from the respondent. The initial principal amount of the mortgage was $500,000.
[7] The respondent deposes that he provided the down payment from “my account.” The applicant does not dispute this evidence; the respondent, however, does not otherwise explain the source of the down payment, nor does the applicant.
[8] The respondent did not dispute the applicant’s evidence that since separation, he also has not paid child support. The applicant deposes that during the relationship, that the respondent worked fulltime and paid expenses relating to the matrimonial home while the applicant was responsible for caring of the child and household chores.
[9] By letter dated February 1, 2024 [1], from the bank’s lawyers to the respondent, the arrears were stated to be $11,536.11 which included the past outstanding payments and the payments due February 1 and March 1, 2024 ($1,718.41 each). The parties were served with a notice of sale dated February 21, 2024 demanding payment of all amounts secured by the mortgage, inclusive of costs, in the total amount of $518,173.02 to be paid by March 29, 2024.
[10] At the hearing of the motion, the parties were in agreement that the matrimonial home should be listed and sold and they were in agreement that Mr. Mo Albaba from Century 21 First Canadian Corp. Brokerage should be the listing agent. The order below incorporates this agreement.
[11] Following the parties’ separation, the respondent had made an attempt to list and sell the matrimonial home. Although it was listed for sale, there was a dispute later between the parties as to lowering the listing price. The applicant was not in agreement with the respondent’s request to lower the listing price. The respondent deposes in his responding affidavit that the matrimonial home was for sale from July to December 2023, and that it was not sold because of the high price and because of the applicant’s refusal to lower the listing price as suggested by the listing agent.
[12] In her reply, the applicant deposes that the initial asking price was $699,000 but that the respondent wanted a substantial reduction to $625,000 to which the applicant did not consent.
[13] In his brief responding affidavit, the respondent focuses on the attempts to sell the matrimonial home and that he does not want to lose the equity that was gained since the purchase. The respondent otherwise does not address the issues raised by the applicant including exclusive possession and a vesting order.
Exclusive Possession
[14] I have considered the factors in s.24(3) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), in relation to an order for exclusive possession. In the present case, the child’s best interests favour the order being made. The applicant deposes that currently she is not working but that she is enrolled in a program relating to early childhood education and that she intends to obtain fulltime employment following completion of the program. I consider also that the respondent is paying no child support and that the applicant, as she deposes, has been forced to sell household items to make ends meet. At this time, the applicant has no ability pending the sale of the matrimonial home to obtain other suitable and affordable accommodation. I take into account also the issue of family violence and the fact that the respondent is facing an outstanding criminal charge.
[15] Although the respondent’s financial position is also relevant, there is no evidence from the respondent about his financial circumstances: s. 24(3)(c), FLA. The respondent was served with all court documents on March 13, 2024, while attending on the initial return of the applicant’s motion. The applicant’s submission is that the respondent had been evading service as described in the applicant’s material. This submission has some merit and is not challenged by the respondent in his affidavit. While the respondent explained to the court during the hearing of the motion that he has just completed an apprenticeship program and obtained his licence, that he is looking for work and that he is relying on financial support from others in the meantime, those submissions are not evidence.
[16] Considering the foregoing discussion in relation to the factors in s. 24(3), I am satisfied that the applicant should have interim exclusive possession of the matrimonial home.
Vesting Order
[17] In relation to the applicant’s request for a vesting order, while there is authority to make such an order on an interim basis, including pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I find at this early stage of the proceeding that the evidence does not justify such an order for the reasons explained below.
[18] The cases relied on by the applicant included Segat v. Segat, 2015 ONCA 16 (Ont. C. A.) and Sharma v. Sharma, 2016 ONCA 329 (Ont. C. A.), at paras. 11–16. In Segat, the husband had refused to disclose his net worth. He had paid no child support. His pleadings were struck, there were outstanding criminal charges against him, and the husband had disappeared prior to trial. On appeal, the court took the foregoing into account including also the present value of the husband’s child support obligations as calculated by an actuary, and made a vesting order transferring the husband’s interest in the matrimonial home in order to satisfy the husband’s obligations to the wife including child support. In Sharma, on appeal, the court upheld the trial judge’s order vesting the husband’s two condominium properties in the wife’s name pursuant to s. 100 of the Courts of Justice Act and s. 9(1)(d) of the FLA as security for the husband’s obligations in relation to equalization payment, spousal support and trial costs.
[19] In the present case, given the early stage of this proceeding, there is no evidence as to the amount of any potential equalization payment owing by the husband, nor is there any evidence as to what the child support or spousal support obligations might be. Further, at the hearing of the motion, an order was made allowing the respondent until April 19, 2024, to serve and file his documents responding to the application, including his sworn financial statement. Also, the respondent had deposed that he wants the matrimonial home sold so that the bank can be paid, and as noted earlier, the respondent is consenting to an order that the matrimonial home be listed and sold.
[20] The order below preserves the net sale proceeds, which will protect the applicant’s interests as to any obligations that may be owed to her by the respondent.
[21] At this stage, considering the cooperation of the respondent in consenting to the sale, and the various terms ordered below in relation to the listing and sale, it is not necessary to vest the matrimonial home in the sole name of the applicant to protect her interests.
[22] The applicant also argued that it is necessary to vest the matrimonial home in her name so that she can deal with the bank. She deposed that she had attended at the bank “several times to pay the mortgage” but that the bank would not allow her to do so because she was not on title.
[23] This allegation does not justify a vesting order at this time. Section 22 of the FLA gives the applicant the same right of redemption and relief against forfeiture as the respondent in relation to the matrimonial home, and any payments made by the applicant in the exercise of that right must be applied to the mortgage: see in particular ss. 22(1) and 22(3), FLA.
[24] Further, the applicant’s rights in s. 22 of the FLA would include the right given to a mortgagor in s. 22 of the Mortgages Act, R.S.O. 1990, c. M.40, to place the mortgage in good standing by paying the outstanding mortgage payments and expenses necessarily incurred by the mortgagee, and would also include the right to require a written statement from the mortgagee as to the amounts owing for principal, interest and expenses: see in particular ss. 22(1) and 22(2), Mortgages Act.
Respondent’s Obligation to Reinstate the Mortgage
[25] The order below requires the respondent to do what is necessary to reinstate the mortgage including paying all current arrears. The requirements to reinstate the mortgage are set out in the letter from the bank’s lawyers, referred to earlier. I make this order because the respondent has failed to provide any evidence on the motion explaining why he stopped making the mortgage payments. His material on the motion provides no details as to his income, assets, liabilities or access to funds, and provides no detail as to the financial support that he is allegedly receiving. I draw an adverse inference against the respondent for his failure to provide that evidence. Although the respondent was permitted time to serve and file his financial statement, he could have provided some details as to his financial circumstances in his responding affidavit. The respondent does not contradict the applicant’s evidence that prior to the separation it was his responsibility to make the mortgage payments.
[26] As canvassed during the hearing of the motion, the order below in relation to the listing and sale of the matrimonial home does not displace the bank’s right to conduct a sale of the matrimonial home pursuant to its notice of sale, absent the mortgage being paid off in full or the reinstatement of the mortgage by paying all arrears and expenses pursuant to s. 22 of the Mortgages Act or entering into negotiations with the bank to allow the parties to conduct the sale.
[27] The order below includes a requirement for the respondent, at the request of the applicant, to sign a direction to allow the applicant to communicate and deal with the bank in relation to the mortgage.
Order
[28] I make the following interim order:
The applicant shall have exclusive possession of the matrimonial home.
On consent, the matrimonial home shall be listed and sold, and the matrimonial home shall be listed for sale immediately with Mr. Mo Albaba at Century 21 First Canadian Corp. Brokerage.
The following terms and conditions shall apply to the listing and sale of the matrimonial home by the parties: a. The parties immediately shall sign the listing agreement and the parties shall sign all other necessary documents regarding the listing and the sale of the matrimonial home; b. If the parties cannot agree to the listing price, including any changes in the listing price from time to time, then the listing price shall be determined by the applicant in consultation with the listing agent; c. The applicant shall cooperate with the listing agent to ensure that the matrimonial home is available for viewing and shall ensure that the matrimonial home is adequately prepared for viewing; d. If the parties cannot agree on a lawyer to handle the sale of the matrimonial home, then the lawyer shall be selected by the respondent; e. The net proceeds from the sale of the matrimonial home, after payment of the charge in favour of the Bank of Montreal, and all other encumbrances plus legal fees and disbursements incurred on the sale and after all necessary adjustments have been made in relation to the sale, shall remain in trust and shall not be paid out except on the written direction of both parties or pursuant to an order of the court; f. If for any reason, the listing agent refuses to accept the listing or no longer wishes to continue with the listing, then the parties shall have 10 days to agree to another listing agent, failing which the listing shall be selected by the applicant; and g. If any dispute arises in relation to the listing or sale of the matrimonial home which the parties are unable to resolve, then either party may bring an urgent motion for directions.
The respondent immediately shall reinstate the charge on the matrimonial home held by the Bank of Montreal by paying all amounts owing on the charge totalling $11,536.11 as specified in the letter dated February 1, 2024 from the Bank of Montreal’s lawyers, Chaitons LLP, plus any further amounts that have accrued since February 1, 2024, and the respondent shall take all other steps required by the Bank of Montreal to reinstate the charge as specified in the aforesaid letter.
At the request of the applicant, the respondent shall execute immediately a direction to the Bank of Montreal, as prepared by the applicant, to permit the applicant to communicate orally or in writing with the bank regarding all aspects of the charge registered against the matrimonial home, and to receive from the bank information regarding all aspects of the charge including the amount owing, the payments in arrears and the details of all enforcement measures.
The applicant’s request for a vesting order is dismissed on a without prejudice basis to the applicant’s right to bring a fresh motion for a vesting order based on the respondent’s conduct subsequent to the date of this order including the extent of any non-compliance with this order.
If the parties are unable to agree on the costs of the motion, the parties may make written costs submissions within 30 days. The costs submissions shall be typed, double-spaced, minimum font 12 and shall be limited to three pages plus copies of any offers to settle, bills of costs and time dockets. All references to authorities shall be hyperlinked in the written submissions. The costs submissions shall be served and electronically filed with the court in the usual manner. If costs are settled, the parties forthwith shall advise the trial coordinator in writing. If no costs submissions are received within 30 days, then it shall be presumed that the parties have settled the issue of costs.
“Justice Victor Mitrow” Justice Victor Mitrow Date: March 25, 2024
[1] Exhibit #1 on the motion.