CITATION: Rainville v. Walsh, 2024 ONSC 5889
COURT FILE NO.: FS-18-120
DATE: 2024/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RAINVILLE, Joanne
Applicant
– and –
WALSH, Brian
Respondent
E. Rae, for the Applicant
Self-represented, for the Respondent
HEARD: October 4, 2024
REASONS FOR DECISION
wilcox, j.
INTRODUCTION
[1] The issues in this matter were putatively resolved in the final order of February 25, 2022, which dealt with various properties. Paragraph 15 of that order said that, “there shall be no further division of property or readjustment of monies from one party to the other”. Litigation has been ongoing ever since to resolve the issues arising out of the order’s provisions. We are dealing here with a motion that is part of that litigation.
BACKGROUND
[2] One of the properties was 45 Marine Drive, Callander, Ontario (the property). With respect to it, the final order provided that it shall immediately be transferred to the respondent’s sole name. This was subject to the applicant’s right to occupy it until the later of two dates, June 1, 2022, or until another property, known as 607 Gormanville, was vacant, which did not happen until about July, 2023. In addition, paragraph 9 said:
- The Respondent shall have until May 1st, 2022, to have the Applicant removed from all six RBC encumbrances listed below, failing which 45 Marine Drive shall be immediately sold to discharge all debts:
a. HLRCL 03452 76376680 001
b. HLRCL 03452 76376680 002
c. HLRCL 03452 76376680 003
d. HLRCL 03452 76376680 004
e. RCL Secured 03452 10939304 001
f. RCL 03452 75901991 001
I will refer to these as the “listed debts”. The one identified at “e.” as RCL Secured 03452 10939304 001 (the Credit Line/Mortgage) was the primary focus of the motions.
[3] The Royal Bank of Canada (RBC) commenced a power of sale proceeding on April 5, 2023, against the parties herein for possession of the property and for the approximate sum of $650,000. One of the debts claimed owing to it was the credit line/mortgage, then in the amount of $71,937.37. RBC got judgement (the judgement) on June 1, 2023, against the parties for a sum of over $625,000 including the credit line/mortgage, together with interest thereon at 7.2 percent per annum.
[4] The property was not sold right away, as other options were being explored. The temporary order of February 14, 2024, made on consent, provided the Respondent shall have until March 15, 2024, to refinance the property and pay off the following specified debts:
(a) RCL #76376680-001
(b) RCL #76376680-002
(c) RCL #76376680-003
(d) RCL #76376680-004
(e) RCL #10939304-001
(f) RCL #75901991-001 (joint)
(g) RCL #06392476-001 (Brian James Walsh);
(h) VISA #4512 1068 ****8775 (Brian James Walsh); and
(i) Any and all legal fees and disbursements owing to Gowling WLG with respect to the above debts and Sudbury court file number CV 23-000011135-0000.
These are the listed debts from the final order of February 25, 2022, with three additions. Again, the credit line/mortgage was included.
[5] The property was sold on June 28, 2024. The net proceeds remained in trust at Valin Partners LLP (Valins). A trust ledger statement provided to the Applicant by Valins on June 28, 2024, showed the various disbursements and that $110,369.74 was being held in trust.
the MOTION
[6] The Respondent brought a motion dated September 18, 2024, for an order that the net proceeds from the sale of 45 Marine Drive be released to him as per the February 14, 2024, order. He alleged that RBC was paid what was owed to it from the funds due on closing, leaving only the net proceeds which were to be paid to him. However, as of July 18, 2024, Valins had refused to release the funds, citing a lack of clarity in the court orders, and pending consents or further court order.
[7] The Applicant’s counsel explained with the use of various documents that had been produced in conjunction with RBC’s lawsuit and the payouts from the proceeds of sale that the credit line/mortgage had been overlooked, that it had not been paid out when the other listed debts had been, and that it remained a debt owed by the parties pursuant to the judgment, in the amount of $69,175.02 as of October 2, 2024, plus interest.
[8] Therefore, subject to a complication that will be dealt with below, the Applicant sought the payment of that debt out of the funds held at Valins, leaving it to the court to decide whether to pay the balance remaining to the Respondent or to have Valins continue to hold it in trust pending the resolution of the matter.
[9] The Respondent submitted that the credit line/mortgage debt was his and that the Applicant should not be responsible for it. That did not alter the fact that the RBC has a judgment against her for it. Therefore, he said, if the funds to pay off the credit line/mortgage were held back, the balance could be paid to him. He would then resolve the matter of the liability for the credit line/mortgage with the bank.
[10] The complicating factor referred to above relates to two other properties, 607 and 615 Gormanville Road in North Bay. In the final order of February 25, 2022, they were to be transferred into the Applicant’s name. This had not yet happened for reasons which need not be detailed here. The Applicant’s counsel pointed to municipal tax certificates and bills showing unpaid taxes having accumulated for both properties since at least as far back as 2022. The Applicant sought an order that those arrears be paid out of the funds held by Valins.
[11] In part, this argument was based on an endorsement of Ellies J. at a case conference on May 24, 2023, which had not been turned into a court order. The endorsement records an agreement that “the proceeds of sale of the Marine Drive property will be used to pay off the parties’ debts”. To this I would say, as counsel fairly admitted, that the subsequent order of February 14, 2024, made pursuant to a consent filed, was quite specific as to which debts were to be paid off, whereas the endorsement was not. Indeed, beginning with the final order of February 25, 2022, the debts were specified. As previously noted, the final order provided that there was to be no further readjustment of monies between the parties. Therefore, I am not persuaded that the funds held at Valins should be applied to non-specified debts.
[12] Furthermore, the issues arising in the Respondent’s previous motion, dated August 21, 2024, returnable August 30, 2024, had been adjourned to a settlement conference to be scheduled. The balance of the issues in today’s motions shall also be dealt with there.
CONCLUSION
[13] Therefore, I order that the net proceeds of the sale of 45 Marine Drive, held in trust by Valins to the credit of this matter, less $70,000.00 to be retained with respect to the credit line/mortgage issue, be released to the Respondent. As indicated, the balance of the issues are adjourned to a settlement conference to be scheduled.
Wilcox, J.
Released: October 08, 2024
CITATION: Rainville v. Walsh, 2024 ONSC 5889
COURT FILE NO.: FS-18-120
DATE: 2024/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RAINVILLE, Joanne
Applicant
– and –
WALSH, Brian
Respondent
REASONS FOR DECISION
Wilcox, J.
Released: October 8, 2024