Superior Court of Justice – Ontario
Court File No.: FS-22-30918-0000
Date: 2025-03-14
RE: Wasiem Diab, Applicant
AND: Kakouli Poka, Respondent
AND: Demitry Papasotiriou, Added Respondent
AND: Melissa Lowerison, Added Respondent
AND: CIBC, Added Respondent
AND: Domenic A. Rosso, Interested Party
Before: Justice Deborah A. Kraft
Counsel:
- Peter Gouda, for the Applicant
- Poroshad Mahdi, for the Respondent, Kakouli Poka
- Philip Hiebert, for the Respondent, Demitry Papasotiriou
- David Pomer, for the Respondent, Melissa Lowerison
- Christopher Staples, for the Respondent, CIBC
- Domenic A. Rosso, in person
Heard: March 13, 2025
Endorsement
Nature of the Motion
1This is Mr. Diab’s motion for leave to issue a writ of possession against the respondent, Ms. Poka, as a means to enforce prior orders of this court that she vacate the matrimonial home located at 41 Hill Crescent, Scarborough, ON. Among other things, Mr. Diab also seeks an order for exclusive possession of the home to facilitate the closing of its sale; and that sanctions be ordered against Ms. Poka pursuant to Rule 1(8) on account of Ms. Poka’s and Ms. Lowerison’s (2nd Mortgagee) breach of these court orders.
Issues to be Decided
2The issues for me to decide on this motion are as follows:
a. Is Ms. Poka in breach of the orders of Sharma, J., dated August 31, 2023, Black, J., dated September 21, 2023, Sharma, J., dated October 17, 2023, and my order, dated November 18, 2024 (“Sale and Vacate Orders”)?
b. If the answer to a. is yes, whether a writ of possession to secure vacant possession of the matrimonial home; an order for the surrender of house keys; and/or an order for exclusive possession of the matrimonial home in favour of Mr. Diab, should be granted to ensure compliance with the Sale and Vacate Orders?
c. Whether sanctions such as costs, procedural restrictions, and/or additional fines should be imposed to ensure compliance with the Sale and Vacate Orders, pursuant to rule 1(8) of the Family Law Rules?
Background
3The background facts of this case can be found in Diab v. Poka, 2024 ONSC 6364 at paragraphs 2-16 and need not be repeated here.
4The matrimonial home has been sold for $3.4 million and is scheduled to close on April 30, 2025. The purchasers initially offered to purchase the home for $3.5 million. They waived the condition to inspect the home when they were not given access to the home and reduced the offer to purchase the home for $3.4 million. After the 1st mortgage in favour of CIBC is discharged, there will be a shortfall of the 2nd mortgage in favour of Ms. Lowerison since she claims the sum of $1.6 million of principal and interest is outstanding on her mortgage. With the CIBC mortgage, the two mortgages add up to about $4 million.
Issue One: Is Ms. Poka in breach of the Sale and Vacate Orders?
5Mr. Diab argues that Ms. Poka has willfully and repeatedly violated the terms of Sale and Vacate Orders which required her and Ms. Lowerison to fully cooperate with the listing and sale of the matrimonial home and to provide access to Mr. Diab, the listing agent, and other necessary professionals to the house for sale purposes. He argues that all of her personal belongings, including clothing, remain in the matrimonial home and that she regularly attends the home, thereby interfering with this transaction.
6The terms of the four Sale and Vacate Orders are summarized below:
August 31, 2023 Sharma Order
a. The August 31, 2023 Sharma Order, among other things, set out the following:
i. Ms. Poka’s consent or signature on any documents required to list and sell the matrimonial home was dispensed with.
ii. Mr. Diab was granted sole carriage of the listing and sale of the matrimonial home, including the authority to solely enter into a listing agreement with Mr. Pham, sign an agreement of purchase and sale, sign any counter-offers, and sign any closing documents related to the sale of the matrimonial home.
iii. Mr. Diab was to at all times act on the advice of Mr. Pham.
iv. Ms. Poka and the other respondents were to facilitate and cooperate fully with the listing and sale of the matrimonial home, including:
Providing Mr. Diab, the listing agent and other professionals Mr. Diab deems necessary immediate access to the property to inspect, value, repair, clean or stage the property provided two hours’ notice is given to her;
Keeping the matrimonial home in good repair and condition pending its sale, and leaving the matrimonial home in a clean and tidy condition at all times;
Vacating the property on two hours’ notice between 9 am and 9 pm to allow showings of the property by potential purchasers or other real estate agents;
v. Within 60 days, Ms. Poka was to permanently vacate the property and terminate any business she was operating at the property.
September 21, 2023 Black Order
b. Less than 2 months after the August 31, 2023 order was made, the parties returned to the court before Black, J. on September 21, 2023 and he granted leave for Mr. Diab to serve Ms. Poka with a contempt motion through counsel and ordered (a) the respondents to vacate the matrimonial home within 14 days – by October 5, 2023; (b) Ms. Poka and Demitry to deliver financial documents including bank statements and credit card statements for the last 3 years; (c) the 2nd mortgagee to be added as a party; and (d) the Toronto Police Service, the Sheriff’s Office and other law enforcement agencies to enforce the August 31, 2023 Sharma Order and the September 21, 2023 Black Order.
October 17, 2023 Sharma Order
c. On October 17, 2023, the parties returned before Sharma, J., because Ms. Poka and Ms. Lowerison would not grant access to Mr. Diab to certain rooms in the matrimonial home on the basis of alleged tenancies. At this conference before Sharma, J., Ms. Lowerison consented to be bound by the same terms of Sharma, J.’s order from August 31, 2023 and ensure that the listing agent has access to all rooms in the matrimonial home; including the two rooms alleged to be tenanted provided 2 hours’ notice was given. In addition, Ms. Lowerison consented to giving notice to and ensuring that the alleged tenants were to vacate the matrimonial home by November 20, 2023. Sharma, J. ordered Demitry’s dogs to be removed from the home in the matrimonial home; and Ms. Lowerison to provide all parties with a Statement of Discharge for the 2nd mortgage within 15 days.
November 18, 2024 Kraft Order
d. Mr. Diab brought a motion before me on November 14, 2024 seeking enforcement of the prior court orders requiring Ms. Poka to vacate the matrimonial home, that he be granted exclusive possession of the home; that the 2nd mortgage be discharged on the sale of the home; that Ms. Poka be found in contempt of prior orders to sell and vacate the home; and for her pleadings to be struck, along with sanctions to be ordered.
e. I made the following orders on November 18, 2024:
i. Ms. Poka to vacate the matrimonial home within 30 days and that for every day she does not vacate the matrimonial home she pay a fine of $50 a day by making a payment into court;
ii. TPS to enforce the order to secure vacant possession of the matrimonial home;
iii. Mr. Diab to take all possible steps to promptly have the home listed for sale with a new listing agent who has not previously acted for the parties within 7 days;
iv. The parties to accept the first reasonable offer to purchase the matrimonial home made by an arm’s-length third party;
v. After the CIBC mortgage, along with any unpaid taxes or other judgements registered on title, are discharged, any net proceeds of sale to be held in trust;
vi. The 2nd mortgagee to provide a mortgage statement to the husband and wife within 30 days;
vii. Ms. Poka be required to seek leave of this court before taking any further step in this proceeding; and
viii. Ms. Poka and Demitry to comply with prior disclosure orders within 21 days and for every day Ms. Poka does not do so, she pay an additional fine of $20 a day until she complies with the order.
Mr. Diab’s Position on this Motion
7Mr. Diab’s position on this motion is that Ms. Poka is in breach of the Sale and Vacate Orders. Even though she is no longer living at the matrimonial home, Mr. Diab argues that she has left her belongings and contents in the matrimonial home and, in that manner, she has interfered with the house sale and attends at the home at the request of Ms. Lowerison. To prove the breaches, Mr. Diab points to the following evidence:
a. Exhibit “G” of Mr. Diab’s affidavit, sworn on January 25, 2025 is an email from Mr. Jat dated January 21, 2025, one month after Ms. Poka should have vacated the matrimonial home, responding to a request from the purchaser to access the home for inspection purposes. The email explains that Ms. Lowerison can only allow inspectors into the home on days when she can send her property manager or when Ms. Poka can be there. Mr. Diab argues that this letter is direct evidence of Ms. Poka and Ms. Lowerison’s breach of the August 31, 2023 Sharma Order because they were ordered to give the purchasers access to the matrimonial home for listing purposes and they only gave access on their terms.
b. Exhibit “A” to Mr. Diab’s reply affidavit is an email from Mr. Alavi confirming that the purchaser was denied further access to the matrimonial home and decided to waive their condition about having an inspection and offering instead a discount of the purchase price by $50,000. In this email, Mr. Alavi confirms the buyer wants 3 visits between then and the closing and for the bank to come to the property for an appraisal.
c. Exhibit “D” to Mr. Diab’s affidavit sworn on January 22, 2025 are pictures from the house, showing that it remains fully furnished, pictures of work/maintenance being done; rooms with clutter; and of wood dog kennels in the garage. Mr. Diab argues that these pictures are evidence that Ms. Poka has not complied with the orders because the house has not been kept clean and she did not move her dog breeding business out of the matrimonial home.
d. Exhibit “K” to Mr. Diab’s affidavit is a picture of a Facebook post for dogs being sold. The picture is of an Irish Wolfhound with a litter of 6 puppies in the matrimonial home. Mr. Diab argued that he witnessed a U-Haul vehicle at the property on November 20, 2024 and on December 8, 2024, in which the dogs were being kept. He submits that these dogs were still on the property in violation of the Sharma Order.
e. Exhibit “D” to Mr. Diab’s affidavit sworn on February 25, 2025 are pictures of a red jeep belonging to one of the prior tenants Ms. Lowerison allows in the matrimonial home. These pictures show a red jeep outside of the home on different days and at different times. Mr. Diab argues that this tenant may live at the house. Ms. Lowerison deposes, however, that this prior tenant now acts as a caretaker/contractor who works for her fixing or maintaining the house.
f. Exhibit “C” to Mr. Diab’s affidavit, sworn on February 25, 2025, are pictures of Ms. Poka in the house during a house showing on January 5, 2025; and a picture of her closet filled with her clothing.
8Mr. Diab further argues that specific orders need to be made to ensure the matrimonial home sale transaction closes on April 30, 2025, including (a) an order for the handover of keys to the matrimonial home; (b) an order for Ms. Poka to remove her possessions by a specific date from the matrimonial home, failing which Mr. Diab can dispose of the items; (c) penalties or fines to ensure compliance with prior court orders; (d) an order for Ms. Poka to provide her bank statements for the last several years as ordered, failing which a motion to strike her pleadings can be brought; (e) an order for Mr. Rosso to provide his bank statements for the last three years, and provide proof of the advance of funds and a full accounting of the alleged loan.
Ms. Poka’s Position on this Motion
9Ms. Poka argues that she is not in breach of any court orders because she vacated the matrimonial home as ordered. Specifically she argues that there is no court order that requires her to remove her belongings or contents from the matrimonial home by a specific date other than the terms of the agreement of purchase and sale which require her to give vacant possession of the home at closing. Further, she argues that there is no court order requiring her to do the repairs needed to the home, clean out a storage room in the basement; or remove dog kennels from the garage. She was ordered to stop running a dog kennel business out of the home which she has done. Ms. Poka maintains her son, Demitry was running that business, but he is now incarcerated and there is no dog business being run out of the home. She submits that she was ordered to vacate the house and she did that. She submits that she has only gone into the matrimonial home at the request of the 2nd mortgagee to allow trades or other people into the home.
10Ms. Poka further undertook to remove her contents/belongings from the matrimonial home at least 1 week prior to the closing on April 30, 2025 to give Mr. Diab the opportunity to go in and take whatever she left in the home. Further, she argues that she complied with all other aspects of the other orders because she left the matrimonial home clean and tidy; there was no garbage in the house; there is nothing in any order requiring her to tear down the dog kennels in the garage; the pictures of the storage room in the basement confirm that there are boxes and storage in that room; the picture of the dryer removed from the wall demonstrates that the dryer is broken and was being repaired; the picture of the wall with water damage confirms that the house requires numerous repairs.
11Ms. Poka did acknowledge that she has been late in providing her financial disclosure to Mr. Diab. She is in the process of sending the disclosure ordered.
Added Respondents’ Positions on this Motion
12Mr. Rosso confirmed that Ms. Poka vacated the matrimonial home in accordance with the Sale and Vacate Orders. He also confirmed that the dog kennels were empty in the garage and that there were no dogs on the property.
13Ms. Lowerison argues that she is not in breach of the orders. She submits that she ensured that access was given to the matrimonial home for the buyers; she continues to allow access to contractors to service and fix the property; the house is sold and she continues to want to redeem the first mortgage, after which she will seek a writ of possession.
Analysis
14I do not find that Ms. Poka is currently in breach of the Sale and Vacate Orders. I am persuaded that she is not living in the matrimonial home but that she enters the home at the request of Ms. Lowerison only in the presence of Ms. Lowerison’s caretaker. I also find that her belongings and contents remain in the matrimonial home.
15There is nothing in any of the Sale and Vacate Orders that require her to remove her contents or personal belongings out of the house by a specified date. She was ordered (more than once) to vacate the home and she finally did. Further, there is nothing that requires Ms. Poka to take down the construction of the wood kennels in the garage. She was ordered to stop operating any businesses of the matrimonial home, including the dog breeding business and there is no evidence that the dogs are on the property, other than Mr. Diab hearing dogs in a U-Haul van. The dog kennels in the garage remain present in the garage. They were not ordered to be torn down.
16I do find that the storage room in the basement is cluttered and needs to be cleaned out. The fact that it has not yet been cleared out, however, is not a breach of the existing Sale and Vacate Order.
17Since the answer to issue one is that Ms. Poka is not currently in breach of the Sale and Vacate Orders as they relate to giving vacant possession of the matrimonial home and/or cooperating with the sale of the home, I do not have to answer whether a writ of possession to secure vacant possession of the matrimonial home is necessary.
Issue Two: Whether an order for the surrender of house keys; and/or an order for exclusive possession of the matrimonial home in favour of Mr. Diab, should be granted to ensure compliance with the Sale and Vacate Orders?
18Mr. Diab also seeks an order requiring Ms. Poka to remove her belongings/contents from the matrimonial home and/or for Ms. Poka and/or Ms. Lowerison to surrender the house keys to him by a specified date. Ms. Poka’s counsel argued that this relief was not specified by Mr. Diab in his Notice of Motion and therefore ought not to be granted.
19I do not agree. Rule 2 of the Family Law Rules, O. Reg. 114/99 (“FLRs”) sets out that the primary objective of the FLRs is to deal with cases justly. To accomplish this objective, the courts are entitled to deal with a case in ways that are appropriate to its importance and complexity and to deal with cases by saving time and expense. Rule 2(5) specifically empowers the court to promote the primary objective by active management of cases including dealing with as many aspects of the case as possible on the same occasion.
20There is a great deal of evidence on the record that Ms. Poka did interfere with prior attempts by Mr. Diab to get this house sold. There is also evidence that the purchasers lowered the purchase price by at least $50,000 because they could not obtain access to the home for purposes of an inspection. These are damages Mr. Diab can seek against Ms. Poka and/or Ms. Lowerison. They cannot be addressed however by the relief Mr. Diab now seeks on this motion.
21It is understandable that Mr. Diab is anticipating that the sale transaction may not close because of future conduct on the part of Ms. Poka. Given the state of the clutter in the home, evidenced by Ms. Poka’s clothing sitting on shelves in a cupboard strewn about and unfolded and the significant clutter and disarray of the storage room in the basement, I share Mr. Diab’s concern in this regard. I am not persuaded that Ms. Poka will take the necessary steps to ensure that her belongings are removed and/or that the house is left in the kind of condition it ought to be on closing. The number of motions and conferences the parties needed to attend to ensure the property was listed and sold is a good predictor of what could happen on closing.
22In accordance with Rule 2 of the Family Law Rules, I therefore make orders requiring Ms. Poka and/or Ms. Lowerison to surrender the house keys to Mr. Diab at least 7 days prior to closing; requiring Ms. Poka to remove all of her personal belongings and household contents 21 days prior to the closing by no later than 12:00 p.m. on April 9, 2025; granting Mr. Diab access to the matrimonial home from April 9, 2025 at 3:00 p.m. until the closing of the sale of the home to dispose of and do whatever necessary to ensure there is vacant possession of the matrimonial home in accordance with the agreement of purchase and sale. These orders are being made with the knowledge that both CIBC and Ms. Lowerison have expressed they may be bringing motions to seek a writ of possession.
Issue Three: Whether sanctions such as costs, procedural restrictions, and/or additional fines should be imposed to ensure compliance with the Sale and Vacate Orders, pursuant to rule 1(8) of the Family Law Rules?
23On September 21, 2023, Black, J. ordered the respondents to provide copies of any and all bank statements and all credit card statements, held solely or jointly with another person and/or any and all bank statements held in trust on their behalf in the name of another person. Ms. Poka’s counsel acknowledge that Ms. Poka was in breach of this order but that she is in the process of providing disclosure. In my view, further and additional sanctions should be awarded against Ms. Poka until her disclosure is produced.
24The purchasers have indicated that they want to have 3 visits to the home prior to closing. It is not clear from the evidence on record whether some of these visits have taken place. I make an order requiring Ms. Lowerison to ensure that the purchasers have access to the home as per their request between now and the date of the closing.
Order
25This court makes the following order:
a. Ms. Poka and/or Ms. Lowerison shall surrender all house keys to Mr. Diab at least 7 days prior to closing.
b. Ms. Poka shall remove all of her personal belongings and household contents 21 days prior to the closing by no later than 12:00 p.m. on April 9, 2025.
c. Mr. Diab shall be permitted to have access to the matrimonial home from April 9, 2025 at 3:00 p.m. on provided he gives Ms. Lowerison at least two hours’ notice of his intention to enter the home until the closing of the sale of the home to dispose of and do whatever necessary to ensure there is vacant possession of the matrimonial home in accordance with the agreement of purchase and sale.
d. Ms. Poka shall seek leave of this court to take any further step in this proceeding.
e. Ms. Lowerison shall ensure that the purchasers have access to the property between now and the closing as requested in accordance with the 3 visits sought by them.
f. For every day that Ms. Poka and/or Demitry are not in compliance with the disclosure orders made in this proceeding, she shall pay an additional fine of $100 a day until she is in compliance with the order or until the trial of this matter, which sum shall be paid into court.
g. The parties are encouraged to agree on costs of today’s motion which also includes the time spent at the attendance before me on February 11, 2025. If they cannot agree, each party shall serve and file written costs submissions of no more than 3 pages, not inclusive of Offers to Settle or Bills of Costs, within 15 days from the release of this Endorsement.
Deborah A. Kraft
Date: March 14, 2025