



WARNING

The President of the panel hearing this appeal directs  that the following should be attached to the file:

On June 7, 2011, Justice Paisley
,
the  presiding judge, made an order directing that any information that could  identify the parties or children involved in this proceeding   shall not be published in any document or  broadcast or transmitted in any way.

He also ordered that access to the court file shall be  restricted to the parties, their counsel and the Office of the Children’s  Lawyer.

This order has not expired and has not been rescinded  by the court.  As a result, the order  restricting publication and access in this proceeding shall continue.




COURT OF APPEAL FOR ONTARIO

CITATION: M.V. v. T.T.T., 2013 ONCA 379

DATE: 20130606

DOCKET: C55499

Doherty, Goudge and Hoy JJ.A.

BETWEEN

M.V.

Plaintiff (Appellant)

and

T.T.T.

Respondent (Respondent)

Rod Byrnes, for the appellant

James B.C. Edney, for the respondent

Heard: December 13, 2012

On appeal from the order and the costs order of Justice Michael
    A. Penny of the Superior Court of Justice, dated April 13, 2012 and June 7,
    2012.

ENDORSEMENT

[1]

The appellant, a discharged bankrupt, appeals the order of Penny J. of
    April 13, 2012 striking the designation of matrimonial home that the appellant
    registered on title on January 25, 2012 as instrument number AT2928231, and prohibiting
    the appellant from registering another matrimonial home designation on title. 
    The appellant also seeks leave to appeal the related costs order.

[2]

Before the appellant and the respondent separated, the appellant made an
    assignment in bankruptcy.  She voluntarily vacated the matrimonial home and has
    since taken no steps to obtain possession.  The respondent and the appellants
    trustee in bankruptcy settled the appellants equalization claim, including her
    claim in relation to the matrimonial home.  The trustee gave the appellant
    notice of the motion to approve the settlement.   The appellant did not appear
    or oppose court approval of the settlement.  The settlement was approved by the
    court.  It provided,
inter alia
, that the respondent would be at
    liberty to alienate the matrimonial home.

[3]

Following court approval, the appellant refused to remove the
    designation of matrimonial home that she had registered against the property. 
    She argued that her claim for possession of the matrimonial home had to be
    resolved first.  The trustee brought a motion, and Campbell J. ordered the
    removal of the designation.  On January 25, 2012 the appellant registered a
    second designation  the one at issue on this appeal.

[4]

Penny J. ordered the discharge of the second designation on the basis
    that it was contrary to Campbell J.s order. He also prohibited the appellant
    from registering another order.  Penny J. indicated that the appellants
    argument as to the alleged prejudice to her possessory rights was not
    compelling and that though she was still at liberty to pursue those rights, she
    would have to do so in compliance with court orders.

[5]

The trustee in bankruptcy did not appear on this appeal and the
    respondent takes no position except to assert that the appeal is without merit.

[6]

Section 19 of the
Family Law Act
, R.S.O. 1990, c. F.3, as
    amended provides that the right to possession of the matrimonial home is a
    personal right against the other spouse that ends when the parties cease to be
    spouses unless a separation agreement or court order provides otherwise.

[7]

In our view, the appellant cannot in the circumstances of this case rely
    on the entitlement under section 19 to impede the effect of a court-approved settlement
    that was both on notice  to, and unopposed by, her.

[8]

We accordingly dismiss this appeal, and deny leave to appeal the related
    costs order.  In the circumstance, there shall be no costs of this appeal.

Doherty J.A.

S.T. Goudge J.A.

Alexandra Hoy J.A.


