



COURT OF APPEAL FOR ONTARIO

CITATION: Spadacini Kelava v. Kelava, 2021
    ONCA 345

DATE: 20210519

DOCKET: M52443 (M52096)

Jamal
    J.A. (Motions Judge)

BETWEEN

Joelle
    Spadacini Kelava

Responding Party

and

David George
    Kelava

Moving Party

Donna Wowk, for the moving party

Martha McCarthy, for the responding
    party

Heard: May 17, 2021 by video conference

REASONS
    FOR DECISION

[1]

The moving party husband (husband) moves to stay
    portions of the order of Kurz J. of the Superior Court of Justice made on
    December 17, 2020 (Order) declaring that the responding party wife (wife)
    is a 50% joint owner of the matrimonial home and directing it to be listed for
    sale by March 1, 2021.

[2]

The husbands materials on the motion for the
    stay were unclear as to whether he sought a stay pending only the decision on his
    motion for leave to appeal to this court from the Order, or whether, if leave was
    granted, he sought a stay pending the decision on any appeal. In oral
    submissions, however, counsel for the husband clarified that he seeks a stay pending
    only the decision on his motion for leave to appeal.

[3]

The husband tried in mid-February 2021 to obtain
    the wifes consent to stay the Order pending a decision on his motion for leave
    to appeal, but she did not consent. The husband has thus been in breach of the
    Order for about 11 weeks.

[4]

For the reasons that follow, the motion to stay
    the Order is dismissed.

Background

[5]

The parties married in 2000. They have two
    children of the marriage, aged 12 and 11. Both children have special needs. The
    younger child has severe autism, while the older child has Attention Deficit
    Hyperactivity Disorder or ADHD.

[6]

In 2006, the parties bought a five-bedroom matrimonial
    home in Oakville. The wife contributed $120,000 of her savings towards the purchase
    price and was jointly on the mortgage covenant. For a long time, both the
    husband and wife believed they jointly owned the matrimonial home.

[7]

In 2014, the wife relocated with the children to
    Indianapolis to obtain specialized treatment for their younger childs autism.
    The husband stayed in Ontario. About a year later, the parties separated and
    the wife began family law proceedings in Ontario.

[8]

The husband and wife arbitrated their family law
    dispute before an arbitrator. In their financial statements filed with their
    pleadings, both parties listed the matrimonial home as jointly owned. Both
    continued to believe this and represented this position in the family law
    proceedings until about the end of May 2019. At that time, when refinancing the
    matrimonial home, the husband learned that it was registered in his name alone.
    The weekend before the arbitration began in July 2019, the husband now claimed
    that the matrimonial home was his alone and that only he should benefit from
    any post-separation increase in value during the four years since the parties separation.

[9]

The arbitrator rendered an award dated September
    10, 2019, addressing both parenting and financial matters. He ordered the
    children returned to the Toronto area. He rejected the wifes argument that the
    husband should be estopped from claiming that the matrimonial home was his alone
    and decided that it should be treated as solely the husbands asset for equalization
    purposes.

[10]

Both parties appealed the arbitrators award.
    The wifes appeal focussed on the return of the children to Ontario and the
    treatment of the matrimonial home as solely the husbands asset.

[11]

The appeal was heard by Kurz J. (appeal judge)
    of the Superior Court of Justice. He decided the more pressing parenting issues
    in reasons dated September 16, 2020, reported as
Spadacini-Kelava v. Kelava
,
    2020 ONSC 5561, upholding the arbitrators order that the children be returned
    to Ontario. He then decided the financial issues in reasons dated December 17,
    2020, reported as
Spadacini-Kelava v. Kelava
, 2020 ONSC 7907, 52
    R.F.L. (8th) 143, finding that the matrimonial home should be treated as
    jointly owned. Since the husband had taken the property off the market, the
    appeal judge ordered that it be listed for sale by March 1, 2021.

[12]

As ordered by the appeal judge, the wife returned
    to Ontario in December 2020. Her unchallenged evidence on this motion is that,
    for the past five months, she and the children have been living in her parents
    bungalow. One child shares a bed with his grandmother, while the wife and the
    other child sleep on a couch in the basement. The wife cares for the children
    full-time. Without the balance of the equalization payment owed to her or
    access to the equity in the matrimonial home, she cannot afford a down payment
    or qualify for a mortgage.

[13]

On January 6, 2021, the husband filed his notice
    of motion for leave to appeal to this court from the Order of the appeal judge.
    He seeks leave to appeal on various grounds, including alleged procedural
    unfairness, errors of law, and errors of mixed fact and law.

[14]

On April 28, 2021, the husband moved to stay the
    appeal judges Order requiring that the matrimonial home be listed for sale by
    March 1, 2021.

[15]

The husband has no statutory right to appeal to
    this court. He has exercised a first right of appeal to the Superior Court, without
    leave, as provided under the parties mediation-arbitration agreement:
Arbitration
    Act, 1991
, S.O. 1991, c. 17, ss. 45(2), (3) and (6). A second appeal
    requires leave of this court:
Arbitration Act, 1991
, s. 49.

The
    Test for a Stay

[16]

To obtain a stay of a judgment pending a motion
    for leave to appeal, a moving party must meet the three-part test for an
    interlocutory injunction: (1) a serious question to be determined on the motion
    for leave to appeal; (2) the moving party will suffer irreparable harm if the
    stay is denied; and (3) the balance of convenience favours granting the stay:
RJR
     MacDonald Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p.
    334.

[17]

In applying this test, the court is mindful that
    [t]hese three criteria are not watertight compartments. The strength of one
    may compensate for the weakness of another. Generally, the court must decide
    whether the interests of justice call for a stay:
Circuit World Corp. v.
    Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p. 677.

Application to This Case

(1)

Serious question to be determined

[18]

The threshold to establish a serious question to
    be determined is low. The court must make a preliminary assessment of the
    merits of the case and determine whether the issues are neither frivolous nor
    vexatious:
RJR  MacDonald
, at p. 337;
Circuit World
, at
    p. 677.

[19]

The husbands notice of motion for leave to
    appeal raises several grounds, including alleged procedural unfairness, errors
    of law, and errors of mixed fact and law. He asserts that the appeal judge
    erred because the wife did not apply for ownership of the matrimonial home at
    the arbitration or plead material facts supporting such an application and that
    she made these arguments for the first time on appeal. He also claims that the
    appeal judge decided new arguments on appeal relating to issue estoppel,
res
    judicata
, and proprietary estoppel, largely on his own initiative.

[20]

During the oral argument, the wifes counsel fairly
    conceded that the question of whether the court should grant leave to appeal
    from the order declaring the wife the half-owner of the matrimonial home is not
    frivolous or vexatious, although she contended other aspects of the leave
    motion are baseless.

[21]

I accept and agree with the wifes concession.
    Although I have serious doubts about whether the husband can meet the stringent
    test for leave to appeal, the motion for leave to appeal is neither frivolous
    nor vexatious. The husband thus meets the low threshold to raise a serious
    issue.

(2)

Irreparable harm

[22]

Irreparable harm is harm which either cannot be
    quantified in monetary terms or which cannot be cured, usually because one
    party cannot collect damages from the other:
RJR  MacDonald
, at p.
    341.

[23]

The husband asserts that he will suffer
    irreparable harm in two respects if the stay is denied.

[24]

First, he says that the Order requires that he
    list for sale an asset  the matrimonial home  that he does not want to list for
    sale and that he would not have to list for sale if he obtains leave to appeal
    and then wins the appeal.

[25]

I do not accept this submission. On the evidence
    before me, the husband has not established irreparable harm. There is no
    evidence that the matrimonial home is unique or otherwise irreplaceable, and I
    am not satisfied on the evidence before the court that the husband could meet
    his equalization obligations without selling the house, even if he obtains
    leave to appeal and wins the appeal. Because the husband seeks a stay, he bears
    the evidentiary burden of establishing that he would not have to sell the
    matrimonial home if he succeeds on the motion for leave to appeal and on the appeal.
    He has not met this burden. By contrast, the wife adduced compelling evidence
    on this motion that her husband has been unable to manage his financial
    obligations since they separated. She provided evidence of his conduct in reducing
    and then defaulting on his mortgage payments, informing her they were at risk
    of losing the matrimonial home, defaulting on payment of property taxes, and
    defaulting on his child support obligations until the wife moved to compel payment.

[26]

Based on the record before me, I conclude that the
    first category of harm that the husband claims in being required to sell the matrimonial
    home is essentially harm that can be quantified in monetary terms. If he obtains
    leave to appeal and then wins the appeal, there can be a financial adjustment
    if necessary.

[27]

Second, the husband asserts that the matrimonial
    home is the only home the children have known and that given their special
    needs it would disrupt them to require them to visit him in a new home.

[28]

I do not accept this submission. There is no
    cogent and persuasive evidence before the court that the children would be
    harmed, far less harmed irreparably, if the matrimonial home is listed for
    sale.

The children have lived
    in Indiana for the last seven years. They visit their father only a few days a
    month and spend most of their time with their mother, living in difficult
    conditions in their grandparents bungalow. In these circumstances, as the wife
    contends, the children's interests would be far better served by selling the
    matrimonial home, as this would allow the wife to access the necessary capital
    to buy a home for herself and the children where the children would spend most
    of their time.

[29]

The husband has thus not met his burden of
    establishing irreparable harm.

(3)

Balance of convenience

[30]

Finally, the balance of convenience involves a
    determination of who would suffer the greater harm from granting or refusing
    the stay, pending a decision on the merits:
RJR  MacDonald
, at p.
    342.

[31]

I find that the wife will suffer greater harm if
    a stay is granted than the husband will suffer if the stay is refused.

[32]

Without access to the equity in the matrimonial
    home  to which a court has found she is legally entitled  the wife cannot
    purchase a home to provide the children with stable and comfortable living
    accommodation. The fathers response to this is to assert that at the time of
    the arbitration the wife intended to rent. But that was two years ago. The wife
    is now back in Ontario, as ordered by the arbitrator, and wishes to buy a home,
    as is her right. On the other side of the scale, I see no harm to the husband
    beyond the inconvenience of selling the house, which is not his preference. On
    these facts, I find the balance of convenience tips decisively in the wifes
    favour.

[33]

The wife has complied with the appeal judges
    order regarding parenting by returning to Ontario. It is only fair  and in the
    interests of justice  that the husband now immediately comply with the appeal
    judges order to list the matrimonial home for sale.

Disposition

[34]

The motion is dismissed.

[35]

If the parties cannot agree on costs, they may file
    brief written submissions of no more than 3 pages, with a bill of costs, within
    15 days.

M.
    Jamal J.A.


