Lesley Zychla, a joint tenant, sought interim exclusive possession of a property shared with her daughter, Laura Zychla, and son-in-law, Ryan Chuhaniuk, under the Partition Act.
The motion was brought due to Ryan's alleged aggressive behavior and non-compliance with COVID-19 social distancing protocols, which led Lesley, Laura, and the children to move into a women's shelter.
Ryan opposed, arguing the property was a matrimonial home and Partition Act relief should be deferred to Family Law Act rights.
The court granted Lesley temporary exclusive possession, finding jurisdiction under the Partition Act and that the "deferral" principle from Silva v. Silva did not apply.
The court applied the three-part injunction test, finding a serious issue, irreparable harm to Lesley's health, and the balance of convenience favoring Lesley, who had no alternative housing, unlike Ryan.
Costs were awarded to Lesley.
interesting_citations_summary: >
The decision clarifies the interplay between the Partition Act and the Family Law Act, particularly when a non-spouse joint owner seeks relief concerning a matrimonial home.
It distinguishes Silva v. Silva, emphasizing that deferral of Partition Act proceedings is not required when no Family Law Act application has been commenced and no prejudice to a spouse's substantive rights is established, especially when a third-party owner is involved.
The case also applies the three-part injunction test for interim exclusive possession, highlighting the consideration of health risks during a pandemic as irreparable harm and the availability of alternative housing in the balance of convenience.
final_judgement: >
The motion for interim exclusive possession of the property was granted to Lesley Zychla, effective April 18, 2020, pending the determination of her application under the Partition Act.
Ryan Chuhaniuk was ordered to pay Lesley Zychla $6,000 in costs within 60 days.
winning_degree_applicant: 1
winning_degree_respondent: 5
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2020
decision_number: 2484
file_number: "CV-20-83366"
source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc2484/2020onsc2484.html"
cited_cases:
legislation:
- title: "Partition Act, R.S.O. 1990, c.
P.4."
url: "https://www.ontario.ca/laws/statute/90p04"
- title: "Family Law Act, R.S.O. 1990, c.
F.3."
url: "https://www.ontario.ca/laws/statute/90f03"
case_law:
- title: "Silva v. Silva (1990), 1 O.R. (3d) 436, at para. 23"
url: "https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html"
- title: "Vaudrin v. Caron, 2014 ONSC 4821"
url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4821/2014onsc4821.html"
- title: "Granger v. Granger, 2015 ONSC 1711, at para. 68"
url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1711/2015onsc1711.html"
- title: "Wilkinson v. Wilkinson, 2012 ONCA 518"
url: "https://www.canlii.org/en/on/onca/doc/2012/2012onca518/2012onca518.html"
- title: "Davis v. Davis, [1953] O.J. No. 733 (C.A.)"
url: "https://www.canlii.org/en/on/onca/doc/1953/1953canlii148/1953canlii148.html"
- title: "Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413 (Div.
Ct.), at paras. 10-13"
url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc3413/2010onsc3413.html"
keywords:
- Partition Act
- Family Law Act
- Exclusive possession
- Matrimonial home
- Interim relief
- Injunction test
- COVID-19
- Social distancing
- Domestic violence
- Costs
areas_of_law:
- Property Law
- Family Law
- Civil Procedure
---
# Court File and Parties
**Court File No.:** CV-20-83366
**Date:** 2020/04/22
**Superior Court of Justice – Ontario**
**Re:** Lesley Zychla, Applicant
**And:** Laura Zychla and Ryan Chuhaniuk, Respondents
**Before:** Justice R. Ryan Bell
**Counsel:**
Meagan Jennings, Counsel for the Applicant
Laura Zychla, Self-represented
Alexi Durgali, Counsel for the Respondent Ryan Chuhaniuk
**Heard:** April 17, 2020 by telephone
---
# Endorsement
# Overview
[1] Lesley Zychla, Laura Zychla (Lesley’s daughter), and Ryan Chuhaniuk (Lesley’s son-in-law) own the property located at 2332 McGee Side Road, Carp, Ontario as joint tenants.
In September 2018, Laura and Ryan separated; however, until March 27, 2020, the parties, together with Laura and Ryan’s two children, continued to live at the property.
On March 27, 2020, Lesley, Laura and the children entered a women’s shelter.
[2] Lesley commenced an application under the [Partition Act, R.S.O. 1990, c.
P.4.](https://www.ontario.ca/laws/statute/90p04) Lesley’s motion for interim exclusive possession of the property until such time as her application for partition and sale of the property can be heard was deemed urgent on April 7, 2020.
[3] In brief, Lesley maintained that the living situation at the property had become untenable because Ryan had become aggressive towards her and had refused to abide by Public Health recommendations of social/physical distancing during the current pandemic.
On the recommendation of a counsellor with the Children’s Aid Society, Lesley, Laura, and the children moved into a women’s shelter.
Lesley, who is 71 years old, fears for her physical, emotional, and mental health.
A few days after being in the shelter, Lesley was briefly hospitalized when she displayed signs of aphasia.
[4] Lesley’s interests and Laura’s interests on the motion were aligned: if Lesley were granted temporary exclusive possession of the property, she would continue to allow Laura and the children to reside at the property.
[5] Ryan opposed the motion on the basis that he strictly follows Public Health social/physical distancing protocols and he denies Lesley’s narrative concerning his behaviour.
Ryan maintained that because the property is Laura and Ryan’s matrimonial home, Lesley is not entitled to seek relief under the Partition Act without taking into account his rights under the [Family Law Act, R.S.O. 1990, c.
F.3.](https://www.ontario.ca/laws/statute/90f03)
[6] Following the hearing of the motion on April 17, 2020, I granted Lesley temporary exclusive possession of the property (effective 10:00 a.m. on April 18, 2020), pending the determination of her application.
I provided the parties with brief oral reasons and advised that I would provide more detailed written reasons for my decision.
These are my written reasons.
# Jurisdiction/Test for Temporary Exclusive Possession
[7] Section 3(1) of the [Partition Act](https://www.ontario.ca/laws/statute/90p04) provides that any person interested in land in Ontario may make an application for the partition or sale of the land.
Section 2 states that all joint tenants, tenants in common and all parties interested in any land in Ontario may be compelled to “make or suffer” partition or sale of the land.
[8] Ryan did not dispute that Lesley has the right under the [Partition Act](https://www.ontario.ca/laws/statute/90p04) to seek temporary exclusive possession of the property; his position was that given the property is the matrimonial home of Ryan and Laura, Lesley cannot seek relief under the [Partition Act](https://www.ontario.ca/laws/statute/90p04) without taking into account his rights under the [Family Law Act](https://www.ontario.ca/laws/statute/90f03).
Ryan relied on the Court of Appeal’s decision in [Silva v. Silva (1990), 1 O.R. (3d) 436, at para. 23](https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html):
The two statutes [the Partition Act and the Family Law Act] are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.
[9] In [Silva](https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html), the wife had applied for an equalization of the net family property of the parties under the [Family Law Act](https://www.ontario.ca/laws/statute/90f03) and for partition and sale of the matrimonial home under the [Partition Act](https://www.ontario.ca/laws/statute/90p04).
The husband cross-applied for an unequal division of net family property.
Klowak J. ordered that the matrimonial home be immediately partitioned and sold.
The husband appealed on the basis that Klowak J. had no jurisdiction to order partition and sale under the [Partition Act](https://www.ontario.ca/laws/statute/90p04) because the effect of the divorce was to vest jurisdiction over family property in the [Family Law Act](https://www.ontario.ca/laws/statute/90f03).
The Court of Appeal dismissed the husband’s appeal and allowed the partition and sale of the home to proceed with the net proceeds divided equally between the parties.
[10] I am satisfied that this court has the jurisdiction to determine whether Lesley has the right to be granted temporary exclusive possession of the property and that the “deferral” described by the Court of Appeal in [Silva](https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html) does not apply.
I note the following:
* As a joint owner of the property, Lesley is entitled to apply for partition and sale of the property and to move for interim relief in the context of that application ([Vaudrin v. Caron, 2014 ONSC 4821](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4821/2014onsc4821.html)).
* Lesley seeks an interim order – not a final order – to secure her rights during the COVID-19 pandemic.
* No application under the [Family Law Act](https://www.ontario.ca/laws/statute/90f03) has been commenced.
* There was no “third party” in [Silva](https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html); the only parties were the husband and wife, and they were the only owners of the matrimonial home.
* Ryan has not established that he would suffer any prejudice to his substantive rights “as a spouse” if Lesley were granted temporary exclusive possession of the property.
* The Court of Appeal’s concern in [Silva](https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html) was with the prejudice to “the rights of either spouse under the F.L.A.”; [Silva](https://www.canlii.org/en/on/onca/doc/1990/1990canlii6718/1990canlii6718.html) does not address rights of a non-spouse, property owner.
[11] The test for exclusive possession is akin to the traditional three-part test for an injunction: (i) is there a serious issue to be tried; (ii) would the moving party suffer irreparable harm which cannot be adequately compensated by damages if the motion were not granted; and (iii) is the balance of convenience such that the moving party will suffer greater harm if the motion is not granted than the responding party will suffer if the motion is granted ([Granger v. Granger, 2015 ONSC 1711, at para. 68](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1711/2015onsc1711.html); [Wilkinson v. Wilkinson, 2012 ONCA 518](https://www.canlii.org/en/on/onca/doc/2012/2012onca518/2012onca518.html)).
## The Evidence
[12] Lesley’s evidence is that she began self-isolating at the end of February 2020 and has abided with all the Public Health recommendations for social distancing since that time.
Around March 20, 2020, Lesley became concerned that Ryan was not abiding with Public Health recommendations of social/physical distancing.
For example, on March 20, Ryan advised the children that he would be taking them to his sister’s in Ajax, and on March 21, the children advised Lesley and Laura that Ryan was going to take them out to a restaurant.
Ryan denies the version of events presented by Lesley and Laura.
Ryan deposed that he told Laura his plan to take the children to Ajax was made before the imposition of physical distancing protocols.
Once the protocols were in place, he changed his plans and he did not take the children to Ajax.
Ryan denies that he planned to take the children to a restaurant on March 21.
[13] On March 22 or 23, a heated exchange occurred among the parties.
According to Lesley, Ryan told the children that he was taking them out for a drive.
He refused to discuss where they were going.
Lesley reiterated to Ryan the principles of physical distancing and asked him to stay home out of concern for her health and the health of the children.
Frustrated, she asked Ryan when he would be vacating the property permanently.
Ryan then stood an “inch away” from Lesley, shouting at her and laughing at her concerns about COVID-19.
Lesley’s evidence is that on previous occasions, Ryan had told her, “I can do anything I want so long as I don’t touch you.” Lesley deposed that she is terrified that Ryan will resort to physical violence.
[14] Ryan deposed that he told Laura he was planning to take the children out for a drive.
At that point, Lesley came up to him and he started recording the conversation.
The recording was not produced in evidence.
According to Ryan, the children would have heard, but not seen, the exchange.
Laura continued to shout at Ryan as he went upstairs behind the children.
[15] Thereafter, Laura telephoned a crisis counsellor at the Children’s Aid Society who recommended that Lesley, Laura, and the children enter a women’s shelter.
On March 27, Ryan left the property without advising Lesley or Laura where he was going.
At that point, Lesley, Laura, and the children gathered their belongings and entered the women’s shelter.
[16] A few days later, Lesley began to display signs of aphasia and to drift in and out of consciousness.
She was admitted to hospital on April 1.
Following a series of tests, Lesley’s condition was determined to be caused by stress and improper eating.
Lesley attributes her condition to the lack of stability in her living situation.
[17] There is evidence that Ryan has alternative living arrangements available to him, at least until May 25, 2020.
Ryan has provided a detailed list of how he follows COVID-19 protocols.
## Application of the Test
[18] I am satisfied on the record before me that Lesley has met the three-part test for exclusive possession.
[19] First, Lesley has demonstrated that there is a serious issue to be tried regarding her right to possession of the property.
[20] The principles governing the partition and sale of land are the following: (i) a co-owner has a prima facie right to partition and sale; (ii) the other co-owner has a concomitant obligation to permit partition or sale; and (iii) the court should compel partition or sale unless there is a sufficient reason such an order should not be made ([Davis v. Davis, [1953] O.J. No. 733 (C.A.)](https://www.canlii.org/en/on/onca/doc/1953/1953canlii148/1953canlii148.html)).
The court retains a discretion to refuse any relief; however, the onus is on the responding party to demonstrate circumstances of malice, oppression or vexatious intent ([Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413 (Div.
Ct.), at paras. 10-13](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc3413/2010onsc3413.html)).
[21] As a co-owner of the property, Lesley has a prima facie right to possession.
She maintains that her right to possession is currently being limited as a result of Ryan’s behaviour in the context of the current pandemic.
In particular, Lesley contends that Ryan’s displays of aggression and his failure to adhere to social distance protocols have caused Lesley’s sense of safety to be threatened in her own home and have caused Lesley to enter a women’s shelter.
[22] Lesley is 71 years old.
Because of her age, she is at high risk for COVID-19.
Ryan concedes that during the incident on March 22 or 23, he did not respond to Lesley’s questions as to where he was going and who he would be encountering.
In the present context, and given her heightened risk with regard to COVID-19, Lesley’s questions were reasonable.
The fact that Ryan did not respond suggests that he did not take the increased risk to Lesley seriously.
[23] The fact that Lesley was prepared to expose herself to the risks associated with living in a women’s shelter during the current pandemic rather than remain at the property is cogent evidence that she genuinely fears for her physical, emotional, and mental health.
It is not disputed that within a few days of entering the women’s shelter, Lesley had to be hospitalized.
Finally, I note that in closing its file, the Children’s Aid Society reported that it had determined that the children were at risk of emotional harm resulting from exposure to domestic violence.
[24] Lesley has amply demonstrated that there is a serious issue whether her right to possession is being limited as a result of Ryan’s behaviour in the current pandemic context.
[25] Second, Lesley has met the irreparable harm branch of the test.
She is currently living in a women’s shelter, fearful that if she were to return to the property while Ryan continues to reside there, her physical, emotional, and mental health would be at risk.
Lesley would also be at heightened risk if she were to remain at the women’s shelter.
She has been hospitalized recently, and although there is no medical evidence in the record, the symptoms of aphasia and drifting in and out of consciousness are not in dispute.
These serious health risks constitute irreparable harm.
[26] Third, in my view, the balance of convenience strongly favours Lesley being granted temporary exclusive possession of the property.
As evidenced by her decision to enter a women’s shelter, Lesley has no alternative living arrangements.
If granted exclusive possession, Lesley will continue to allow Laura and the children to live at the property.
By contrast, there is evidence that Ryan has an alternative living arrangement available to him, at least until May 25, 2020.
# Conclusion
[27] For these reasons, on April 17, 2020, I made an order granting Lesley temporary exclusive possession of the property pending the determination of her application under the [Partition Act](https://www.ontario.ca/laws/statute/90p04).
[28] At the conclusion of the hearing, I invited the parties to make submissions on the issue of costs.
Lesley requested her costs of the motion in the amount of $7,000.
Ryan submitted that the costs of the motion should be reserved to the application judge.
Laura did not request any amount in respect of costs.
[29] In the circumstances of this case, and having particular regard to the urgency and the importance of the issue to all parties, I fix Lesley’s costs of the motion in the all inclusive amount of $6,000.
This amount is to be paid by Ryan to Lesley within 60 days.
---
Justice R. Ryan Bell
Date: April 22, 2020
