Judy Louisa Antymniuk

The applicant brought a motion for the partition and sale of the jointly owned matrimonial home, while the respondent brought a cross-motion for interim exclusive possession.

The parties had been separated for several years, and the respondent had resided in the home since 2014.

The court found that the respondent did not meet the test for exclusive possession under section 24(3) of the Family Law Act, as there were no dependent children and no evidence of alternate accommodation unavailability.

The court ordered the partition and sale of the home, noting that a claim for permanent exclusive possession was unrealistic and there was no valid reason to delay the sale.

The respondent mother brought a motion to change prior consent orders governing child support, seeking retroactive offset child support and s. 7 daycare expenses dating back to 2008, as well as transfer and control of an RESP account funded by the father.

The court held that the 2007 consent order barred any attempt to vary child support prior to March 1, 2013, and that the mother had knowingly consented to the subsequent 2008 order modifying the financial arrangements, including replacing child support payments with the father’s responsibility for daycare costs and RESP contributions.

The court found no basis to set aside those agreements and rejected the claim for retroactive child support arrears.

However, the court determined that fairness required restructuring the RESP arrangement to reflect the parties’ intentions and avoid unilateral control.

The RESP was ordered to be held jointly by both parents for the benefit of the child, with education expenses to be paid from the fund before proportional contributions from the parents.