CITATION: Sahebolamri v. Sahebolamri, 2018 ONSC 5691
DIVISIONAL COURT FILE NO.: DC 17-1067 DATE: 20180927
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. Horkins, Bale, Labrosse JJ.
BETWEEN:
Yakta Sahebolamri Appellant/Applicant
Ahmad Sahebolamri Respondent
M. Polisuk, counsel for the Applicant/Appellant
S. Hirschberg, counsel for the Respondent
HEARD at Oshawa: September 26, 2018
C. HORKINS J.
[1] This is an appeal from the order of Justice MacPherson (“motion judge”) dated November 17, 2017 (the “order”). The order directed that the matrimonial home be listed for sale within 90 days.
[2] The appellant/applicant Yakta Sahebolamri (“wife”) and the respondent Ahmad Sahebolamri (“husband”) were married in June 1980. They separated in 2004. They have four adult children.
[3] The wife commenced this application in July 2005. She amended her Application in September 2005 and again in March 2016. The wife has not claimed equalization of net family property. In the husband’s Answer he claims equalization of net family property.
[4] The parties are joint owners of a matrimonial home in Richmond Hill. Since separation, the wife has resided in the home and the husband lives in alternative accommodation. There is no order giving the wife exclusive possession of the matrimonial home.
[5] The matrimonial home was valued in 2016 at $2,300,000 to $2,400,000. In 2017, the parties owed $100,000 to 125000 on the mortgage. There is a considerable amount of equity in the matrimonial home.
[6] The husband brought a motion for sale of the matrimonial home so that he could access his equity. He requested that each party receive $500,000 from the net sale proceeds and that the rest of the equity be held in trust pending final resolution of the Application. He requested additional relief including disclosure from the wife, questioning, severance of the divorce claim and an order that she pay him occupation rent from the date of separation.
[7] The motion judge ordered questioning, severance of the divorce claim and the sale of the matrimonial home. It is the order for sale of the matrimonial home that the wife appeals.
[8] The motion judge found that an order for sale of the matrimonial home was inevitable at trial. In deciding to order the sale, the motion judge noted that there are no dependent children. Dealing with the issue of equalization, he noted that the wife has not actively pursued an equalization claim and it was not clear on the record that equalization was owed to her.
[9] Since there is a significant amount of equity in the matrimonial home to satisfy an equalization claim, the motion judge could see no prejudice to the wife’s “potential claims” if the matrimonial home was sold. As a result he granted the husband’s motion and ordered that the matrimonial home be listed for sale in 90 days.
[10] The wife appeals the sale order and raises two grounds of appeal:
The motion judge erred in finding that sale of the matrimonial home at trial was inevitable.
The motion judge erred in finding that it was unclear if equalization was owed to the wife because he had two competing affidavits before him.
standard of review
[11] The standard of review on an appeal of a judge’s order is set out in in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, the Court stated that there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
analysis
[12] Sections 2 and 3 of the Partition Act, R.S.O. c. P.4 provide as follows:
- All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
3.(1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
[13] The law dealing with partition and sale is clear. A joint tenant has a prima facie right to sale prior to trial. This right exists unless the other joint tenant has made claims that would be prejudiced if the property is sold. The party that resists the application for sale, should have an order for exclusive interim possession, or be able to show that the claims she intends to put forward at trial will be prejudiced by an immediate sale. Batler v. Batler (1988), 18 R.F.L. (3d) 211 (Ont. H.C.).
[14] The issue of partition and sale was addressed further in Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.); and Martin v. Martin (1990), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff'd at (1991), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev'd in part at (1992), 38 R.F.L. (3d) 217 (Ont. C.A.). In summary, the Court of Appeal has stated that a joint owner has a prima facie right to partition and sale but this is not an absolute right. The order should not be made where it can be shown that it would prejudice the rights of either spouse. Numerous recent cases have followed this recent appellate authority: Goldman v Kudeyla 2011 ONSC 2718; Bonnick v Bonnick 2016 ONSC 657; Brienza v Brienza 2014 ONSC 6942; Allard v Sylvain-Allard 2015 ONSC 2052; Koehler v Koehler 2015 ONSC 5777.
[15] The wife’ counsel argues today that the wife provided sufficient proof that her rights would be prejudiced by the sale of the home and payment of $500,000 to each party from the net equity. Her argument relates to $800,000 that the husband brought with him to Canada when he applied for entry to Canada in 1985 under the Entrepreneur Program. The wife says that she is entitled to equalization of this money and the interest that should have accrued. If funds are advanced from the sale proceeds she says that this claim will be prejudiced. The husband’s affidavit explains what he did with the money. He states that he invested the $800,000 in the Korhani group of companies in order to gain residency in Canada under the Entrepreneur Program. His application for the residency permit shows that he did bring money with him to Canada. The husband states that he invested this money in the Korhani business. This is the wife’s family business. Around this time, the wife received shares in her family business. Although she says that the shares were gifted to her, no evidence is provided.
[16] In her affidavit responding on the motion, the wife disputes the husband’s evidence. Her reply is simply “I disagree with this”. She provided no evidence from any of her family members to dispute the husband’s evidence about what he did with the $800,000. This is her family and such evidence was available to her.
[17] The motion judge’s decision was correct in law and he made no palpable and overriding errors of fact. The motion judge could see no prejudice to the wife’s “potential claims” if the matrimonial home was sold. He found that there was ample equity in the home to address a “potential” claim. The wife offered no evidence to show that a sale would prejudice her rights. Simply stating that she disagreed with the husband’s evidence about the $800,000 was not sufficient.
[18] It was clear that the matrimonial home would be sold at trial if not ordered beforehand, because the parties are joint owners and the husband has a prima facie right to partition and sale.
[19] In summary, there is no basis for the wife’s appeal and it is dismissed.
[20] It is necessary to reset the running of the 90 day time period for the sale of the matrimonial home and this is dealt with in our orders.
conclusion
[21] The following orders are made:
The appeal is dismissed.
The 90 day time period in paragraph 3 of the order of MacPherson J shall start to run on October 1, 2018.
The appellant shall pay the respondent costs fixed at $5,000 all-inclusive payable from of the net proceeds of the sale of the matrimonial home.
___________________________ C. Horkins J.
I agree: ___________________________
Bale J.
I agree: ___________________________
Labrosse J.
Released: September 27, 2018
CITATION: Sahebolamri v. Sahebolamri, 2018 ONSC 5691
DIVISIONAL COURT FILE NO.: DC 17-1067 DATE: 20180926
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. Horkins, Bale, Labrosse JJ
BETWEEN:
Yakta Sahebolamri Appellant/Applicant
Ahmad Sahebolamri Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Date Heard: September 26, 2018
Released: September 27, 2018