DIVISIONAL COURT FILE NO.: 406-21
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, McCarthy JJ.
BETWEEN:
XIANBO LIU
Appellant
– and –
QIN YIN
Respondent
Helen Yiran Shao for the Appellant
Heng (Pandora) Du for the Respondent
Heard by videoconference in Toronto on April 5, 2022
Backhouse J.
Nature of Proceeding
Nature of Proceeding
1This is an appeal from the Order of Papageorgiou J. (the “motion judge”), made on April 21, 2021, for partition and sale of 811-38 Lee Centre Drive, Scarborough Ontario (the “Matrimonial Home”). The Appellant, Xianbo Liu, seeks a stay of the Order on the basis that the motion judge made serious errors of law, fact, and mixed law and fact.
2For the reasons set out below, the appeal is dismissed.
Background
Background
3The parties met in September 2013 and married on October 4, 2013. There are no children of the marriage. On September 11, 2017, the parties separated without prospect of reconciliation.
4Both parties allege violent/abusive behaviour. The motion judge was unable to resolve who was at fault. She noted that the parties had not communicated since April 2019, and that both parties had complied with Justice Moore’s mutual no-contact clause.
5The Matrimonial Home is owned jointly. After the parties separated, the Respondent, Qin Yin, moved out of the Matrimonial Home and purchased a condominium in British Columbia where she now lives. The Appellant continues to live in the Matrimonial Home and changed the locks in 2019. The mortgage encumbering the Matrimonial Home will mature on June 1, 2022. Due to the breakdown of the parties’ marriage, the Respondent will not renew the mortgage with the Appellant.
Procedural History
Procedural History
6On May 14, 2019, the Respondent brought an application for divorce. On October 9, 2019, Justice Moore made various Orders, including that no motion seeking leave to list the Matrimonial Home for sale be brought prior to a settlement conference returnable January 8, 2020.
7On November 18, 2019, the parties’ divorce was finalized with issues regarding the division of the Matrimonial Home and the equalization of net family property remaining outstanding.
8Neither the Appellant nor her counsel attended the settlement conference on January 8, 2020 for reasons related to the Appellant’s health. When the Court resumed operations after pandemic-related delays, the Respondent directed her counsel to move the matter forward with a motion for sale scheduled for April 6, 2021. The motion judge adjourned the motion on consent to April 21, 2021 and ordered the Appellant to provide: 1) confirmation and hospital records to support the allegation that the Appellant was in hospital or ill on the January 8, 2020 settlement conference; and 2) proof of alleged loans from the Appellant’s parents. Neither was provided.
9The motion for partition and sale proceeded before the motion judge on April 21, 2021. She considered the Appellant’s submissions on: the requirement for a settlement conference; hardship due to COVID-19; hardship due to the Appellant’s health; abuse; competing interests to an unequal division based on a loan and on payments made toward the Matrimonial Home.
10The motion judge determined that the Respondent had a prima facie right to partition and sale of the Matrimonial Home before trial. She found that the Appellant had failed to
Issues
establish that the proposed sale was malicious, vexatious, or oppressive. Further, while the Appellant established a prima facie case of a competing interest under the Family Law Act to an unequal distribution of the net family property based on her having paid the Matrimonial Home expenses for the last four years, she had not established a prima facie case with respect to the alleged loan from her parents. Given the Appellant’s lack of documentation in both regards and the Respondent’s proposal to hold back funds from the sale to satisfy any successful claims, the motion judge found that the Appellant did not establish that the sale would cause her any prejudice. Accordingly, the motion judge ordered that the Matrimonial Home be listed for sale with various conditions.
Issues
11The Appellant submits that the motion judge made three errors:
The motion judge erred by misunderstanding Justice Moore’s order;
The motion judge erred by ordering the sale of the Matrimonial Home even after finding that the Appellant had established a prima facie case to an unequal division of net family property; and
The motion judge erred by failing to take into account the totality of the evidence with respect to the malicious, vexatious or oppressive conduct associated with the sale of the home.
12The Respondent submits that the Appellant has failed to identify any specific errors in fact, law or in the application of legal tests.
Standard of Review
Standard of Review
13The standard of review for judicial appeals is set out 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, if there is an extricable legal principle, the standard of review is correctness; with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
Issue #1:Did the motion judge err by misunderstanding Justice Moore’s order?
Issue #1: Did the motion judge err by misunderstanding Justice Moore’s order?
14The Appellant submits that the motion judge erred in making an Order for partition and sale despite Justice Moore’s Order that the Matrimonial Home not be sold until after the January 8, 2020 settlement conference. The Appellant submits that she should have been given a chance to resolve the issue via settlement conference, which she submits that she was unable to attend due to her mental illness and COVID-19 related court delays.
15The motion judge properly addressed the issue of a settlement conference in her decision. She found that it was not material to her decision whether the reasons for the Appellant’s failure to attend were legitimate. She recognized that: at the time the motion for sale was heard, it was well over a year since the scheduled settlement conference was meant to be
heard; Justice Moore’s Order only delayed the sale of the Matrimonial Home to January 8, 2020; nothing had happened since January 8, 2020 and there is no rule of law requiring that an application for partition and sale be brought after a settlement conference. Further, the motion judge found that the Appellant failed to file any evidence of how she could afford to purchase the Matrimonial Home. There is no basis to find that the motion judge erred in regard to these findings.
Issue #2: Did the motion judge err by ordering the sale of the Matrimonial Home even after finding that the Appellant had established a prima facie case to an unequal division of net family property?
Issue #2: Did the motion judge err by ordering the sale of the Matrimonial Home even after finding that the Appellant had established a prima facie case to an unequal division of net family property?
16The Appellant submits that the parties have not yet satisfied all of their financial disclosures and a decision regarding the Matrimonial Home should not be made before the equalization determination has been made.
17The motion judge noted that she had ordered the Appellant to provide disclosure which the Appellant did not do. The Appellant had not updated her financial statement since 2019 or filed a net family property statement. The Respondent had made full disclosure. The motion judge found that the Appellant cannot rely on her own failure to provide disclosure and an Order requiring her to do so as some kind of evidence of prejudice related to the motion for sale. Equally, the Appellant cannot rely on her own failure to provide disclosure as a ground to set aside the motion judge’s decision.
18The motion judge properly considered the Appellant’s claim for unequal division of net family property. She noted that she specifically asked the Appellant’s counsel to address the same. The motion judge appropriately addressed the post-separation contributions that the Appellant made for the Matrimonial Home. She found that having failed to furnish evidence of the loan, the Appellant had failed to establish a prima facie case that she has a competing interest to an unequal distribution of the net family property with respect to the loan. The motion judge further found that even if she had, the Appellant had not established that the proposed sale will defeat her claims because the Respondent proposed that sufficient funds be held back after the sale to satisfy both of the claims if she is ultimately successful. The motion judge addressed the Appellant’s concerns regarding unequal division of net family property and post-separation contributions to the Matrimonial Home by ordering that $50,000 from the net sale proceeds be held in trust pending further court order or the parties’ written agreement. There is no error of law or fact here.
Issue #3: Did the motion judge err by failing to take into account the totality of the evidence with respect to the malicious, vexatious or oppressive conduct associated with the sale of the home?
Issue #3: Did the motion judge err by failing to take into account the totality of the evidence with respect to the malicious, vexatious or oppressive conduct associated with the sale of the home?
19The Appellant submits that the motion judge made serious errors in weighing the evidence of malicious, vexatious, or oppressive conduct associated with the sale of the Matrimonial Home. She submits that the motion judge minimized the seriousness of her mental health concerns. She submits that the motion judge erred in not inferring that the sale of the
Matrimonial home would be oppressive from her medical evidence to the effect that she suffers from panic attacks and should not be participating in family law proceedings.
20The Appellant submits that selling the Matrimonial Home would be an extremely stressful situation for her. She would be left essentially homeless and forced to find new accommodations during a global pandemic. This would be upsetting and she may become overwhelmed by the whole process. She submits that, given the current housing market, she would be unable to afford a home in a similar community or condition and would have difficulties finding an affordable rental unit.
21The motion judge found that the Appellant failed to establish that the proposed sale is malicious, vexatious or oppressive. She found that the alleged abuse is not in relation to the motion for sale as it allegedly occurred prior to April 2019. She notes that the mere bringing of a motion for sale, four years after the respondent left the Matrimonial Home, does not satisfy the test merely because there is an ongoing pandemic. She found that it will take time to market the home for sale and the parties will have to jointly deal with offers, so there will be some control over the closing date to ensure that the Appellant has sufficient time to find a place to live. The motion judge also noted that the Appellant will have proceeds of sale to assist her in this regard.
22The motion judge found that the Appellant’s evidence related to her mental health is not substantial or recent. She found that there is no medical report before her or evidence that the Appellant’s diagnosed mental health issues will suffer significantly (or at all) if there is an order for sale. These are factual findings the motion judge was entitled to make and the Appellant’s submissions amount to nothing more than an attempt to reargue the motion. There is no palpable and overriding error.
23The motion judge’s reasons are both comprehensive and persuasive. The reasons correctly state the law with respect to the right of a joint tenant’s prima facie right to sale before trial. The motion judge properly considered both family law issues as well as whether the respondent (the moving party on the sale) engaged in malicious, vexatious or oppressive conduct related to the partition and sale itself. She considered the effect of the sale on the Appellant’s health. She correctly found that the financial circumstances are such that a sale would be the inevitable result of a trial and there is little reason for delaying the sale which will only result in increased expense and complexity for the parties. She correctly noted the absence of the kinds of considerations which have resulted in courts denying an interim motion for sale in other factual scenarios. There are no errors of law, fact, or mixed law and fact.
Conclusion
Conclusion
24The appeal is dismissed with costs to the Respondent in the amount of $4105.29 payable within 30 days. If the costs remain unpaid by the time of the sale of the matrimonial home, the costs shall be paid from the Appellant’s share of the net sale proceeds. .
I agree
I agree
McCarthy J.
Released: April 7, 2022
CITATION: Liu v. Yin, 2022 ONSC 2139
DIVISIONAL COURT FILE NO.: 406-21
DATE: 20220407
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, McCarthy JJ. BETWEEN:
XIANBO LIU
– and – QIN YIN
Appellant
Respondent
REASONS FOR JUDGMENT
Backhouse, J.
Released: April , 2022