DIVISIONAL COURT FILE NO.: DC-22-0072-0000 DATE: 20230612
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, FITZPATRICK, HEBNER JJ.
BETWEEN:
Edward Paul Scanga
Sadia Chowdhury, for Mr. Scanga
Applicant (Respondent in Appeal)
– and –
Heather Ann Scanga
Peter Callahan, for the Appellant
Respondent (Appellant)
HEARD at Brampton (by ZOOM):
June 12, 2023
reasons for decision
Fitzpatrick J. (Orally)
1This is an appeal from the Order of Chozik J. following a motion made in a family law matter. The matter was heard September 28, 2022 at Milton, Ontario. Chozik J. gave oral reasons for decision. Further to the provisions of sections 2 and 3 of the Partition Act, Chozik J. ordered partition and sale of the parties’ matrimonial home and directed that the proceeds of sale be held by a mutually agreed real estate solicitor pending agreement or further order of the Court. Costs of $7,500 were awarded to the moving party, Mr. Scanga. A cross-motion seeking temporary exclusive possession of the home by Ms. Scanga was dismissed.
2The parties were in a long-term relationship, having been married in 1996 and separated in 2019. The matrimonial home that is the subject of the appeal was purchased in November 2002. Mr. Scanga left the home in December 2019. Ms. Scanga continued to live there with the couples’ two adult sons who were both continuing to pursue post-secondary education on a full-time basis. Mr. Scanga states that he continued to pay half of the expenses of the home, mortgage, auto insurance (in lieu of home insurance), life insurance premiums, property taxes and home line of equity pending the motion. On appeal, Ms Scanga argues that Mr Scanga’s contributions did not amount to 50% of the costs of the home, but did agree that Mr Scanga’s contributions were about $2,300.00 per month – material monthly expenses for this family.
3Mr. Scanga first raised the proposition of sale with Ms. Scanga in January 2020. Ms. Scanga proposed she would be interested in possibly buying out Mr. Scanga’s interest in June of 2021. The issue of sale did not advance further until March 2022 when Mr. Scanga commenced the motion seeking an order for sale.
4An appeal lies to this court of any order made under the Partition Act by operation of section 7 of the Act. As an order for sale was made, the order of Chozik J. is a final order (Nifco v. Nifco 2017 ONSC 7475 at para 6).
5The standard of review for statutory 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 ov*erriding error. On questions of mixed fact and law with respect to the application of the correct legal principles to the evidence, such as the case at bar, the standard of review is palpable and overriding error.
6In her appeal materials, Ms. Scanga does not address the appropriate standard of review. She does not describe a legal error made by the motions judge. Nor does she describe the aspects of the decision that constitute palpable and overriding error by the motions judge. We appreciate Ms. Scanga does not agree with the factual findings and the result on the motion, but the issue before us is not to consider anew what factual findings the motion judge should have made, but whether the decision below was a reasonable one based on the evidence before the judge and her exercise of discretion in all the circumstances.
7Ms. Scanga acknowledges an order for sale under the Partition Act is discretionary. Today, counsel acknowledges that, at some point, the equity of the house must be dealt with. Counsel was not able to answer the question of “when” this should be to our satisfaction. Chozik J.’s order means, practically, that this issue is to be dealt with now. We do not see how this is unreasonable, years after separation, where the children of the marriage, though still dependent, are adults.
8In our view, the reasons for ordering the sale by Chozik J. were clear and sufficient. She identified the legal test which balances the prima facie right of a titled party to sale with the corresponding obligation to consider whether a sale would prejudice the rights of a party resisting sale. Chozik J. considered the status quo circumstances of the parties and their adult children. Chozik found that Ms. Scanga had not produced evidence of prejudice sufficient to prevent an order for sale. Ms. Scanga’s rights to pursue other family law act remedies against Mr. Scanga were in no way affected by the order for sale. Chozik J., in our view, appropriately considered the provisions of section 24(3) of the FLA in determining that Ms. Scanga did not produce evidence entitling her to a prima facie entitlement to exclusive possession and therefore dismissed the relief she claimed on the motion.
9Finally, we note that Ms Scanga persisted in her position to be entitled to a permanent order for exclusive possession – an argument correctly identified as untenable by the motion judge. We appreciate that other issues will have to be addressed – whether on an interim or on a final basis, in conjunction with closing of the sale of the house. The motion judge did not deal with these issues, but instead directed that the proceeds be held in trust pending agreement of the parties or other court order. Obviously, Ms Scanga will be able to return to the court for access to funds – whether from the sale proceeds, an order for support – or some combination thereof – to address her post-sale living arrangements – and clearly the motion judge expected this would happen if the parties were unable to agree to reasonable arrangements between themselves. This was one way to address the need to re-structure this family’s affairs after sale, and we cannot say that it was unreasonable, particularly given the way in which the motion was argued below.
10Accordingly, the appeal is dismissed with costs payable forthwith fixed in the amount of $7,500.00.
Fitzpatrick J.
I agree:
I agree:_______________________________
Hebner J.
Oral Reasons Released: June 12, 2023
Written Endorsement Released: June 16, 2023
CITATION: Scanga v. Scanga, 2023 ONSC 3592
DIVISIONAL COURT FILE NO.: DC-22-0072-0000 DATE: 20230612
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Fitzpatrick and Hebner JJ.
Edward Paul Scanga
Applicant
(Respondent in Appeal)
- and -
Heather Ann Scanga
Respondent
(Appellant)
ENDORSEMENT
FITZPATRICK J.
Oral Reasons Released: June 12, 2023
Written Endorsement Released: June 16, 2023